Senate Debate on Empathy
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Sessions, Jeff [R-AL]
Begin2009-06-2311:36:36End12:00:12Length00:23:36

Mr. SESSIONS. I thank the Senator. I would note that there are only nine legislative days between now and the time the hearing starts, so we are definitely in a position where it is going to be difficult to be as prepared as we would like to be when this hearing starts. We still don't have some of the materials we need.

My staff and I have been working hard to survey the writings and records of Judge Sotomayor.

Certainly, the constitutional duty of the Senate to consent to the President's nomination is a very serious one. In recent years, we have seen judicial opinions that seem more attuned [Page: S6909]
to the judge's personal preferences than to the law, and it has caused quite a bit of heartburn throughout the country. We have seen judges who have failed to understand that their role, while very important, is a limited one. The judge's role is not policy, politics, ethnicity,
feelings, religion, or personal preference because whatever those things are, they are not law, and first and foremost a judge personifies law. That is why lawyers and judges, during court sessions--and I practiced hard in Federal court for all of 15 years, so I have been in court a lot--when they go to court, they do not say even the judge's name and usually don't even say ``judge.'' They refer to the judge as ``the Court.'' They say,
``If the Court please, I would like to show the witness a statement,'' or a judge may write, ``This Court has held,'' and it may be what he has written himself, or she. All of this is to depersonalize, to objectify the process, to clearly establish that the deciding entity has put on a robe--a blindfold, according to our image--and is objective, honest, fair, and will not allow personal feelings or biases to enter into the process.

So the confirmation process rightly should require careful evaluation to ensure that a nominee--even one who has as fine a career of experience as Judge Sotomayor--meets all the qualities required of one who would be situated on the highest Court. As this process unfolds, it is important that the Senate conduct its evaluation in a way that is honest and fair and remember that a nominee often is limited in his or her ability to answer complaints against them.

So the time is rapidly approaching for the hearings--only nine legislative days between now and July 13--and there are still many records, documents, and videos not produced that are important to this process.

My colleagues and friends are asking: What have you found? What evaluations have you formed? What are your preliminary thoughts? And I have been somewhat reluctant to discuss these matters at this point in time, as we continue to review the record. In truth, the confirmation process certainly must be conducted with integrity and care, but it is not a judicial process, it is a political process. The Senate is a political, legislative body, not a judicial body, and it works its will. Its Members
must decide issues based on what each Member may conclude is the right standard or the right beliefs.

I have certainly not formed hard opinions on this nominee, but I have developed some observations and have found some relevant facts and have some questions and concerns. It is clear to me that several matters and cases must be carefully examined because they could reveal an approach to judging that is not acceptable for a nominee, in my opinion. I see no need not to raise those concerns now. Discussing them openly can help our Senate colleagues get a better idea of what the issues are, and the public, and the nominee can see what the questions are now, before the hearings start. Unfortunately, the record we have is incomplete in key respects, and it makes it difficult for us to prepare.

As I review the record, I am looking to try to find out whether this nominee understands the proper role of a judge, one who is not looking to impose personal preferences from the bench. Frankly, I have to say--to follow up on Senator McConnell's remarks--I don't think I look for the same qualities in a judge that the person who nominated her does--President Obama. He says he wants someone who will use empathy--empathy to certain groups to decide cases. That may sound nice, but empathy toward one is prejudice toward the other, is it not? There are always litigants on the other side, and they deserve to have their cases decided on the law. And whatever else empathy might be, it is not law. So I think empathy as a standard, preference as a standard is contrary to the judicial oath. This is what a judge declares when they take the office:

I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me.

So I think that is the impartial ideal. That is the ideal of the lady of justice with the scales and the blindfold, which we have always believed in in this country and which has been the cornerstone of American jurisprudence.

So what I have seen thus far in Judge Sotomayor's record--and presumably some of her views are the reason President Obama selected her--cause me concern that the nominee will look outside the law and the evidence in judging and that her policy preferences could influence her decisionmaking. Her speeches and writings outside the court are certainly of concern, some of which Senator McConnell mentioned.

I wish to discuss some other areas that I think are significant also. She has had extensive work with the Puerto Rican Legal Defense and Education Fund and been a supporter, presumably, of what it stands for. So that is one of the matters I will discuss a bit here. Also, I will discuss her decision to allow felons, even those convicted and in jail, the right to vote, overruling a long-established State law. Some other matters I will discuss include the New Haven firefighters case.

