Senate Debate on Empathy
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SESSIONS:

SESSIONS: Welcome. It's good to have you back, Judge, and your family and friends and supporters. And I hope we'll have a good day today, look forward to dialogue with you. I got to say that I liked your statement on the fidelity of the law yesterday and some of your comments this morning.

And I also have to say had you been saying that with clarity over the last decade or 15 years, we'd have a lot fewer problems today because you have evidenced, I think it's quite clear, a philosophy of the law that suggests that the judge's background and experiences can and should -- even should and naturally will impact their decision what I think goes against the American ideal and oath that a judge takes to be fair to every party. And every day when they put on that robe, that is a symbol that they're to put aside their personal biases and prejudices.

So I'd like to ask you a few things about it. I would just note that it's not just one sentence, as my chairman suggested, that causes us difficulty. It's a body of thought over a period of years that causes us difficulties.
And I would suggest that the quotation he gave was not exactly right of the wise Latina comment that you made. You've said, I think six different times, quote, "I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion." So that's a matter that I think we'll talk about as we go forward.

Let me recall that yesterday you said it's simple fidelity to the law. The task of a judge is not to make law; it's to apply law. I heartily agree with that. However, you previously have said the court of appeals is where policy is made. And you said on another occasion the law that lawyers practice and judge declare is not a definitive -- capital L -- Law that many would like to think exists," close quote.

So I guess I'm asking today what do you really believe on those subjects. That there is no real law and that judges do not make law? Or that there is no real law and the court of appeals is where policy is made? Discuss that with us, please.

SOTOMAYOR: I believe my record of 17 years demonstrates fully that I do believe that law -- that judges must apply the law and not make the law. Whether I've agreed with a party or not, found them sympathetic or not, in every case I have decided, I have done what the law requires.

With respect to judges making policy, I assume, Senator, that you were referring to a remark that I made in a Duke Law student dialogue. That remark, in context, made very clear that I wasn't talking about the policy reflected in the law that Congress makes. That's the job of Congress to decide what the policy should be for society.

In that conversation with the students, I was focusing on what district court judges do and what circuit court judges do. And I know noted that district court judges find the facts, and they apply the facts to the individual case. And when they do that, they're holding, they're finding doesn't bind anybody else.
Appellate judges, however, establish precedent. They decide what the law says in a particular situation. That precedent has policy ramifications because it binds not just the litigants in that case, it binds all litigants in similar cases, in cases that may be influenced by that precedent.

SOTOMAYOR: I think if my speech is heard outside of the minute and a half that YouTube presents and its full context examined, that it is very clear that I was talking about the policy ramifications of precedent and never talking about appellate judges or courts making the policy that Congress makes.

SESSIONS: Judge, I would just say, I don't think it's that clear. I looked at that on tape several times, and I think a person could reasonably believe it meant more than that.

But yesterday you spoke about your approach to rendering opinions and said, quote, "I seek to strengthen both the rule of law and faith in the impartiality of the justice system," and I would agree. But you have previously said this: "I am willing to accept that we who judge must not deny differences resulting from experiences and heritage, but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

So first, I'd like to know, do you think there's any circumstance in which a judge should allow their prejudices to impact their decision-making?

SOTOMAYOR: Never their prejudices. I was talking about the very important goal of the justice system is to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case.
What I was talking about was the obligation of judges to examine what they're feeling as they're adjudicating a case and to ensure that that's not influencing the outcome. Life experiences have to influence you. We're not robots to listen to evidence and don't have feelings. We have to recognize those feelings and put them aside. That's what my speech was saying ...

SESSIONS: Well, Judge ...

SOTOMAYOR: ... because that's our job.

SESSIONS: But the statement was, "I willingly accept that we who judge must not deny the differences resulting from experience and heritage, but continuously to judge when those opinions, sympathies and prejudices are appropriate." That's exactly opposite of what you're saying, is it not?

SOTOMAYOR: I don't believe so, Senator, because all I was saying is, because we have feelings and different experiences, we can be led to believe that our experiences are appropriate. We have to be open- minded to accept that they may not be, and that we have to judge always that we're not letting those things determine the outcome. But there are situations in which some experiences are important in the process of judging, because the law asks us to use those experiences.

