Sen. Kyl's Second Round of Questioning at Judge Sotomayor Confirmation Hearing

CQ Transcriptions
Thursday, July 16, 2009 1:01 PM

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SEN. PATRICK LEAHY: Thank you very much, Senator Grassley.

Senator Kyl, did you want another round?

SEN. JON KYL: Yes, thank you, Mr. Chairman. I'm not sure how long this will take. But, Judge, I think maybe we're, to use the president's analogy that we talked about in my very first question to you, we may be in about the 25th mile of the marathon, and I might even be persuaded to have a little empathy for this last mile here. I think you're just about done.

I wanted to go over three quick things, if I could. The first is the exchange that we had this morning regarding the decision in Ricci in which you insisted that you were bound by Supreme Court and Second Circuit precedent. I quoted from the Supreme Court decision to the effect that I -- I believe that that contradicted your answer.

If you have anything different to say than what you said this morning, I wanted to give you another opportunity to say it. We don't need to re-plow the same ground. But is there anything different that you would like to offer on that?

JUDGE SOTOMAYOR: Senator, after each round, I go to the next moment. Without actually looking at the transcript, I couldn't answer that question. It's just impossible to right now. I'm glad you're giving me the opportunity, but I would need a specific question as to something I said and what I meant before I could respond.

KYL: All right. Since we will probably have a few questions as follow up in writing and you'll be providing us answers to those, maybe the best thing is just to ask a general question or, if there is something specific that I can relate it to, and then you can respond in that way.

SOTOMAYOR: Thank you, sir.

KYL: You're very welcome.

Now, the second question has to do with the Second Amendment. In the Maloney case, you held that it was not incorporated into the 14th Amendment. And what -- well, maybe I should ask you what that means. Let me ask you in two separate situations, as a practical matter.

If the Supreme Court does not review that issue, then is it the case that, at least in the Second Circuit and the Seventh Circuit, the states that are in the Seventh and Second Circuit, those states could pass laws that restrict, or even prohibit, people from owning firearms?

SOTOMAYOR: I do not hold -- it was not incorporated. I was on a panel that viewed Supreme Court precedent and Second Circuit precedent as holding that fact.

KYL: Right.

SOTOMAYOR: You can't talk in an absolute. There always has to be a reason for why a state acts. And you -- also has to be a reason for the extent of the regulation the state passes.

And so the question in Maloney for us was a very narrow question, which was are these nunchuck sticks, and I have described them previously as these martial arts sticks tied together by a belt that, when you swing them, if somebody comes by, there could be -- it's not serious deadly force in some situations -- whether the state had a reason recognized in law for determining that it was illegal to own those sticks.

The next issue that would come up by someone who challenged the regulation would be what's the nature of the regulation, and how does it comport with the reason the state gives for the actions it did. So it -- absolute regulation, it's not what I would answer. I would answer with the regulation...

KYL: Let me -- I -- excuse me. I appreciate your answer.

What would be the test that would be applied by a court in the event that a state said because of the danger that firearms to present to others, we're going to require that only law enforcement personnel can own firearms in our state, and someone challenged that as an affront to their rights, they would say the federal government can't take that right away from us because of the Second Amendment.

What would the test be that the court would apply to analyze the regulation of the state?

SOTOMAYOR: Well, that's very similar, although not exactly, if I understood it, to the Heller, the facts in Heller. And the court there said that the regulation in D.C. was broader than the interest asserted.

That question in a different state would depend on the circumstances of it's barring...

KYL: Well, is -- excuse me for interrupting.

Is there no standard to -- I mean, we're familiar with strict scrutiny, the reasonable basis test, and so on. Is there a standard of which you're aware that the court would use to examine the state's right to impose such a restriction, given that the Second Amendment would be deemed not incorporated?

SOTOMAYOR: In Maloney, the court addressed whether there was a violation of the equal protection statute of -- equal protection of the 14th Amendment and determined that rational basis review. Now that I understand that you were asking about a standard...

KYL: Sure. I'm sorry. I didn't (inaudible)...

SOTOMAYOR: Of review that's...

