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Sen. Coburn Questions Judge Sotomayor at Supreme Court Nomination Hearings

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Thursday, July 16, 2009; 11:48 AM

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LEAHY: Whether it will be the last round or not will be up to the Republican side. But I would yield now to Senator Coburn, who's been waiting patiently.

Senator Coburn?

COBURN: Thank you, Mr. Chairman, and good morning again.

SOTOMAYOR: Good morning, sir.

COBURN: Yesterday, you -- when I was asking you about foreign law, you said I should read your speech, so I did. I read your speech. So I want to come back to that for a minute, because I want to ask you the same question I've asked the only other two Supreme Court nominees that have come before the committee while I've sat on this committee.

And I want to ask you the same question. I -- my first statements yesterday was asking about whether you disagreed with Alito and Thomas, and you said basically you agree. So on the basis of that agreement, will you affirm to this committee and the American public that, outside of where you are directed to do so through statute or through treaty, refrain from using foreign law in making the decisions that you make that affect this country and the opinions that you write?

SOTOMAYOR: I will not use foreign law to interpret the Constitution or American statutes. I will use American law, constitutional law to interpret those laws except in the situations where American law directs the court.

COBURN: Thank you.

I want to ask you, also, another question that I asked both Justice Alito and Justice Thomas, and it's a problem I have with my colleagues here in the Senate. You've written extensively about some of the ambiguity that is in law. Would it be your opinion that we could do a much better job, maybe much clearer about what our intent is, when we write statutes?

And feel free to offend us all, because we sorely need it.

(LAUGHTER)

(UNKNOWN): Senator Coburn, speak for yourself.

(LAUGHTER)

COBURN: I'm speaking for the vast majority of American people. We do not do a thorough job in making clear our intent or the background of our intent when we send it.

And I'll give you an example, then. Two hundred and twenty times in the bill that just came out of the HELP Committee, we gave full shrift to the Secretary of HHS to write all the regulations without our intent, none of our intent. So you're -- as you sit -- if you sit -- on the Supreme Court, I'm sure many of those are going to come before you without our intent, but with a bureaucracy's intent or an executive branch intent.

So the question I'm -- ask you, in your experience, since you've noted the ambiguity that's in the law, would you make it a recommendation to your friends you've now established, all 19 of us on the Judiciary Committee, that we might do a better job of being much more clear in what we intend?

SOTOMAYOR: It would be presumptuous of me to tell you how to do your job, but I do know, in my conversations virtually with all 89 senators, perhaps not all of them, but the vast majority of them, somewhere in the conversation, there was reference to their feelings like yours that a better job could be done by Congress in making its intent clearer.

I think that that's a question that senators think about, or at least the ones that I've spoken to. And I think that the process is always bettered for a court when Congress's intent is more clearly stated.

COBURN: Yes.

And there's no doubt in your mind that, if we were much more clear, guidance would be better given to the Supreme Court as conflicts over the statutes and laws come forward.

SOTOMAYOR: When Congress's intent is clear, the court applies that clear intent.

COBURN: Thank you. I want to go back to a couple of other areas that we talked about. One is -- is some answers to questions that you gave to -- questions from Senator Hatch.

Senator Hatch asked you to describe your understanding of the test or standard that the Supreme Court uses to determine whether a right should be considered fundamental. Specifically, he noted that, when determining whether a right is fundamental, the Supreme Court determined whether the right is deeply rooted in our nation's history and tradition, that it is necessary to an Anglo-American regime of ordered liberty, or that it is an enduring American tradition.

You refused to answer him, asserting that you responded that you haven't examined that framework in a while to know if that language is precise or not. "I'm not suggesting it's not," you said, "Senator. I just can't affirm that description."

Similarly, you refused to describe to me the test the court used to determine whether a right is a fundamental right.

But in contrast to that, when Senator Kaufman asked you to give a very detailed description of the factor the courts consider when determining the doctrines of stare decisis, you stated and went through a long litany of the items with which the court uses with which to determine stare decisis. And you gave a fairly detailed analysis of that process and the doctrine of stare decisis.

And so I ask you again: Why can't you give us your description of what you think the parameters are that the court uses to determine a fundamental right, in light of the 14th Amendment, incorporation right?

SOTOMAYOR: All right. That language has been used in certain cases respecting the question of the incorporation of certain amendments. The question of -- and the general framework will be used with respect to any consideration of -- of incorporation.

That wasn't, I thought, the question that was being asked of me. I don't remember that being the specific question. All I'm saying to you is that the framework has been discussed by the court. In jurisprudence, it's developed over the last hundred years, subsequent to its established precedents on the Second Circuit. One of the questions that the court will address, if it decides to address the incorporation of the Second Amendment, is whether, in those related areas, it will use or not use the doctrines or framework of that precedent. There may be arguments on one side why, on another side why not. What I'm trying to do is not prejudge an issue...

