Supreme
Court Senate Confirmation Hearings for Judge
Sotomayor:
July 14, 2009;
Exchanges between Senator Leahy and Judge
Sotomayor
Transcript of comments and discussion between Senator
Patrick Leahy (D-Vermont), and Judge Sonia Sotomayor of
New York at her Senate Confirmation Hearings for her
Nomination to the U.S. Supreme Court
Tuesday, July 14, 2009
SEN. PATRICK LEAHY: Good morning, everybody.
Just so we can understand what's going on, I'm not
sure whether we have votes or not today. To the extent if
we do have votes, to the extent that we can keep the
hearing going during votes and have different senators
leave between them, we will. If we can't, then I will
recess for those votes.
I will also have -- I guess we're one minute early
here. With the way the traffic was today, I think some
people are still having trouble getting in here. I talked
with Senator Sessions about this -- excuse me -- and what
we're going to do is have 30-minute rounds. We will go
back and forth between -- between sides. And we will --
senators will be recognized based on seniority if they're
there. If not, then we'll go to -- we'll go to the next
person.
And with that, as I said yesterday when we concluded,
and now the American people finally have heard from Judge
Sotomayor, and I appreciate your opening statement
yesterday. You've had weeks of silence. You have followed
the traditional way of nominees. I think you've visited
more senators than any nominee I know of for just about
any position.
But the -- we get used to the traditional, the press
is outside, questions are asked, you give a nice wave and
keep going. But finally you're able to speak, and I think
your statement yesterday went a long way to answering the
critic and the naysayers.
And so we're going to start with the questions here. I
would hope that everybody will keep their questions
pertaining to you and to your background as a judge.
You're going to be the first Supreme Court nominee in
more than 50 years who served as a federal trial court
judge, the first in 50 years to have served as both a
federal trial court and a federal appellate court
judge.
Let me ask you the obvious one. What are the qualities
that a judge should possess. I mean, you've had time on
both the trial court and the appellate court. What
qualities should a judge have and how does that
experience you've had -- how does that shape your
approach -- your approach to being on the bench?
SONIA SOTOMAYOR: Senator Leahy, yesterday, many of the
senators emphasized that their -- the values they thought
were important for judging, and central to many of their
comments was the fact that a judge had to come to the
process understanding the importance and respect the
Constitution must receive in the judging process and an
understanding that that respect is guided by, and should
be guided by, a full appreciation of the limited
jurisdiction of the court in our system of government,
but understanding its importance as well.
That is the central part of judging. What my
experiences on the trial court and the appellate court
have reinforced for me is that the process of judging is
a process of keeping an open mind. It's the process of
not coming to a decision with a pre-judgment ever of an
outcome and that reaching a conclusion has to start with
understanding what the parties are arguing, but examining
in all situations carefully the facts as they prove them
or not prove them, the record as they create it, and then
making a decision that is limited to what the law says on
the facts before the judge.
LEAHY: Well, you -- let's go into some of the
particulars on this. One of the things that I found
appealing in your record, that you were a prosecutor, as
many of us, both the ranking member and I had that
privilege, and you worked on the front lines, an
assistant district attorney in the Manhattan D.A.'s
office.
Your former boss, District Attorney Robert Morgenthal,
the dean of the American Prosecutors, said one of the
most important cases you worked on was the prosecution of
the man known as the Tarzan Burglar. He terrorized people
in Harlem. He would swing on ropes into their apartments
and rob them and steal, and actually killed three
people.
Your co-counsel, Hugh Mo, described how you threw
yourself into every aspect of the investigation, the
prosecution of the case. You helped to secure a
conviction, sentence of 62 years to life for the murders.
Your co-counsel described you, quote, as a "Skilled legal
practitioner who not only ruthlessly pursued justice for
victims of violent crimes, but understood the root cause
of crime and how to curb it."
How did that experience -- did that experience shape
your views in any way as -- both as a lawyer but also as
a judge? I mean, this was getting into about as
nitty-gritty as you could into the whole area of criminal
law.
SOTOMAYOR: I became a lawyer in the prosecutor's
office. To this day, I owe who I have become as a -- who
I became as a lawyer and who have --who I have become as
a judge to Mr. Morgenthal. He gave me a privilege and
honor in working in his office that has shaped my
life.
