Thursday, July 16, 2009 10:23 AM
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SENATOR GRAHAM: Thank you, Mr. Chairman.
And something I would like to say to you directly and publicly and with admiration for -- for your life's story is that a lot of the wrongs that have been mentioned, some have been righted, some have yet to come, Judge, I hope you understand the difference between petitioning one's government, and having a say in the electoral process, and voting for people that if you don't like, you can get rid of, and the difference of society being changed by nine unelected people who have a lifetime appointment.
Do you understand the difference in how those two systems work?
SOTOMAYOR: Absolutely, sir. I understand the Constitution.
GRAHAM: And the one thing I can tell you -- this will probably be the last time we get to talk in this fashion. I hope to have a chance to get to know you better, and we'll see what your future holds, but I think it's going to be pretty bright.
The bottom line is, one of the problems the court has now is that Mr. Ricci has a story to tell, too. There are all kinds of stories to tell in this country, and the court has, in the opinion of many of us, gone into the business of societal change not based on the plain language of the Constitution, but based on motivations that can never be checked at the ballot box.
Brown v. Board of Education is instructive in the sense that the court pushed the country to do something politicians were not brave enough to do, certainly were not brave enough in my state. And if I had been elected as a senator from South Carolina in 1955, the year I was born, I would be amazed if I would have had the courage of a Judge Johnson in the political arena.
But the court went through an analysis that separate was not equal. It had a basis in the Constitution after fact-finding to reach a reasoned conclusion in the law and the courage to implement that decision. And society had the wisdom to accept the court's opinion, even though it was contentious and literally people died.
We're going to talk about some very difficult societal changes that are percolating in America today, like who should get married, and what boundaries are on the definition of marriage, and who's best able or the most capable of making those fundamental decisions?
GRAHAM: The full faith and credit clause, in essence, says that when a valid enactment of one state is entered into, the sister states have to accept it. But there's a public policy exception in the full faith and credit clause. Are you aware of that?
SOTOMAYOR: I am. Applied in different situations.
GRAHAM: Some states have different age limits for marriage. Some states treat marriage differently than others. And the court defer based on public policy. The reason these speeches matter and the reasons elections matter is because people now understand the role of the court in modern society when it comes to social change.
That's why we fight so hard to put on the court people who see the world like us. That's true from the left, and that's true from the right. And let me give you an example of why that's important.
We've talked a lot about the Second Amendment, whether or not it is a fundamental right. We all know agree it is an individual right. Is that correct?
GRAHAM: Well, that's groundbreaking precedent in the sense that just until a few months ago, or last year I guess, that was not the case. But it is today. It is the law of the land by the Supreme Court that the Second Amendment is an individual right. And you acknowledge that, that's correct?
SOTOMAYOR: That was...
GRAHAM: The Heller case.
SOTOMAYOR: ... the decision. And it is what the court has held, and so it is unquestionably an individual right.
GRAHAM: But here's the next step for the court. You will have to, if you get on the court, with your fellow justices, sit down and discuss whether or not it is a fundamental right to the point that it is incorporated through the due process clause of the 14th Amendment and applied to every state.
Isn't it fair to say, Judge, that when you do that, not only will you listen to your colleagues, you will read whatever case law is available, you're going to come down based on what you think America is all about? SOTOMAYOR: No, sir.
GRAHAM: So what binds you when it comes to a fundamental right?
SOTOMAYOR: The rule of law. And...
GRAHAM: Isn't the rule of law, when it comes to what you consider to be a fundamental right, your opinion as to what is fundamental among all of us?
SOTOMAYOR: No. In fact the question that you raise is it fundamental in the sense of the law.
SOTOMAYOR: That's a legal term. It's very different. And it is important to remember that the Supreme Court's precedent on the Second Amendment predated its...
GRAHAM: I hate to interrupt, but we have -- is there sort of a legal cookbook that you can go to and say this is a fundamental right, A, and B is not?
SOTOMAYOR: Well, there's not a cookbook, but there's precedent that was established after the older precedent that has talked and described that doctrine of incorporation. That's a set of precedents that...
GRAHAM: Are you talking about the 1890 case?
SOTOMAYOR: Yes. Well, no. The 1890 case was the Supreme Court's holding on this issue. But since that time, there has been a number of decisions discussing the incorporation doctrine applying it to different provisions of the Constitution.
