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Sen. Hatch Questioning at Judge Sotomayor Confirmation Hearing

CQ Transcriptions
Thursday, July 16, 2009 12:51 PM

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SEN. PATRICK LEAHY: Well, thank you. Thank you for that compliment, Senator.

I -- and I should compliment Senator Specter here. When he was chairman, I was ranking member, and we had to Supreme Court nominations. We tried to work out a time to (inaudible) everybody, and we did, and it was -- we were told by both Republicans and Democrats that nobody had complained about the amount of time. I've tried to do the same thing. It is a lifetime appointment. Been very impressed, of course, with our nominee, and that's been obvious.

Incidentally, she was originally nominated by President George H.W. Bush, and then by President Bill Clinton, now by President Barack Obama. President Clinton nominated her to the Second Circuit, and I have a letter addressed to the members of the committee -- well, actually to you and I, Senator Sessions, from former President Clinton.

And he speaks of her being able to make a unique contribution through her experience as a prosecutor and trial judge to the bench and hopes that we will have a speedy confirmation for her. And I will put that in the record.

One of the things is in -- also in trying to make sure everybody gets balanced time, but we've had -- a lot of us have served as either chairmen and ranking member of this committee. We know how important that is. And I use that to yield to Senator Hatch, who has had also the problem of having to schedule how things go. And I'll yield to you.

But thank you, Jeff. I appreciate that.

SEN. ORRIN HATCH: Well, thank you, Mr. Chairman, and I echo Jeff's statement here.

Judge, you've been great throughout this process, and I appreciate it. But I have some questions I'd like to ask, but I think you can answer yes or no. Of course, you can qualify if you feel like it. But I would like to get through these, because they're important questions to me and millions of other people that I represent.

Judge, from 1980 to 1992, you were actively involved with the Puerto Rican Legal Defense and Education Fund. That's a well-known civil rights organization in our country.

Among many other activities, this group files briefs in Supreme Court cases. You served in nearly a dozen different leadership positions there, including serving on and chairing the Litigation Committee.

The New York Times has described you as a, quote, "Top policymaker," unquote, with the group, and said that you would meet frequently with the legal staff, review the status of cases, and played an active role in the fund's litigation. Lawyers at the fund described you as, quote, "An involved and ardent supporter of their various legal efforts during your time with the group," unquote.

The Associated Press looked at documents from your service with the fund that showed that you were, quote, "Involved in making sure that the cases, the fund's cases, handled were in keeping with its mission statement and were having an impact."

And when Senator Gillibrand introduced you to this committee on Monday, she compared your leadership role with the fund to Justice Ruth Bader Ginsburg's participation in the ACLU Women's Rights project or Justice Thurgood Marshall's participation on behalf of the NAACP Legal Defense and Education Fund.

So let me ask you just about a few abortion cases in which the fund filed briefs. And I do believe you're going to answer these yes or no, but again, certainly qualify if you feel like it.

I'm not asking for your present views, either personal or legal, let's get that straight, on these issues, nor am I asking how you might rule on these issues in the future. I just want to make that clear.

HATCH: I might say that -- like I say, these are important issues. In one case, Williams v. Zbaraz and Harris v. McRae, the fund joined an amicus brief asking the Supreme Court to overturn restrictions on taxpayer funding for abortions.

The brief compared refusing to use Medicaid funds to pay for abortions to the Dred Scott case, the Dred Scott v. Sandford decision that refused citizenship to black people in our society and -- and treated them terribly.

At the time, did you know that the fund was filing this brief? At the time, did you -- well, let me ask you each one. At the time, did you know the fund was filing this brief?

JUDGE SOTOMAYOR: No, sir.

HATCH: OK. At the time, did you know that the brief made this argument?

SOTOMAYOR: No, sir.

HATCH: At the time, did you support the fund filing this brief that made this argument?

SOTOMAYOR: No.

HATCH: At the time, did you voice any concern, objection, disagreement or doubt about the fund filing this brief or making this argument?

SOTOMAYOR: I was not like Justice Ginsburg or Justice Marshall. I was not a lawyer on the fund as they were, with respect to the organizations they belonged to. I was a board member.