Looking at the long association the nominee has had with the Puerto Rican Legal Defense and Education Fund--an organization that I have to say, I believe, is clearly outside the mainstream of the American approach to matters--this is a group that has taken some very shocking positions with respect to terrorism. When New York Mayor David Dinkins criticized members of the radical Puerto Rican nationalist group and called them ``assassins'' because they had shot at Members of Congress and been involved
in, I guess, other violence, the fund, of which judge Sotomayor was a part, criticized the mayor and said they were not assassins and said that the comments were ``insensitive.''

The President of the organization continued, explaining that for many people in Puerto Rico, these men were fighters for freedom and justice.

I wonder if she agreed with that statement and that the statements of the mayor of New York were insensitive. These Puerto Rican nationalists reconstituted into groups such as the FALN, which we have recently had occasion to discuss in depth. The FALN itself was responsible for more than 100 violent attacks resulting in at least 6 deaths. I find it ironic that once again we find ourselves discussing these murderous members of FALN, when not long ago we were considering whether to confirm Attorney
General Eric Holder, who was advocating pardoning them and President Clinton did. Now we find ourselves wondering about this nominee to the Court and what her views are on these matters and how her mind works as she thinks about these kinds of issues.

We do not have enough information, unfortunately, to assess these concerns effectively. We requested information relating to Judge Sotomayor's involvement with the fund, a typical question of all nominees but critically important for a Supreme Court nominee. But we have not received information. Indeed, we have received 9 documents totaling fewer than 30 pages relating to her 12 years with the organization. So it is not possible for us to make an informed decision at this point on her relationship
with an organization that seems to be outside the mainstream.

What we know, basically, is from publicly available information, and what has been provided this committee, is that this is a group that has, time and again, taken extreme positions on vitally important issues such as abortion. In one brief, which was in support of a rehearing petition in the U.S. Supreme Court, a brief to the Supreme Court, the Fund criticized the Supreme Court's decision in two cases that both the State and Federal Government should restrict the use of public funds for abortion--the
question of public funding of abortion.

Incredibly, the Fund joined other groups in comparing these types of funding restrictions to slavery, stating:



Just as Dred Scott v. Sanford refused citizenship to Black people, these opinions strip the poor of meaningful citizenship under the fundamental law.



In their view, the equal protection clause of the U.S. Constitution prohibited restrictions on either Federal or State Government provision of funding abortions.

I think this is an indefensible position. We do not know how much Judge Sotomayor had to do with developing these positions of the Fund--but certainly she was an officer of it, involved [Page: S6910]
in the litigation committee during most of this time--because we do not have the information we requested.

We do know the Fund and Judge Sotomayor opposed reinstatement of the death penalty in New York based not on the law but on what they found to be the inhuman psychological burden it places on criminals, based on world opinion, and based on evident racism in our society. What does this mean about how Judge Sotomayor would approach death penalty cases? I think she has affirmed death penalty cases, but on the Supreme Court, there is a different ability to redefine cases. These personal views of hers
could very well affect that.

Recently, five Justices of the Supreme Court decided, based in part on their review of rulings of courts of foreign countries, that the Constitution says the United States cannot execute a violent criminal if he is 17 years and 364 days old when he willfully, premeditatedly kills someone. They say the Constitution says the State that has a law to that effect cannot do it.

Looking to ``evolving standards of decency that mark the progress of a maturing society''--this is what the Court said, as they set about their duty to define the U.S. Constitution; this is five Members of the Supreme Court, with four strong dissents: looking to ``evolving standards of decency that mark the progress of a maturing society,'' we conclude the death penalty in this case violated the eighth amendment.

There are at least six or eight references in the Constitution to a death penalty. If States don't believe 18-year-olds should be executed, or 17, they should prohibit it and many States do. But it is not answered by the Constitution. But five judges did not like it. They consulted with world opinion and what they considered to be evolving standards of decency and said the Constitution prohibited the imposition of a death penalty in this case, when it had never been considered to be so since
the founding of our Republic. I don't think that is a principled approach to jurisprudence. That is the kind of thing I am worried about if we had another judge who will think like that on the bench.

