... you know, in case of Ashcroft v. Tennessee, they said it was unconstitutional to subject a suspect to relay grilling, but that doesn't apply to nominees.

And your family has been here. My wife, Joan Specter, who's been an officeholder in her own right, says it's a lot harder to listen to me than it is to make a speech herself. And you are engaged.

I think, beyond doing very well on stamina, you have shown intellect, and humor, and charm, and pride, and also modesty, so it's been a very — a good hearing. Notwithstanding all of those qualities, the Constitution says we have to decide whether to consent, and that requires the hearing process and — and the questions.

Before going into a long list of issues which I have on the agenda -- separation of power, and wireless wiretaps, and secret CIA programs, and voting rights, and the Americans With Disabilities Act, and a woman's right to choose, and the Environmental Protection Agency, and Clean Water Act, and television, and the 2nd Amendment, I'd like to make an observation or two.

There has been a lot of talk about a wise Latina woman, and I think that this proceeding has tended to make a mountain out of a molehill. We have had a consistent line of people who are nominees who make references to their own backgrounds. We all have our perspective.

Justice O'Connor talked about her life experience. Justice Alito talked about his family suffering from ethnic slurs. Justice Thomas, Pin Point, Ga., emphasized, talked about putting himself in the shoes of other people. And Justice Scalia talked about being in -- in a racial minority.

The expectation would be that a woman would want to say something to assert her confidence in a country which denied women the right to vote for decades, where the glass ceiling has limited people, where there is still disparagement of people on ethnic background.

Just this month in a suburb of Philadelphia, Hispanic children were denied access to a pool for whites only, as were African American children. So I can see how someone would take pride in being a Latina woman and assert -- assert herself.

A lot has been made of the issue of empathy, but that characteristic is not exactly out of place in judicial determinations. We've come a long way on the expansion of constitutional rights.

Oliver Wendell Holmes' famous statement that the life of the law is experience, not logic.
Justice Cardozo in Palko v. Connecticut talked about changing values.

The Warren court changed the Constitution practically every day of which I saw, being in the district attorney's office, with changes in search and seizure, confessions, Miranda, right to counsel. Who could have thought that it would take until 1963 to have the right to counsel in Gideon v. Wainwright?

We've heard a lot of talk about the nomination proceeding of Judge Bork. And they tried to make "Bork" into a verb. Somebody being Borked. Well, anybody who looks at that record will see that it's very, very different. We had a situation where Judge Bork was an advocate of original intent from his days writing the law review article in the Indiana Law Review.

And how can you have original intent when the 18th Amendment was written by a Senate on equal protection with the Senate galleries which were segregated? Or where you have Judge Bork, who believed that equal protection applied only to race and ethnicity? It didn't even apply to women.

But it was a very, very thorough hearing. I spent beyond the hearing days in three long sessions, five hours with Judge Bork. So it was his own approach to the law which resulted there. But you had an evolution of constitutional law, which I think puts empathy in a -- in an OK status, in an OK category.

Now, onto the issues. I begin with an area of cases which the court has decided not to decide. And those cases can be even more important than many of the cases which the court decides. The docket of the court at the present time is very different from what it was a century ago. In 1886, the docket had 1,396 cases, decided 451. A hundred years later, there were only 161 signed opinions in 1985. 2007, only 67 signed opinions.

During his confirmation hearings, Chief Justice Roberts said the court, quote, "could contribute more to the clarity and uniformity of the law by taking more cases." Judge Sotomayor, do you agree with that statement by Chief Justice Roberts?

SOTOMAYOR: I know, Sen. Specter, that there are questions by many people, including senators and yourself, of Justice Roberts and other nominees about this issue. Can the court take on more? To the extent that there's concern about it, not that public opinion should drive the justices to take more cases just to take them, but I think what Judge -- Justice Roberts was saying is the court needs to think about its processes to ensure that it's fulfilling...

SPECTER: Judge Sotomayor, how about more cases?

SOTOMAYOR: Well, perhaps I need to explain to you that I don't like making statements about what I think the court can do until I've experienced the process.