GRAHAM: Is there any personal judgment to be relied upon by a Supreme Court justice in deciding whether or not the Second Amendment is a fundamental right?
SOTOMAYOR: Well, you hire judges for their judgment, not their personal views or what their sense of what the outcome should be. You hire your point judges for the purpose of understanding whether they respect law, whether they respect precedent and apply it in a ...
GRAHAM: I don't doubt that you respect the law, but you're going to be asked, along with eight other colleagues, if you get on the court, to render a decision as to whether or not the Second Amendment is a fundamental right shared by the American people. There is no subjective judgment there?
SOTOMAYOR: The issue will be controlled by the court's analysis of that question in the case, fundamental as defined by incorporation in -- likely will be looked at by the court in a case that challenges a state regulation. At that ...
GRAHAM: I have -- go ahead.
SOTOMAYOR: I'm sorry.
At that point, I would presume that the court will look at its older precedent in the way it did in Heller, consider whether it controls the issue or not. It will decide, even if it controls it, whether it should be revisited under the doctrine of stare decisis. It could decide it doesn't control it, and that would be its decision. It could decide it does control, but it should revisit it.
In revisiting it, it will look at a variety of different factors, among them have there been changes in related areas of law that would counsel questioning this. As I've indicated, there was a lot of law after the older cases on incorporation. I suspect, but I don't know, because I can't prejudge the issue that the court will consider that with all of the other arguments that the parties will make.
GRAHAM: Well, maybe I've got it wrong, then. Maybe I'm off base here. Maybe you've got the Seventh Circuit talking about the Heller case did not decide the issue of whether it should be incorporated to the states, because it's only dealt with the District of Columbia.
You've got the Ninth Circuit -- and I never thought I'd live to hear myself say this -- look at the Ninth Circuit. They have a pretty good rationale as to why the Second Amendment should be considered a fundamental right. And they talked about the longstanding relationship of the English man -- and they should have put woman. At least in South Carolina that would have applied -- to gun ownership. They talked about it was this right to bear arms that led to our independence. It was this right to bear arms that put down a rebellion in this country. And they talked about who we are as a people and our history as a people.
And Judge, that's why the Supreme Court matters. I do believe, at the end of the day, you're not going to find a law book that tells you whether or not a fundamental right exists vis-a-vis the Second Amendment, that you're going to have to rely upon your view of America, who we are, how far we've come and where we're going to go in our relationship to gun ownership. That's why these choices are so important.
And here's what I'll say about you. And you may not agree with that, but I believe that's what you're going to do, and I believe that's what every other justice is going to do.
GRAHAM: And here's what I will say about you. I don't know how you're going to come out on that case, because I think fundamentally, Judge, you're able, after all these years of being a judge, to embrace a right that you may not want for yourself, to allow others to do things that are not comfortable to you, but for the group, they're necessary. That is my hope for you.
That's what makes you, to me, more acceptable as a judge and not a activist, because an activist would be a judge who would be champing at the bit to use this wonderful opportunity to change America through the Supreme Court by taking their view of life and imposing it on the rest of us.
I think and believe, based on what I know about you so far, that you're broad-minded enough to understand that America is bigger than the Bronx, it's bigger than South Carolina.
Now, during your time as an advocate, do you understand identity politics? What is identity politics?
SOTOMAYOR: Politics based simply on a person's characteristics, generally referred to either race or ethnicity or gender, religion. It is politics based on...
GRAHAM: Do you embrace identity politics personally?
SOTOMAYOR: Personally, I don't as a judge in any way embrace it with respect to judging. As a person, I do believe that certain groups have and should express their views on whatever social issues may be out there. But as I understand the word "identity politics," it's usually denigrated because it suggests that individuals are not considering what's best for America.
GRAHAM: Do you think...
SOTOMAYOR: That's my -- and that I don't believe in. I think that whatever a group advocates, obviously, it advocates on behalf of its interests and what the group thinks it needs, but I would never endorse a group advocating something that was contrary to some basic constitutional right as it was known at the time...
GRAHAM: Do you...
SOTOMAYOR: ... although people advocate changes in the law all the time.
GRAHAM: Do you believe that your speeches properly read embrace identity politics?
SOTOMAYOR: I think my speeches embrace the concept that I just described, which is, groups, you have interests that you should seek to promote, what you're doing is important in helping the community develop, participate, participate in the process of your community, participate in the process of helping to change the conditions you live in.
