Thursday, July 16, 2009 4:55 PM
CARDIN: Senator Sessions?
SESSIONS: Thank you.
Thank all of you. It's a very important panel. And actually much of your testimony was moving, and I appreciate it. And I think you're calling us to a higher level of discussion on these issues because they go to the core of who we are as Americans. And I just want to share that. We are worried about the Second Amendment. I will just ask the mayor that you signed a brief in favor of the D.C. gun ban, which would bar even a handgun in someone's home. So I would assume you would be agreeable with the opinion of Judge Sotomayor and her view.
We've got different views about these things.
Mayor, I want to tell you, I appreciate your leadership. It's a tough job to be mayor of New York. You're showing strength and integrity.
Mr. Morgenthau, you're the dean of prosecutors. I hear many people over the years that have worked for you and they're very complimentary of you, and I know you're proud of this protege of yours who's moved forward.
MORGENTHAU: Senator, may I tell you that my grandmother was born in Montgomery, Alabama.
SESSIONS: I am impressed to hear that.
I feel better already. That's good.
Mr. Attorney General, thank you for your able comments.
And, Mr. Henderson, it's good to work with you.
Senator Leahy and I are talking, during these hearing, we're going to do that crack cocaine thing that you and I have talked about before. We got to...
HENDERSON: Thank you, Senator. I appreciate it.
SESSIONS: Let me correct the record.
(UNKNOWN): You need to rephrase it, Senator.
SESSIONS: I misspoke.
HENDERSON: No. Quite all right.
SESSIONS: We're going to reduce the burden of penalties in some of the crack cocaine cases and make them fair.
So, Mr. Ricci, thank you for your work.
I would say, Mr. Henderson, that I said the PRLDEF legal defense fund is a good organization in my opening statement.
And I think it has -- it has every right to advocate those positions that it does, but the nominee was on the board for a long time, and I did take some positions that she rightly was asked about, whether or not she agreed to it, especially during some of those times she was chairman of the litigation committee.
But I value the -- these -- I value that groups can come together and file lawsuits and take the matter to the court.
Just briefly, Mr. Kirsanow, on a slightly different subject than you started -- I think you probably know this answer -- but could tell us for the purpose of this hearing, as briefly as you can, what the concern is in the Voting Rights Act?
It's not that we're against -- anybody's against the voting act. I -- I voted for it. But there are some constitutional concerns. Could you share precisely what that is?
KIRSANOW: Sure. And specifically, with respect to the latest Supreme Court decision related to that, what was articulated is that the pre-clearance provisions of the Voting Rights Act pertain to a legacy of discrimination that occurred in many states where poll taxes and literacy tests were being imposed on black citizens.
However, in this particular case, the often critical subdivision came into existence after all of the -- the legacy of this administration had actually occurred or even after the Voting Rights Act itself had been passed. And the question is, how could it be that you've got a pre-existing law that is almost -- for lack of a better term -- ex post facto applying to an organization that came into existence after the law was in effect.
There was no history of discrimination or denials of equal protection or denial of voter rights by this particular political subdivision. So it was peculiar in that regard, and I think there were several justices who evinced some concern about the approach in that particular case. SESSIONS: Thank you. It's just -- there are two sides to that story. And we passed the bill, and we extended it, and all of it had some angst and worry.
I'd said I wanted to vote for it, and we did. We extended it for probably longer than we should have, and not that it would ever end. Huge portions of it may never end, but some portions of it may not be needed to continue.
Let's -- Lieutenant Vargas, that was a moving story you gave us. Let me just ask you this. Do you think that other members of the fire department, had they studied as hard as you and mastered the subject matter as well as you did, could have passed the test -- more of them would have passed if they'd studied as hard as you?
SESSIONS: You think you...
VARGAS: Absolutely. I studied with a group of them, and they all supported me and what I was doing, because they knew the effort that I put in. And -- and they were right there. We really weren't all that far behind.
And, you know, minorities would have been promoted. That's something that -- that continues to get left out. There would have been minorities promoted to captain, minorities promoted to -- to lieutenant, as well.
And, you know, when you take these exams, sometimes you have winners and sometimes -- you know, but you go into that situation knowing that that's going to be the case.
SESSIONS: Mr. Kirsanow, you indicated that all the judges -- I believe your phrase was -- on the Supreme Court rejected the standard of review that the panel -- Judge Sotomayor's panel set for the firefighter exam. Is that right?
KIRSANOW: Senator, even the dissent had a different standard. It was good cause standard, which was given a little bit more definitiveness to the approach that defendants could take in defending.
As you know, Title VII has a safe harbor of job-related consistent with business necessity. If you can establish that, in fact, the -- that the firefighters took were job-related, consistent with business necessity, then only under those -- the only way you could show a disparate impact is if those tests weren't made. Even the dissent said it should have been sent back on remand.
SESSIONS: Thank you.
And, Ms. Chavez, I noticed one thing. According to the ABA statistics, only 3.5 percent of lawyers in America in 2000 were Hispanic, yet they -- Hispanics make up 5 percent of the federal district court judges and 6 percent of circuit court judges. Would you comment on that?
CHAVEZ: Well, first of all, I think it's important -- you know, there's been a lot of attention focused on the phrase a "wise, Latina woman." I used it myself, obviously, ironically, in testifying today.
But I think it's important to read Judge Sotomayor's entire speech, because, in fact, it wasn't just that she was saying a wise, Latina woman would make a better judge. What she was saying was that the race, ethnicity and gender of judges would and should make a difference in their judging.
And she says in the speech itself -- she says she doesn't know always how that's going to happen, but she even cites some studies, sociological studies that take a look at the way in which women judges have handed down decisions and makes the case that women judges decide cases differently than men do, and she speaks of this approvingly.
And she talks about statistics and how few Latinos there are on the bench. And the statistics that you just cited come from an article that I wrote in retort (ph) to the -- the statistics that she used.
I bring that up because inherent in that analysis of hers is the notion that there ought to be proportional representation on judicial panels, that we ought to be selecting judges based on race, ethnicity and gender, and that we ought to have more or less proportional representation.
And I have to say that, you know, that really, I think, comes very close to arguing for quotas, a position, by the way, that she has taken with -- when she was with the Puerto Rican Legal Defense and Education Fund. By the way, she was not just on the board; she actually signed some memorandum. Those are in the record, and I've cited some instances of that in my written testimony.
And the point is that, if there is so-called under-representation of some groups, it means there's over-representation of others. And I said in my testimony that, if we are concerned about the number of Latino judges, first thing you need to be a judge is a college degree and a law degree. And, in fact, if just using Judge Sotomayor's own statistics, if anything, if you look at the number of attorneys who are Latino at the time that she was writing, Hispanics were actually somewhat over-represented on the judicial bench.
I reject all of that. That doesn't bother me in the least that they are over-represented. I think we should not be making ethnicity and race or gender a qualification for sitting on the bench or being a firefighter or being a captain or lieutenant on a firefighting team. I think we ought to take race, ethnicity and gender out of the equation.
SESSIONS: Thank you.
WHITEHOUSE: Senator Durbin?