Sen. Klobuchar Questioning at Judge Sotomayor Confirmation Hearing

CQ Transcriptions
Thursday, July 16, 2009 10:51 AM

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SEN. PATRICK LEAHY: Senator Durbin has actually responded to my so far vain request that senators may want to pass on the basis that all questions may have been asked, not everybody has asked them, but Senator Klobuchar, yesterday, had some very serious and succinct areas that she was asking. I know time ran out, and I'd like to yield to Senator Klobuchar because she may want to follow on those.

SEN. AMY KLOBUCHAR: Thank you very much, Mr. Chair.

And thank you again, Judge. I think they've turned the air conditioning on, so this is good.


I just had two quick follow-ups following Senator Graham's question. The first is that the only death penalty case that I know of -- there may be another one that you ruled on -- the Heatley case -- you, in fact, sustained the death penalty in that case. Is that correct?

JUDGE SOTOMAYOR: I sustained -- or a rejected the challenges of the defendant that the application of the death penalty to him was based on race, yes.

KLOBUCHAR: OK. Thank you. And then just the second one, Senator Graham mentioned the issues of Justice Roberts and the difference between an advocate and a judge. And I just came across the quote that Justice Roberts gave about his work during the Reagan administration.

And he said I can give the commitment that I appreciate that my role as a judge is different than my role as a staff lawyer for an administration. As a judge, I have no agenda. I have a guide in the Constitution and the laws and the precedents of the court. And those are what I would apply with an open mind after fully and fairly considering the arguments and assessing the considered views of my colleagues on the bench.

Would you agree with that statement?

SOTOMAYOR: Wholeheartedly.

KLOBUCHAR: All right. Thank you.

There were some letters that have not yet been put on the record, and there are quite a collection of letters. I considered reading them all on the record but thought better of that. I thought I would ask the chair if I could put these letters on the record.

And these are letters of support for you from, first of all, the National Fraternal Order of Police, in support of your nomination, the Police Executive Research Forum, the national enforcement of black law enforcement executives, the National Latino Peace Officers Association, the New York State Law Enforcement Council, the National District Attorneys Association, the Association of Prosecuting Attorneys, the National Association of Police Organizations, the National Sheriffs' Association, the Major City Chiefs Association, the Detectives Endowment Association, and then also a letter from 40 of your past colleagues in the Manhattan D.A.'s office, former district attorney colleagues.

And all of these groups have given you their support. And I did want to note just two very brief portions from the letter.

The one from the Police Executive Research Forum reads, "Sonia Sotomayor went out of her way to stand shoulder to shoulder with those of us in public safety at a time when New York City needed strong, tough and fair prosecutors."

And then, also, the letter from your colleagues I found very enlightening. It was much more personal. It said that, "She began as a rookie in 1979, working long hours, prosecuting an enormous caseload of misdemeanors before judges managing overwhelming dockets. Sonia so distinguished herself in this challenging assignment that she was among the very first in her starting class to be selected to handle felonies."

"She prosecuted a wide variety of felony cases, including serving as co-counsel at a notorious murder trial. She developed a specialty in the investigation and prosecution of child pornography case. Throughout all of this, she impressed us as one who was singularly determined in fighting crime and violence."

"For Sonia, service as a prosecutor was a way to bring order to the streets of a city she dearly loved. We are proud to have served with Sonia Sotomayor. She solemnly adheres to the rule of law and believes that it should be applied equally and fairly to all Americans."

"As a group," your former colleagues say, "we have different world views, and political affiliations, but our support for Sonia is entirely nonpartisan. And the fact that so many of us have remained friends with Sonia over three decades speaks well, we think, of her warmth and collegiality." Pretty nice letter.

In reading these letters from these law enforcement groups, there was just one follow-up case that you had that I wanted to allow you to enlighten the country about. And this is one that a former New York police detective, Chris Monino (ph) spoke about recently in an article, and he spoke about a case you worked on as district attorney.

He talked about the child pornography case, how he had gone to various prosecutors to try to get them interested in the case, and he couldn't get them interested. And I have some guesses. Some of these cases, as you know, can be very involved with a lot of evidence and sometimes computer forensics and things like that. But he wasn't able to interest them in taking on the case.

But you were the one that was willing to take on the case, and it led to the prosecution of two perpetrators. Could you talk a little bit about that case, why you think others didn't and why you decided to take on the case?

