Senate Debate on Empathy
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SCHUMER:  xxxx
 Thank you, Mr. Chairman. And thank all of my colleagues. First, I'm going to follow up on some of the line of questioning of Senator Sessions and Kyl, but I would like to first thank my Republican colleagues. I think the questioning has been strong, but respectful.

I'd also like to compliment you, Judge. I think you've made a great impression on America today. The American people have seen today what we have seen when you have met with us one on one.

You're very smart and knowledgeable, but down to earth. You're a strong person, but also very nice person. And you've covered the questions thoughtfully and modestly.

So now I'm going to go onto that line of question. We've heard you asked about snippets of statements that have been used to criticize you and challenge your impartiality, but we've heard precious little about the body and totality of your 17-year record on the bench, which everybody knows is the best way to evaluate a nominee.

In fact, no colleague has pointed to a single case in which you've said the court should change existing law, in which you've attempted to change existing law explicitly or otherwise, and I've never seen such a case anywhere in your long and extensive record.

So if a questioner is focusing on a few statements or, quote, "those few words" and doesn't refer at all to the large body of cases where you've carefully applied the law regardless of sympathies, I don't think that's balanced or down the middle.

And by focusing on these few statements, rather than your extensive record, I think some of my colleagues are attempting to try and suggest that you might put your experiences and empathies ahead of the rule of law, but the record shows otherwise. And that's what I now want to explore.

Now, from everything I've read in your judicial record and everything I've heard you say, you put rule of law first, but I want to clear it up for the record, so I want to talk to you a little bit about what having empathy means, and then I want to turn to your record on the bench, which I believe is the best way to get a sense of what your record will be on the bench in the future.

Now, I believe that empathy is the opposite of indifference, the opposite of, say, having ice water in your veins, rather than the opposite of neutrality. And I that's the mistake in concept that some have used.
But let's start with the basics. Will you commit to us today that you will give every litigant before the court a fair shake and that you will not let your personal sympathies toward any litigant overrule what the law requires?

SOTOMAYOR: That commitment I can make and have made for 17 years.

SCHUMER: OK. Well, good. Let's turn to that record. I think your record shows extremely clearly that, even when you might have sympathy for the litigants in front of you, as a judge, your fidelity is first and foremost to the rule of law, because, as you know, in the courtroom of a judge who ruled based on empathy, not law, one would expect that the most sympathetic plaintiffs would always win, but that's clearly not the case in your courtroom.

For example, in -- and I'm going to take a few cases here and go over them with you. For example, in In Re: Air Crash Off Long Island, which is sort of a tragic but interesting name for a case, you heard the case of families of the 213 victims of the tragic TWA crash, which we all know about in New York.
The relatives of the victims sued manufacturers of the airplane, which spontaneously combusted in midair, in order to get some modicum of relief, though, of course, nothing a court could do would make up for the loss of the loved ones. Did you have sympathy for those families?

SOTOMAYOR: All of America did. That was a loss of life that was traumatizing for New York state, because it happened off the shores of Long Island. And I know, senator, that you were heavily involved in ministering to the families...

SCHUMER: I was.

SOTOMAYOR: ... during that case.

SCHUMER: Right.

SOTOMAYOR: Everyone had sympathy for their loss. It was absolutely tragic.

SCHUMER: And many of them were poor families, many of them from your borough in the Bronx. I met with them. But ultimately, you ruled against them, didn't you?

SOTOMAYOR: I didn't author the majority opinion in that case. I dissented from the majority's conclusion. But my dissent suggested that the court should have followed what I viewed as existing law, and reject their claims.

SCHUMER: Yes.

SOTOMAYOR: Or at least a portion of their claim.

SCHUMER: Right. Your dissent that, "the appropriate remedial scheme for deaths occurring off the United States coast is clearly a legislative policy choice, which should not be made by the courts." Is that correct?

SOTOMAYOR: Yes, sir.

