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Sen. Franken Questions Judge Sotomayor at Supreme Court Nomination Hearings

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Wednesday, July 15, 2009; 6:05 PM

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LEAHY: (OFF-MIKE) Senator Specter.

And in the last of our -- of this round of questioning will be Senator Franken, the newest member of the committee.

Senator, I didn't officially welcome you the other day as I should have when we have new members, but welcome -- welcome to the committee. I offer you congratulations and condolences at the same time.

(LAUGHTER)

FRANKEN: Well, I'll take the congratulations.

LEAHY: You come in with one of the -- OK, well, that was most heartfelt. I'm glad you're here. Please go ahead.

FRANKEN: Thank you, Mr. Chairman.

And thank you, Judge Sotomayor, for sitting here so patiently and for all your thoughtful answers throughout the hearing.

Before lunch, our senior senator from Minnesota, Amy Klobuchar, asked you why you became a prosecutor, and you mentioned "Perry Mason." I was a big fan of "Perry Mason." I watched "Perry Mason" every week with my dad and my mom and my brother. And we'd watch the clock. And when -- we knew when it was two minutes to the half-hour that the real murder would stand up and confess. It was a great show.

And it amazes me that you wanted to become a prosecutor based on that show because, in "Perry Mason," the prosecutor, Berger, lost every week, with one exception that we'll get to later.

But I think that says something about your determination to defy the odds. And while you were watching "Perry Mason" in the South Bronx with your mom and your brother, and I was watching "Perry Mason" in suburban Minneapolis with my folks and my brother, and here we are today. And I'm asking you questions because you have been nominated to be a justice of the United States Supreme Court. I think that's pretty cool.

As I said in my opening statement, I see these proceedings both as a way to take a judgment of you and of any nominee suitability for the high court, but also as a way for Americans to learn about the court and its impact on their lives.

Right now, people are getting more and more of their information on the Internet. We're getting newspapers and television and blogs and radio. Americans are getting all of it online.

It plays a central role in our democracy by allowing anyone with a computer connected to the Internet to publish their ideas, their thoughts, their opinions, and reach a worldwide audience of hundreds of millions of people in seconds. This is free speech, and this is essential to our democracy and to democracy. We saw this in Iran not long ago.

Now, Judge, you're familiar with the Supreme Court's 2005 Brand X decision, are you?

SOTOMAYOR: I am.

FRANKEN: OK. Well, then you know that Brand X deregulated Internet access services, allowing service providers to act as gatekeepers to the Internet, even though the Internet was originally government funded and built on the notion of common carriage and openness. In fact, we've already seen examples of these companies blocking access to the Web and discriminating on certain uses of the Internet. This trend threatens to undermine the greatest engine of free speech and commerce since the printing press.

Let's say you're living in Duluth, Minnesota, and you only have one Internet service provider. It's a big mega-corporation, and not only are they the only Internet service provider, but they're also a content provider. They provide -- they own newspapers. They own TV networks. They -- or network. They have a movie studio.

FRANKEN: They decide to speed up their own content and slow down other content. The Brand X decision by the Supreme Court allows them to do this. And this isn't just Duluth. It's Moorhead, Minnesota, it's Rochester, Minnesota, it's Youngstown, Ohio. It's Denver. It's San Francisco. And, yes, it's New York.

This frightening. It's frightening to me and to millions of my constituents or lots of my constituents.

Internet connections use public resources; the public airwaves, the public rights of way. Doesn't the American public have a compelling First Amendment interest in ensuring that this can't happen and that the Internet stays open and accessible? In other words, that the Internet stays the Internet?

SOTOMAYOR: Many describe the telephone as a revolutionary invention, and it did change our country dramatically. So did television. And its regulation of television and the rules that would apply to it were considered by Congress, and those regulations have -- because Congress is the policy chooser on how items related to interstate commerce and communications operate.

And that issue was reviewed by the courts in the context of the policy choices Congress made. There is no question in my mind as a citizen that the Internet has revolutionized communications in the United States. And there's no question that access to that is a question that society is -- that our citizens as well as yourself are concerned about.

But the role of the court is never to make the policy. It's to wait until Congress acts and then determine what Congress has done in its constitutionality in light of that ruling. Brand X, as I understood it, was a question of which government agency would regulate those providers.

And the court, looking at Congress' legislation in these two areas, determined that it thought it fit in one box not the other, one agency instead of another.

FRANKEN: Is this Title 1 and Title 2? Or as I understand it, Title 2 is very -- is subject to a lot of regulation and Title 1 isn't.