I don't describe it as identity policies, because -- politics -- because it's not that I'm advocating the groups do something illegal.
GRAHAM: Well, Judge, to be honest with you, your record as a judge has not been radical by any means. It's, to me, left of center. But your speeches are disturbing, particularly to -- to conservatives, quite frankly, because they don't talk about, "Get involved. Go to the ballot box. Make sure you understand that America can be whatever you'd like it to be. There's a place for all of us."
It really did, to suggest -- those speeches to me suggested gender and racial affiliations in a way that a lot of us wonder, will you take that line of thinking to the Supreme Court in these cases of first precedent?
GRAHAM: You have been very reassuring here today and throughout this hearing that you're going to try to understand the difference between judging and whatever political feelings you have about groups or gender.
Now, when you were a lawyer, what was the mission statement of the Puerto Rican Legal Defense Fund?
SOTOMAYOR: To promote the civil rights and equal opportunity of Hispanics in the United States.
GRAHAM: During your time on the board -- and you had about every job a board member could have -- is it a fair statement to say that all of the cases embraced by this group on abortion advocated the woman's right to choose and argued against restrictions by state and federal government on abortion rights?
SOTOMAYOR: I didn't -- I can't answer that question because I didn't review the briefs. I did know that the fund had a health care docket...
SOTOMAYOR: ... that included challenges to certain limitations on a woman's right to terminate her pregnancy under certain circumstances.
GRAHAM: Judge, I -- I may be wrong, but every case I've seen by the Puerto Rican Legal Defense Fund advocated against restrictions on abortion, advocated federal taxpayer funding of abortion for low- income women. Across the board when it came to the death penalty, it advocated against the death penalty. When it came to employment law, it advocated against testing and for quotas.
I mean, that's just the record of this organization. And the point I'm trying to make is that whether or not you advocate those positions and how you will judge can be two different things. I haven't seen in your judging this advocate that I saw or this board member. But when it came to the death penalty, you filed a memorandum with the Puerto Rican Legal Defense Fund in 1981 -- and I would like to submit this to the record -- where you signed this memorandum.
LEAHY: Without objection.
GRAHAM: And you basically said that the death penalty should not be allowed in America because it created a racial bias and it was undue burden on the perpetrator and their family. What led you to that conclusion in 1981?
SOTOMAYOR: The question in 1991...
SOTOMAYOR: I misspoke about the year -- was an advocacy by the fund taking a position on whether legislation by the state of New York outlawing or permitting the death penalty should be adopted by the state. I thank you for recognizing that my decisions have not shown me to be an advocate on behalf of any group. That's a different, dramatically different question than what -- whether I follow the law. And in the one case I had as a district court judge, I followed the law completely.
GRAHAM: The only reason we -- I mention this is when Alito and Roberts were before this panel, they were asked about memos they wrote in the Reagan administration, clients they represented. A lot to try to suggest that if you wrote a memo about this area of the law to your boss, Ronald Reagan, you must not be fit to judge. Well, they were able to explain the difference between being a lawyer in the Reagan administration and being a judge. And to the credit of many of my Democratic colleagues, they understood that.
GRAHAM: I'm just trying to make the point that when you are an advocate, when you are on this board, the board took positions that I think are left of center. And you have every right to do it. Have you ever known a low-income Latina woman who was devoutly pro-life?
GRAHAM: Have you ever known a low-income Latina family who supported the death penalty?
GRAHAM: So the point is there are many points of view within groups based on income. You have, I think, consistently, as an advocate, took a point of view that was left of center. You have, as a judge, been generally in the mainstream.
The Ricci case, you missed one of the biggest issues in the country or you took a pass. I don't know what it is. But I am going to say this, that, as Senator Feinstein said, you have come a long way. You have worked very hard. You have earned the respect of Ken Starr. And I would like to put his statement in the record.
And you have said some things that just bugged the hell out of me.
SOTOMAYOR: May I...
GRAHAM: The last question on the "wise Latina woman" comment. To those who may be bothered by that, what do you say?
SOTOMAYOR: I regret that I have offended some people. I believe that my life demonstrates that that was not my intent to leave the impression that some have taken from my words.
GRAHAM: You know what, Judge? I agree with you. Good luck.
LEAHY: Thank you.