SESSIONS: Well, I understand that, but let me just follow up that you say in your statement that you want to do what you can to increase the faith and the impartiality of our system, but isn't it true this statement suggests that you accept that there may be sympathies, prejudices and opinions that legitimately can influence a judge's decision? And how can that further faith in the impartiality of the system?

SOTOMAYOR: I think the system is strengthened when judges don't assume they're impartial, but when judges test themselves to identify when their emotions are driving a result, or their experience are driving a result and the law is not.

SESSIONS: I agree with that.

SESSIONS: I know one judge that says that if he has a feeling about a case, he tells his law clerks to, "Watch me. I do not want my biases, sympathies or prejudices to influence this decision, which I've taken an oath to make sure is impartial." I just am very concerned that what you're saying today is quite inconsistent with your statement that you willingly accept that your sympathies, opinions and prejudices may influence your decision-making.

SOTOMAYOR: Well, as I have tried to explain, what I try to do is to ensure that they're not. If I ignore them and believe that I'm acting without them, without looking at them and testing that I'm not, then I could, unconsciously or otherwise, be led to be doing the exact thing I don't want to do, which is to let something but the law command the result.

SESSIONS: Well, yesterday, you also said that your decisions have always been made to serve the larger interest of impartial justice, a good -- good aspiration, I agree. But in the past, you've repeatedly said this: "I wonder whether achieving the goal of impartiality is possible at all in even most cases and I wonder whether by ignoring our differences as women, men or people of color we do a disservice to both the law and society." Aren't you saying there that you expect your background and -- and heritage to influence your decision-making?

SOTOMAYOR: What I was speaking about in that speech was -- harkened back to what we were just talking about a few minutes ago, which is life experiences to influence us, in good ways. That's why we seek the enrichment of our legal system from life experiences.

That can affect what we see or how we feel, but that's not what drives a result. The impartiality is an understanding that the law is what commands the result.

And so, to the extent that we are asking the questions, as most of my speech was an academic discussion about, what should we be thinking about, what should we be considering in this process, and accepting that life experiences could make a difference. But I wasn't encouraging the belief or attempting to encourage the belief that I thought that that should drive the result.

SESSIONS: Judge, I -- I think it's consistent in the comments I've quoted to you and your previous statements that you do believe that your backgrounds will accept -- affect the result in cases, and that's troubling me. So that is not impartiality. Don't you think that is not consistent with your statement, that you believe your role as a judge is to serve the larger interest of impartial justice?

SOTOMAYOR: No, sir. As I've indicated, my record shows that at no point or time have I ever permitted my personal views or sympathies to influence an outcome of a case. In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result.

SESSIONS: Judge...

SOTOMAYOR: I do not permit my sympathies, personal views, or prejudices to influence the outcome of my cases.

SESSIONS: Well, you -- you -- you said something similar to that yesterday, that in each case I applied the law to the facts at hand, but you've repeatedly made this statement: Quote, I "accept the proposition" -- I "accept the proposition that a difference there will be by the presence of women and people of color on the bench, and that my experiences affect the facts I choose to see as a judge."

First, that's troubling to me as a lawyer. When I present evidence, I expect the judge to hear and see all the evidence that gets presented. How is it appropriate for a judge ever to say that they will choose to see some facts and not others?

SOTOMAYOR: It's not a question of choosing to see some facts or another, Senator. I didn't intend to suggest that. And in the wider context, what I believe I was -- the point I was making was that our life experiences do permit us to see some facts and understand them more easily than others.

But in the end, you're absolutely right. That's why we have appellate judges that are more than one judge because each of us, from our life experiences, will more easily see different perspectives argued by parties.
But judges do consider all of the arguments of litigants. I have. Most of my opinions, if not all of them, explain to parties by the law requires what it does.

SESSIONS: Do you stand by your statement that my experiences affect the facts I choose to see?

SOTOMAYOR: No, sir. I don't stand by the understanding of that statement that I will ignore other facts or other experiences because I haven't had them. I do believe that life experiences are important to the process of judging. They help you to understand and listen but that the law requires a result. And it would command you to the facts that are relevant to the disposition of the case.

