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Sen. Feinstein Questioning at Judge Sotomayor Confirmation Hearing

CQ Transcriptions
Thursday, July 16, 2009 10:25 AM

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SEN. DIANNE FEINSTEIN: Thank you very much, Mr. Chairman.

I have great respect for Senator Kyl. I've worked with him, I guess, for about 12 years now on the subcommittee of this committee. But I think there is a fundamental misreading of the Supreme Court decision, if I understand it.

It's my understanding that the court was five-to-four. Is that correct?

JUDGE SOTOMAYOR: It was.

FEINSTEIN: And that the four dissenters indicated that they would have reached the same conclusion as the 2nd Circuit did. Is that correct?

SOTOMAYOR: That was my understanding.

FEINSTEIN: Thank you. Let me clear one thing up. I'm not a lawyer. And I've had a lot of people ask me, particularly from the West Coast who are watching this, what is per curiam. Would you please in common, every day English explain what through the court means?

SOTOMAYOR: It's essentially a unanimous opinion where the court is taking an act that -- where it's not saying more than what either incorporating a decision by the court below because it's not adding anything to it.

FEINSTEIN: Right.

SOTOMAYOR: In some cases, it's when there's, as Judge Cabranes in his dissent pointed out, in some cases, it's simply used to denote that an issue is so clear and unambiguous that we're just going to state the rule of law. It can be used in a variety of different ways. But it's generally where some -- where you're doing something fairly -- in a very cursory fashion, either because a district court judge has done a thorough job...

FEINSTEIN: Which was the case in this case.

SOTOMAYOR: Yes.

FEINSTEIN: It was a very voluminous opinion that, I believe, was over 50 pages long. Is that correct?

SOTOMAYOR: I keep saying 78 because that's what I reviewed.

FEINSTEIN: Right, well, over 50, in any event.

SOTOMAYOR: But -- and as I said, my circuit did that in a case where I addressed as a district court judge a case of first impression on a constitutional, direct constitutional issue, the suspension clause. Or it can have -- one of the meanings can be that given by Judge Cabranes.

FEINSTEIN: Right. Now, my understanding also is that there is precedent in other courts. I'm looking at a decision, Oakley v. the City of Memphis written by the circuit court. And essentially what it does is uphold the lower court that did exactly the same thing. Are you familiar with that case?

SOTOMAYOR: I am.

FEINSTEIN: It's an unpublished opinion, I believe. Is that correct?

SOTOMAYOR: Yes.

FEINSTEIN: And it was a racially mixed group of male and female lieutenants, took the test. The results came in. The test was canceled. And the court upheld the cancellation.

SOTOMAYOR: Yes.

FEINSTEIN: So this -- your case is not starkly out of the mainstream. And the reason I say this is going back to my days of mayor, particularly in the 1980s when there were many courts and many decisions involving both our police and fire departments. And it was a very controversial area of the law.

FEINSTEIN: But the point I wanted to make is there is precedent, and this is certainly one of them.

SOTOMAYOR: I would agree that it was precedent. I won't choose to quarrel with the Supreme Court's decision.

FEINSTEIN: Right. I'm not asking you to. Right.

Now, many have made comments regarding your Latina -- "wise Latina" comment. And I'd like to just take a moment to put your comments in the context of the experiences of women. And this country is built on very great accomplishments. We forged a new country. We broke away from the British. We wrote documents that have stood the test of time. The Declaration of Independence, the Constitution, the Bill of Rights.

But we also have a history of slavery, segregated schools, of employment discrimination, of hate crimes, and unspoken prejudices that can make it very hard for individuals to be treated fairly or even to believe that they can do well in this society.

So I understand empowerment and the role that it plays. And everything has been hard fought. We, as women, didn't have the right to vote until 1920. And that was after a tremendous battle waged by a group of very brave women called suffragettes. And when you graduated law school in 1979, there had never been a woman on the Supreme Court.

Today, women represent 50.7 percent of the population, 47 percent of law school graduates, and 30 percent of American lawyers. But there are only 17 women senators, and only one woman is currently serving on the Supreme Court, and we still make only $0.78 on the dollar that a man makes.

So we're making progress, but we're not there yet, and we should not lose sight of that. My question is, as you have seen this -- and you must have seen how widely broadcast this is -- that you become an instant role model for women. And how do you look at this -- your appointment to the court -- affecting empowerment for women? And I'd be very interested in any comments you might make. And this has nothing to do with the law.

SOTOMAYOR: I chose the law because it's more suited to that part of me that's never sought the kind of attention that public figures -- other public figures -- get. When I was in law school, some of my friends thought I would go into the political arena not knowing that what I sought was more the life of a judge, thinking, involved in that, and the process of the rule of law.

My career as a judge has shown me that, regardless of what my desires were, that my life, what I have accomplished, does serve as an inspiration for others. It's a sort of awesome sense of responsibility. It's one of the reasons that I do so many activities with people in the community, not just Latinos but all groups because I understand that it is women. It's Latinos, it's immigrants. It's Americans of all kinds and all backgrounds.

SOTOMAYOR: Each one of us faces challenges in our life. Whether you were born rich or poor, of any color or background, life's challenges place hurdles every day. And one of the wonderful parts of the courage of America is that we overcome them. And I think that people have taken that sense that, on some levels, I've done some of that at various stages in my life.

And so, for me, I understand my responsibility. That's why I understand and have tried as much as I can to reach out to all different kinds of groups and to make myself as available as much as I can.

Often, I have to say no; otherwise I'd never work. But I meet my responsibilities and work very hard at my job, but I also know I have a responsibility to reach out.

FEINSTEIN: Well, for whatever it's worth, I think you're a walking, talking example of the best part of the United States of America. And I just want to say how very proud I am that you are here today.

And it is my belief that you are going to be a great Supreme Court justice. And I just wanted to say that to you directly and publicly.

Thank you.

Thank you, Mr. Chairman.

SEN. PATRICK LEAHY: Thank you. That was great.

FEINSTEIN: Thank you.

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