KYL: Now, of the tests that the court applies traditionally, the rational basis is the least difficult of states to meet in justifying a regulation, is it not?

SOTOMAYOR: I'm not going to be difficult with you. It's the one where you don't need a -- an exact fit between the exact injury that you're seeking to remedy in the legislation...

KYL: Could I...

SOTOMAYOR: So it does have more...

KYL: Flexibility for the...

SOTOMAYOR: Well, flexibility is the wrong -- more a deference to congressional findings about what...

KYL: Or -- or state law.


KYL: Right. You -- you know that the -- the general rule that the rational basis test is the least intrusive on a state's ability to regulate, whereas strict scrutiny is -- is the most intrusive on the state's ability. Is that a fair characterization?

SOTOMAYOR: It's a fair characterization that when you have strict scrutiny, the government's legislation must be very narrowly tailored.

KYL: Right. So...

SOTOMAYOR: When a rational basis, there is a broader breadth for the states to act.

KYL: So wouldn't it be correct to say that as between the application of the Second Amendment to the District of Columbia, for example, compared to a situation in which a state or city imposed a regulation on the control of firearms, that it would be much more likely that the court would uphold the state's ability or the city's ability to regulate that than it would -- in the abstract, I'm talking about here -- than it would a federal attempt to regulate it under the Second Amendment?

SOTOMAYOR: That's a problem within the abstract, because what the court would look at is whatever legislatures -- state legislative findings there are and the fit -- I'm -- fit between those findings and the legislation.

KYL: Right. And -- and I appreciate that you're not going to -- without knowing the facts of every case, you can't opine. But just as a general proposition, obviously, if the amendment is incorporated, it will be much more difficult for a government to impose a standard than if it is not incorporated.

SOTOMAYOR: Well, the standard of review, even under the incorporation doctrine, was actually not decided in Heller. And that issue wasn't resolved, so what that answer will be is actually an open question that I couldn't even discuss in a broad term, other than to just explain that...

KYL: All right. Let -- let me ask you -- again to interrupt, because we're less than two minutes now -- if Senator Leahy says, gee, in Vermont he's not worried about the fact that the Second Amendment isn't incorporated. Maybe if I lived in New York or Massachusetts or some other state, I would be worried.

The question, I do, I would ask here is can you understand why someone who would like to own a gun would be concerned that if the amendment is not deemed incorporated into the 14th Amendment as a fundamental right, that it would be much more likely that the state or the city in which that individual lived could regulate his right to own a firearm?

SOTOMAYOR: Very clear to me from the public discussions on this issue that that is a concern for many people.

KYL: Final question. You're familiar -- this goes to the foreign law issue -- you're familiar with the difference in the treatment of foreign law by the U.S. Supreme Court in Kennedy v. Louisiana on the one hand and in Roper v. Simmons on the other.

In Roper the court ruled it was cruel and unusual to apply the death penalty and drew substantially on foreign law. In Kennedy v. Louisiana, an adult was convicted of raping an 8-year-old child, and the same five justices who wrote the opinion in Roper ruled that it was cruel and unusual to sentence the individual to death, but cited no foreign law whatsoever.

Some have said that a discussion of foreign law was left out of the Kennedy case because it actually cut against the majority's opinion. What do you think?

SOTOMAYOR: I can't speak for why they did. I can only do what you did, which is to describe what the courts did in what they said. It's impossible for me to speak about why a particular court acted in a particular way or why a particular justice analyzed an issue outside of what the opinion says.

KYL: I'll just tell you, my view is it kind of tells me that if the court can find some foreign law that supports its opinion, it might use it. If the opinion is on the other side, then it doesn't.

In my view, that's one of the problems with using foreign law. And I gather from what you said earlier, you don't think the court should use foreign law, either, except in cases of treaty and other similarly appropriate cases.

SOTOMAYOR: I do not believe that foreign law should be used to -- to determine the result under constitutional law or American law, except where American law directs.

KYL: Thank you very much. Thank you, Judge.

LEAHY: Thank you.

Senator Graham?

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