Professor of Law Kate Stitz Testifies at Sonia Sotomayor's Confirmation Hearings

CQ Transcriptions
Thursday, July 16, 2009; 6:43 PM

(UNKNOWN): Thank you very much, Mr. Cohn (ph).

Our next witness is Kate Stitz (ph). She is the Lafayette S. Foster professor of law at Yale Law School, where she teaches and writes in the areas of criminal law, criminal procedure and constitutional law.

Previously, Professor Stitz (ph) was an assistant U.S. attorney for the Southern District of New York, where she prosecuted white- collar and organized crime cases.

After graduating from Harvard Law School, she clerked for Judge Carl McGowan (ph) of the U.S. Court of Appeals for the District of Columbia and for Associate Justice Byron White on the Supreme Court.

Thank you for being here, and we look forward to your testimony.

STITZ (ph): I thank you, Senators, for the opportunity to comment on the nomination of Judge Sonia Sotomayor, whom I have known since she became a judge in 1992.

As you noted, before I joined the faculty at Yale Law School in 1985, I was a federal prosecutor in New York and I was also a special assistant at the Department of Justice in Washington.

While a federal prosecutor in New York, I had the pleasure of working of working with Louis Freeh (ph).

It is my judgment that this is an exceptionally strong nomination. My judgment has nothing to do with Judge Sotomayor's sex, ethnicity or personal story. I'm judging her on the same criteria that I used when I was asked by the Yale Daily News, some years ago, whether Samuel Alito would be a strong nomination to the Supreme Court. I answered yes then, and I answer yes now.

Specifically, I am confident that Sonia Sotomayor would serve this nation with powerful intelligence, vigor, rectitude and an abiding commitment to the Constitution.

Moreover, her service as a state prosecutor and as district judge will make her unique on the court to which she will ascend.

My views on her are informed by many sources. First, I have been unusually involved, at least for a professor, with members of the bar and bench within the second circuit (ph). Among these lawyers and judges who know her best, she is held in the highest repute across the board. My views are also based on my many conversations with her.

Among the most telling are those in which she has described the attributes she is looking for in prospective law clerks. Through these discussions, over more than 15 years, I believe I've gained insight into her view of the role of a judge.

And the bottom line is this: what she wants in her law clerks are the qualities we all want in a judge.

She wants to make sure, first, that they are serious about the law, not about politics or professional opportunities after the clerkship. And they must be serious about all areas of the law. For Judge Sotomayor, there are no favorite areas -- which brings me to a third quality she wants in her clerks. The prospective clerk must be wiling to work his or her fingers to the bone, if necessary, in order to ensure that the opinions Judge Sotomayor writes and those she joins do not miss a relevant precedent and do not get a fact wrong.

And there's an overriding fourth quality that the judge considers critical. Is the prospective clerk willing to take criticism, work harder, and, where appropriate, rethink her initial assessment, or his initial assessment of the issues?

Over the years, the judge's former clerks have told me, time and again, that they greatly appreciate her devoted commitment to the law, as a result of which they were held to higher standards and learned more than in any other time in their lives.

Her conception of the role of a judge is borne out by her judicial opinions that I have read in the area of criminal law and procedure.

On criminal procedure, let me just note that the usual categories of left and right do not easily apply. I would say that her decisions, on the whole, reflect more pragmatism and less formalism than those of, say, Justice Souter.

Sometimes this cuts for the government; sometimes it cuts against it.

I want to focus, in particular, on one substantive criminal law case: United States v. George (ph), decided in 2004. Judge Sotomayor's unanimous 16-page opinion in that case concerns the meaning of the mens reia (ph) term "willfully" in a federal statute that makes it a crime to "willfully falsify a passport application."

Her opinion makes clear that the role of the courts is not to determine what level of mens reia (ph) they think should apply but what Congress intended when it wrote the word "willfully."

The Iomega then embarks on an heroic effort to figure out what Congress meant in this particular statute. The opinion is so clarifying and insightful that my coauthors and I decided to include a long excerpt from it in our forthcoming federal criminal law casebook.

But the significance of the case isn't only that it's an excellent opinion. It also resulted from the willingness of Judge Sotomayor and her two colleagues to reconsider their initial decision when additional arguments were brought to their attention, even though this meant that a different party would prevail.

Their aim was neither to affirm the conviction nor to reverse the conviction but to find the best resolution of the complex and conflicting precedents on this mens reia (ph) issue.

In conclusion, I submit that Judge Sotomayor's opinion in the George (ph) case reveals four juridical qualities that she clearly possesses. First she cared deeply about the issue at hand.

STITH: No matter how minor or word-parsing it may seem even to lawyers. Second, she was willing to reassess her initial judgment and dig deeper.

Third, her legal analysis was exceptionally clear and astute. And, fourth, she had no agenda other than trying to get the law right. And in a society committed to the rule of law, trying to get the law right is what it means to be fair and impartial.

This is a great judge. I urge you to vote in favor of her confirmation.

Thank you, Senators.

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