Sen. Cardin Questions Judge Sotomayor at Supreme Court Nomination Hearings

CQ Transcription
Wednesday, July 15, 2009; 6:26 PM

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UNKNOWN: ... that were before you, but could have an impact on industry practice, if, in fact, there was discrimination and a case was decided by your court.

CARDIN: And the same thing is true in the Supreme Court, more so in the Supreme Court. It is the highest judgment of our land. And, yes, you have to be mindful when you take a case on cert as to the impact it will have on the litigants. Certainly, you have to take into consideration if there's been different, inconsistent rulings in the different circuits.

But it seems to me that one of the standards I would hope you would use is the importance of deciding this case for the impact it has on a broader group of people in our nation, whether it's a housing case that could affect a community's ability to get fair access to mortgages for homeownership or whether it's a case that could have an impact on a class of people, on -- on environmental or economic issues.

And I just would like to get from you whether this, in fact, is a reasonable request, as you consider certiorari requests, that one of the factors that is considered is the impact it has on the community at large.

SOTOMAYOR: As I indicated earlier, we don't make policy choices. That means that I would think it inappropriate for a court to choose a case because -- or a court -- a judge to choose a case based on some sense of, "I want this result on society." A judge takes a case to decide a legal issue, understanding its importance to an area of law and to arguments that parties are making about why it's important.

The question of impact is different than what a judge looks at, which is what's the state of the law in this question, and how and what clarity is needed and other factors.

But as I said, there's a subtle but important difference in separating out and making choices based on policy and how you would like an issue to come out than a question that a judge looks at, in terms of assessing the time at which a legal argument should be addressed.

CARDIN: And I respect that difference, and I don't want you to be taking a case to try to make policy, but I do think the need for clarity for the community as to what is appropriate conduct well beyond the litigants of a particular case is a factor where clarification is needed should weigh heavily on whether the court takes that type of case or not.

SOTOMAYOR: There's just no one factor that controls the choice where you say, "I'm going to look at every case this way." As I said, judges in -- well, I shouldn't talk, because I haven't -- I'm not there. But my understanding of the process is that it's not based on those policy implications of an outcome; it's based on a different question than that.

CARDIN: Well, let me conclude on one other case that you ruled on, where I also agree with your decision. That's the Ford v. McGinnis, where you wrote a unanimous panel opinion overturning a district court summary judgment finding in favor of the Muslim inmate who was denied by prison officials access to his religious meals marking the end of Ramadan.

You held that the inmate's fundamental rights were violated and that the opinions of the department of correction and religious authorities cannot trump the plaintiff's sincere and religious beliefs.

The freedom of religion is one of the basic principles in our Constitution, as I said in my opening comments. It was one of the reasons why my grandparents came to America. The freedom of religion, expression is truly a fundamental American right.

Please share with us your philosophy as to -- maybe it's a wrong use of terms -- but the importance of that provision in the Constitution and how you would go about dealing with cases that could affect that fundamental right in our Constitution.

SOTOMAYOR: I don't mean to be funny, but the court has held that it's fundamental in the sense of incorporation against the state. But it is a very important and central part of our democratic society that we do give freedom of religion, the practice of religion, that the Constitution restricts the -- the state from establishing a religion, and that we have freedom of expression in speech, as well.

Those freedoms are central to our Constitution. The Ford case, as others that I had rendered in this area, recognize the importance of that in terms of one's consideration of actions that are being taken to restrict it in a particular circumstance.

Speaking further is difficult to do. Again, because of the role of a judge, to say it's important, that it's fundamental, and it's legal and common meaning is always looked at in the context of a particular case. What's the state doing?

In the Ford case that you just mentioned, the question there before the court was, did the district court err in considering whether or not the religious belief that this prisoner had was consistent with the established traditional interpretation of a meal at issue, OK?

And what I was doing was applying very important Supreme Court precedent that said, it's the subjective belief of the individual. Is it really motivated by a religious belief?

It's one of the reasons we recognize conscientious objectors, because we're asking a court not to look at whether this is orthodox or not, but to look at the sincerity of the individual's religious belief and then look at what the state is doing in light of that. So that was what the issue was in Ford.

CARDIN: Well, thank you for that answer. And, again, thank you very much for the manner in which you have responded to our questions.

Thank you, Mr. Chairman.

LEAHY: Thank you. Thank you very much, Senator Cardin.

As I noted earlier, we will now recess until 9:30 tomorrow morning and wish you all a pleasant evening.

Thank you.

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