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

CQ Transcriptions
Thursday, July 16, 2009; 1:38 PM

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LEAHY: Thank you.

When I -- and this -- it is almost over -- there was one question, and I've withheld the balance of my time before, and I want to make sure I ask this question, because I asked it of Chief Justice Roberts and Justice Alito when they were before this committee.

As you know, in death penalty cases, it takes five justices to stay an execution but only four to grant certiorari to hear a case. You could grant certiorari to hear a case, but the execution is not stayed. It could become a moot point. The person could be executed in between.

So usually, if those four justices wanted to hear a case, somebody agrees to the fifth vote to stay an execution just as a matter of courtesy, so the cert does not become moot, so the person is not executed in the few weeks that might be between granting a cert and the hearing of the case.

Both Chief Justice Roberts and Justice Alito agreed that this was -- rule was sensible, the rule of five, or a courtesy fifth. It appears, according to a study done by the New York Times, that very reasonable rule and the rule that both Chief Justice Roberts and Justice Alito said it was very reasonable, and I think the majority of us on the committee thought it was reasonable.

They said that -- suggest that that rule has not been adhered to, the rule of four, because there have been number of cases where four justices voted to the -- for cert, but -- and wanted to stay the execution, but the fifth would not, and the person was executed before the case was heard.

If you were on the Supreme Court, and this is basically the same thing I asked Justice Roberts and Justice Alito, if you were on the Supreme Court, four of your fellow justices said they'd like to consider a death penalty case, and they asked you to be a fifth vote to stay the execution, even though you didn't necessarily plan to vote for cert, how would you approach that issue?

SOTOMAYOR: I answer the way that those two justices did, which is I would consider the rule of the fifth route (ph) vote in the way it has been practiced by the court. It has a sensible basis, which is that, if you don't grant the stay, an execution can happen before you reach the question of whether to grant certiorari or not.

LEAHY: Well, I thank you.

And I applauded both Chief Justice Roberts and Justice Alito for their answer. It appears that perhaps somewhere between the hearing room and the Supreme Court their minds changed.

Now, in 2007, Christopher Scott Emmett was executed, even when four justices had voted for stay of execution. Justice Stevens wrote a statement and joined by Justice Ginsberg calling for a routine practice of staying executions scheduled in advance of our review of the denial of a capital defendant's first application -- first application for a federal writ of habeas corpus.

I'm not asking for a commitment on what Justices Stevens and Ginsburg said, but is that something that ought to at least be considered?

SOTOMAYOR: Unquestionably. As I said, there is an underlying reason for that practice.

LEAHY: And there's an understanding that the -- when the case is reviewed, it may very well end up -- the sentence below may well be upheld and the execution will go forward, but this is on the various steps for that hearing.

SOTOMAYOR: Yes, sir.

LEAHY: Thank you.

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