SCHUMER: And that's exactly, I think, the point that my colleague from Arizona and others were making about how a judge should rule. How did you feel ruling against individuals who had clearly suffered a profound personal loss and tragedy, and were looking to the courts -- and to you -- for a sense of justice?

SOTOMAYOR: One, in as tragic, tragic, horrible situation like that, can't feel anything but personal sense of regret. But those personal senses can't command a result in a case.

As a judge, I serve the greater interest. And that greater interest is what the rule of law supplies.

As I mentioned in that case, it was fortuitous that there was a remedy. And that remedy, as I noted in my case, was Congress. And, in fact, very shortly after the 2nd Circuit's opinion, Congress amended the law, giving the victims the remedies that they had sought before the court. And my dissent was just pointing out that, despite the great tragedy, that the rule of law commanded a different result.

SCHUMER: And it was probably very hard, but you had to do it. Here's another case, Washington v. County of Rockland -- Rockland is a county, a suburb of New York -- which was a case involving black corrections officers who claimed that they were retaliated against after filing discrimination claims. Remember that case?

SOTOMAYOR: I do.

SCHUMER: Did you have sympathy for the officers filing that case?

SOTOMAYOR: Well, to the extent that anyone believes that they've been discriminated on the basis of race, that not only violates the law, but one would have -- I wouldn't use the word "sympathy" -- but one would have a sense that this claim is of some importance, and one that the court should very seriously consider.

SCHUMER: Right. Because, I'm sure, like Judge Alito said, and others, you had suffered discrimination in your life as well. So, you could understand how they might feel, whether they were right or wrong in the outcome, in the -- in the -- in filing.

SOTOMAYOR: I've been more fortunate than most. The discrimination that I have felt has not been as life-altering as it has for others. But I certainly do understand it, because it is a part of life that I'm familiar with and have seen others suffer so much with, as I have in my situation.

SCHUMER: Now, let me ask you again. How did you feel ruling against law enforcement officers, the kind of people you've told us repeatedly you've spent your career working with DA's office and elsewhere, and for whom you have tremendous respect?

SOTOMAYOR: As with all cases where I might have a feeling of some identification with, because of background or because of experiences, one feels a sense of understanding what they have experienced. But in that case, as in the TWA case, the ruling that I endorsed against them was required by law.

SCHUMER: Here's another one. It was called Boykin v. Keycorp. It was a case in which an African-American woman filed suit after being denied a home equity loan, even after her loan application was conditionally approved based on her credit report. She claimed that she was denied the opportunity to own a home, because of her race, her sex and the fact that her perspective home was in a minority- concentrated neighborhood. She didn't even have a lawyer or anyone else to interpret the procedural rules for her. She filed this suit on her own. Did you sympathy for the woman seeking a home loan from the bank?

SOTOMAYOR: Clearly, everyone has sympathy for an individual who wants to own their own home. That's the typical dream and aspiration, I think, of most Americans. And -- and if someone is denied that chance for a reason that they believe is improper, one would recognize and understand their feelings.

SCHUMER: Right. And in fact, you ruled that her claim wasn't timely. Rather than overlooking the procedural problems with the case, you held fast to the complicated rules that keep our system working efficiently, even if it meant that claims of discrimination could not be heard. We never got to whether she was actually discriminated against, because she didn't file in a timely manner. Is...

SOTOMAYOR: I...

SCHUMER: Is my summation there accurate? You want to elaborate?

SOTOMAYOR: Yes, in terms of the part of the claim that -- that we held was barred by the statute of limitations. In my -- in a response to the earlier question -- to an earlier question, I indicated that the law requires some finality. And that's why Congress passes or state legislature passes statutes of limitations that require people to bring their claims within certain time frames. Those are statutes, and they must be followed if a situation -- if they apply to a particular situation.

SCHUMER: Finally, let's look at a case that cuts the other way with a pretty repugnant litigant. This is the case called Pappas v. Giuliani. And you considered claims of a police employee who was fired for distributing terribly bigoted and racist materials. First, what did you think of the speech in question that this officer was distributing?

