Senate Debate on Empathy
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KYL:

 Thank you, Mr. Chairman. Judge, could I return briefly to a series of questions that Senator Feingold asked at the very beginning relating to the Maloney decision relating to the Second Amendment.

SOTOMAYOR: Sure.

KYL: Yes...

SOTOMAYOR: Good afternoon, by the way.

KYL: Oh, I'm sorry?

SOTOMAYOR: Good afternoon, by the way.

KYL: Yes, good afternoon. You had indicated, of course, if that case were to come before the court, under the recusal statute, you would recuse yourself from participating in the decision.

SOTOMAYOR: In that case, yes.

KYL: Yes. And you're aware -- or maybe you're not -- but There are two other decisions both dealing with the same issue of incorporation, one in the Ninth Circuit, one in the Seventh Circuit. The Seventh Circuit decided the case similarly to your circuit; the Ninth Circuit has decided it differently, although that case is on rehearing.

If the court should take all three -- let's assume the Ninth Circuit stays with its decision, so you do have the conflict among the circuits, and the court were to take all three decisions at the same time, I take it the recusal issue would be the same. You would recuse yourself in that situation?

SOTOMAYOR: I haven't actually been responding to that question, and I think you're right for posing it. I clearly understand that recusing myself from Maloney would be appropriate. The impact of a joint hearing by the court would suggest that I would have to apply the same principle.

But as I indicated, issues of recusal are left to the discretion of justices because their participation in cases is so important. It is something that I would discuss with my colleagues and follow their practices...

KYL: Sure.

SOTOMAYOR: ... with respect to a question like this.

KYL: I -- I appreciate that. And I -- I agree with your reading of it. The law, 28 USC Section 455, provides, among other things, and I quote, "Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," end of quote.

And that, of course, raises the judge's desire to consult with others and ensure that impartiality is not questioned by participating in a decision. I would -- I would think -- and I would -- I would want your responses -- I would think that there would be no difference if the Maloney case is decided on its own or if it is decided as one of two or three other cases all considered by the court at the same time.

SOTOMAYOR: As I said, that's an issue that's different than the question that was posed earlier.

KYL: Would you not be willing to make an unequivocal commitment on that at this time?

SOTOMAYOR: It's impossible to say. I will recuse myself on any case involving Maloney. How the other cert is granted, and whether joint argument is presented or not, I would have to await to see what happens.

KYL: Well, let me ask you this. Suppose that the other two cases are considered by the Court -- your circuit is not involved -- or that the Court takes either the 7th or 9th Circuit, and decides the question of incorporation of the Second Amendment.

I gather that, in subsequent decisions, you would consider yourself bound by that precedent, or that you would consider that to be the decision of the Court on the incorporation question.

SOTOMAYOR: Absolutely. The decision of the Court in Heller is -- its holding has recognized an individual right to bear arms...

KYL: Right.

SOTOMAYOR: ... as applied to the federal government.

KYL: If, as a result -- I mean, that was the matter before your circuit. And if, as a result of the fact that the Court decided one of the other, or both of the other two circuit cases and resolved that issue, so that the same matter would have been before the Court, would it not also make sense for you to indicate to this committee now, that should that matter come before the Court, and you're on the Court, that you would necessarily recuse yourself from its consideration?

SOTOMAYOR: I didn't quite follow the start of your question...

KYL: All right. Let me restate it.

SOTOMAYOR: ... Senator Kyl. I want to answer precisely...

KYL: Sure.

SOTOMAYOR: ... but I'm not quite sure...

KYL: You agree with me, that if the Court considered either the 7th or 9th Circuit, or both, decisions, and decided the issue of incorporation of the Second Amendment to make it applicable to the states, you would consider that binding precedent of the Court. That, of course, was the issue in Maloney.

As a result, since it's the same matter that you resolved in Maloney, wouldn't you have to, in order to comply with the statute, recuse yourself if either, or both, or all three of those cases came to the Court?

SOTOMAYOR: Senator, as I indicated, clearly, the statute would reach Maloney. How I would respond to the Court taking certiorari, in what case, and whether it took certiorari in one or all three, is a question that I would have to await to see what the Court decides to do, and what issues it addresses in its grant of certiorari.

There's also the point that whatever comes before the Court will be on the basis of a particular state statute, which might involve other questions.