When I say I became a lawyer in his office, it's
because in law school, law schools teach you on
hypotheticals.
SOTOMAYOR: They set forth facts for you. They give you
a little bit of teaching on how those facts are
developed, but not a whole lot. And then they ask you to
opine about legal theory and apply legal theory to the
facts before you.
Well, when you work in a prosecutor's office, you
understand that the law is not legal theory. It's facts.
It's what witnesses say and don't say. It's how you
develop your position in the record. And then it's taking
those facts and making arguments based on the law as it
exists.
That's what I took with me as a trial judge. It's what
I take with me as an appellate judge. It is respect that
each case gets decided case by case, applying the law as
it exists to the facts before you.
You asked me a second question about the Tarzan
murderer case, and that case brought to life for me in a
way that perhaps no other case had fully done before the
tragic consequences of needless deaths.
In that case, Mr. Maddicks was dubbed "the Tarzan
murderer" by the press because he used acrobatic feats to
gain entry into apartments. In one case, he took a rope,
placed it on a pipe on top of a roof, put a paint can at
the other end, and threw it into a window in a building
below and broke the window. He then swung himself into
the apartment and, on the other side, shot a person he
found.
He did that repeatedly, and, as a result, he destroyed
families. I saw a family that had been in tact, with a
mother living with three of her children, some
grandchildren. They all worked at various jobs. Some were
going to school.
They stood as they watched one of their -- the mother
stood as she watched one of her children be struck by a
bullet that Mr. Maddicks fired and killed him because the
bullet struck the middle of his head.
That family was destroyed. They scattered to the four
winds, and only one brother remained in New York who
could testify. That case taught me that prosecutors, as
all participants in the justice system, must be sensitive
to the price that crime imposes on our entire
society.
At the same time, as a prosecutor in that case, I had
to consider how to ensure that the presentation of that
case would be fully understood by jurors. And to do that,
it was important for us as prosecutors to be able to
present those number of incidences that Mr. Maddicks had
engaged in, in one trial, so the full extent of his
conduct could be determined by a jury.
SOTOMAYOR: There had never been a case quite like
that, where an individual who used different acrobatic
feats to gain entry into an apartment was tried with all
of his crimes in one indictment. I researched very
carefully the law and found a theory in New York law,
called the Molyneax (ph) theory then, that -- that
basically said if you can show a pattern that established
a person's identity or assisted in establishing a
person's identity -- simplifying the argument, by the way
-- then you can try different cases together.
This was not a conspiracy under law because Mr.
Maddicks acted alone. So I had to find a different theory
to bring all his acts together. Well, a presented that to
the trial judge. It was a different application of the
law. But what I did was draw on the principles of the
Molyneax (ph) theory. And arguing those principles to the
judge, the judge permitted that joint trial of all of Mr.
Maddox's activities.
In the end, carefully developing the facts in the
case, making my record -- our record, I should say -- Mr.
Moe's (ph) and my record complete -- we convinced the
judge that our theory was supported by law.
That harkens back to my earlier answer which is that's
what being a trial judge teaches you.
LEAHY: And you -- so you see it from both ends having,
obviously, to a novel theory and now a theory that is
well established in the law but was novel at that time.
But you also, as a trial judge, you've seen theories
brought in by prosecutors or by defense and you have to
make your decisions based on those.
The fairly easy answer to that is you do, do you
not?
SOTOMAYOR: Well, it's important to remember that, as a
judge, I don't make law. And so the task for me as a
judge is not to accept or not accept new theories; it's
to decide whether the law, as it exists, has principles
that apply to new situations.
LEAHY: Let's go into that because I -- you know,
obviously, the Tarzan case is -- was unique at least. And
as I said, Mr. Morgenthal singled that out as an example
of the kind of lawyer you are.
And I find compelling your story about being in the
apartment. I've stood in homes at three o'clock in the
morning as they're carrying the body out from a murder. I
can understand how you're feeling. But in applying the
law and applying the facts, you told me once that,
ultimately and completely, the law is what controls.
And I was struck by that when you did. And so there's
been a great deal of talk about the Ricci case -- Ricci
v. DeStephano. And you and two other judges were assigned
this appeal involving firefighters in New Haven. The
plaintiffs were challenging the decision to voluntarily
discard the result of a paper-and-pencil test to measure
leadership abilities.