SESSIONS: Well, I will just note you made that statement in individual speeches about seven times over a number of years span. And it's concerning to me. So I would just say to you I believe in Judge Seiderbaum's (ph) formulation. She said -- and you disagreed. And this was really the context of your speech. And you used her -- her statement as sort of a beginning of your discussion.

And you said she believes that a judge, no matter what their gender or background, should strive to reach the same conclusion. And she believes that's possible. You then argued that you don't think it's possible in all, maybe even most, cases. You deal with the famous quote of Justice O'Connor in which she says a wise old man should reach the same decision as a wise old woman. And you pushed backed from that. You say you don't think that's necessarily accurate. And you doubt the ability to be objective in your analysis.

So how can you reconcile your speeches which repeatedly assert that impartiality is a near aspiration which may not be possible in all or even most cases with your oath that you've taken twice which requires impartiality?

SOTOMAYOR: My friend, Judge Seiderbaum (ph) is here this afternoon, and we are good friends. And I believe that we both approach judging in the same way which is looking at the facts of each individual case and applying the law to those facts.

I also, as I explained, was using a rhetorical flourish that fell flat. I knew that Justice O'Connor couldn't have meant that if judges reached different conclusions -- legal conclusions -- that one of them wasn't wise.
That couldn't have been her meaning, because reasonable judges disagree on legal conclusions in some cases. So I was trying to play on her words. My play was -- fell flat.

It was bad, because it left an impression that I believed that life experiences commanded a result in a case, but that's clearly not what I do as a judge. It's clearly not what I intended in the context of my broader speech, which was attempting to inspire young Hispanic, Latino students and lawyers to believe that their life experiences added value to the process.

SESSIONS: Well, I can see that, perhaps as a -- a layperson's approach to it. But as a judge who's taken this oath, I'm very troubled that you had repeatedly, over a decade or more, made statements that consistently -- any fair reading of these speeches -- consistently argues that this ideal and commitment I believe every judge is committed, must be, to put aside their personal experiences and biases and make sure that that person before them gets a fair day in court.

Judge, on the -- so philosophy can impact your judging. I think it's much more likely to reach full flower if you sit on the Supreme Court, and then you will -- than it will on a lower court where you're subject to review by your colleagues in the higher court.

And so, with regard to how you approach law and your personal experiences, let's look at the New Haven firefighters case, the Ricci case. In that case, the city of New Haven told firefighters that they would take an exam, set forth the process for it, that would determine who would be eligible for promotion.

The city spent a good deal of time and money on the exam to make it a fair test of a person's ability to see -- to serve as a supervisory fireman, which, in fact, has the awesome responsibility at times to send their firemen into a dangerous building that's on fire, and they had a panel that did oral exams and not -- wasn't all written, consisting of one Hispanic and one African-American and -- and one white.

And according to the Supreme Court, this is what the Supreme Court held: The New Haven officials were careful to ensure broad racial participation in the design of the test and its administration. The process was open and fair. There was no genuine dispute that the examinations were job-related and consistent with business purposes, business necessity.

But after -- but after the city saw the results of the exam, it threw out those results, because, quote, "not enough of one group did well enough on the test."

The Supreme Court then found that the city, and I quote, "rejected the test results solely because the higher scoring candidates were white. After the tests were completed, the raw racial results became the -- raw racial results became the predominant rationale for the city's refusal to certify the results," close quote.

So you stated that your background affects the facts that you choose to see. Was the fact that the New Haven firefighters had been subject to discrimination one of the facts you chose not to see in this case?

SOTOMAYOR: No, sir. The panel was composed of me and two other judges. In a very similar case of the 7th Circuit in an opinion offered by Judge Easterbrook -- I'm sorry. I misspoke. It wasn't Judge Easterbrook. It was Judge Posner -- saw the case in an identical way. And neither judge -- I've confused some statements that Senator Leahy made with this case. And I apologize.