It's hard to speak about recusal in the abstract, because there's so many different questions that one has to look at.

KYL: And I do appreciate that. And I appreciate that you should not commit yourself to a particular decision in a case.

If the issue is the same, however, it's simply the question of incorporation, that is a very specific question of law. It doesn't depend upon the facts. I mean, it didn't matter that, in your case, you were dealing with a very dangerous arm -- but not a firearm, for example -- you still considered the question of incorporation.

Well, let me just try to help you along here.

Both Justice Roberts and Justice Alito made firm commitments to this committee. Let me tell you what Justice Roberts said. He said that he would recuse himself -- and I'm quoting now -- from matters in which he participated while a judge on the Court of Appeals -- matters.

And since you did acknowledge that the incorporation decision was the issue in your decision -- in your 2nd Circuit case -- and the question that I asked was whether, if that is the issue from the 9th and 7th Circuits, you would consider yourself bound by that.

It would seem to me that you should be willing to make the same kind of commitment that Justice Roberts and Justice Alito did.

SOTOMAYOR: I didn't understand their commitment to be broader than what I have just said, which is that they would certainly recuse themselves from any matter, I understood it to mean any case that they had been involved in as a -- as a circuit judge. If their practice was to recuse themselves more broadly, then, obviously, I would take counsel from what they did.

But I believe, if my memory is serving me correctly -- and it may not be, but I think so -- that Justice Alito, as a Supreme Court justice, has heard issues that were similar to ones that he considered as a circuit court judge. So as I've indicated, I will take counsel from whatever the practices of the justices are with the broader question of what...

KYL: I appreciate that. Issues which are similar is different, though, from an issue which is the same. And I would just suggest that there would be an appearance of impropriety. If you've already decided the issue of incorporation one way, that's the same issue that comes before the Court. And then you, in effect, review your own decision.

That, to me, would be a matter of inappropriate and, perhaps, you would recuse yourself. I understand your answer. Let me ask you about what the president said -- and I talked about it in my opening statement -- whether you agree with him. He used two different analogies. He talked once about the 25 miles -- the first 25 miles of a 26-mile marathon.

And then he also said, in 95% of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge's heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart?

SOTOMAYOR: No, sir. That's -- I don't -- I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge.

KYL: Appreciate that. And has it been your experience that every case, no matter how tenuous it's been and every lawyer, no matter how good their quality of advocacy, that in every case, every lawyer has had a legal argument of some quality it make? Some precedent that he's cited? It might not be the Supreme Court. It might not be the court of appeals. It might be a trial court somewhere. It might not even be a court precedent. It may be a law review article or something. But have you ever been in a situation where a lawyer said I don't have any legal argument to me, Judge, please go with your heart on this or your gut? 

SOTOMAYOR: Well, I've actually had lawyers say something very similar to that. (LAUGHTER) I've had lawyers where questions have been raised about the legal basis of their argument. I thought one lawyer who put up his hands and said, but it's just not right. (LAUGHTER) But it's just not right is not what judges consider. What judges consider is what the law. says.

KYL: You've always been able to find a legal basis for every decision that you've rendered as a judge?

SOTOMAYOR: Well, to the extent that every legal decision has -- it's what I do in approaching legal questions is, I look at the law that's being cited. I look at how precedent informs it. I try to determine what those principles are of precedent to apply to the facts in the case before me and then do that. And so one -- that is a process. You use...

KYL: Right. And -- and all I'm asking -- this is not a trick question.

SOTOMAYOR: No, I wasn't...

KYL: I can't imagine that the answer would be otherwise than, yes, you've always found some legal basis for ruling one way or the other, some precedent, some reading of a statute, the Constitution or whatever it might be. You haven't ever had to throw up your arms and say, "I can't find any legal basis for this opinion, so I'm going to base it on some other factor"?

SOTOMAYOR: It's -- when you say -- use the words "some legal basis," it suggests that a judge is coming to the process by saying, "I think the result should be here, and so I'm going to use something to get there."

KYL: No, I'm not trying to infer that any of your decisions have been incorrect or that you've used an inappropriate basis. I'm simply confirming what you first said in response to my question about the president, that, in every case, the judge is able to find a basis in law for deciding the case. Sometimes there aren't cases directly on point. That's true. Sometimes it may not be a case from your circuit. Sometimes it may be somewhat tenuous and you may have to rely upon authority, like scholarly opinions and law reviews or whatever.