LEAHY: Now, the legal issue that was presented to you
in that case was not a new one, not in your circuit. In
fact, there was a unanimous decade's old Supreme Court
decision as well. In addition, in 1991, Congress acted to
reinforce (inaudible) the law.
I might note that every Republican member of this
committee still serving in the Senate supported that
statement of the law. So you have a binding precedent.
You and two other judges came to a unanimous decision.
Your decision deferred to the district court's ruling
allowing the city's voluntary determination that could
not justify using that paper-and-pencil test under our
civil rights laws and settled -- you said it was settled
judicial precedent.
A majority of the Second Circuit later voted not to
revisit the panel's unanimous decision; therefore, they
upheld your decision.
So you had Supreme Court precedent. You had your
circuit precedent. You upheld within the circuit.
Subsequently, it went to the Supreme Court and five -- a
bare majority -- five justices reversed the decision, and
reversed their precedent, and many have said that they
created a new interpretation of the law.
Ironically, if you had done something other than
follow the precedent, some would be now attacking you as
being an activist. You followed the precedent. So now
they attack you as being biased and racist. It's kind of
a unique thing. You're damned if you do and damned if you
don't.
How do you react to the Supreme Court's decision in
the New Haven firefighters case?
SOTOMAYOR: You are correct, Senator, that the panel,
made up of myself and two other judges in the Second
Circuit, decided that case on the basis of the very
thorough 78-page decision by the district court and on
the basis of established precedent.
The issue was not what we would do or not do, because
we were following precedent, and you, when on (ph)
circuit court, are obligated on a panel to follow
established circuit precedent. The issue in Ricci was
what the city did or could do when it was presented with
a challenge to one of its tests that -- for
promotion.
This was not a quota case; this was not an affirmative
action case. This was a challenge to a test that
everybody agreed had a very wide difference between the
pass rate of a variety of different groups. The city was
faced with the possibility recognized in law that the
employees who were disparately impacted -- that's the
terminology used in the law and is a part of the civil
rights amendment that you were talking about in 1991 --
that those employees who could show a disparate impact, a
disproportionate pass rate, that they could bring a suit
and that then the employer had to defend the test that it
gave.
The city here, after a number of days of hearings and
a variety of different witnesses, decided that it
wouldn't certify the test and it wouldn't certify it in
an attempt to determine whether they could develop a test
that was of equal value in measuring qualifications, but
which didn't have a disparate impact.
And so the question before the panel was, was the
decision a -- of the city based on race or based on its
understanding of what the law required it to do?
SOTOMAYOR: Given Second Circuit precedent, Bushey v.
New York State -- New York State Civil Services
Commission, the panel concluded that the city's decision
in that particular situation was lawful under established
law.
The Supreme Court, in looking and review that case,
applied a new standard. In fact, it announced that it was
applying a standard from a different area of law and
explaining to employers and the courts below how to look
at this question in the future.
LEAHY: But when you were deciding the -- when you were
deciding it, you had precedent from the Supreme Court and
from your circuit that basically determined how --
determined the outcome you had to come up with. Is that
correct?
SOTOMAYOR: Absolutely.
LEAHY: And if today, now that the Supreme Court has
changed their decision without you having to relitigate
the case, it would -- it may open, obviously, a different
result. Certainly, the circuit would be bound by the new
decision even though it's only a 5-to-4 decision, a
circuit would be bound by the new decision of the Supreme
Court. Is that correct?
SOTOMAYOR: Absolutely, sir.
LEAHY: Thank you.
SOTOMAYOR: That is now the statement of the Supreme
Court of how employers and the Court should examine this
issue.
LEAHY: During the course of this nomination, there
have been some unfortunate comments, including outrageous
charges of racism made about you on radio and television.
Some -- one person referred to you as being the
equivalent of the head of the Ku Klux Klan. Another
leader in the other party referred to you as -- as being
a bigot.
And to the credit of the senators, the Republican
senators as well as the Democratic senators, they have
not repeated those charges. But you haven't been able to
respond to any of these things. You've had to be quiet.
Your critics have taken a line out of your speeches and
twisted it, in my view, to mean something you never
intended.
You said that, quote, you "would hope that a wise
Latina woman with the richness of her experiences would
reach wise decisions." I remember other justices -- the
most recent one, Justice Alito -- talking about the
experience of his immigrants -- the immigrants in his
family and how that would influence his thinking and help
him reach decisions.