And it was not my practice and not that I know of, of any board member, although maybe one with civil rights experience would have. I didn't have any in this area, so I never reviewed the briefs.

HATCH: All right. In another case, Ohio v. Akron Center for Reproductive Health, the fund argued that the First Amendment right to freely exercise religion undermines laws requiring parental notification for minors getting abortions. Now, at the time, did you know that the fund was filing this brief?

SOTOMAYOR: No, no specific brief. Obviously, it was involved in litigation, so I knew generally they were filing briefs, but I wouldn't know until after the fact that a brief was actually filed. But I wouldn't review it.

HATCH: The same questions on this. At the time, did you know that the brief made this argument? At the time, did you support the fund filing this brief that made this argument? And at the time, did you voice any concern, objection, disagreement, or doubt about the fund filing this brief or making this argument?

SOTOMAYOR: No, because I never reviewed the brief.

HATCH: That's fine. I'm just going to establish this.

In another case, Planned Parenthood v. Casey, the fund argued against a 24-hour waiting period for obtaining an abortion. So, again, those questions. At the time, did you know that the fund was filing this brief? Did you know that the brief made this argument? Did you support the fund filing this brief that made this argument? And did you voice any concern, objection, disagreement or doubt about the fund filing this brief or making this argument?

SOTOMAYOR: For the same reason, no.

HATCH: OK.

Now, Judge, I'm going to be very easy on you now, because I -- I invited constituents in Utah to submit questions and got an overwhelming response. Many of them submitted questions about the Second Amendment and other issues that have already been discussed.

But one constituent asked whether you see the courts, especially the Supreme Court, as an institution for resolving perceived social injustices, inequities and disadvantages. Now, please address this both in terms of the justices' intention and the effect of their decisions.

That was the question. And I thought it was an interesting question.

SOTOMAYOR: No, that's not the role of the courts. The role of the courts is to interpret the law as Congress writes it. It may be the effect in a particular situation that, in the court doing that, in giving effect to Congress's intent, it has that outcome, but it's not the role of the judge to create that outcome. It's to interpret what Congress is doing and do what Congress wants.

HATCH: Great.

One final question, Judge. You have described your judicial philosophy in terms of the phrase "fidelity to the law." Would you agree with me that both majority and dissenting justices in last year's gun rights decision in District of Columbia v. Heller were doing -- doing their best to be faithful to the text and history of the Second Amendment?

SOTOMAYOR: Text and history, how precedent had analyzed it, yes.

HATCH: OK. In other words, do you believe that they were exhibiting fidelity to the law as they understood it?

SOTOMAYOR: Yes. Yes.

HATCH: OK. Then I take it that you would agree that the justices in the majority were not engaging in some kind of right-wing judicial activism that some have characterized the decision? Is that fair to say?

SOTOMAYOR: It is fair for me to say that I don't view what a court does as activism. I view it as each judge principally interpreting the issue before them on the basis of the law.

HATCH: Great. Well, let me just ask you one other constituent question. It's a short one. Another constituent asked, which is more important or deserves more weight, the Constitution as it was originally intended or newer legal precedent?

SOTOMAYOR: What governs always is the Constitution...

HATCH: Yes, which -- which -- which is more important or deserves more weight, the actual wording of the Constitution as it was originally intended or newer legal precedent? That's a tough question.

SOTOMAYOR: The intent of the founders was set forth in the Constitution. They created the words; they created the document. It is their words that is the most important aspect of judging. You follow what they said in their words, and you apply it to the facts you're looking at.

HATCH: Well, thank you, Judge.

I'll give back the remainder of my time, Mr. Chairman. LEAHY: Thank you. Thank you, Senator Hatch.

And I just would note, we do have this letter in the -- in the record from PRLDEF, the Puerto Rican Legal Defense and Education Fund, in which they say, "Neither the board as a whole nor any individual member selects litigation to be undertaken or controls ongoing litigation." I just think that should be very, very clear here. Probably why they get support from the United Way and a number of other organizations.

Senator Grassley?

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