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Arkansas Attorney General McDaniel Testifies at Judge Sotomayor's Confirmation Hearings

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Thursday, July 16, 2009; 2:15 PM

ACTING CHAIRMAN: The hearing of the Judiciary Committee will come back to order.

We are awaiting the arrival of Mayor Bloomberg and District Attorney Morgenthau, who are coming down from New York. I am told that they are five minutes away, but the five minutes that people are away can be a longer five minutes than a regular five minutes. So in the interest of the time of the proceeding and of the other witnesses, we will proceed and come to them when they arrive and have a chance to take their seats.

SESSIONS: Well, in -- in the mayor's defense, he probably thought we would be operating under Senate time, and we would certainly be late, and he could have a little extra time.

ACTING CHAIRMAN: That is our custom.

SESSIONS: We're moving along well. Thank you, Mr. Chairman.

ACTING CHAIRMAN: Our first witness, then, will be Dustin McDaniel. He is the attorney general for the state of Arkansas and the southern chair of the National Association of Attorneys General. Previous to his election as attorney general, he worked in private practice in Jonesboro, Arkansas. Prior to taking office, Mr. McDaniel also served as a uniform patrol officer in his hometown of Jonesboro, Arkansas. He is a graduate of the University of Arkansas Little Rock Law School.

Attorney General McDaniel, would you please stand to be sworn? Do you affirm that the testimony you're about to give before the committee will be the truth, the whole truth and nothing but the truth, so help you God?

MCDANIEL: I do.

ACTING CHAIRMAN: Please be seated.

Attorney General McDaniel, please proceed with your statement

MCDANIEL: Thank you, Mr. Chairman and Ranking Member Sessions.

My name is Dustin McDaniel, and I'm the attorney general of the state of Arkansas. I am here today to speak in support of the nomination of Judge Sonia Sotomayor to the Supreme Court of the United States.

You've all heard all week about her compelling life story and impressive accomplishment. I have the highest respect and admiration for her, and I'm proud to testify on behalf of this person, who was first appointed by President George H.W. Bush, and then by my most famous predecessor in the Arkansas attorney general's office, President Bill Clinton.

More specifically, I'm here to rebut any assertion that her participation in the matter of Ricci v. DeStefano in any way reflects upon her qualifications or abilities to serve as a justice of the United States Supreme Court. When the Supreme Court granted certiorari in the Ricci case, I, on behalf of the state of Arkansas, joined with five other attorneys general in support of the Second Circuit. Before I address the case in the brief, let me adjust the parties and their issues.

I entered the world of public service long before I became an elected official. After college I turned down my admission into law school and took a civil service exam in my hometown of Jonesboro, Arkansas. I became a police officer, and I saw firsthand the heroism and dedication of the men and women who protect and serve our communities every day.

Firefighters like Frank Ricci and his colleagues run into homes and buildings when everyone else is running out. I have the highest respect and gratitude for all who serve our communities, states and nation. They are heroes among us, and they deserve to be treated fairly by our system.

My personal experience with a civil service exam was a favorable one, but not all are so lucky. I understand the frustration that the firefighters felt with this process. I also understand the cities fear of litigation and unfair results. I am for a process that is fair. No one should be given an unfair advantage, but no one should be subject to an unfair disadvantage either.

As attorney general, I represent hundreds of state agencies, boards and commissions in matters of employment law. My job is to allow my clients to do their job without fear of unreasonable litigation. The law had, until recently, allowed for flexibility necessary for public employers. The Supreme Court's ruling in this case will likely increase costly litigation, and the taxpayers will ultimately pay the bill.

All who have commented on the nomination process in recent years have been critical of those who have been labeled an activist judge. It's important to note that the Second Circuit's ruling in this case was not judicial activism at work. To the contrary, they followed existing law.

MCDANIEL: In Ricci, the panel adopted the lengthy analysis of the district courts, which they called "thorough," "thoughtful," and "well-reasoned." The district court cited cases dating back some 28 years. The ruling was consistent with the law, and the doctrine of stare decisis.