What -- and you also said in your speech, I quote,
that you "love America and value its lessons," that great
things could be achieved in one works hard for it.
And then you said judges must transcend their personal
sympathies and prejudices and aspire to achieve a greater
degree of the fairness and integrity based on reason of
law. And I'll throw one more quote in there. It's what
you told me that ultimately and completely, the law is
what counts -- or the law is what controls.
So tell us, you've heard all of these charges and
countercharges, the wise Latina and on and on. Here's
your chance. You tell us -- you tell us what's going on
here, Judge.
SOTOMAYOR: Thank you for giving me an opportunity to
explain my remarks.
No words I have ever spoken for written have received
so much attention.
(LAUGHTER)
SOTOMAYOR: I gave a variant of my speech to a variety
of different groups, most often to groups of women
lawyers or to groups, most particularly, of young Latino
lawyers and students.
As my speech made clear in one of the quotes that you
reference, I was trying to inspire them to believe that
their life experiences would enrich the legal system,
because different life experiences and backgrounds always
do. I don't think that there is a quarrel with that in
our society.
I was also trying to inspire them to believe that they
could become anything they wanted to become, just as I
had. The context of the words that I spoke have created a
misunderstanding, and I want -- and misunderstanding --
and to give everyone assurances, I want to state up
front, unequivocally and without doubt, I do not believe
that any ethnic, racial or gender group has an advantage
in sound judging. I do believe that every person has an
equal opportunity to be a good and wise judge regardless
of their background or life experiences.
What -- the words that I use, I used agreeing with the
sentiment that Justice Sandra Day O'Connor was attempting
to convey. I understood that sentiment to be what I just
spoke about, which is that both men and women were
equally capable of being wise and fair judges.
That has to be what she meant, because judges disagree
about legal outcomes all of the time -- or I shouldn't
say all of the time, at least in close cases they do.
Justices on the Supreme Court come to different
conclusions. It can't mean that one of them is unwise,
despite the fact that some people think that.
So her literal words couldn't have meant what they
said. She had to have meant that she was talking about
the equal value of the capacity to be fair and
impartial.
LEAHY: Well, and isn't that what -- you've been on the
bench for 17 years. Have you set your goal to be fair and
show integrity, based on the law?
SOTOMAYOR: I believe my 17-year record on the two
courts would show that, in every case that I render, I
first decide what the law requires under the facts before
me, and that what I do is explain to litigants why the
law requires a result. And whether their position is
sympathetic or not, I explain why the result is commanded
by law.
LEAHY: Well, and doesn't your oath of office actually
require you to do that?
SOTOMAYOR: That is the fundamental job of a judge.
LEAHY: Good.
Let me (ph) talk to you about another decision that's
been talked about, District of Columbia v. Heller. In
that one, the Supreme Court held that the Second
Amendment guarantees to Americans the right to keep and
bear arms, and that it's an individual right.
LEAHY: I've owned firearms since my early teen years.
I suspect a large majority of Vermonters do. I enjoy
target shooting on a very regular basis at our home in
Vermont. So I watched that decision rather carefully and
found it interesting.
Is it safe to say that you accept the Supreme Court's
decision as establishing that the Second Amendment right
is an individual right? Is that correct?
SOTOMAYOR: Yes, sir.
LEAHY: Thank you.
And in the Second Circuit decision, Maloney v. Cuomo,
you, in fact, recognized the Supreme Court decided in
Heller that the personal right to bear arms is guaranteed
by the Second Amendment of the Constitution against
federal law restrictions. Is that correct?
SOTOMAYOR: It is.
LEAHY: And you accept and applied the Heller decision
when you decided Maloney?
SOTOMAYOR: Completely, sir. I accepted and applied
established Supreme Court precedent that the Supreme
Court in its own opinion in Heller acknowledged, answered
the -- a different question.
LEAHY: Well, that -- let me -- let me refer to that,
because Justice Scalia's opinion in the Heller case
expressly left unresolved and explicitly reserved as a
separate question whether the Second Amendment guarantee
applies to the states and laws adopted by the -- by the
states.
Earlier this year, you were on a Second Circuit panel
in a case posing that specific question, analyzing a New
York state law restriction on so-called chuka sticks
(ph), a martial arts device.