But my question is really very simple to you: Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?

SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts.

KYL: Right. Now, thank you for that. Let me go back to the beginning. I raised this issue about the president's interpretation, because he clearly is going to seek nominees to this court and other courts that he's comfortable with and that would imply who have some commonality with his view of the law in judging. It's a concept that I also disagree with.

But in this respect, it is -- the speeches that you have given and some of the writings that you've engaged in have raised questions, because they appear to fit into what the president has described as this group of cases in which the legal process or the law simply doesn't give you the answer.

And it's in that context that people have read these speeches and have concluded that you believe that gender and ethnicity are an appropriate way for judges to make decisions in cases. Now, that's -- that's my characterization.

KYL: I want to go back through the -- I've read your speeches, and I've read all of them several times. The one I happened to mark up here is the Seton Hall speech, but it was virtually identical to the one at Berkeley.

You said this morning that your -- the point of those speeches was to inspire young people. And I think there is some in your speeches that certainly is inspiring, and, in fact, it's more than that. I commend you on several of the things that you talked about, including your own background, as a way of inspiring young people, whether they're minority or not, and regardless of their gender. You said some very inspirational things to them.

And I take it that, therefore, in some sense, your speech was inspirational to them. But, in reading these speeches, it is inescapable that your purpose was to discuss a different issue, that it was to discuss -- in fact, let me put it in your words. You said, "I intend to talk to you about my--I--my Latina identity, where it came from, and the influence I perceive gender, race, and national original representation will have on the development of the law.

And then, after some preliminary and sometimes inspirational comments, you got back to the theme and said, "The focus of my speech tonight, however, is not about the struggle to get us where we are and where we need to go, but instead to discuss what it will mean to have more women and people of color on the bench."

You said, "No one can or should ignore asking and pondering what it will mean, or not mean, in the development of the law." You talked to -- you cited some people who had a different point of view than yours, and then you came back to it and said, "Because I accept the proposition that, as Professor Resnick (ph) explains, 'To judge is an exercise of power,' and because as Professor Martha Minow of Harvard Law School explains, 'There is no objective stance, but only a series of perspectives. No neutrality, no escape from choice in judging,'" you said. "I further accept that our experiences as women and people of color will in some way affect our decisions."

Now, you're deep into the argument here. You've agreed with Resnick that there is no objective stance, only a series of perspectives, no neutrality - which just as an aside, it seems to me, is relativism run amok.

But then you say, "What Professor Minow's quote means to me is not all women are people of color or all in some circumstances, or me in any particular case or circumstance, but enough women and people of color in enough cases will make a difference in the process of judging." You're talking here about different outcomes in cases, and you go on to substantiate your case by, first of all, citing a Minnesota case in which three women judges ruled differently than two male judges in a father's visitation case.

You cited two excellent studies, which tended to demonstrate differences between women and men in making decisions in cases. You said, "As recognized by legal scholars, whatever the cause is, not one woman or person of color in any one position, but as a group, we will have an effect on the development of law and on judging."

KYL: So, you develop the theme. You substantiated it with some evidence to substantiate your point of view. Up to that point, you had simply made the case, I think, that judging could certainly reach -- or judges could certainly reach different results and make a difference in judging depending upon their gender or ethnicity. You hadn't rendered a judgment about whether that -- they would be better judgments or not.

But then, you did. You quoted Justice O'Connor to say that, a wise old woman, wise old man, would reach the same decisions, and then you said: I'm also not sure I agree with that statement. And that's when you made the statement that's now relatively famous. I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion.

So here, you're reaching a judgment that, not only will it make a difference, but that it should make a difference. And you went on. And -- and this is the last thing that I'll quote here. You said: In short, I -- well, I think this is important.

You note that some of the old white guys made some pretty good decisions eventually -- Oliver Wendell Holmes, Cardozo and others. And -- and you acknowledge that they made a big difference in discrimination cases. But it took a long time to understand. It takes time and effort, something not all people are willing to give, and so on.

And then you concluded this: In short, I accept the proposition that difference will be made by the presence of women and people of color on the bench, and that my experiences will affect the facts that I choose to see. You said: I don't know exactly what the difference will be in my judging. But I accept that there will be some based on gender and my Latina heritage.