Granted, the Supreme Court, in a closely divided opinion, ruled differently. But in doing so, it set new precedent.

It's also important to note that the 2nd Circuit's ruling was supported by many prestigious groups, including the EEOC, the Department of Justice, the National League of Cities, the National Association of Counties, International Municipal Lawyers Association and the Republican and Democratic attorneys general of Alaska, Iowa, Arkansas, Maryland, Nevada and Utah.

There's a large body of research available on Judge Sotomayor's record. No allegation that she rules based on anything other than the law can stand, when cast in the light of her actual record.

The Congressional Research Service concluded, quote, "Perhaps the most consistent characteristic of her approach as an appellate judge could be described as an adherence to the doctrine of stare decisis, that is upholding of past judicial precedents."

One only has to look so far as to her own words. In Hayden v. Pataki she wrote in a dissent, quote, "It is the duty of a judge to follow the law, not question its plain terms."

She concluded by saying, quote, "Congress would prefer to make any needed changes itself, rather than have courts do so for it."

In my opinion, Judge Sotomayor is abundantly qualified and is an excellent nominee. I believe that the people of the United States would be well-served by her presence on the court.

It is my great honor and privilege to be here at this committee, and I thank you ever so much for the opportunity to appear here today.

ACTING CHAIRMAN: Thank you ever so much, Attorney General McDaniel.

We will do a round of questions for the attorney general, and then once the panel is completely assembled, I will have all the witnesses sworn. And then we will proceed to Mayor Bloomberg, to District Attorney Morgenthau and on across the panel, with one brief interruption to allow the distinguished senator from the state of New York, Senator Schumer, to introduce Mayor Bloomberg.

Attorney General McDaniel, as a -- as an experienced lawyer, let me ask you, is it not the case that it's the Supreme Court's task very frequently to resolve conflicts between the circuit courts of appeal?

MCDANIEL: Yes, of course it is, Senator.

ACTING CHAIRMAN: And if a circuit court is bound by its own prior precedent and therefore the doctrine of stare decisis controls a particular decision, that does not in any way inhibit the Supreme Court from reviewing that second decision against conflicting decisions from other circuits in its task in resolving those conflicts. Correct?

MCDANIEL: That is correct.

ACTING CHAIRMAN: Is it your sense that that is what occurred in this case, that the 2nd Circuit in Ricci felt itself bound by stare decisis, as a result of its prior precedent, but that the Supreme Court took the case to resolve issues of conflict with other circuits?

MCDANIEL: Well, it certainly seems clear that the -- the binding law from the Supreme Court, which dated back up to 28 years, made it clear that remedial actions, although race-conscious but race-neutral, were permissible.

I think that that is precisely what the case demonstrated and how the court ruled and why the states that participated, Arkansas included, thought that it was important to preserve for our clients the ability to try to avoid litigation, if they think they cannot defend an existing practice. If they cannot defend it, no lawyer would tell their client, "Oh, go do it, anyway."

MCDANIEL: But clearly the Supreme Court thought that it was ripe for review, and they also thought that it was ripe to change the law, which is their purview.

WHITEHOUSE: That's an interesting point, and many observers, including prominent observers who have had their views expressed in the public media about this, have indicated that that decision changed the landscape of civil rights law.

If a judge is a cautious and small "c" conservative jurist on a circuit court, do you believe it's appropriate for the circuit court to change the landscape of civil rights law?

MCDANIEL: Absolutely not. I don't think that the 2nd Circuit did anything short of what it had to do, which was to apply the existing law.

The fact that the majority, a bare majority in the United States Supreme Court decided to change existing law, frankly, that would have been inappropriate for the 2nd Circuit to take that responsibility on itself.

WHITEHOUSE: Thank you, Attorney General.

SESSIONS: Thank you.

Mr. McDaniel (inaudible) attorney general, and it was a great honor.

With regard to the Ricci case, are you aware that the panel attempted to decide this case on a summary order, writing no opinion, not even a per curiam opinion?

