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Sen. Coburn's Third Round of Questioning at Judge Sotomayor's Nomination Hearings

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Thursday, July 16, 2009; 1:26 PM

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COBURN: Thank you, Mr. Chairman.

I'm going to go into an area that we have not covered, no one has covered yet. And I'm reminded of Senator Sessions talking to you about pay. You know, I would predict to you, in about 15 -- 15 or 18 years -- I'm sorry?

(UNKNOWN): (OFF-MIKE)

COBURN: ... pay, in 10 or 15 years -- judicial pay -- we may not be able to pay your salary, if you look -- 9 years from now, we're going to have $1 trillion worth of interest on the national debt. It's not very funny. What it does is it undermines the freedom and security of our children and our grandchildren.

And I want to go to -- to Madison. Madison's the father of our Constitution, and I want to get your take on three issues: one, the commerce clause; two, the general welfare clause; and, number three, the 10th Amendment.

And I don't know if you've read the Federalist Papers, but I find them very interesting to give insight into what our founders meant, what they said when they wrote our Constitution.

In Federalist 51, Madison expressed the importance of a restrained government by stating, "In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed and, in the next place, oblige it to control itself."

Do you believe that our federal courts enable the federal government to exceed its intended boundaries by interpreting Article I's commerce clause and necessary and proper clause to delicate virtual unlimited authority to the federal government?

SOTOMAYOR: The Supreme Court, in at least two rules or one, has said there are limits to all powers set forth in the Constitution. And -- and the question for the court in any particular situation is -- is to determine whether whatever branch of government or state is acting within the limits of the Constitution.

COBURN: So you would say -- but let me read you another Madison quote, again, the father of our Constitution. "If Congress can employ money indefinitely to the general welfare and are the sole and supreme judges of general welfare, they may take the care of religion into their own hands. They may appoint teachers in every state, county and parish and pay them out of the public treasury."

"They may take into their hands -- their own hands the education of our children, establishing like-manner schools throughout the union. They may assume the provision for the poor. They may undertake the regulation of all roads other than post roads. In short, everything from the highest object of state legislation down to the most minute object of police would be thrown under the power of Congress."

"Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations and transmute the very nature of the limited government established by this Constitution and the American people."

COBURN: I guess my question to you is, do -- do you have any concerns, as we now have a $3.6 trillion budget, $11.4 trillion worth of debt, $90 trillion worth of unfunded obligations that are going to be placed on the back of our children, that maybe some reining in of Congress in terms of the general welfare clause, the commerce clause, and reinforcement of the 10th Amendment under its intended purposes by our founders, which said that everything that was not specifically listed in the enumerated powers was left to the states and the people -- do you have any concerns about where we're heading in this nation and the obligations of the Supreme Court may be to re-look at what Madison and our founders intended as they wrote these clauses into our Constitution?

SOTOMAYOR: One of the beauties of our Constitution is the very question that you asked me: Is the dialogue that's left in the first instance to this body and the House of Representatives?

The answer to that question is not mine in the abstract. The answer to that question is a discussion that this legislative body will come to an answer about as reflected in the laws it will pass. And once it passes those laws, there may be individuals who have rights to challenge those laws and will come to us and ask us to examine what the Constitution says about what Congress did.

But it is the great beauty of this nation that we do leave those lawmaking to our elected branches and that we expect our courts to understand its limited role, but important role, in ensuring that the Constitution is upheld in every situation...

COBURN: So...

SOTOMAYOR: ... that's presented to it.

COBURN: I believe our founders thought that the Supreme Court would be the check and balance on the commerce clause, the general welfare clause, and the insurance of the 10th Amendment, and that's the reason I raised those issues with you.

I wonder if you think we've honored the plain language of the Constitution and the intent of the founders with regard to the limited power granted to the federal government.

SOTOMAYOR: That's almost a judgment call. I don't know how to answer your question, because it would seem like it would lead to the natural question: Did the courts do this in this case? And that would be opining on a particular view of a case, and that case would have a holding, and I would have to look at that holding in the context of another case.

I'm attempting to answer your question, Senator, but our roles and the ones we choose to serve -- your job is wonderful. It is so, so important. But I love that you're doing your job, and I love that I'm doing my job as a judge. I like mine better.

COBURN: I think I would like yours better as well, although I doubt that I could ever get to the stage of a confirmation process.

Well, let me just end up with this.

(CROSSTALK)

(LAUGHTER)

COBURN: It would be entertaining, wouldn't it?

(UNKNOWN): (OFF-MIKE), I'll preside over it.

COBURN: Well, now, it's not likely to happen.

Let me -- let me just end with this. You know, I -- people call me simple, because I really believe this document is the genesis of our success as a country. And I believe these words are plainly written, and I believe we ignore them at our peril. And my hope is is that the Supreme Court will re-look at the intent of our founders and the 10th Amendment, where they guaranteed that everything that wasn't spelled out specifically for the Congress to do was explicitly reserved to the states and to the people. To do less than that undermines our future.

And all we have to do is take a little snapshot of where we are today, economically, financially and leadership-wise, to understand we ignored their plain words. And we find ourselves near bankruptcy because of them.

I thank you, Mr. Chairman.


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