SOTOMAYOR: Exactly. But the question was not so much stronger regulation or not stronger regulation. It was which set of regulations, given Congress' choice, controlled. Obviously, Congress may think that the regulations the court has, in its holding interpreting Congress' intent and that Congress thinks the court got to wrong, we're talking about statutory interpretation and Congress' ability to alter the court's understanding by amending the statute if it chooses.

SOTOMAYOR: This is not to say that I minimize the concerns you express. Access to Internet, given its importance in everything today -- most businesses depend on it. Most individuals find their information. The children in my life virtually live on it now.

And so its importance implicates a lot of different questions: freedom of speech, freedom with respect to property rights, government regulation. There's just so many issues that get implicated by the Internet that what the court can do is not choose the policy. It just has to go by interpreting each statute and trying to figure out what Congress intends.

FRANKEN: I understand that. But isn't there a compelling First Amendment right here for people? No matter what Congress does -- and I would urge my colleagues to take this up and write legislation that I would like -- but isn't there a compelling, overriding First Amendment right here for Americans to have access to the Internet?

SOTOMAYOR: Rights by a court are not looked at as overriding in the sense that I think a citizen and not -- or a citizen would think about it. Should this go first or should a competing right go second?

Rights are rights. And what the court looks at is how Congress balanced those rights in a particular situation and then judges whether that balance is within constitutional boundaries.

Calling one more compelling than the other suggests that there's sort of, you know, property interests are less important than First Amendment interests. That's not the comparison a court makes. The comparison a court makes starts with what balance did Congress choose first? And then we'll look at that and see if it's constitutional.

FRANKEN: OK, so we've got some work to do on this.

I want to get into judicial activism. I brought this up in my opening statement. As I see it, there's kind of an impoverishment of our political discourse when it comes to the judiciary. I'm talking in politics.

When candidates or officeholders talk about the -- what kind of judge they want, it's very often just reduced to, "I don't want an activist judge. I don't want a judge that's going to legislate." And that's sort of it. That's it. It's a 30-second sound bite.

As I and a couple of other senators mentioned during our opening statements, judicial activism has become a codeword for judges that you just -- you don't agree with.

Judge, what is your definition of judicial activism?

SOTOMAYOR: It's not a term I use. I don't use the term, because I don't describe the work that judges do in that way. I assume the good faith of judges in their approach to the law, which is that each one of us is attempting to interpret the law according to principles of statutory construction and other guiding legal principles, and to come in good faith to an outcome that we believe is directed by law.

When I say we believe, hopefully we all go through the process of reasoning it out and coming to a conclusion in accordance with the principles of law.

SOTOMAYOR: I think you're right that one of the problems with this process is that people think of activism as the wrong conclusion in light of policy. But hopefully judges -- and I know that I don't approach judging in this way at all -- are not imposing policy choices in -- or their views of the world or their views of how things should be done. That would be judicial activism, in my sense, if a judge was doing something improper like that.

But I don't use that word because that's something different than what I consider to be the process of judging, which is each judge coming to each situation trying to figure out what the law means, the applying it to the particular fact before that judge.

FRANKEN: OK, you don't use that -- that word or that phrase. But in political discourse about the role of the judiciary, that's almost the only phrase that's ever used. And I think that there has been an ominous increase in what I consider judicial activism of late. And I want to ask you about a few cases and see if you can shed some light on this for -- for us and for the people watching at home or in the office.

I want to talk about Northwest Austin utility district number one, the holder, the recent Voting Rights Act case. And Senator Cardin mentioned it, but he -- he didn't get out his pocket Constitution, as I -- I am. The 15th Amendment was passed after the Civil War. It specifically gave Congress the authority to pass laws to protect all citizens' right to vote.

And it said, Section 1, Amendment number 15, section one, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude." Section two -- this one's important. "The Congress shall have power to enforce this article by appropriate legislation," -- the Congress.

Well, Congress used that power to -- the power vested in them under Section two -- when it passed the Voting Rights Act of 1965. Now, the Voting Rights Act has an especially strong provision, section five, that requires states with a history of discrimination to get preapproval from the Justice Department on any changes that they make in their voting regulations.

Congress has reauthorized this four times as recently as -- the last time was 2006. And the Senate supported it by a vote of 98 to zero. Every single senator from the state covered by Section 5 voted to reauthorize it. So now it's 2009, and we have this case, the Northwest Austin Utility district number one. And Justice Thomas votes to hold Section 5 unconstitutional. He said it went beyond the mandate of the 15th Amendment because it wasn't necessary any more. That's what he said.

Now, when I read the 15th Amendment, it doesn't say -- it doesn't contain any limits on Congress' power. It just says that we have it. It doesn't say if necessary the Congress shall have power to enforce this article. It just says that we have the power.