SPECTER: Then let me move on to another question. One case that the court did not [inaudible] involved a terrorist surveillance program which I think, arguably, posed the greatest conflict between congressional powers under Article I in enacting the Foreign Intelligence Surveillance Act, which provided for the exclusive way to get wiretaps.

The president disregarded that in a secret program called the Terrorist Surveillance Program, didn't even tell the chairman of the Judiciary Committee, which is the required practice, or accepted practice, didn't tell the Intelligence Committees, where the law mandates that they be told about such programs. It was only disclosed by the New York Times. Those practices confront us this day, with reports about many other secret cases not disclosed.

The federal District Court in Detroit found the Terrorist Surveillance Program unconstitutional. Sixth Circuit, in a two-to-one opinion, said there was no standing. The dissent, I think, pretty conclusively had the much better of the -- on asserting standing. The Supreme Court of the United States denied certiorari, didn't even take up the case to the extent of deciding whether it shouldn't take it because of lack of standing.

I wrote you a letter about this, wrote a series of letters, and gave you advance notice that I would ask you about this case. So I'm not asking you how you would decide the case, but wouldn't you agree that the Supreme Court should have taken that kind of a major conflict on separation of powers?

SOTOMAYOR: I know it must be very frustrating to you to...

SPECTER: It sure is. (LAUGHTER) I was the chairman who wasn't notified.

SOTOMAYOR: No. I'm sure...

SPECTER: And he was the ranking member who wasn't notified.

SOTOMAYOR: I can understand not only Congress's or your personal frustration, and sometimes the citizens when there are important issues that they would like the court to consider. The question becomes what do I do if you give me the honor to serve on the Court. If I say something today, is that going to make a statement about how I'm going to prejudge someone else's...

SPECTER: I'm not asking you to prejudge. I'd like to know your standards for taking the case. If you have that kind of a monumental historic conflict and the court is supposed to decide conflicts between the executive and legislative branches, how can it possibly be justified not to take that case?

SOTOMAYOR: There are often, from what I understand -- and that's from my review of Supreme Court actions and cases of situations in which they have or have not taken cases, and I've read some of their reasoning as to this. I know that with some important issues, they want to make sure that there isn't a procedural bar to the case of some type that would take away from whether they're, in fact, doing what they would want to do, which is to ...

SPECTER: Well, was there a procedural bar? You've had weeks to mull that over, because I gave you notice.

SOTOMAYOR: Senator, I'm sorry. I did mull this over. My problem is that, without looking at a particular issue and considering the cert briefs file, the discussion of potential colleagues as to the reasons why a particular issue should or should not be considered, the question about...

SPECTER: Well, I can tell you're not going to answer. Let me move on. On a woman's right to choose, Circuit Judge Luttig, in the case of Richmond Medical Center, said that "Casey v. Planned Parenthood was super stare decisis." Do you agree with Judge Luttig?

SOTOMAYOR: I don't use the word "super." I don't know how to take that word. All precedent of the court is entitled to the respect of the doctrine of stare decisis.

SPECTER: Do you think that Roe v. Wade has added weight on stare decisis to protect a woman's right to choose? By virtue of Casey v. Planned Parenthood, as Judge Luttig said?

SOTOMAYOR: That is one of the factors that I believe courts have used to consider the issue of whether or not a new direction should be taken into law. There is a variety of different factors the court uses, not just one...

SPECTER: But that is one, which will give it extra weight. How about the fact that the Supreme Court of the United States has had 38 cases after Roe v. Wade where it could have reversed Roe v. Wade? Would that add weight to the impact of Roe v. Wade to stare decisis to guarantee a woman's right to choose?

SOTOMAYOR: The history of a particular holding of the court and how the court has dealt with it in subsequent cases would be among one of the factors as many that a court would likely consider. Each situation, however, is considered in a variety of different view points and arguments and -- but most importantly, factors of the court applies to this question of should precedence be altered in a way.

