Senate Debate on Empathy
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00:56:29  Orrin Hatch, WELL, THANK YOU, MR. CHAIRMAN. I CERTAINLY APPRECIATE YOUR GRACIOUSNESS AND PATIENCE THAT YOU'VE HAD THROUGHOUT THESE PROCEEDINGS. I ALMOST FEEL GUILTY ASKING ANY QUESTIONS BUT THERE ARE SOME THINGS I WOULD LIKE TO CLARIFY AND ALSO, AND ALSO ASK ABOUT. I THINK MAYBE SOMEWHAT HELPFUL TO YOU AS WELL. I GUESS DEPENDING ON HOW YOU ANSWER THEM. LET ME JUST SAY THIS. TO CLEAR UP THAT MATTER OF THE SEVENTH CIRCUIT LIKE YOURS SAID WITH REGARD TO THE WHOLE ISSUE ON THE VALIDITY OF THE INCORPORATION DOCTRINE, THE FOOTNOTE OF JUSTICE SCALIA HAS BEEN BROUGHT UP HERE TIME AND TIME AGAIN BUT LET ME JUST SAY THAT HERE'S WHAT THAT FOOTNOTE SAYS. IT SAYS WITH RESPECT TO CROOKSHANK. CROOKSHANK WAS A 19th CENTURY CASE, I THINK IT WAS 1868. THAT USED THE PRIVILEGE -- IMMUNITIES CLAUSE OF THE 14th AMENDMENT TO JUSTIFY INCORPORATION. HERE'S WHAT HIS FOOTNOTE SAYS. WITH RESPECT TO CROOKSHANK'S CONTINUING VALIDITY ON INCORPORATION, THE QUESTION NOT PRESENTED BY THIS CASE. THIS IS IN THE HELLER CASE. IN OTHER WORDS, THE GUN CONTROL CASE. WE NOTE THAT CROOKSHANK ALSO SAID THAT THE FIRST AMENDMENT DID NOT APPLY AGAINST THE STATES AND DID NOT ENGAGE IN A SORT OF 14th AMENDMENT INQUIRY REQUIRED BY OUR LATER CASES. NOW, THAT WAS -- HE WAS VERY CLEAR ON THAT THAT SINCE EARLY IN THE 20th CENTURY, THE 14th AMENDMENT DUE PROCESS CLAUSE IS HOW YOU BRING ABOUT INCORPORATION. AND ALL THAT THE SEVENTH CIRCUIT CASE DID WAS ADOPT THE PRIVILEGES AND IMMUNITIES. I'M SURE JUDGE EASTERBROOK, WHOEVER WROTE THE OPINION, KNEW THAT BUT BASICALLY APPLIED THAT. HE WAS ONLY USING THE PRIVILEGE AND IMMUNITIES CLAUSE AND NOT THE 14th AMENDMENT DUE PROCESS CLAUSE, WHICH HAS BEEN THE WAY WE'VE APPLIED INCORPORATION FOR WELL OVER, I THINK PRETTY CLOSE TO A CENTURY NOW. THAT'S THE ISSUE THAT'S GOING TO GET TO THE SUPREME COURT. THE NINTH CIRCUIT GOT IT RIGHT. SO YOU CAN SEE WHY PEOPLE WHO WANT TO KEEP AND BEAR ARMS CONSIDER THIS A VERY, VERY IMPORTANT ISSUE, AND HOW DO YOU GET TO THE DOCTRINE OF INCORPORATION. I WAS TRYING TO MAKE THAT CLEAR WHEN WE HAD OUR PRIOR QUESTIONS TO YOU BUT LET ME GO INTO JUDICIAL PHILOSOPHY JUST A LITTLE BIT MORE, BECAUSE IT'S A BROADER ISSUE OF WHAT YOUR UNDERSTANDING OF THE POWER AND ROLE OF JUDGES IN OUR SYSTEM OF GOVERNMENT. IN YOUR OPENING STATEMENT