In a very similar case, the 6th Circuit approached a very similar issue in the same way. So a variety of different judges on the appellate court were looking at the case in light of established Supreme Court and 2nd Circuit precedent and determined that the city facing potential liability under Title VII could choose not to certify the test if it believed an equally good test could be made with a different impact on affected groups.

The Supreme Court, as it is its prerogative in looking at a challenge, established a new consideration or a different standard for the city to apply. And that is was there substantial evidence that they would be held liable under the law. That was a new consideration.

Our panel didn't look at that issue that way because it wasn't argued to us in the case before us and because the case before us was based on existing precedent. So it's a different test.

SESSIONS: Judge, there was a -- apparently, unease within your panel. I -- I was really disappointed. And I think a lot of people have been that the opinion was so short. It was pro curiam. It did not discuss the serious legal issues that the case raised. And I believe that's legitimate criticism of what you did.

But it appears, according to Stuart Taylor, a respected legal writer for the National Journal -- that Stuart Taylor concluded that -- that it appears that Judge Cabranes was concerned about the outcome of the case, was not aware of it because it was a pro curiam unpublished opinion. But it began to raise the question of whether a rehearing should be granted.

You say you're bound by the superior authority. But the fact is when the re -- the question of rehearing that 2nd Circuit authority that you say covered the case, some say it didn't cover so clearly -- but that was up for debate. And the circuit voted, and you voted not to reconsider the prior case. You voted to stay with the decision of the circuit.

And, in fact, your vote was the key vote. Had you voted with Judge Cabranes, himself of -- of -- of Puerto Rican ancestry -- had you voted with him, you -- you -- you could have changed that case.
So in truth you weren't bound by that case had you seen it in a different way. You must have agreed with it and agreed with the opinion and stayed with it until it was reversed by the court. Let me just mention this. In 1997...

LEAHY: Is that a question or a...

SESSIONS: Well, that was a response to some of what you said, Mr. Chairman, because you misrepresented factually what the -- the posture of the case.

LEAHY: Well, I obviously...

SESSIONS: In 1997...

LEAHY: I obviously will disagree with that. But that -- we'll have a chance to vote on this issue.

SESSIONS: In 1997 when you came before the Senate and I was a new senator, I asked you this. In a suit challenging a government racial preference in quota or set-aside, will you follow the Supreme Court decision in Adarand and subject racial preferences to the strictest judicial scrutiny," close quote. In other words, I asked you would you follow the Supreme Court's binding decision in Adarand v. Pena.
In Adarand, the Supreme Court held that all governmental discrimination, including Affirmative Action programs, that discriminated by race of an applicant must face strict scrutiny in the courts. In other words, this is not a light thing to do. When one race is favored over another, you must have a really good reason for it, or it's not acceptable.

After Adarand, the government agencies must prove there is a compelling state interest in support of any decision to treat people differently by race. This is what you answered: "In my view, the Adarand court correctly determined that the same level of scrutiny -- strict scrutiny applies for the purpose of evaluating the constitutionality of all government classifications, whether at the state or federal level, based on race," close quote. So that was your answer, and it deals with government being the City of New Haven.

You made a commitment to this committee to follow Adarand. In view of this commitment you gave me 12 years ago, why are the words "Adarand," "Equal protection" and "Strict scrutiny" are completely missing from any of your panel's discussion of this decision?

SOTOMAYOR: Because those cases were not what was at issue in this decision. And in fact, those cases were not what decided the Supreme Court's decision. The Supreme Court parties were not arguing the level of scrutiny that would apply with respect to intentional discrimination. The issue is a different one before our court and the Supreme Court, which is what's a city to do when there is proof that its test disparately impacts a particular group.

And the Supreme Court decided, not on a basis of strict scrutiny, that what it did here was wrong -- what the city did here was wrong, but on the basis that the city's choice was not based on a substantial basis in evidence to believe it would be held liable under the law. Those are two different standards, two different questions that a case would present.

SESSIONS: But Judge, it wasn't that simple. This case was recognized pretty soon as a big case, at least. I noticed what perhaps kicked off Judge Cabranes's concern was a lawyer saying it was the most important discrimination case that the circuit had seen in 20 years. They were shocked they got a -- basically one-paragraph decision per curiam unsigned back on that case.

