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Sen. Cornyn's Third Round of Questioning at Judge Sotomayor Confirmation Hearing

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Thursday, July 16, 2009; 1:22 PM

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LEAHY: Senator Cornyn?

CORNYN: You're almost through, Judge. I just want to ask three relatively quick items just to -- that I was not able to get to earlier just for your brief comment.

You wrote in 2001 that neutrality and objectivity in the law are a myth. You said that you agreed that, quote, "there is no objective stance, but only a series of perspectives, no neutrality, no escape from choice in judging." Would you explain what that means?

SOTOMAYOR: In every single case, and Senator Graham gave the example in his opening statement, there are two parties arguing different perspectives on what the law means. That's what litigation is about. And what the judge has to do is choose the perspective that's going to apply to that outcome.

So there is a choice. You're going to rule in someone's favor. You're going to rule against someone's favor. That's the perspective of the lack of neutrality. It's that you can't just throw up your hands and say, "I'm not going to rule." Judges have to choose the answer to the question presented to them.

And so that's what that part of my talking was about, that there is choice in judging. You have to rule.

CORNYN: You characterized in your opening statement that your judicial philosophy is one of fidelity to the law. Would you agree that both the majority and the dissenting justices in last year's landmark gun rights case, the D.C. v. Heller case, were each doing their best to be faithful to the text and the history of the Second Amendment? In other words, do you believe that they were exhibiting fidelity to the law?

SOTOMAYOR: I think both were looking at the legal issue before them, looking at the text of the Second Amendment, looking at its history, looking at the court's precedent over time and trying to answer the question that was before them.

CORNYN: Do you think it's fair to characterize the five justices who affirmed the right to keep and bear arms as engaged in right-wing judicial activism?

SOTOMAYOR: It's -- that -- I don't use that word for judging. I eschew labels of any kind. That's why I don't like analogies and why I prefer, in brief writing, to talk about judges interpreting the law. CORNYN: What about the 10 Democratic senators, including Senator Feingold, who's been mentioned earlier, who joined the brief, the amicus brief to the U.S. Supreme Court urging the court to recognize the individual right to keep and bear arms? Do you think, by encouraging an individual right to keep and bear arms, that somehow these senators were encouraging the court to engage in right-wing judicial activism?

SOTOMAYOR: I don't describe people's actions with those labels.

CORNYN: I appreciate that.

You testified earlier today that you would not use foreign law in interpreting the Constitution statues. I'd like to contrast that statement with an earlier statement that you made back in April. And I quote, "International law and foreign law will be very important in the discussion of how to think about unsettled issues in our legal system. It is my hope that judges everywhere will continue to do this," close quote.

Let me repeat the words that you used three months ago. You said, "Very important," and you said, "Judges everywhere." This suggests to me that you consider the use of foreign law to be broader than you indicated in your testimony earlier today. Do you stand by the testimony you gave earlier today? Is it -- or do you stand by the speech you gave three months ago, or can you reconcile those for us?

SOTOMAYOR: Stand by both, because the speech made very clear in any number of places where I said you can't use it to interpret the Constitution or American law, and I went through -- not a lengthy because it was a shorter speech -- but I described the situations in which American law looks to foreign law by its terms, meaning, it's counseled by American law.

My part of the speech said people misunderstand what the word "use" means. And I noted that use appears to be -- to people to mean if you cite a foreign decision, that's means it's controlling an outcome or that you are using it to control an outcome. And I said, no. You think about foreign law as a -- and I believe my words said this -- you think about a foreign law the way judges think about all sources of information, ideas. And you think about them as ideas both from law review articles and from state court decisions and from all the sources, including, Wikipedia, that people think about ideas. OK?

They don't control the outcome of the case. The law compels that outcome. And you have to follow the law. But judges think. We engage in academic discussions. We talk about ideas. Sometimes, you'll see judges who choose -- I haven't -- it's not my style, OK? But there are judges who will drop a footnote and talk about an idea. I'm not thinking that they're using that idea to compel a result. It's an engagement of thought.

But the outcome, as in, you know, you could always find an exception, I assume if I looked hard enough. But in my review, judges are applying American law.

CORNYN: Well, Your Honor, why would a judge cite foreign law unless it somehow had an impact on their decision on their decision making process?

SOTOMAYOR: I don't know why other judges do it. As I explained, I haven't. But I look at the structure of what the judge has done and explained and go by what that judge tells me. There are situations -- that's as far as I can go.

CORNYN: You said at another occasion that you find foreign law useful because it, quote, "gets the creative juices flowing," close quote. What does that mean?

SOTOMAYOR: To me, I am a part academic. Please don't forget that I taught at two law schools. I do speak more than I should.

(LAUGHTER) And I think about ideas all the time. And so, for me, it's fun to think about ideas. You sit at a lunchroom among judges, and you'll often hear them saying, did you see what that law school professor said. Or did you see what some other judge wrote and what do you think about it and -- but it's just talking. It's just sharing ideas.

What you're doing in each case -- and that's what my speech said, you can't use foreign law to determine the American Constitution. It can't be used neither as a holding or precedent.

CORNYN: Do you agree with me that if the American people want to change the Constitution, that is a right reserved to them under the Constitution to amend it and change it rather than to have judges, under the guise of interpreting the law, in effect, change the Constitution by judicial fiat?

SOTOMAYOR: In that regard, the Constitution is abundantly clear. There is amendment process set forth there. It controls how you change the Constitution.

CORNYN: And I would just say, if academics or legislators or anybody else who's got creative juices flowing from the invocation of foreign law, if they want to change the Constitution, my contention is the most appropriate way to do that is for the American people to do it through the amendment process, rather than for judges to do it by relying on foreign law.

SOTOMAYOR: We have no disagreement.

CORNYN: Thank you very much, your honor.

LEAHY: Thank you.

Senator Coburn?


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