COBURN: Well, I'm not...

SOTOMAYOR: ... that is still pending before the court.

COBURN: ... asking you to prejudge the issue. I'm asking you under what basis -- what is the -- what are the steps and the considerations, not the details of the case -- but, in other words, you can describe that for us in terms of stare decisis, but you can't describe that for us in terms of a fundamental right.

And to me, that's concerning, because we should understand -- and that should be transparent to the people in this country, how that works.

SOTOMAYOR: Because that's the very issue the court's going to look at. The question of stare decisis is a general framework that one uses not in a particular context of a case I'm going to choose always to look at the outcome of the case in this way. It's...

COBURN: Your Honor, I understand that. If I can't get you to go there, I want to quit and go on to something else, if I can.

COBURN: I also asked you yesterday -- I want you to understand. You were raised in the Bronx. I was born in Wyoming and raised in Oklahoma. They're really geographically and culturally. Different areas. And so I want you to understand why I'm spending so much time talking with you about the Second Amendment.

My constituents in Oklahoma understand, as do most Americans, that the right to own guns hangs in the balance. It may very well hang in the balance with your ascendancy to the Supreme Court. For us, one wrong vote on what we consider -- regardless of what you consider -- but what we consider a fundamental right could get the holding of Heller.

And I have some serious concerns on that issue. And I want to ask you a few more questions.

Yesterday, you said that, clearly, a constitutional right only works if you can enforce it. And I agree. Tell me how American citizens would be able to enforce their individual constitutional right to bear arms if you're holding that it does not apply to the states in your previous case as the appellate level becomes the law of the land?

SOTOMAYOR: The only statement I can start with is Maloney was decided on the basis of precedent. It was decided on precedent the Supreme Court, in Heller, recognized as its precedent. It was based on Second Circuit precedent that had interpreted the constitutional -- the Supreme Court's prior precedent. It may well be, may not be, that Senator Hatch was right that the old precedent should be distinguished in a certain way. Others may be right that it shouldn't.

That issue was not the one the Maloney court decided Maloney on. It decided it on the rule of law. It was the rule of law that led Judge Easterbrook in the Seventh Circuit decision to say not what we should be doing, it's what the Supreme Court should do is to reexamine a precedent that's directly on point.

I can assure your constituents that I have a completely open mind on this question. I do not close my mind to the fact and the understanding that there were developments after the Supreme Court's rulings on incorporation that will apply to this question or be considered. I have a completely open mind.

COBURN: Do you not consider it ironic that the majority of the debate about the 14th Amendment in this country was about the taking of guns from freed slaves? Is that not ironic that we now have some kind of conflict that we're going to say that the whole reason in the debate about the 14th Amendment originated from states taking away the rights of people's fundamental right to defend themselves? Is that not an irony to you?

SOTOMAYOR: Senator, would you want a judge or a nominee who came in here and said, I agree with you; this is unconstitutional before I had a case before me, before I had both sides discussing the issues with me, before I spent the time that the Supreme Court spent on the Heller decision -- and that decision was mighty long. It went through two years of history, did a very thorough analysis and discussion back and forth on the prior opinions of the court.

I don't know that that's a justice that I can be.

COBURN: Well...

SOTOMAYOR: I can only come to this...

COBURN: I agree with you, your honor. I don't want you to tell us how you're going to rule. But I asked you, isn't it ironic that in this country where our law comes from Blackstone forward, comes from English law, which our founding was perpetrated and carried out under this fundamental right, and that we have the 14th Amendment right, and that we have through legal -- what I would consider as a physician -- schizophrenia have decided that we can't decide whether this is a fundamental right.

I'll finish with that point, other than to note the Presser reference was to privilege and immunity, not due process.

SOTOMAYOR: I understand the importance of the right. It was recognized in Heller. And all I can continue to say, Senator, is I keep an open mind on the incorporation doctrine.

COBURN: I appreciate that, your honor. Thank you very much.

Let me go back to an area that I know is -- not everybody wants to hear about, but I think it's important. I asked you about where we were in terms of settled law on Roe and Doe, and -- and today I only want to focus on Roe and Doe, not Casey.

What was the state the law, say, in 1974, one year after Roe? What was -- where did we stand in that issue?

SOTOMAYOR: That women have the right to terminate their pregnancy in some situations without government regulation, and in others there would be permissible government regulation.

COBURN: Let me -- did any of the...