SOTOMAYOR: Nobody, including the police officer, was claiming that the speech wasn't offensive, racist and insulting. There was a question about what his purpose was in sending the letter.
But my opinion dissent in that case pointed out that offensiveness and racism of the letter, but I -- I issued a dissent from the majority's affirmance of his dismissal from the police department because of those letters.

SCHUMER: Right. As I understand it, you wrote that what the actual literature that the police officer was distributing was, quote, "patently offensive, hateful and insulting." But you also noted that, quote -- and this is your words in a dissent, where the majority was on the other side -- quote, "Three decades of jurisprudence and the centrality of First Amendment freedoms in our lives," that's your quote, the employee's right to speech had to be respected.

SOTOMAYOR: In the situation of that case, that was the position that I took because that's what I believed the law commanded.

SCHUMER: Even though, obviously, you wouldn't have much sympathy or empathy for this officer or his actions. Is that correct?

SOTOMAYOR: I don't think anyone has sympathy for what was undisputedly a racist statement, but the First Amendment commands that we respect people's rights to engage in hateful speech.

SCHUMER: Right. Now, I'm just going to go to a group of cases here rather than one individual case. We could go -- we could go -- we could do this all day long where sympathy, empathy would be on one side, but you found rule of law on the other side and you sided with rule of law.

And so, you know, again, to me, analyzing a speech and taking words maybe out of context doesn't come close to analyzing the cases as to what kind of judge you'll be, and that's what I'm trying to do here.

Now, this one -- my office conducted an analysis of your record in immigration cases, as well as the record of your colleagues. And in conducting this analysis, I came across a case entitled Jian v. Board of Immigration Appeals (ph), where your colleague said something very interesting. This was Judge Jon Newman. He's a very respected judge on your circuit.

He said something very interesting when discussing asylum cases. Specifically, he said the following. This is Judge Newman. Quote, "We know of no way to apply precise calibers to all asylum cases so that any particular finding would be viewed by any -- any 3 of the 23 judges of this court as either sustainable or not sustainable. Panels will have to do what judges always do in similar circumstances: apply their best judgment, guided by the statutory standard governing review and the holdings of our precedents, to the administrative decision and the record assembled to support it."

In effect, what Judge Newman is saying is these cases would entertain more subjectivity, let's say, because, as he said, you could -- you could side many of them as sustainable or not sustainable.

SCHUMER: So given the subjectivity that exists in the asylum cases, it's clear that if you wanted to be, quote, "an activist judge," you could certainly have found ways to rule in favor of sympathetic asylum-seekers even when the rule of law might have been more murky and not have dictated an exact result.

Yet, in the nearly 850 cases you have decided in the Second Circuit, you ruled in favor of the government -- that is, against the petitioner seeking asylum, the immigrant seeking asylum -- 83 percent of the time.

That happens to be the exact statistical median rate for your court. It's not one way or the other.
This means that, with regard to immigration, you are neither more liberal nor more conservative than your colleagues. You simply did what Judge Newman said. You applied your best judgment to the record at hand.

Now, can you discuss your approach to immigration cases, explain to this panel and the American people the flexibility that judges have in this context, and your use of this flexibility in a very moderate manner?

SOTOMAYOR: Reasonable judges look at the same set of facts and may disagree on what those facts should result in. It hearkens back to the question of wise men and wise women being judges.

Reasonable people disagree. That was my understanding of Judge Newman's comment in the quotation you made.

In immigration cases, we have a different level of review, because it's not the judge making the decision whether to grant or not grant asylum. It's an administrative body.

And I know that I will -- I'm being a little inexact, but I think using old terminology is better than using new terminology. And by that I mean, the agency that most people know as the Bureau of Immigration has a new name now, but that it's more descriptive than its new name.

SCHUMER: ICE. Some people think the new name's descriptive, but that's...(LAUGHTER)

SOTOMAYOR: In immigration cases, an asylum seeker has an opportunity to present his or her case before an immigration judge. They then can appeal to the Bureau of Immigration and argue that there was some procedural default (ph) below (ph), or that the immigration judge or the bureau itself has committed some error of law.