You don't, as -- as you said in your response to Senator Sessions, you said that you weren't encouraging that. And you -- you talked about how we need to set that aside. But you didn't, in your speech, say that this is not good. We need to set this aside. Instead, you seem to be celebrating it. The clear inference is, it's a good thing that this is happening.

So, that's why some of us are concerned, first with the president's elucidation of his point of view here about judging, and then these speeches, several of them, including speeches that were included in Law Review articles that you edited, that all say the same thing.

And it would certainly lead one to a conclusion that, a, you understand it will make a difference; and b, not only are you not saying anything negative about that, but you seem to embrace the difference in -- in concluding that you'll make better decisions. That's the basis of concern that a lot of people have. Please take the time you need to respond to my question.

SOTOMAYOR: Thank you. I have a record for 17 years. Decision after decision, decision after decision. It is very clear that I don't base my judgments on my personal experiences or -- or my feelings or my biases. All of my decisions show my respect for the rule of law, the fact that regardless about if I identify a feeling about a case, which was part of what that speech did talk about, there are situations where one has reactions to speeches -- to activities.

It's not surprising that, in some cases, the loss of a victim is very tragic. A judge feels with those situations in acknowledging that there is a hardship to someone doesn't mean that the law commands the result. I have any number of cases where I have acknowledged the particular difficulty to a party or disapproval of a party's actions and said, "No, but the law requires this."

So, my views, I think, are demonstrated by what I do as a judge. I'm grateful that you took notice that much of my speech, if not all of it, was intended to inspire. And my whole message to those students, and that's the very end of what I said to them, was: I hope I see you in the courtroom somebody. I don't know if I said it in that speech, but I often end my speeches with saying, "And I hope someday you're sitting on the bench with me."

And so, the intent of the speech, it's structure, was to inspire them to believe, as I do, as I think everyone does, that life experiences enrich the legal system.

I used the words "process of judging." That experience that you look for in choosing a judge, whether it's the ABA rule that says the judge has to be a lawyer for X number of years or it's the experience that your committee looks for in terms of what's the background of the judge, have they undertaken serious consideration of constitutional questions. All those experiences are valued because our system is enriched by a variety of experiences.

And I don't think that anybody quarrels with the fact that diversity on the bench is good for America. It's good for America because we are the land of opportunity. And to the extent that we're pursuing and showing that all groups can be lawyers and judges, that's just reflecting the values of our society.

KYL: And if I could just interrupt you right now, to me, that's the key. It's good because it shows these young people that you're talking to that, with a little hard work, it doesn't matter where you came from. You can make it. And that's why you hope to see them on the bench. I totally appreciate that.

The question though is whether you leave them with the impression that it's good to make different decisions because of their ethnicity or gender. And it strikes me to you could have easily said in here now, of course, blind lady justice doesn't permit us to base decisions in cases on our ethnicity or gender. We should strive very hard to set those aside when we can.

I found only one rather oblique reference in your speech that could be read to say that you warned against that. All of the other statements seemed to embrace it or, certainly, to recognize it and almost seem as if you're powerless to do anything about it. I accept that this will happen, you said. So while I appreciate what you're saying, it still doesn't answer to me the question of whether you think that these -- that ethnicity or gender should be making a difference.

SOTOMAYOR: I -- there are two different, I believe, issues to address and to look at because various statements are being looked at and being tied together. But the speech, as its structured, didn't intend to do that and didn't do that.

Much of the speech about what differences there will be in judging was in the context of my saying or addressing an academic question. All the studies that you reference I cited in my -- in my speech were just that, studies. They were suggesting that there could be a difference. They were raising reasons why. I was inviting the students to think about that question.

Most of the quotes that you had and reference say that. We have to ask this question. Does it make a difference? And if it does, how? And the study about differences in outcomes was in that context.
That was a case in which three women judges went one way and two men went the other, but I didn't suggest that that was driven by their gender. You can't make that judgment until you see what the law actually said.

SOTOMAYOR: And I wasn't talking about what law they were interpreting in that case. I was just talking about the academic question that one should ask.

KYL: If I could just interrupt, I think you just contradicted your speech because you said in the line before that, enough women and people of color in enough cases will make a difference in the process of judging.

Next comment, the Minnesota Supreme Court has given us an example of that. So you did cite that as an example of gender making a difference in judging.