So it is my understanding that the 15th Amendment contains a very strong, very explicit and unambiguous grant of power to the Congress. And because of that, the courts should pay greater deference to it. And my question is is that your view?

SOTOMAYOR: As you know, some of the justices in that recent decision expressed the view that the court should take up the constitutionality of the Voting Rights Act and review of its continuing necessity. Justice Thomas expressed his view.

That very question, given the decision and the fact that it left that issue open is a very clear indication that that's a question that the courts are going to be addressing, if not immediately the Supreme Court, certainly the lower courts. And so expressing a view -- agreeing with one person in that decision or another, would suggest that I have made a prejudgment on this question.

FRANKEN: So that means you're not going to tell us?

(LAUGHTER)

I didn't mean to finish your sentence.

SOTOMAYOR: No, no, no, no. All I can say to you is I have one decision, among many, but one decision on the Voting Rights Act (inaudible) the recent reauthorization by Congress but a prior amendment where I suggested that these issues needed -- issues of changes in the Voting Rights Act should be left to Congress in the first instance.

My jurisprudence shows the degree to which I give deference to Congress' findings whether in a particular situation that compel or doesn't or leads to a particular result is not something that I can opine on because, particularly, the issue you're addressing right now is likely to be considered by the courts.

The ABA rule says no judge should make comments on the merits of any pending or impending case. And this clearly would be an impending case.

FRANKEN: OK. It's fair to say, though, in your own decision, you gave deference to Congress just like you answered by neutrality thing saying it's up to Congress.

SOTOMAYOR: Well...

FRANKEN: It feels like this is very explicitly up to Congress.

SOTOMAYOR: I gave deference to the exact language that Congress had used in the Voting Rights Act and how it applied to a challenge in that case. FRANKEN: OK. Now, voting to overturn federal legislation, to me at least, seems to be one definition of what people understand as judicial activism. But I want to talk about some cases that I've seen that I think showed judicial activism functioning on a more pernicious level. First, let's take a look at a case called Gross v. FBL Financial Services that the street issued last month. Are you familiar with that?

SOTOMAYOR: I am.

FRANKEN: OK. Now, Gross involved the age discrimination and employment act or ADEA. And now, before Gross, you could bring an age discrimination suit whenever you could show that age was one of the factors an employer considered in choosing to fire you.

When the Supreme Court agreed to hear the case, it said it would consider just one question: Whether you needed direct evidence of age discrimination to bring this kind of lawsuit or whether indirect evidence would suffice.

That's the issue that they said that they would consider when they took the case. But when the Supreme Court handed out its decision, it ruled on a much larger matter: Whether a worker could bring a suit under ADEA if age was only one of several reasons for being demoted or fired.

FRANKEN: The Supreme Court barred these suits saying that only suits alleging that age was the determinative factor for the firing, only those could be brought under the ADEA.

This change has significantly eroded workers' rights, by making it much harder for workers to defend themselves from age discrimination, including any fired just before they would have seen a large increase in their pension. "You weren't fired because you were too old, you were fired because your pension is going to increase soon"

So this is a big deal. When you go to court to defend your rights, you have to know what rights you're defending. The parties in the Gross (ph) case thought they were talking about what kind of evidence was necessary in a discrimination suit, then the court just said, "No, we're banning that kind of suit altogether"

I think that's unfair to everyone involved. It's especially unfair to the man who is trying to bring the discrimination suit. So let me ask you a couple of questions on this. First, as an Appellate Court judge, how often have you decided a case on an argument or a question that the parties have not briefed?

SOTOMAYOR: I don't think I have, because, to the extent that the parties have not raised an issue, and the Circuit Court, for some reason, the panel has thought that it was pertinent. Most often that happens on questions of jurisdiction, can the court hear this case at all?

Then you issue, or we have issued a direction to the parties to brief that question. So it is briefed in part of the argument is raised. There are issues that the parties brief, that the briefing itself raises the issue for the court to consider.

So it's generally the practice, at least on the 2nd Circuit, is to give a party an opportunity to be heard on a question. And we also have a procedure on the circuit that would give a party to be heard that they can also file the petition for rehearing, which is the panel enters a decision that the party disagrees with and thinks the court has not given it an adequate opportunity to present its argument. Then it can file that at the circuit.

I don't have -- I am familiar with the Northwest (ph) case. I am familiar with the holding of that case. I'm a little less familiar and didn't pay as much attention...

FRANKEN: With Gross (ph).

SOTOMAYOR: ... to the briefing issue. I do know there, that like the Brand X case, what the court says it was attempting to do, is to discern what Congress' intent was under the ADA, whether it intended to consider mixed motive or not as a factor in applying the statute and the majority holding, as I understood it was, "Look, Congress, amended Title 7, to set forth the mixed motive framework and directed the courts to apply that framework in the future, but having amended that, it didn't supply that amendment to the age discrimination statute."