ON MONDAY, YOU DESCRIBED YOUR JUDICIAL PHILOSOPHY WITH THE PHRASE QUOTE, FIDELITY TO THE LAW. UNQUOTE. I APPRECIATE THAT AND THAT PHRASE IS SHORTHAND BUT I THINK IT DOES NEED SOME MORE DEVELOPMENT. YOU HAD SOME THINGS TO SAY ABOUT THIS THE LAST TIME YOU WERE BEFORE THIS COMMITTEE. THAT WAS THE CONFIRMATION HEARING FOR YOUR CURRENT POSITION IN THE U.S. COURT OF APPEALS. FOR EXAMPLE, YOU WERE ASKED WHETHER YOU WOULD READ ADDITIONAL RIGHTS INTO THE CONSTITUTION. YOU RESPONDED THAT YOU CANNOT DO THAT BECAUSE IT IS CONTRARY TO WHAT YOU ARE AS A JUDGE. YOU SAID THAT THE CONSTITUTION QUOTE, IS WHAT IT IS, UNQUOTE. AND THE CONSTITUTIONAL RIGHTS HAVE ALREADY BEEN CREATED FOR US AND THAT WE CANNOT READ MORE RIGHTS INTO IT. DO YOU STILL BELIEVE THAT TODAY? AFTER ALL THIS EXPERIENCE YOU'VE HAD ON THE CIRCUIT COURT? IN OTHER WORDS, JUST TO BE CLEAR, ARE YOU SAYING THAT JUDGES CANNOT READ NEW RIGHTS INTO THE CONSTITUTION?
01:00:10 Sotomayor, Sonia THE CONSTITUTION CREATES THE RIGHTS. IT'S IMMUTABLE. THE RIGHT THAT THE CONSTITUTIONS HAVE CREATED CAN'T BE ADDED ON TO EITHER BY CONGRESS OR EXCEPT BY AMENDMENT OR BY A COURT. THE QUESTION AS I VIEWED IT AT THE TIME I WAS ASKED THAT QUESTION WAS WHETHER THE COURT COULD NOW WRITE A NEW RIGHT INTO THE CONSTITUTION. THAT'S A DIFFERENT INQUIRY THAN WHETHER A COURT IN APPLYING THAT RIGHT TO A PARTICULAR CLAIMED INTEREST UNDER THAT RIGHT WOULD PROTECT THAT INTEREST.
01:00:53 Hatch, Orrin SURE.
01:00:55 Sotomayor, Sonia AND SO THAT IS ONE OF THE MISNOMERS ABOUT THE RIGHT TO PRIVACY AND WHEN I SAY MISNOMER, IT CAN BE MISLEADING BECAUSE IT'S NOT -- I HAVE NOT VIEWED WHAT THE COURT HAS BEEN DOING AS CREATING A RIGHT THAT DOESN'T EXIST IN THE WORDS OF THE CONSTITUTION. WHAT I UNDERSTAND THE COURT TO BE SAYING IS OKAY, THERE'S THE SITUATION, SOMEONE'S PRIVACY IS BEING AFFECTED BY THIS GOVERNMENT REGULATION, DOES THE RIGHT IN THE CONSTITUTION, THE LIBERTY CLAUSE OF THE DUE PROCESS PROVISION, PROTECT THE INDIVIDUAL FROM THAT INVASION OF THEIR PRIVACY. PEOPLE IN SHORTHAND HAVE CALLED THIS A RIGHT TO PRIVACY, BUT IN MY VIEW, WHAT THE COURT IS DOING IS SAYING STATES, POLICE OFFICERS WITH THE UNREASONABLE SEARCH AND SEIZURES, THEY'RE NOT CREATING A NEW RIGHT OF PRIVACY, THEY'RE SAYING HOW DOES THIS RIGHT THAT EXISTS IN THIS PROVISION AND THE CONSTITUTION HAS THESE WORDS, WHAT DOES IT MEAN IN THIS ACTUAL SETTING.