MCDANIEL: I am aware of that.

SESSIONS: And are you aware that, by chance, one of the other members of the circuit found out about that and an uproar of sorts occurred because the people -- the other members -- other members of the circuit were very concerned about the opinion and thought it was an important opinion? Are you aware of that?

MCDANIEL: I know that the -- I know that the panel, or at least the body of judges chose to review the matter and they voted not to meet en banc and that there was a per curiam that was issued...

(CROSSTALK) SESSIONS: That's correct. That's correct.

Now, you say that there was 2nd Circuit opinion and authority to uphold this case. But -- but on rehearing, the slate is wiped clean and the panel can develop or formulate new authority or determine clearly whether or not that previous case may have applied.

And are you aware that when they voted, the vote was 6-6, and Judge Sotomayor was the key vote in deciding not to rehear the case? And therefore we can conclude that not only did she decide this case, but it's really not accurate to say she was just following authority since it was her vote that didn't allow that authority to be reevaluated.

MCDANIEL: Well, Senator, she was in the majority, so it's fair to say that any one of those judges could be the deciding vote...

(CROSSTALK)

SESSIONS: That is correct. But it's not fair, I think, to say that she didn't have an opportunity to reevaluate it. She was simply applying law that she was bound to follow when she could have, if she felt differently, she could have allowed it to have been rediscussed.

MCDANIEL: I also think that there were Supreme Court cases, not just 2nd Circuit cases.

SESSIONS: Well, are you aware the Supreme Court says there were not. Are you aware the Supreme Court, in their opinion, said there was no Supreme Court authority on this matter?

MCDANIEL: I have read their opinion and I tend to agree with the minority that this was, in fact, squarely within the...

(CROSSTALK)

SESSIONS: Now, you filed, which I give you credit for, and I did some of these things when I was attorney general, you -- you joined with 32 other state attorneys general in submitting an amicus brief to the U.S. Supreme Court on the Heller case.

GRAHAM: You took the provision -- the brief argues that the right to keep and bear arms is among the most fundamental of rights because it is essential to securing all other liberties, close quote.

I see the mayor not happily listening to that.

(LAUGHTER)

You -- but -- so you believe that the Second Amendment is a fundamental right.

Are you aware that Sandy Froman, the former president of the NRA -- you're probably not familiar with this letter, but she's a lawyer and pointed out that Heller was just a 5-4 opinion, with some justices arguing that the Second Amendment does not apply to private citizens or that, if it does, even a total gun ban would be upheld if a legitimate government interest could be found.

The dissenting justices also found that D.C.'s absolute gun ban on handguns within the home a reasonable restriction. That wouldn't play too well in Alabama; probably not Arkansas, Oklahoma or Texas. But most places.

So I guess I'm saying, are you concerned that -- and are you aware, of course, the Maloney case, in which Judge Sotomayor -- and I think she can contend there was authority in that case that justified her concluding the Second Amendment does not apply to the states. But I was disappointed in the -- and the way she wrote it gave me concern.

So are you aware that one vote on the Supreme Court could make the difference on the question of whether or not the right to keep and bear arms is protected against mayors or legislatures of states who disagree?

MCDANIEL: Well, I was proud to join Arkansas into the brief on Heller v. The District of Columbia. I intend to join again in the NRA v. Chicago in the attempt to have the Supreme Court review and take up the question, which I believe is ripe, as to whether or not the Second Amendment is applied to the states, as incorporated by the Fourteenth Amendment.

I do believe that the Second Amendment is a fundamental right, and I do believe that it is an individual right, not one tied to participation in a militia.

The attorney general -- the current attorney general in Texas, Senator Cornyn's successor and I have spent some time on that issue, even recently, and I am not, nonetheless, concerned with Judge Sotomayor's position. I am confident that her answers that she's provided to this committee and her record are consistent with one another, and I do not believe that the right to keep and bear arms is at risk with this nominee or, frankly, I wouldn't testify for her.

SESSIONS: Well, thank you. And I think it is.


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