Senate Debate on Empathy
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Text From the Congressional Record
http://www.c-spanarchives.org/congress/?q=node/77531&id=9028030


Schumer, Charles [D-NY]
 
Begin 2009-08-05 14:06:17
End   14:30:39
Length 00:24:22
Mr. SCHUMER. Mr. President, I rise today in wholehearted support of the historic nomination of Judge Sonia Sotomayor to become an Associate Justice of the U.S. Supreme Court.

I have two words to summarize my feelings about this nomination: It's time. It is time we have a nominee to the Supreme Court whose record has proven to be truly mainstream. It is time we have a nominee with practical experience in all levels of the justice system, whose upbringing in a Bronx housing project, whose experience as a prosecutor, litigator, and district court judge has enabled her to see, as she said in her own statement, ``the human consequences'' of her decisions. And it is time
that we have a nominee who is Hispanic, a member of the fastest growing population in America. Finally, it is time that we have a frank discussion about what is preventing so many colleagues on the other side of the aisle from supporting Judge Sotomayor.

In short, this is the time, and it is time. It is time we have a moderate nominee. It is time we have someone with a great family history, an American family history. It is time we confirm the first Hispanic Justice to the U.S. Supreme Court.

Let's start with Judge Sotomayor's record, which is most important. Several of my Republican colleagues said, as they cast their votes against her in the Judiciary Committee, that they did not know what kind of Supreme Court Justice they might be getting in Judge Sotomayor. I find this conclusion to be confounding. Judge Sotomayor is hardly a riddle wrapped in mystery inside an enigma. No matter what cross section we take of her extensive record, down to examining individual cases, we see someone
who has never expressed any desire or intention to overturn existing precedent, nor have my colleagues been able to point to any such case.

Instead, we see someone who lets the facts of each case guide her to the correct application of the law. We see someone who does not put her thumb on the scales of justice for either side, even if any sentient human being would want to reach a different result for a sympathetic plaintiff.

We know more about Judge Sotomayor than we have known about any nominee in 100 years. The 30,000-foot view of her record, gleaned from numerous studies about the way she has ruled in cases for 17 years--and that is the best way to tell how a judge is going to be, to look at their previous cases--when you look at those cases, it tells plenty about her moderation.

She has agreed with her Republican colleagues 95 percent of the time. She has ruled for the government in 83 percent of immigration cases, presumably against the immigrant. She has ruled for the government in 92 percent of criminal cases, against the criminal. She has denied race claims in 83 percent of cases. She has split evenly in a variety of employment cases.

No matter how we slice and dice these cases, we come up with the same conclusion about her moderation. [Page: S8816]


Within the category of criminal cases she decided, she ruled for the government 87 percent of the time in fourth amendment cases. This is important because the fourth amendment is an area where decisions are highly fact based and judges have discretion to decide when police have overstepped their bounds in executing searches and seizures. But she has not abused this discretion. In the overwhelming number of cases, she sides with the government, deciding each case carefully based on the facts
before her.

Let's also look further at her immigration asylum cases. There she ruled for the government, against the petitioner for asylum, in 83 percent of the cases. That is also telling of her modulated approach to judging. Asylum law, as her colleague Judge Newman has pointed out, gives judges a great deal of discretion to decide who can be granted asylum to stay in the United States. Judge Sotomayor has not abused this discretion a jot.

Given her upbringing in a Hispanic neighborhood of the Bronx, we might expect that her personal background would make her more, to borrow a term, empathetic to an immigrant seeking asylum. But the cases show that any perceived empathy did not affect her results. In fact, her 83-percent record puts her right in the middle of judges in her circuit.

Even in the realm of sports cases, which are always contentious and closely watched, Judge Sotomayor has shown her evenhandedness. She ruled for the professional football league in an antitrust case brought by a player and against Major League Baseball when she ruled for the players and ended the baseball strike.

I can go on. Judge Sotomayor voted to deny the victims of TWA flight 800 crash a more generous recovery because that was ``clearly a legislative policy choice, which should not be made by the courts.'' If you have empathy, you certainly are going to decide with the victims. I met some of their families. She did not. The law did not allow her.

Judge Sotomayor ruled against an African-American couple who claimed they were bumped from a flight because of their race. Again, against a couple, a case called King, that said they were racially discriminated against. She did not think the facts merited their suit.

Judge Sotomayor rejected the claims of a disabled Black woman who said she was unfairly denied accommodations that were provided to White employees.

My Republican colleagues did not ask her about these cases. Instead, they looked at her speeches, not her cases, and decided that Judge Sotomayor believed it was the proper role of the court of appeals to make policy, and they condemned her roundly for this view.

Then they criticized her for not making policy in cases where they disagreed with the outcome. This occurred in three cases--in Ricci, which involved the New Haven firefighters, a second amendment case, and a case involving property rights. I guess from the point of view of my Republican colleagues, judicial policy making is a bad thing except when it is not.

In each of these three cases they criticized, where they criticized the short opinions which she did not even write for herself, they said the ruling showed she was unable or unwilling to grapple with major constitutional issues. But in each of these cases, Judge Sotomayor agreed with the other two members of her court that the second circuit or Supreme Court precedents squarely dictated the result. There was no need for a fuller explanation. In fact, second circuit rules forbade panels from
revisiting squarely divided precedents. In other words, in these cases, she was avoiding making policies. The cases were governed by the precedents. She was bound. They were decided by settled law. It was just the fact my friends across the aisle do not like what the settled law was. So we are getting awfully close to a double standard here.

In Ricci, they wanted her to overturn the second circuit discrimination law. And in the gun case, they wanted her to ignore a 100-year-old precedent that governs how the second amendment is applied to the States.

In the property rights case, they wanted her to ignore the law that governed the statute of limitations.