I will ask about some other cases, too, that give me pause. For centuries States and colonies, even before we became a nation, have concluded that individuals who commit serious crimes, felonies, forfeit their right to vote, particularly while they are in jail. It is a choice that States can make and have made between 1776 and 1821. Eleven State constitutions contemplated preventing felons from voting. New York passed its first felon disenfranchisement law in 1821. When the 14th amendment was
adopted in 1868, 29 States had such provisions. By 2002, all States except Maine and Vermont disenfranchised felons. For years, these types of laws have been upheld by the courts against a range of challenges. But in Hayden v. Pataki, in 2006, Justice Sotomayor stated
her belief that these types of laws violate the Voting Rights Act of 1965, even though that act makes no reference to these longstanding and common State laws and even though they are specifically referenced in the fourteenth amendment to the Constitution itself.

In her view, with analysis of a few short paragraphs only, the New York law was found--or she found--she concluded that the New York law was ``on account of race,'' and therefore it violated the Voting Rights Act.

It was ``on account of race'' because of its impact and nothing more. Statistically, it seems that in New York, as a percentage of the population, more minorities are in jail than nonminorities. Therefore, it was concluded that this act was unconstitutional. I think this is a bridge too far. It would mean that State laws setting a voting age of 18 would also violate Federal law because, within the society or in most of our country, minorities would have more children under 18 so that would have
a disparate impact on them.

I do not think this can be the law, as a majority of the colleagues on that Court explained, and did not accept her logic. Actually, her opinion was not upheld.

I look forward to asking her about that. I am aware that Judge Sotomayor would say she is acting as a strict constructionist by simply applying literally the 40-year-old Voting Rights Act of 1965. I do not think so. I remember when Miguel Estrada, that brilliant Hispanic lawyer whom President Bush nominated to the appellate courts and who was defeated after we had seven attempts to shut off a filibuster on the floor of the Senate but could never do so, said during his hearings that he didn't
like the term ``strict construction.'' He preferred the term ``fair construction.''

He was correct. So the question is, Is this a fair construction of the Voting Rights Act, that it would overturn these long-established laws when no such thing was considered in the debate on the legislation? That historic laws, which limit felons voting, are to be wiped out, even allowing felons still in jail to vote? I do not think so and neither did most of the judges who have heard these cases.

With regard to the New Haven firefighters case, I will say we will be looking into that case in some length. Stuart Taylor did a very fine analysis of it when he was writing, I believe, at the National Journal. He recognized that no one ever found that the examination these firefighters took was invalid or unfair. As he has explained, if the ``belated, weak, and speculative criticisms--obviously tailored to impugn the outcome of the tests--are sufficient to disprove an exam's validity or fairness,
no test will ever withstand a disparate-impact lawsuit. That may or may not be Judge Sotomayor's objective. But it cannot be the law,'' says Mr. Stuart Taylor in his thoughtful piece. The firefighters, you see, were told there was going to be a test that would determine promotion,

that it would determine eligibility for promotion. The tests were given at the time stated and the rules had been set forth. But the rules were changed and promotions did not occur because the Sotomayor court, in a perfunctory decision, concluded that too many minorities did not pass the test, and no finding was made that the test was unfair. We will be looking at that and quite a number of other matters as we go forward.

I will be talking about the question of foreign law and the question of this nominee's commitment to the second amendment, the right to keep and bear arms. The Constitution says the right to keep and bear arms shall not be infringed. We will talk about that and some other matters because, once on the Court, each Justice has one vote. It only takes five votes to declare what the Constitution says. That is an awesome power and the judges must show restraint, they must respect the legislative body,
they must understand that world opinion has no role in how to define the U.S. Constitution, for heaven's sake. Neither does foreign law. How can that help us interpret the meaning of words passed by an American legislature?

Oftentimes, world opinion is defined in no objective way, just how the judge might feel world opinion is. I am not sure they conduct a world poll, or what court's law do they examine around the world to help that influence their opinion on an American case?

This is a dangerous philosophy is all I am saying. It is a very serious debate. There are many in law schools who have a different view: there is an intellectual case out there for an activist judiciary or a judiciary that should not be tethered to dictionary definitions of words. Judges should be willing and bold and take steps to advance the law they would set and to protect this or that group that is favored at this or that time.

I think that is dangerous. I think it is contrary to our heritage of law. I am not in favor of that approach to it.

I yield the floor and suggest the absence of a quorum.