SOTOMAYOR: Well, I can't speak to why others decided to pass on the case. I can talk to you about my views at the time.

The New York Court of Appeals had invalidated the New York statute on child pornography on the grounds of a constitutional violation, federal constitutional violation, that the statute did not comport with the federal Constitution. Supreme Court took that case directly from the Court of Appeals, as is its right to review all issues of federal constitutional law, and reversed the New York Court of Appeals and reinstated the statute.

My sense is, because there were still so many open questions about both the legality of the statute and the question of the difficulty in proving the particular crime at issue, that involved two men who worked in a change of -- chain of adult bookstores in the then-Times Square area. Times Square has changed dramatically since that time.

It was mostly circumstantial. We had some tapes, but their knowledge of what those tapes contained, their intent to sell and distribute child pornography involving children below a certain age, it was a difficult, difficult legal and factual case, but it was clear that it was a serious case. We're talking about the distribution of films that show children who were anywhere from 8 years old to 12 years old being explicitly sexually abused.

And it seemed to me that, regardless of the outcome of the case, whether I secured the convictions or not, whether it was held up on appeal or not, that the issues it raised had to be presented in court because of the importance of the crime.

And so I brought the prosecution. I had a co-counsel in that case who was second-seating me in that case, meaning she was assisting me. And the case took a while at trial, because, as I said, it was circumstantial. The jury returned a verdict against both defendants. They were sentenced quite severely, and the cases held up on appeal.

It was an enormously complicated case. I assisted in the appeal because it was so complicated that one of the heads of the Appeals division of the New York County District Attorney's Office had to become involved in it. But the convictions were sustained.

And so the effort resulted in a conviction of two men who were distributing films that had the vilest of sexual acts portrayed against children. KLOBUCHAR: And one last case I wanted to ask you about, which the chairman had briefly mentioned in his opening, and it was a troubling case because it involved an elected official. It was U.S. v. Giordano, and this case when you -- happened when you were a judge.

And it involved very troubling facts with the mayor of Waterbury, Connecticut in a variety of crimes stemming from his repeated sexual abuse of a minor daughter and a niece and of a prostitute. And you wrote for the majority in that case. There was actually a dissent from one of your fellow judges on the Second Circuit.

KLOBUCHAR: And you held, in part, that the mayor could, in fact, be charged with the separate crime of violating the young girl's civil rights under color of state law. And I think -- and I don't want to put words in your mouth, but the reason you were able to use that theory is that you note how frequently the mayor reiterated to his young victims that they would be in trouble with law enforcement if they didn't submit to what he wanted them to do.

Could you talk about how that case fits in to your overall approach to judging?

SOTOMAYOR: As I have indicated, the role of a judge is to look at Congress' words in a statute and discern its intent. And in cases that present you facts, you must take existing precedents and apply the teachings of those precedents to those new facts.

In the Giordano case, that had been another situation quite like this one. This was a mayor who, working through a woman, secured sexual acts by very young girls that were taking place in his office. And through the woman he was working with and also through his own exhortations, don't tell anybody or you'll get into trouble, and the woman's exhortations to the child, the person he was conspiring with, that they would get in trouble with the police because the police wouldn't believe them. They would believe him because he was a mayor.

The question for the court became is that acting under color the state law. Is he using his office to promote this illegal activity against these young girls? The majority viewing these facts said yes, that's the principles we discern from precedent about what the use of state law -- of acting color of state law means.

The dissent disagreed, and it disagreed using its own rationale about why the law should not be read that way. But these are cases that rely upon an understanding both of what the words say and how precedent has interpreted them. And that's what the majority of the panel did in that case.

KLOBUCHAR: Thank you very much. And I think it's been enlightening for people to hear about some of your views on these criminal cases. And I'd just like to ask one last question then. It's the exact question that my friend and colleague, Senator Graham, asked Chief Justice Roberts as his confirmation hearing.

And he asked: What would be like history to say about you when all is said and done? SOTOMAYOR: I can't live my life to write history's story. That will be the job of historians long after I'm going. Some of them start now, but long after I'm gone.


In the end, I hope it will say I'm a fair judge, that I was a caring person, and that I lived my life serving my country.

KLOBUCHAR: I think you can't say much more that thank you. Thank you very much, Judge.

LEAHY: Thank you, Judge. I appreciate that.

Thank you, Senator Klobuchar.

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