Now, the unanimous decision of your court cited
Supreme Court precedent as binding on your decision, and
that Supreme Court -- longstanding Supreme Court cases
have held that the Second Amendment applies only to the
federal government and not to the states.
And I noticed that the panel of the Seventh Circuit,
including people like Judge Posner, one of the best-known
very conservative judges, cited the same Supreme Court
authority, agreed with the Second Circuit decision. We
all know that not every constitutional right has been
applied to the states by the Supreme Court. I know one of
my very first cases as a prosecutor was a question of
whether the Fifth Amendment guaranteed a grand jury
indictment has been made applicable to the states. The
Supreme Court has not held that applicable to the
states.
Seventh Amendment right to jury trial, Eighth
Amendment prohibition against excessive fines, these have
not been made applicable to the states. And I understand
that petitions asking -- seeking to have the Supreme
Court revisit the question applied to the Second
Amendment to the states are pending (inaudible) that case
appears before the Supreme Court and you're there how
you're going to rule, but would you have an open mind, as
-- on the Supreme Court, in evaluating that, the legal
proposition of whether the Second Amendment right should
be considered fundamental rights and thus applicable to
the states?
SOTOMAYOR: Like you, I understand that how important
the right to bear arms is to many, many Americans. In
fact, one of my godchildren is a member of the NRA. And I
have friends who hunt. I understand the individual right
fully that the Supreme Court recognized in Heller.
SOTOMAYOR: As you pointed out, Senator, in the Heller
decision, the Supreme Court was addressing a very narrow
issue, which was whether an individual right under the
Second Amendment applied to limit the federal
government's rights to regulate the possession of
firearms. The court expressly -- Justice Scalia in a
footnote -- identified that there was Supreme Court
precedent that has said that that right is not
incorporated against the states. What that term of
incorporation means in the law is that that right doesn't
apply to the states in its regulation of its relationship
with its citizens.
In Supreme Court province (ph), the right is not
fundamental. It's a legal term. It's not talking about
the importance of the right in a legal term. It's talking
about is that right incorporated against the states.
When Maloney (ph) came before the Second Circuit, as
you indicated, myself and two other judges read what the
Supreme Court said, saw that it had not explicitly
rejected its precedent on application to the states and
followed that precedent because it's the job of the
Supreme Court to change it.
LEAHY: Well...
SOTOMAYOR: You asked me -- I'm sorry, Senator. I
didn't mean...
LEAHY: No, no, go ahead.
SOTOMAYOR: ... to cut you off.
LEAHY: No, go ahead.
SOTOMAYOR: If you asked me whether I have an open mind
on that question, absolutely. My decision in Maloney (ph)
and on any case of this type would be to follow the
precedent of the Supreme Court when it speaks directly on
an issue. And I would not prejudge any question that came
before me if I was a justice on the Supreme Court.
LEAHY: Let me just ask -- I just asked Senator
Sessions if he might have one -- might want to ask one
more question. And it goes to the area of prosecution.
You've heard appeals in over 800 criminal cases. You
affirmed 98 percent of the convictions for violent
crimes, including terrorism cases. Ninety-nine percent of
the time at least one of the Republican appointed judges
on the panel agreed with you.
Let me just ask you about one, the United States vs.
Giordano. It was a conviction against the mayor of
Waterbury, Connecticut. The victim in that case are the
young daughter and niece of a prostitute, young children
who as young as nine and 11 were forced to engage in
sexual acts with the defendant. The mayor was convicted
under a law passed by Congress prohibiting the use of any
facility or means of interstate commerce to transmit or
contact information about persons under 16 for the
purpose of illegal sexual activity.
You spoke for a unanimous panel in the Second Circuit,
which included Judge Jacobs and Judge Hall. You upheld
that conviction against the constitutional challenge that
the federal criminal statute in question exceeded
Congress' power in the commerce clause. I mention that
only because I appreciate your deference to the
constitutional congressional authority to prohibit
illegal conduct. Did you have any difficulty in reaching
the conclusion you did in the -- in the Giordano
case?
SOTOMAYOR: No, sir.
LEAHY: Thank you. I'm glad you reached it.
Senator Sessions?
And I appreciate Senator Sessions' forbearance.
Source: http://www.washingtonpost.com/wpdyn/content/article/2009/07/14/AR2009071401111_pf.html