SPECTER: Well, wouldn't 38 cases lend a little extra support to the impact of Roe and Casey, where the court had the issue before it, could have overruled it?

SOTOMAYOR: In Casey itself...

SPECTER: Just a little extra impact?

SOTOMAYOR: Casey itself applied, or by opinion offered by Justice Souter, talked about the factors that a court thinks about in -- whether to change precedent. And among them were issues of whether or not or how much reliance society has....

 

...placed in the prior precedents? What are the costs that would be occasioned by changing it? Was the rule workable or not? Have the -- either factual or doctrinal basis of the prior precedent altered, either from developments in related areas of law or not, to counsel a re- examination of the question.

SPECTER: I'm going to move off. Go ahead.

SOTOMAYOR: And the court has considered, in other cases, the number of times the issue has arisen and what actions the court has or not taken with respect to that. Roe is the -- Roe -- Casey did reaffirm the court holding of Roe and so my understanding would be that the issues would be addressed in light of Casey, on the stare decisis today.

SPECTER: Do I hear you saying it will be at least a little bit of that story? Let me move on. Let me move on to another separation of powers argument, and that is between Congress and the court.

In 1997, in the case called Boerne, suddenly the Supreme Court of the United States found a new test called congruence and proportionality. Up to that time, Judge Harlan's judgment on a rational basis for what Congress would decide would be sufficient. And here, for the benefit of our television audience, we're talking about a record that Congress maintains.

Take the Americans With Disabilities Act, for example, where there was a task force of field hearings in every state attended by more than 30,000 people, including thousands who had experienced discrimination, with roughly 300 examples of discrimination by state governments.

Notwithstanding that vast record, the Supreme Court of the United States in Alabama v. Garrett found Title II of the Americans With Disabilities Act unconstitutional.

Justice Scalia, in dissent, said that it was a, quote, "flabby test," that it was, quote, "an invitation to judicial arbitrariness and policy-driven decision-making."

The other, Title I of the Americans With Disabilities Act, in Lane v. Tennessee, the court found that constitutional on the same record. In the second round, if we have time, I will ask you -- give you some advance notice, although I wrote you about these cases -- if you can find a distinction on the Supreme Court's determination.

But my question to you is, looking at this brand-new standard of proportionality and congruence, for whatever those words mean -- and if we have time in the second round, I'll ask you to define them, but there are other questions I want to come to -- do you agree with Justice Scalia that it's a flabby test and that, with having such a vague standard, the court can do anything it wants and really engages in policy-driven decision-making, which means the court, in effect, legislates?

SOTOMAYOR: Senator, the question of whether I agree with a view of a particular justice or not is not something that I can -- I can say in terms of the next case. In the next case that the court will look at and a challenge to a particular congressional statute...

SPECTER: Well, not the next case. This case. You have these two cases. They have the same factual record. And the Supreme Court, in effect, legislates, tells us what is right and what is wrong on this standard that nobody can understand.

SOTOMAYOR: As I understand the congruence and proportionality test, it is the Supreme Court's holding on that test, as I understand it, that there is an obligation on the court to ensure that Congress is working -- working -- is legislating within its legislative powers.

The issue is not -- and these are Section 5 cases, essentially -- which are the clause of the Constitution under the 14th Amendment that permits Congress to legislate on issues involving violations of the 14th Amendment. The court in those cases has not said that Congress can't legislate. What it has looked at is the form of remedy Congress can order and what...

SPECTER: But it doesn't tell us how to legislate. Let -- let -- let me move on to the Voting Rights Act case and just pose the case. And I'll ask you about it in the next round.

When Chief Justice Roberts testified at his confirmation hearings, he was very differential to the Congress, not so, I might add, when he decided the voting rights case. But when he appeared here three years ago, he said this. And it's worth -- worth reading.

"I appreciate very much the differences in institutional competence between the judiciary and the Congress when it comes to basic questions of fact finding, development of a record and also the authority to make the policy decisions about how to act on the basis of a particular record."