Now, look, I'm not -- I -- I don't want to be misunderstood here as disagreeing with a general look into question -- into the question of whether people's gender, ethnicity or background in some way affects their -- their judging. I suspect you can make a very good case that that is true in some cases. You cite a case here for that proposition.

Neither you nor I probably know whether for sure that was the reason, but one could infer it from the decision that was rendered. And then you cite two other studies.

I am not questioning whether the studies are not valuable. In fact, I would agree with you that it's important for us to be able to know these things so that we are on guard to set aside prejudices that we may not even know that we have.

Because when you do judge a case -- I mean, let me just go back in time. I tried a lot of cases, and it always depended on the luck of the draw, what judge you got; 99 times out of 100 it didn't matter. So what we got? Judge Jones, fine. We got Judge Smith, fine. It didn't matter, because you knew they would all apply the law.

In federal district court in Arizona, there was one judge you didn't want to get. All -- all of the lawyers knew that, because they knew he had predilections that was really difficult for him to set aside. It's a reality. And I suspect you've seen that on some courts, too.

So it is a good thing to examine whether or not those biases and prejudices exist in order to be on guard and to set them aside. The fault I have with your speech is that you not only don't let these students know that you need to set it aside; you don't say that that's what you need this information for. But you're almost celebrating. You think -- you say, if there are enough of us, we will make a difference, inferring that it is a good thing if we begin deciding cases differently.

Let me just ask you one last question here. I mean, can you -- have you ever seen a case where, to use your example, the wise Latina made a better decisions than the non-Latina judges?

SOTOMAYOR: No. What I've seen...(CROSSTALK)

KYL: I mean, I know you like all of your decisions, but...(UNKNOWN): (OFF-MIKE)

KYL: I was just saying that I know that she appreciates her own decisions, and I'm -- I don't mean to denigrate her decisions, Mr. Chairman (inaudible)

SOTOMAYOR: I was using a rhetorical riff that hearkened back to Justice O'Connor, because her literal words and mine have a meaning that neither of us, if you were looking at it, in their exact words make any sense.

Justice O'Connor was a part of a court in which she greatly respected her colleagues. And yet those wise men -- I'm not going to use the other word -- and wise women did reach different conclusions in deciding cases. I never understood her to be attempting to say that that meant those people who disagreed with her were unwise or unfair judges.

SOTOMAYOR: As you know, my speech was intending to inspire the students to understand the richness that their backgrounds could bring to the judicial process in the same way that everybody else's background does the same.

I think that's what Justice Alito was referring to when he was asked questions by this committee and he said, you know, when I decide a case, I think about my Italian ancestors and their experiences coming to this country. I don't think anybody thought that he was saying that that commanded the result in the case.

These were students and lawyers who I don't think would have been misled, either by Justice O'Connor's statement, or mine, in thinking that we actually intended to say that we could really make wiser and fairer decisions.

I think what they could think, and would think, is that I was talking about the value that life experiences have, in the words I used, to the process of judging. And that is the context in which I understood the speech to be doing.

The words I chose, taking the rhetorical flourish, it was a bad idea. I do understand that there are some who have read this differently, and I understand why they might have concern.

But I have repeated -- more than once -- and I will repeat throughout, if you look at my history on the bench, you will know that I do not believe that any ethnic, gender or race group has an advantage in sound judging. You noted that my speech actually said that. And I also believe that every person, regardless of their background and life experiences, can be good and wise judges.

LEAHY: In fact, if I might...

KYL: Excuse me. Just for the record, I don't think it was your speech that said that, but that's what you said in response to Senator Sessions' question this morning.

LEAHY: When we get -- the reference is made to Justice Alito, that was on January 11, 2006.

KYL: What he said, "When I get a case" -- this is Justice Alito speaking -- "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination, because of their ethnic background, or because of religion, or because of gender. And I do take that into account."
We'll take a 10-minute break.

(RECESS)

LEAHY: (OFF-MIKE) the photographers a chance -- all the photographers a chance to get back into -- into position.  First off, Judge, I -- I compliment your -- your family. You can't see them sitting behind you, because -- but they've all been sitting there very attentively. And I -- I have to think that, after a while, they probably would rather just be at home with you, but I do appreciate it. And -- and so we're going to go to Senator Schumer, who did such a good job of introducing you yesterday. Senator Schumer?