01:02:15 Hatch, Orrin AS YOU KNOW, WHEN THEY DID THE GRISWALD CASE, THERE WAS NO LANGUAGE RIGHT TO PRIVACY IN THE CONSTITUTION. BUT THEY DETERMINED THAT THEY COULD FIND THAT. AT ANOTHER POINT IN THE HEARING, YOU SAID QUOTE, I DON'T BELIEVE WE SHOULD BEND THE CONSTITUTION UNDER ANY CIRCUMSTANCES. IT SAYS WHAT IT SAYS, UNQUOTE. NOW, YOU KNOW, I THINK IF YOU COULD, MAYBE YOU CAN DESCRIBE SOME WAYS THAT THE COURT CAN BEND THE CONSTITUTION.
01:02:49 Sotomayor, Sonia I SAID YOU CAN'T. THE WORDS ARE THE WORDS. THE COURT CAN'T BE LOOKING TO IGNORE THE WORDS OR TO CHANGE THEM. WHAT IT DOES IS APPLY THOSE WORDS TO EACH SITUATION. I STAND BY THAT ANSWER TODAY AS I DID THEN.
01:03:11 Hatch, Orrin AGREED.
01:03:12 Sotomayor, Sonia THEY ARE SOME OF THEM -- I'M SORRY, SENATOR.
01:03:14 Hatch, Orrin I THINK WHAT I'M SAYING IN LIGHT OF THE STATEMENT THAT I JUST ASKED YOU ABOUT, THAT WE CANNOT READ RIGHTS INTO THE CONSTITUTION AS YOU HAVE SAID. WOULD YOU AGREE THAT THE SUPREME COURT BENDS THE CONSTITUTION WHEN IT DOES READ RIGHTS INTO THE CONSTITUTION?
01:03:31 Sotomayor, Sonia WHAT I UNDERSTAND THE COURT TO BE DOING IN THOSE SITUATIONS IN WHICH IT HAS RECOGNIZED THE PROTECTION OF CERTAIN PRIVACY INTERESTS AND OTHER INTERESTS, IS THAT IT'S APPLIED THOSE BROAD WORDS TO THE FACTS OF THE SITUATION BEFORE THEM AND HAS DETERMINED THAT THAT RIGHT AS IT'S CONTAINED AND EXPRESSED IN THE CONSTITUTION, DOES APPLY TO A CERTAIN SET OF FACTS.
01:03:59 Hatch, Orrin THE COURT CHANGED THE MEANING OF THE WORDS TO THE CONSTITUTION.
01:04:05 Sotomayor, Sonia COURTS CAN'T CHANGE THE MEANING OF THE CONSTITUTION. THEY CAN APPLY THOSE WORDS TO THE FACTS BEFORE THEM TO SEE IF THE FACTS FALL WITHIN THE PROTECTION OF THE CONSTITUTIONAL RIGHT AT ISSUE.
01:04:21 Hatch, Orrin OKAY. IN MARBERRY VERSUS MADISON, THE SUPREME COURT SAID THE CONSTITUTION IS INTENDED TO GOVERN COURTS AS WELL AS LEGISLATURES. DO YOU AGREE WITH THAT? THAT IT GOVERNS BOTH COURTS AND LEGISLATURES, THE CONSTITUTION?
01:04:38 Sotomayor, Sonia THE CONSTITUTION LIMITS THE POWERS OF ALL THREE BRANCHES.
01:04:41 Hatch, Orrin OKAY. CAN THE CONSTITUTION CONTROL JUDGES IF JUDGES CAN CHANGE ITS MEANING?
01:04:54 Sotomayor, Sonia AS ONE OF THE SENATORS HAS POINTED OUT, IT IS OFTEN SAID THAT THE SUPREME COURT IS NOT FALLIBLE. IT'S INFALLIBLE BECAUSE IT'S FINAL. IN TERMS OF THE CONSTITUTION, THAT IS THE FUNCTION OF THE COURT. THAT IS A FUNCTION OF CHECKING OR CONSIDERING THE ACTS OF GOVERNMENT, VIS A VIS AN INDIVIDUAL OR A STATE. THE CONSTITUTION, IT'S ESTABLISHED BY MARBERRY, IS INTERPRETED BY THE COURT.