"It's not just disagreement over a record. It's a question of whose job it is to make a determination based on their record. As a judge, you may have a beginning to transgress into the area of making a law is when you are in a position of reevaluating legislative findings because that doesn't look like a judicial function." Well, that's about as differential as you can be when you're a nominee.

But when Chief Justice Roberts presided over the voting rights case, he sounded very, very different. My question to you is do you agree with what Chief Justice Roberts said when he was just Judge Roberts, that it's an area of making laws to transgress into what Congress has done by way of finding the facts.

SOTOMAYOR: I would find it difficult to agree with someone else's words. I can tell you how much I understand the deference that Congress is owed. And I can point you at least to two cases -- and there are many, many more -- that shows how much I value the fact that we are courts that must give deference to Congress in the fields that are within its constitutional power.

SPECTER: Well, do you agree with Chief Justice Roberts? I sent you that quotation a long time ago and told you I'd ask you about it. Do you agree with him or not?

SOTOMAYOR: I agree to the extent that one's talking about the deference that Congress is owed. I can't speak for what he intended to say by that. I can speak to what I understand...

SPECTER: Well, not what he intended to say, what he did say.

SOTOMAYOR: I heard what he said, sir, but I don't know what he intended in that description. I do know what I -- what I can say, which is that I do understand the importance to Congress' factual findings, that my cases and my approach in my cases reflect that. I've had any number of cases where the question was deference to congressional findings. And I have upheld statutes because of that deference.

SPECTER: Is there anything the Senate or Congress can do if a nominee says one thing seated at that table and does something exactly the opposite once they walk across the street?

SOTOMAYOR: That, in fact, is one of the beauties of our constitutional system, which is we do have a separation of...

SPECTER: Beauty -- beauty in the eyes of the beholder. It's only Constitution Avenue there.

SOTOMAYOR: Well, the only advantage you have in my case is that I have a 17-year record that I think demonstrates how I approach the law and the deference with which -- or the deference I give to the other branches of government.

SPECTER: I think your record is exemplary, Judge Sotomayor, exemplary. I'm not commenting about your answers, but your record is exemplary. (LAUGHTER)  Let me -- and you'll be judged more on your record than on your answers, Judge Sotomayor.

And for those who are uninitiated, your preparation, appropriately, is very careful. They call them murder boards at the White House. I don't know what you did, and I'm not asking. We've had are a lot of commentary. And you've studied the question, and you've studied the record, and your qualifications as a witness is terrific in accordance with the precedents. You're following the precedents there very closely.

Let me move to television and the courts. And it's a question that many of us are interested in. I always ask it. I've introduced legislation twice -- come out of committee twice -- to require the court to televise. The court doesn't have to listen to Congress. The court can say separate powers precludes our saying anything.

But the Congress does have administrative, procedural jurisdiction. We decide the court convenes the first moment in October. We decide there are nine justices. We tried to make it 15 once in a court-packing era, six justices for a quorum, et cetera. Speedy trial act telling the courts how they have to move at a certain speed, habeas corpus, on time limits.

Justice Stevens has said that it's worth a try. Justice Ginsberg, at one time, said that if it was gavel to gavel, it would be fine. Justice Kennedy said it was inevitable. The record of the justices appearing on television is extensive. Chief Justice Roberts and Justice Stevens were on primetime ABC, Justice Ginsberg on CBS, Justice Breyer on Fox News, and so forth down the line.

We all know that the Senate and House are televised, and we all know the tremendous, tremendous interest in your nominating process. And it happens all the time. There's a lot of public interest. But the court is the last accountable. In fact, you might say the court is unaccountable.

When Bush v. Gore was decided, then-Sen. Biden and I wrote to Chief Justice Rehnquist asking that television be permitted and got back a prompt answer no. And that was quite a scene across the street. The television trucks were just enormous, all over the place.

You had to be at chairman of a committee to get a seat inside the -- inside the chamber. The Supreme Court decides all the cutting-edge questions of the day -- the right of a woman to choose, abortion, the death penalty, organized crime, every cutting-edge question.     (More to come)