They then are entitled by law to appeal directly to the 2nd Circuit. In those cases, because they are administrative decisions, we are required under the Chevron doctrine, and other tests in administrative law, to give deference to those decisions.

But like with all processes, there are occasions when processes are not followed, and an appellate court has to ensure that the rights of the asylum seeker have been -- whatever those rights may be -- have been given. There are other situations in which an administrative body hasn't adequately explained its reasoning. There are other situations where administrative bodies have actually applied erroneous law.

No institution is perfect. And so, that accounts for why, given the deference -- and I'm assuming your statistic is right, senator, because I don't add up the numbers. OK?

SOTOMAYOR: But I do know that in immigration cases, the vast majority of the Bureau of Investigation cases are -- the petitions for review are denied. So, that means that...

SCHUMER: Right. The only point I'm making here, if some are seeking to suggest that your empathy or sympathy overrules rule of law, this is a pretty good body of law to look at. A, it's a lot of cases, 850. B, one would think -- I'm not going to ask you to state it -- that you'll have sympathy for immigrants and immigration. And, third, there is some degree of flexibility here, as Judge Newman said, just because of the way the law is. And yet you are exactly in the middle of the Second Circuit.

If empathy were governing you, I don't think you would have ended up in that position, but I'll let everybody judge whether that's true. But the bottom line here, in the air crash case, in Washington, in Boykin (ph), in this whole mass of asylum cases, you probably had sympathy for many of the litigants, if not all of them, ruled against them.

The cases we've just discussed are just a sampling of your lengthy record, but they do an effective job of illustrating the fact that, in your courtroom, rule of law always triumphs.

And would you agree? I mean, that seems to me, looking at your record. You know it much better than I do, that rule of law triumphing probably best characterizes your record as your 17 years as a judge.

SOTOMAYOR: I firmly believe in the fidelity to the law. In every case I approach, I start from that working proposition and apply the law to the facts before us.

SCHUMER: And has there ever been a case in which you ruled in favor of a litigant simply because you were sympathetic to their plight, even if rule of law might not have led you in that direction?

SOTOMAYOR: Never.

SCHUMER: Thank you. Let's go on here a little bit to foreign law, which is an issue that has also been discussed. Your critics have tried to imply that you'll improperly consider foreign law and sources in cases before you. You gave a speech in April that's been selectively quoted. Discussing whether it's permissible to use foreign law or international law to decide cases, you stated clearly that, quote, "American analytic principles do not permit us" -- that's your quote -- "to do so."

Just so the record is 100 percent clear, what do you believe is the appropriate role of any foreign law in the U.S. courts?

SOTOMAYOR: American law does not permit the use of foreign law or international law to interpret the Constitution. That's a given. And my speech explained that, as you noted, explicitly. There is no debate on that question; there's no issue about that question.

The question is a different one because there are situations in which American law tells you to look at international or foreign law. And my speech was talking to the audience about that. And, in fact, I pointed out that there are some situations in which courts are commanded by American law to look at what others are doing.

So, for example, if the U.S. is a party to a treaty and there's a question of what the treaty means, then courts routinely look at how other courts of parties who are signatures are interpreting that.

SOTOMAYOR: There are some U.S. laws that say you have to look at foreign law to determine the issue. So, for example, if two parties have signed a contract in another country that's going to be done in that other country, then American law would say, you may have to look at that foreign law to determine the contract issue.

The question of use of foreign law then is different than considering the ideas that it may on an academic level, provide. Judges -- and I -- I'm not using my words. I'm using Justice Ginsberg's words. You build up your story of knowledge as a person, as a judge, as a human being with everything you read.

For judges, that includes law review articles. And there are some judges who have opined negatively about that. OK? You use decisions from other courts. You build up your story of knowledge. It is important in the speech I gave, a noted and agreed with Justices Scalia and Thomas that one has to think about this situation very carefully because there are so much differences in foreign law from American law. But that was the setting up my speech and the discussion that my speech was addressing. 