01:05:32 Hatch, Orrin ONE OF MY FLOW JUDICIARY COMMITTEE MEMBERS WAS SPEAKING RECENTLY ON THE SENATE FLOOR AND SAID THE JUDGES MAY PERCEIVE AS HE PUT IT QUOTE, THE NEED FOR CHANGE, UNQUOTE. AND MAY MAKE SOME CHANGE WITH THEIR DECISIONS. IS THAT AN APPROPRIATE ROLE FOR JUDGES?
01:05:55 Sotomayor, Sonia AS I HAVE INDICATED, THE ROLE OF JUDGES IS TO INTERPRET BOTH THE CONSTITUTION AND LAW. THEIR ROLE IS TO DO BOTH IN ACCORDANCE WITH THEIR TERMS. AND SO THAT IS THE FUNCTION OF A JUDGE. CLEARLY A JUDGE LOOKS AT THE TERMS AND TRIES TO, IF IT'S THE CONSTITUTION, WHAT ARE THE PRINCIPLES THAT UNDERLIE THAT PROVISION OF THE CONSTITUTION AND IT'S INFORMED BY PRECEDENT, IF IT'S A STATUTE, YOU USE PRINCIPLES OF STATUTORY CONSTRUCTION, STARTING ALWAYS WITH THE WORDS. AND YOU GIVE EFFECT TO CONGRESS' INTENT. THAT'S THE ROLE OF A JUDGE.
01:06:34 Hatch, Orrin OKAY. IN A SPEECH YOU GAVE IN MARCH 2006 AT THE UNIVERSITY OF PUERTO RICO SCHOOL OF LAW, YOU SAID QUOTE, I HAVE OFTEN SAID THAT THE BASIC DIFFERENCE BETWEEN DISTRICT COURT AND CIRCUIT COURT JUDGES IS THE DISTRICT COURT JUDGES DO JUSTICE FOR THE PARTIES WHILE CIRCUIT COURT JUDGES DO JUSTICE FOR THE SOCIETY AS A WHOLE. UNQUOTE. I THINK IT'S IMPORTANT WE GET WHAT YOU MEAN BY THIS, ESPECIALLY THE WAY IN WHICH APPEALS COURT JUDGES DO JUSTICE FOR SOCIETY. THIS IS EVEN MORE IMPORTANT IN LIGHT OF YOUR COMMENTS AT THE LAW SCHOOL THAT QUOTE, THE COURT OF APPEALS IS WHERE POLICY IS MADE, UNQUOTE. NOW, YOU HAVE I THINK TRIED TO DISTINGUISH THAT AND IN THIS INCREASINGLY BROAD TRAJECTORY OF JUDICIAL POWER FROM THE DISTRICT COURT TO THE APPEALS COURT, FROM THE PARTIES TO SOCIETY, WHAT DOES SUPREME COURT JUSTICE DO JUSTICE FOR?
