Sen. Feingold Questions Judge Sotomayor at Supreme Court Nomination Hearings

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LEAHY: Welcome back, judge.

We will skip over one, go to Senator Feingold.

You are recognized for up to 20 minutes. I keep adding the "up to" hoping somebody will follow my example. But I do mean nobody will be cut off before 20 minutes.

FEINGOLD: Thank you, Mr. Chairman. I understand, and I'd like to begin using my time by asking that a letter from former members of PRLDEF board describing the role of board members, which does not include choosing or controlling litigation. I'd ask unanimous consent.

LEAHY: Without objection, it will be part of the record.

FEINGOLD: Thank you, Mr. Chairman.

Judge, again, of course, thanks for your tremendous patience.

I'd like to start by talking for a moment about the recent Supreme Court decision in Caperton versus Massey. I consider this a significant case that bears upon the flood of special interest money that threatens to undermine public confidence in our justice system.

The facts of this case are notorious. John Grisham used them as an inspiration for his novel "The Appeal." A jury in West Virginia returned a $50 million verdict for a large coal company. And pending the appeal, the company's CEO spent $3 million to elect an attorney named Brent Benjamin to the state supreme court.

That was a huge amount of money, relatively speaking, more than the amounts spent by all of Benjamin's other financial supporters combined. Benjamin won the election, because a West Virginia Supreme Court justice, and lo and behold, he voted to overturn that $50 million verdict against his main campaign contributor.

Twice he refused to recuse himself in the case despite his obvious conflict of interest. And last month the Supreme Court held that Benjamin's failure to recuse himself was intolerable under our Constitution's guarantee of due process of law.

The court also noted approvingly that most states have adopted codes of judicial conduct that prevent this kind of conflict. And to that end, I commend the Wisconsin Supreme Court's plan to revise its recusal rules to provide additional safeguards that protect judicial impartiality.

You've been a judge for many years and you many have seen examples when you thought a judge should have withdrawn, although hopefully none were as egregious as this case.

In your opinion, what additional steps should judges and legislators take to ensure that the judiciary is held to the highest ethical standards and that litigants can be confident that their cases will be handled impartially?

SOTOMAYOR: Senator, I would find it inappropriate to make suggestions to Congress about what standards it should hold judges to or litigants. That's a policy choice that Congress will consider.

I note that the American Bar Association has a code of conduct that applies to litigants. The judicial code has a code of conduct for judges. And as you noted in the state system where judges are elected, many states are doing what I just spoke about, making -- passing regulations.

Caperton was a case that was taken under the local rules of the Supreme Court presumably that exercises supervisory powers over the functions of the courts. And it presented obviously a significant issue because the court took it and decided the case.

At issue fundamentally is that judges, lawyers, all professionals must on their own abide by the highest standards of conduct. And I have given a speech on this topic to students at Yale at one point where I said, the law is only the minimum one must do, personally one must act in a way in cases to ensure that you're acting consistent with your sense of meeting the highest standards of the profession.

FEINGOLD: Thank you, Judge.

As I'm sure you know, on the last day of the term, the Supreme Court ordered that a pending case involving federal election law called Citizens United versus FEC be reargued in September.

It's quite possible that you will be a member of the court by then. I do not intend to ask you how you'd rule in that case, but I do want to express my very deep concern about where the Supreme Court may be heading and then pose a general question to you.

In 2003, the court in a 5-4 ruling upheld the McCain-Feingold bill against constitutional challenge. I believe that ruling accurately applied the court's previous precedents and recognized that Congress must have the power to regulate campaign finance to address serious problems of corruption and the appearance of corruption. Since the arrival on the court of its two newest members, the court seems to have started in another direction on these issues, striking down or significantly narrowing two provisions of the law, the millionaires' (ph) amendment to the Davis case and the issue ad provision in Wisconsin Right to Life.

Several justices have even argued that corporations and living persons should have the same constitutional rights to support their chosen candidates and that Austin v. Michigan Chamber of Commerce, a case rejecting that idea, should be overruled. Austin is premised on what I believe is an absolutely reasonable conclusion that the political activities of corporations may be subjected to greater regulation because of the legal advantages given to them by the states that allow them to amass great wealth.

In scheduling rearguement in the Citizen United case, the court specifically asked the parties to address whether Austin should be overruled. If the court does that and depending on how exactly it rules, Judge, it may usher in an era of unlimited corporate spending on elections that the nation has not seen since the 19th century. Without addressing the specifics of the Citizen United case, I'd like to ask you what the Constitution and the Supreme Court's precedents generally provide about the rights of corporations and what the current state of the law as far as corporate participation in elections is, as you understand it.

SOTOMAYOR: Senator, I have attempted to answer every question that's been posed to me. You have noted that Citizens United is on the court's docket for September. I think it's September 9th. If I were confirmed for the court -- to the court, it would be the first case that I would participate in.

Given that existence of that case, the very first one, I think it would be inappropriate for me to do anything to speak about that area of the law because it would suggest that I'm going into that process with some prejudgment about what precedent says and what it doesn't say and how to apply it in the open question the court is considering. I appreciate what you have said to me. But this is a special circumstance, given the pendency of that particular case.

(UNKNOWN): And, frankly, Judge, I -- I probably would say the same thing if I were in your shoes, given -- given -- given the -- the facts as -- as they are. I appreciate the opportunity to express what I wanted to say about that.

And with that, Mr. Chairman, I am going to use up less than half of my time.

LEAHY: I thank you. I think you have set a fantastic example. I commend you. I say that in a totally non-partisan fashion.

Senator Grassley?