SCHUMER: Right. And you've never relied on a foreign court to interpret U.S. law nor would you?

SOTOMAYOR: In fact, I know that, in my 17 years on the bench, other than applying it in treaty interpretation or conflicts of law situations, that I've not cited foreign law.

SCHUMER: Right. And it is important American judges consider many nonbinding sources when reaching a determination. For instance, consider Justice Scalia's well-known regard for dictionary definitions in determining the meaning of words or phrasing or statutes being interpreted by a court.

In one case, MCI vs. AT&T, that's a pretty famous case, Justice Scalia cited not one but five different dictionaries to establish the meaning of the word "modify" in a statute. Would you agree that dictionaries are not binding on American judges?

SOTOMAYOR: They're a tool to help up in some situations to interpret what is meant by the words that Congress or a legislature uses. SCHUMER: Right. Right. So it was not improper for Justice Scalia to consider dictionary definitions, but they're not binding. Same as citing a foreign law as long as you don't make it binding on the case?

SOTOMAYOR: Yes. Well, foreign law, except in the situation...

SCHUMER: Of treaties.

SOTOMAYOR: And even then is not binding. It's American principles of construction that are binding.

SCHUMER: Right. OK. Good. Now, we'll go to a little easier topic since we're close to the end here. It's a topic that you like and I like. And that is we've heard a lot of discussions about baseball in metaphorical terms. Judges as umpires. We had a lot of that yesterday, a little of that today. But I want to talk about baseball a little more concretely. First, am I correct you share my love for America's pastime?

SOTOMAYOR: It's often said that I grew up in the shadow of Yankee Stadium. To be more accurate, I grew up sitting next to my dad, while he was alive, watching baseball.

SCHUMER: OK.

SOTOMAYOR: And it's one of my fondest memories of him.

SCHUMER: So given that you give near Yankee Stadium and you're from the Bronx, I was going ask you are you a Mets or Yankee fan, but I guess you've answered that. Right?

LEAHY: Be careful. You want to keep the chairman on your side. (LAUGHTER)

SCHUMER: No, no. As much as Judge Scalia (sic) might want to be nominated, I don't think she would adapt the Red Sox as her team, as you have, Mr. Chairman. (LAUGHTER) Judge Sotomayor, I'm sorry. Who did I say?

LEAHY: Scalia.

SCHUMER: Oh. (LAUGHTER) I don't want what Judge Scalia -- who Judge Scalia roots for, but I know who Judge Sotomayor roots for.

SOTOMAYOR: I know many residents of Washington, D.C. have asked me to look at the Senators for...

SCHUMER: Anyway, I do want to talk, ask you just about the 1995 player strike case, which comes up, but it's an interesting case for everybody. And I don't think -- you won't -- you won't have to worry about talking about it, because I don't think the Mets vs. Yankees will come up or the Red Sox vs. the Yankees will come up before the courts, although the Yankees could use all the help they can get right now.

But could you tell us a little bit about the case and why you listed it in your questionnaire that you filled out as one of your 10 most important cases? And that will be my last question, Mr. Chairman.

SOTOMAYOR: That was -- and people often forget how important some legal challenges seem before judges decide the case. Before the case was decided, all of the academics and all of newspapers and others talking about the case were talking about the novel theory that the baseball owners had developed in challenging the collective bargaining rights of players and owners.

In that case, as with all the cases that I approach, I look at what the law is, what precedent says about it, and I try to discern in a new factual challenge how the principles apply. And that's the process I used in that case. And it became clear to me after looking at that case that that process led to affirming the decision of the national labor relationships board that it could and should issue an injunction on the grounds that it claimed. So that, too, was a case where there's a new argument, a new claim, but where the application of the law came from taking the principles of the law and applying it to that new claim.

LEAHY: Thank you very much, Senator Schumer. Senator Graham?