01:07:34 Sotomayor, Sonia IN THAT SPEECH AS WELL AS THE DUKE LAW SCHOOL REMARK, THEY'RE ALL IN THE CONTEXT OF TRYING TO DESCRIBE TO STUDENTS OR LAWYERS WHAT THE FOCUS OF THE DISTRICT COURT IS AND THE CIRCUIT COURT, AND ALL OF THEM ARE TALKING ABOUT PRECEDENTS. WHEN I WAS TALKING ABOUT JUSTICE FOR SOCIETY, I WAS TALKING ABOUT WE'RE NOT LOOKING AT WHAT THE INDIVIDUAL OUTCOME IS FOR THE PARTIES BEFORE THE COURT THE WAY THAT A DISTRICT COURT IS. A DISTRICT COURT KNOWS THAT ITS DECISION IS NOT BINDING ON ANYBODY ELSE. THAT IS NOT AN INVITATION FOR THEM TO FOLLOW WHIM OR FANCY, BUT THEIR FOCUS IS ON THIS CASE, WHAT DOES IT MEAN, IT'S NOT AFFECTING ANYBODY ELSE, I'M JUST GOING TO DECIDE THIS CASE, AND IN THAT SPEECH, AS WITH THE DUKE REMARK, LOOKED AT IN THE ENTIRETY OF THE COMMENT, IT IS YOU'RE DOING JUSTICE FOR SOCIETY WHEN YOU'RE ESTABLISHING PRECEDENT BECAUSE YOU REALIZE THAT THAT PRECEDENT IS GOING TO BIND THE CASES, SO YOU'RE LOOKING AT THE EFFECT OF THOSE CASES ON OTHER SIMILAR SITUATIONS. YOU'RE LOOKING, AND I'VE DESCRIBED IT THIS WAY TO OTHER STUDENTS. YOU'RE LOOKING AT WHAT THE LAW IS TO ANNOUNCE IT, RECOGNIZING THAT IT'S GOING TO NOW AFFECT OTHER CASES AND OTHER PEOPLE. SO YOUR FOCUS IS DIFFERENT. DISTRICT COURT'S LOOKING AT THE TWO PARTIES. THE CIRCUIT COURT'S LOOKING AT THE LAW AND A HOLDING ABOUT THE LAW THAT WILL AFFECT MANY PEOPLE.
01:09:17 Hatch, Orrin OKAY. PRESIDENT GEORGE H.W. BUSH APPOINTED YOU TO THE U.S. DISTRICT COURT IN 1992. I WAS HERE. ABOUT A YEAR EARLIER, HE NOMINATED CLARENCE THOMAS TO THE UNITED STATES SUPREME COURT, WHO, LIKE YOU, WAS A U.S. CIRCUIT COURT JUDGE. PRESIDENT BUSH DESCRIBED HIM AS QUOTE, DELIGHTFUL AND WARM, INTELLIGENT PERSON, WHO HAS GREAT EMPATHY, UNQUOTE. PRESIDENT BUSH THEN SAID THAT JUDGE THOMAS WOULD DECIDE CASES FAIRLY, QUOTE, AS THE FACTS AND THE LAW REQUIRE. IN OTHER WORDS, HE DREW A CLEAR DISTINCTION BETWEEN THE HUMAN QUALITY OF EMPATHY AND THE JUDICIAL QUALITY OR DUTY, EXCUSE ME, OF IMPARTIALITY. THIS IS OBVIOUSLY VERY DIFFERENT FROM THEN SAYING THAT A JUDGE'S PERSONAL EMPATHY IS AN ESSENTIAL INGREDIENT FOR DECIDING CASES. WHICH OF THESE IS CLOSER TO YOUR OWN VIEW, DISTINGUISHING HUMAN EMPATHY FROM JUDICIAL IMPARTIALITY OR MIXING THEM TOGETHER SO THAT EMPATHY BECOMES PART OF THE JUDICIAL DECISION MAKING PROCESS?
01:10:30 Sotomayor, Sonia PRESIDENTS HAVE USED THE WORD EMPATHY AND EACH OF THEM HAS GIVEN IT THEIR DIFFERENT MEANING. AND I CAN'T SPEAK FOR THEIR CHOICE OF THE WORD OR MAKE A CHOICE BETWEEN WHAT MEANING IS CLOSER TO WHAT I BELIEVE OR NOT. IF I CAN STATE WHAT I BELIEVE VERY SIMPLY, LIFE EXPERIENCES HELP THE PROCESS OF LISTENING AND UNDERSTANDING AN ARGUMENT. THE LAW ALWAYS DIRECTS THE RESULT IN THE CASE. A JUDGE CANNOT DECIDE CASES ON THE BASIS OF PERSONAL FEELINGS, BIASES OR SYMPATHY. TO THE EXTENT I HAVE EVER SPOKEN ABOUT THOSE THINGS, IT WAS TO MAKE SURE THAT ONE UNDERSTOOD AND SAID THAT A JUDGE ALWAYS HAS TO GUARD AGAINST THOSE THINGS AFFECTING THE OUTCOME OF A CASE. THE QUESTION OF WHEN IT'S APPROPRIATE, THE SUPREME COURT HAS SAID SOME EMOTION'S APPROPRIATE. JUDGES, IF THEY'RE REACTING TO AN ARGUMENT OF A PARTY, THAT'S AN APPROPRIATE EMOTION. INAPPROPRIATE IS DECIDING THE CONSEQUENCE BASED ON THAT. THERE ARE IN SENTENCINGS, YOU'RE ASKED TO LOOK AT THE EFFECT OF A DEFENDANT'S CONDUCT ON VICTIMS. ARE YOU RULING ON THE BASIS OF SYMPATHY, NO, BUT YOU'RE BEING ASKED ON THE BASIS OF LIFE EXPERIENCE TO UNDERSTAND THAT, AND THEN YOU LOOK AT THAT CONSEQUENCE AND WEIGH ALL THE FACTORS THAT THE STATUTE COMMANDS YOU CONSIDER, AND THEN YOU COME OUT AT A REASONABLE SENTENCE.