SOTOMAYOR: And so that would end up in a similar situation to the Brand X Case, which is, to the extent that Congress determines that it does want mixed motive to be a part of that analysis, that it would have the opportunity, and does have the opportunity to do what it did in Title VII, which is to amend the act.

FRANKEN: Well, in Title VII, they amended the act because they had to. They were forced to, right? Congress was impelled to, in the sense, but not on -- not on ADEA?

SOTOMAYOR: I -- I don't like characterizing the reasons for why Congress acts or doesn't act.

FRANKEN: OK. I got you.

Let me jump ahead to something. Yesterday, a member of this committee asked you a few times whether the word "abortion" appears in the Constitution, and you agreed that, no, the word "abortion" is not in the Constitution. Are the words "birth control" in the Constitution?

SOTOMAYOR: No, sir.

FRANKEN: Are -- are you sure?

SOTOMAYOR: Yes.

FRANKEN: OK.

(LAUGHTER)

Are the words "privacy" in the Constitution or the word?

SOTOMAYOR: The word "privacy" is not.

FRANKEN: Senators Kohl, Feinstein, and Cardin all raised the issue of privacy, but I want to hit this head on. Do you believe that the Constitution contains a fundamental right to privacy?

SOTOMAYOR: It contains, as has been recognized by the courts for over 90 years, certain rights under the liberty provision of the due process clause that extend to the right to privacy in certain situations.

This line of cases started with a recognition that parents have a right to direct the education of their children and that the state could not force parents to send their children to public schools or to bar their children from being educated in ways a state found objectionable.

Obviously, states do regulate the content of education, at least in terms of requiring certain things with respect to education that I don't think the Supreme Court has considered, but the basic -- that basic right to privacy has been recognized and was recognized. And there have been other decisions.

FRANKEN: So the issue of whether a word actually appears in the Constitution is not really relevant, is it?

SOTOMAYOR: Certainly, there are very specific words in the Constitution that have to be given direct application. There are some direct commands by the Constitution. You know, senators have to be a certain age to be senators. And so you've got to do what those words say.

But the Constitution is written in broad terms. And what a court does is then look at how those terms apply to a particular factual setting before it.

FRANKEN: OK. In Roe v. Wade, the Supreme Court found that the fundamental right to privacy included the right to decide whether or not to have an abortion. And as Senator Specter said, that's been upheld or ruled on many times. Do you believe that this right to privacy includes the right to have an abortion?

SOTOMAYOR: The court has said in many cases -- and as I think has been repeated in the court's jurisprudence in Casey -- that there is a right to privacy that women have with respect to the termination of their pregnancies in certain situations.

FRANKEN: OK. I -- we're going to have a round two, so I'll ask you some more questions there. What was the one case in "Perry Mason" that Berger won?

SOTOMAYOR: There -- I wish I remembered the name of the episode, but I don't. I just was always struck that there was only one case where his client was actually guilty.

FRANKEN: And you don't remember that case?

SOTOMAYOR: I know that I should remember the name of it, but I haven't looked at the episode. I...

FRANKEN: Didn't the White House prepare you for that?

SOTOMAYOR: You're right, but I was spending a lot of time on reviewing cases. No, sir. But I do have that stark memory because, like you, I watched it all of the time, every week as well. I just couldn't interest my mother, the nurse, and my brother, the doctor, to do it with me.

FRANKEN: Oh. Oh, OK. Well, I -- we -- our whole family watched it, and -- because there was no Internet at the time, you and I were watching at the same time. And I thank you, and I guess I'll talk to you in the follow-up.

SOTOMAYOR: Thank you.

LEAHY: Is the senator from Minnesota going to tell us which episode that was?

FRANKEN: I don't know. That's why I was asking. If I knew, I wouldn't have asked her.

LEAHY: All right. Well -- so, because of that, Judge, we will not hold your inability to answer the question against you.

Now, on one of the -- I just discussed this with Senator Sessions, but I'll make the formal request: is there any objection for the committee now proceeding to a closed session, which is a routine practice we've followed for every nominee since back when Senator Biden was chairman of this committee?

SESSIONS: Mr. Chairman, thank you. I think that's the right thing to do, and there'll be no objection that I know of.

LEAHY: Thank you very much. I appreciate the comments.

So, hearing none, the committee will proceed to a closed session, and we will resume public hearings later this afternoon. And for the sake of those who have to handle all the electronic kind of things, we'll try to give you enough of a heads-up.

We'll stand in recess.


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