Judge Cabranes apparently raised this issue within the circuit, asked for re-hearing. Your vote made the difference in not having a re-hearing in bank. And he said, quote, "Municipal employers could reject the results" -- in talking about the results of your test, the impact of your decision -- "Municipal employers could reject the results of an employment examination whenever those results failed to yield a desirable outcome, i.e., fail to satisfy a racial quota," close quote.

SESSIONS: So that was Judge Trabanas's (sic) analysis of the impact of your decision, and he thought it was very important. He wanted to review this case. He thought it deserved a full and complete analysis and opinion. He wanted the whole circuit to be involved in it. And to the extent that some prior precedent in the circuit was different, the circuit could have reversed that precedent had they chose to do so.
Don't you think -- tell us how it came to be that this important case was dealt with in such a cursory manner.

SOTOMAYOR: The panel decision was based on a 78-page district court opinion. The opinion referenced it. In its per curium, the court incorporated in differently, but it was referenced by the circuit. And it released on that very thoughtful, thorough opinion by the district court.

And that opinion discussed Second Circuit precedent in its fullest -- to its fullest extent. Justice Cabranes had one view of the case. The panel had another. The majority of the vote -- it wasn't just my vote -- the majority of the court, not just my vote, denied the petition for rehearing.

The court left to the Supreme Court the question of how and employer should address what no one disputed was prima facia evidence that its test disparately impacted on a group. That was undisputed by everyone, but the case law did permit employees who had been disparately impacted to bring a suit.
The question was, for city, was it racially discriminating when it didn't accept those tests or was it attempting to comply with the law.

SESSIONS: Well, Judge, I think it's not fair to say that a majority -- I guess it's fair to say a majority voted against rehearing. But it was 6 to 6. Unusual that one of the judges had to challenge a panel decision, and your vote made the majority not to rehear it.

Do you -- and Ricci did deal with some important questions. Some of the questions that we have got to talk about as a nation, we've got to work our way through. I know there's concern on both sides of this issue, and we should do it carefully and correctly.

But do you think that Frank Ricci and the other firefighters whose claims you dismissed felt that their arguments and concerns were appropriately understood and acknowledged by such a short opinion from the court?

SOTOMAYOR: We were very sympathetic and expressed our sympathy to the firefighters who challenged the city's decision, Mr. Ricci and the others. We stood the efforts that they had made in taking the test. We said as much.

They did have before them a 78-page thorough opinion by the district court. They, obviously, disagreed with the law as it stood under Second Circuit precedent. That's why they were pursuing their claims and did pursue them further.

In the end, the body that had the discretion and power to decide how these tough issues should be decided, let alone the precedent that had been recognized by our circuit court and another -- at least, the Sixth Circuit -- but along what the court thought would be the right test or standard to apply.

And that's what the Supreme Court did. It answered that important question because it had the power to do that -- not the power but the ability to do that because it was faced with the arguments that suggested that. The panel was dealing with precedent and arguments that rely on our precedent.

SESSIONS: Thank you, Judge. And I appreciate this opportunity. And I -- I would just say, though, had the procurement opinion stood without a rehearing requested by one of the judges in the whole circuit and kicked off the discussion, it's very, very unlikely that we would have heard about this case or the Supreme Court would have taken it up. Thank you, Mr. Chairman.

LEAHY: Thank you. Obviously, we can talk about your speeches, but, ultimately, we determine how you act as a judge and how you make decisions. I will put into the record the American Bar Association, which has unanimously -- unanimously -- given you their highest rating.

I put into the record the New York City Bar, which said you were extremely well credentialed to sit on the Supreme Court. I'll put that in there. I'll put in the Congressional Research Service, which analyzed your cases and found that you consistently deal with the law and with stare decisis, the upholding of past judicial precedent.

I've put in that the nonpartisan Brennan Center found you solidly in the mainstream and then another analysis of more than 800 of your cases which found you followed a (ph) traditional consensus judge on criminal justice issues.

I thought I'd put those in. It's one thing to talk about speeches you might give; I'm more interested on cases you might decide. Senator Kohl?