01:12:12 Hatch, Orrin I ACCEPT THAT. YOU GAVE A PARTICULAR SPEECH AT LEAST FIVE TIMES, AS HAS BEEN MENTIONED HERE, OVER A PERIOD OF NEARLY TEN YEARS, BOTH WHILE YOU WERE A DISTRICT COURT JUDGE AND AN APPEALS COURT JUDGE. YOU SPOKE SPECIFICALLY ABOUT SOME ELEMENTS OF JUDICIAL PHILOSOPHY. I KNOW THAT SENATORS DISCUSSED SOME STATEMENTS FROM THAT SPEECH WITH YOU YESTERDAY, OR FROM THOSE SPEECHES. I JUST WANT TO ASK YOU ABOUT A FEW OTHERS, STATEMENTS THAT YOU MADE WHEN YOU GAVE THIS SPEECH ON THE VARIOUS OCCASIONS. THE FIRST ISSUE IN RESPONSE TO THE THESIS JUDGES MUST TRANSCEND PERSONAL SYMPATHIES AND PREJUDICES SO THEIR DECISIONS ARE BASED ON LAW AND AS A RESULT HAVE MORE FAIRNESS AND INTEGRITY. DO YOU AGREE THAT TRANSCENDING PERSONAL SYMPATHIES AND PREJUDICES ENHANCES THE FAIRNESS AND INTEGRITY OF JUDICIAL DECISIONS?
01:13:02 Sotomayor, Sonia YES.
01:13:03 Hatch, Orrin THAT'S GOOD. I'M GOING TO GO THROUGH THESE AS FAST AS I CAN. I THINK IT'S ESSENTIAL. IN YOUR SPEECH, YOU CONSISTENTLY CHARACTERIZED THE IDEA THAT JUDGES TRANSCEND THEIR PERSONAL SYMPATHIES AND PREJUDICES AS AN ASPIRATION. YOU QUESTION WHETHER JUDGES CAN ACHIEVE IT EVEN IN MOST CASES. DO YOU BELIEVE THE TRANSCENDING PERSONAL SYMPATHIES AND PREJUDICES IS A JUDICIAL DUTY OR AN ASPIRATION?
01:13:32 Sotomayor, Sonia WHEN I WAS SPEAKING ABOUT ASPIRATION, I WAS TALKING ABOUT THE FACT THAT WE DO HAVE PERSONAL EXPERIENCES THAT MAY ON OCCASION NOT PERMIT US TO UNDERSTAND AN ARGUMENT AND SO IT'S AN ASPIRATION IN THE SENSE OF RECOGNIZING THAT WE HAVE THOSE EXPERIENCES. I WASN'T TALKING ABOUT THAT IT WAS IMPARTIALITY WAS IMPOSSIBLE. I WAS JUST TALKING ABOUT THE OBLIGATION OF JUDGES TO MONITOR THEMSELVES FROM THOSE UNCONSCIOUS INFLUENCES THAT HAVE AFFECTED THEIR DECISION MAKING.
