Transcript: Sen. Arlen Specter (D-Penn.)
Opening Statement

CQ Transcriptions

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Monday July 13, 2009

I join my colleagues, Judge Sotomayor, in welcoming you and your family here. And I compliment the president for nominating an Hispanic woman. I think it was wrong for American to wait until 1967 to have an African-American justice, Thurgood Marshall, on the court. Waited too long until 1981 to have the first woman justice, Sandra Day O'Connor. I think, as a diverse nation, diversity is very, very important.

You bring excellent credentials, academically, professionally, your service on the court. But the Constitution requires the process for this committee, and then the full Senate, to consider in detail your qualifications under our consent function.

Most of the questions which will be asked of you in the course of these hearings will involve decided cases. I intend to ask about decided cases, but also about cases that the Supreme Court decided not to decide. And on the rejection of cases for decisions, it's a big problem.

The court, I would suggest, has time for more cases. And Chief Justice Roberts noted, in his confirmation hearing, that the decision of more cases would be very helpful. If you contrast the docket of the Supreme Court in 1886 with currently, in 1886 there were 1,396 cases on the docket, 451 were decided. Century later, there were only 161 signed opinions. 2007, there were only 67 signed opinions.

I start on the cases which are not decided, although I could start in many, many areas. Could start with the Circuit splits, where one Court of Appeals in one section of the country goes one way, another Court of Appeals goes the other way. The rest of the courts don't know which was the precedents are, and the Supreme Court decides not to decide.

But take the case of the terrorist surveillance program, which was President Bush's secret, warrant-less wiretaps and contrast it with congressional authority exercised under Article I on the Foreign Intelligence Surveillance Act, providing the exclusive way to have wiretaps, perhaps the sharpest conflict in the history of this great country on the Article I powers of Congress and the Article II powers of the president as Commander-In-Chief. The Federal District Court in Detroit said the terrorist surveillance program was unconstitutional.

The Sixth Circuit decided two-to-one that the plaintiffs did not have standing. I thought the dissenting opinion was much stronger than the majority opinion. And standing, as we all know, is a very flexible doctrine and, candidly, at least as I see it, used frequently by the court to avoid deciding a case.

Then, the Supreme Court of the United States denied certiorari, decided not to hear the case, didn't even decide whether the lack of standing of standing was a justifiable basis. This has led to great confusion in the law, and it's as current as this morning's newspapers reporting about other secret programs which, apparently, the president had in operation.

Had the Supreme Court of the United States taken up the terrorist surveillance program, the court could have ruled on whether it was appropriate for the president not to notify the chairman of the Judiciary Committee about the program. We now have a law which says all members of the Intelligence Committees are to be notified. Well, the president didn't follow that law. Did he have the right to do so under Article II powers? Well, we don't know.

Or within the past two weeks, the Supreme Court denied hearing a case involving claims by families of victims of 9/11 against Saudi Arabia, of Saudi Arabian Commissions and four princes in Saudi Arabia. The Congress decided what sovereign immunity was in legislation in 1976 and had exclusions for torts. But the Supreme Court denied an opportunity for those families who had suffered grievously from having their day in court.

And one of the questions, when my opportunity arises, will be to ask you what would be the standards that you would employ in deciding what cases the Supreme Court would hear.

There is currently a major matter, an issue, on the Voting Rights Act. And the conflict has been present for many years between the authority of Congress to decide what is the factual basis for legislation, the standard which Justice Harlan decided in the Woods (ph) case, was a rational basis.

The Supreme Court more recently has adopted a standard of congruency and proportionality, a standard which Justice Scalia has said is a flabby test, which invites judicial lawmaking. You'll hear a lot of that in this hearing, about a judge's responsibility to interpret the law and the statutes, and not to make laws.

And during the confirmation hearing of Chief Justice Roberts, he said in pretty plain terms that the Court ought to allow the Congress to decide what the factual basis is. and for the Court to do otherwise is to engage in judicial legislation.

The Voting Rights case was decided on narrow grounds. But it certainly looks, if you read the record, that the Court is about ready to upset the Voting Rights case, just like it did in Derrick (ph) v. Alabama on the Americans With Disabilities Act, notwithstanding a vast record establishing the basis.

So, I would like to know what your standard will be, if confirmed: a rational basis, which had been the traditional standard, or congruence and proportionality? And if you tell me congruence and proportionality, then I'll ask you what it means, because it slips and slides around so much, that it's impossible to tell what a constitutional standard is.

And we senators would like to know what the standards are, so we know what to do when we undertake legislation.

Your decision on the circuit court in a case captioned Entergy Corporation v. Riverkeeper, Incorporated, involving the Environmental Protection Agency and the Clean Water Act, has a special prominence, now that we are debating climate control and global warming.

In the 2nd Circuit opinion, you were in the majority, deciding that it was the best technology. The Supreme Court reversed 5-4, saying that it turned on a cost-benefit analysis. It, I think, is worthy of exploration, although what you answer, obviously is a matter of your discretion as to whether -- on a 5-4 decision it's hard to say who's really right, the five or the four, as a matter of interpreting the Constitution or the statute.

Having a different view, I'd be interested to know, if you'd care to respond when the time comes, as to whether you'd be with what had been the minority. And perhaps a voice as strong as yours in the conference room would produce a different result. It could have a real impact on what we're legislating now, on cap-and-trade.

With the few seconds I have left, I'd like to preview some questions on televising the court.

I don't know why there is so much interest here today. I haven't counted this many cameras since just Alito was sitting where you're sitting.

You've had experience in the district court with television. You're replacing Justice Souter, who said that if TV cameras were to come to the court, they'd have to roll over his dead body.

If you're confirmed they won't have to roll over his dead body.


But the court decides all the cutting-edge questions of the day. The Senate is televised, the House is televised. A lot of people are fascinated by this hearing.

I'd like to see the court televised. You -- you -- (inaudible). Thank you very much, Judge Sotomayor.


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