SOTOMAYOR: That's generally, because the court did look at other questions in terms of government regulation.

COBURN: Then let me ask you this. Did any of the laws of the 50 states regulating abortion survive the decision in Roe?

SOTOMAYOR: I don't know that I could answer that question, because I don't...

COBURN: OK. That's -- that's fair. They didn't. Was there any limit to the right to abortion either in the age of the child in the womb or the reasons for electing that surgery? And if so, what are those limits, according to Roe and Doe?

SOTOMAYOR: I -- Senator, I don't actually remember the court addressing that, because my studies have been on the undue burden test established in Casey. So my experience in this area or my knowledge, really, has been most particularly concentrated on the Casey standard, which is...

COBURN: I understand that.

SOTOMAYOR: ... what Casey did was change the Roe standard.

COBURN: Which goes back to why I asked you those two hypothetical -- not abstract, but hypothetical cases yesterday, the 28-week and a 38-week infant, for the -- the truth is, ever since January 22, 1973, you can have an abortion for any reason you want in this country. And even though Carhart II has now been ruled, that's -- a procedure that will eliminate that pregnancy is still legal and viable everywhere in this country.

COBURN: And so what I was trying to draw out to you is, where do we stand in this country, when 80 percent of the rest of the world allows abortion only before 12 weeks, only before 12 weeks? And yet we allow it for any reason at any time for any inconvenience under the health-of-the-woman aspect.

And that's the other reason why I raised the viability because technology and the state's interest under the Supreme Court ruling starts with viability. That's when a state can have interest. It's guaranteed, and there's limited ability states can have to control that after that.

Is the Casey ruling, the undue burden ruling test, is that a policy choice? I know it's the supreme law of the land today, but in your mind, would that represent a policy choice?

SOTOMAYOR: I understood that that was the court's framework for addressing both the woman's right to terminate her pregnancy under the Constitution and the state's rights to legislate and regulate in areas within its jurisdiction. So it was the court's way of attempting to address those two interests.

COBURN: And Justice Ginsberg's not real happy with those tests and neither was -- neither are several other members on the court.

I want to end up. Our conversation, when we had a private conversation, I approached you about the importance of the cases that you decide to take if you're on the court. Let me ask you a few questions, and I just want your opinion, and I'm not trying -- this is not to put you in any box, and if you think it is, please say so -- you're trying to put me in a box.

Do you believe that the court's abortion rulings have ended the national controversy over this issue?

SOTOMAYOR: No.

COBURN: OK. You don't have to name them, but do you think there are other similarly divisive issues that could be decided by the court in the future?

SOTOMAYOR: That, I can't answer.

COBURN: I don't want you to name any. I'm just saying, as you think through your mind, do you think there are other similarly divisive issues that are -- that we could have that would divide the country so remarkably?

You know, assisted suicide, euthanasia...

SOTOMAYOR: I can only answer what exists. People are very passionate about the issues they believe in. And so almost any issue could find an audience or a part of our population that's fervent about it.

COBURN: Which is a great answer because, on these divisive issues, is it better that the court decides them or elected representatives? If you find a preference, if you were king tomorrow and you said we're going to decide this either in the Supreme Court or make -- force Congress to make the decision, which would you think would be better for us?

SOTOMAYOR: In the first instance, it's always Congress or a state passing regulation that the court is reviewing and determining whether it complies with constitutional limits. So it's not a choice of either or.

It's always Congress' first interest or the state legislators' first interest with the non-veto of a...

COBURN: I've got 30 seconds left. I want to ask you another question. You said just a minute ago people are passionate about what they believe in. And I've read your speeches and your publications, and I believe you're passionate. And I believe your speeches reflect your passions.

I look at myself. And when I give a speech, you know, I let it all go, what I really believe. I'm more measured -- some people wouldn't believe that -- up here, but I am more measured when I'm here, but when I give a speech.

And the problem I'm having is, I really see a dissonance about what you said outside of your jurisprudence. And the only thing -- the only -- the only ability we have to judge is what that passion has relayed in the past and your statements here, in combination with your judicial practice.

And so you are an admirable judge, an admirable woman. You have very high esteem in my eyes for both your accomplishments and your intellect. I have yet to decide where I'm going on this, because I am still deeply troubled because of the answers that I couldn't get in the 50 minutes that I've been able to ask and also deeply troubled because I believe what you've spoken to the law students, what you've spoken in your writings truly reflect your real passions, which I sometimes find run in conflict with what I think the Constitution has to say.

But I thank you for giving us such a cordial response, and I am mightily impressed.

Thank you, Mr. Chairman.

LEAHY: Thank you, Senator.

SOTOMAYOR: Thank you, Senator.


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