01:14:10 Hatch, Orrin SURE. IN THAT SAME SPEECH, YOU STATED QUOTE, THE ASPIRATION TO IMPARTIALITY IS JUST THAT, IT'S AN ASPIRATION BECAUSE IT DENIES THE FACT THAT WE ARE BY OUR EXPERIENCES MAKING DIFFERENT CHOICES THAN OTHERS, UNQUOTE. I REALIZE THAT JUDGES ARE PEOPLE, THEY'RE NOT ROBOTS OR MACHINES, BUT HERE AGAIN, YOU SAY THAT IMPARTIALITY IS ONLY AN ASPIRATION. NOW, I THINK YOU HAVE PRETTY WELL TRIED TO EXPLAIN THE ANSWER TO THE QUESTION ISQUESTION, IT'S JUDICIAL IMPARTIALITY. I THINK YOU CAME DOWN ON THE FACT IT'S A DUETY.
01:14:51 Sotomayor, Sonia IT'S ABSOLUTELY A DUTY, SENATOR. THAT'S WHY I WAS SPEAKING ABOUT THE TASK JUDGES HAVE TO ENSURE UNCONSCIOUS INFLUENCES DO AFFECT THEIR DECISION MAKING. WE HAVE TO WORK HARD AT THAT. WE DO SUCCEED AT DOING IT. BUT, I WAS TALKING ABOUT THE ACADEMIC QUESTION, BUT IN THE END, IT IS ALWAYS A DUTY TO IMPARTIALLY DECIDE THE CASE BEFORE YOU.
01:15:19 Hatch, Orrin IN THAT SAME SPEECH, YOU SAID THE JUDGES MUST NOT DENY THE DIFFERENCES RESULTS FROM EXPERIENCE AND GENDER, BUT ATTEMPT TO JUDGE WHEN THEY ARE APPROPRIATE. DO YOU BELIEVE A JUDGE'S PERSONAL OPINION, SYMPATHIES OR PREJUDICES ARE EVER APPROPRIATE FACTORS IN HOW HE OR SHE OR SHE OR HE DECIDE CASES?
01:15:44 Sotomayor, Sonia IN SOME SITUATIONS, THE COURT DOES SAY IN SENTENCING IN PARTICULAR, IT'S A MEASURE OF SYMPATHY IS IMPORTANT. A MEASURE OF UNDERSTANDING THE EXTEND OF AN INJURY IN A COURSE AND WHAT A JURY MIGHT OR MIGHT NOT AWARD. THOSE ARE APPROPRIATE USES OF SYMPATHY IN SOME SITUATIONS. IT'S NOT THAT THE JUDGE IS DECIDING THAT AS THE RESULT IN THE CASE. IT IS THE LAW IS GIVING THE JUDGE A VARIETY OF FACTORS TO CONSIDER AND WAY AND TELLS THE JUDGE, TAKE EACH ONE OF THESE FACTORS, THINK ABOUT THEM, WEIGH THEM AND COME UP WITH AN END RESULT THAT THE LAW WANTS YOU TO REACH UNDER A STANDARD THE LAW IS SETTING. THAT IS WHAT THIS SPEECH WAS IN THE CONTEXT OF. IT WAS TALKING ABOUT THAT KIND OF AFFECT OF LIFE EXPERIENCES.
01:16:48 Hatch, Orrin THANK YOU, JUDGE. MY TIME IS UP.
01:16:50 Leahy, Patrick J. WE'LL TAKE A 15 MINUTE RECESS.
01:19:00 >> A FEW SENATORS STILL IN THE HEARING ROOM AS CHAIRMAN PATRICK LEAHY CALLS A BREAK IN DAY THREE FOR JUDGE SOTOMAYER. THE COMMITTEE IN THEIR SECOND ROUND OF QUESTIONING, EACH SENATOR GETTING 20 MINUTINGS. DAY LONG COVERAGE ON C-SPAN. WE ARE LIVE ON C-SPAN.ORG. SENATOR ARLEN SPECTER AND SUPREME COURT PROCEEDINGS.