My colleagues asked Judge Sotomayor about an EPA case. In that case, she ruled the EPA had mistakenly considered a certain factor in deciding whether a company had used the ``best technology available'' to clean water. Even though she gave deference to EPA's interpretation of the law, Judge Sotomayor ruled against the government.

Yet, my friend, Senator Sessions of Alabama, stated that one of his reasons for opposing Judge Sotomayor is that she exhibits liberal progovernment ideology. It appears that being progovernment is a bad thing, except when it is not.

Let's talk about her answers to questions. Some of my friends on both sides of the aisle have said Supreme Court nominees need to be more forthcoming during the confirmation process. They fear that the hearings have become a little more than a choreographed Kabuki dance in which, as Senator Specter observed some time ago, nominees answered just enough questions to get confirmed.

I have shared this concern as well. It is too easy for a candidate who wishes to hide his or her ideology to decline to answer questions, to submit to cautious coaching, and to offer meaningless platitudes--promises that they would keep an open mind, respect the law, give everyone an equal chance. Of course, they would.

Candidates with little to hide, not surprisingly, have answered more questions than stealth nominees who have truly been outside the mainstream. Examples of candidates who had nothing up their sleeves and answered questions in a straightforward manner include Judge Stephen Breyer in 1994. He answered the question posed by Senator Hatch: ``Do you believe that Washington v. Davis is settled law; and second, do you believe it was correctly decided?'' And then-Judge Ruth Bader Ginsburg--despite
criticisms that she begged off too many questions--answered questions about abortion precedent and Casey.

Justices Alito and Roberts, in stark contrast, declined to answer question after question after question. Then-Judge Roberts would not answer the most basic questions about settled commerce clause jurisprudence. Then-Judge Alito would not say whether he thought the constitutional right to privacy included the holding of Roe.

I think we can see now, and I will discuss this in more detail, that this was part of a strategy to play an ideological shell game.

Now we are presented with a candidate whose views are truly moderate, as proven through the most copious records in 100 years. Nonetheless, my friend, Senator Grassley, of Iowa believes that ``Judge Sotomayor's performance at her Judiciary Committee hearing left me with more questions than answers.'' I have to respectfully disagree.

But Judge Sotomayor, again, in addition to her full and transparent record, proved in her answers that she is not a stealth candidate. On abortion and the holding of Roe, when asked by Senator Franken: ``Do you believe that this right to privacy includes the right to have an abortion?'' Judge Sotomayor answered clearly and to the point: ``The Court has said in many cases--and as I think has been repeated in the Court's jurisprudence in Casey--that there is a right to privacy that women
have with respect to the determination of their pregnancies in certain situations.'' Clear. To the point.

When then-Judge Roberts was asked this question, he replied:



Well, I feel I need to stay away from a discussion of particular cases. I'm happy to discuss the principles of stare decisis, and the Court has developed a series of precedents on precedent, if you will. They have a number of cases talking about how this principle should be applied.



So who spoke clearly to the question? If you don't believe Judge Sotomayor did, how could you vote for Judge Roberts?

On property rights, when asked by Senator Grassley about her understanding of the Court's holding in Kelo, Judge Sotomayor explained fully her understanding of the Court's holding, and there is a quote. When asked about his view of Kelo, then-Judge Alito declined to discuss the case. There are many more examples of how Judge Sotomayor answered questions about existing cases in much fuller detail [Page: S8817]
than the past two nominees and certainly about
the key cases--property rights and abortion--which we debate, as we should, in this body.

As I said at the outset, it is time. It is time for a searching examination of why some of my colleagues are still determined to vote against Judge Sotomayor. She has a remarkably moderate record, she is highly qualified, she answers questions, and she is a historic choice who will expand the diversity of the Court.

What nominee of President Obama's would my Republican colleagues vote for--one who would have reached out and found that the right to bear arms should be incorporated to apply to the States, despite 100-year-old precedent to the contrary; one who would have ignored the Second Circuit precedent and prohibited the city of New Haven from trying to fix a promotional exam to give minorities a better chance at advancement; one who declined to answer questions about existing precedence? In other words,
an activist who was intent on changing the law?

Of course, we now turn to the last refuge of objection to Judge Sotomayor: her statements outside the courtroom. I have always been a strong advocate of the principle that we consider carefully each nominee's entire record, including speeches and other judicial writings. But Judge Sotomayor is different than most because she has an enormous judicial record to review and consider. She is not a stealth candidate. There is a push and pull here in terms of what is important to evaluate with respect
to each individual nominee. With 17 years of judicial opinions, 30 panel opinions, and 3,000 cases in total, how much emphasis should we put on the three words ``wise Latina woman,'' whether we disagree with them or not?

I would submit the answer should be, compared to her copious record, not much. Nonetheless, by my count, my colleagues on the other side of the aisle asked no fewer than 17 questions about her ``wise Latina woman'' comment. In contrast, they asked questions of about 6--6--of Judge Sotomayor's cases over the course of the 3 days; 6 cases out of 3,000 in 17 years of judging.

I don't agree with this approach to analyzing her record. Nonetheless, I agree with my colleague, Senator Graham--who is voting for her after engaging in arguably the most searching examination of her speeches--that we are entitled to know who we are getting as a nation. He is absolutely right. Certainly it is appropriate to look at her speeches, but let us give them proper weight and proper context.

And let us be clear about another thing: Judge Sotomayor is no Robert Bork. She is no Judge Roberts or Judge Alito. She has not made comments outside the courtroom that indicate her strong views on abortion or her views that the power of Congress must be severely curtailed or that a substantial body of first amendment jurisprudence should be overturned. Again, if the standard is extrajudicial statements, my colleagues seem to be using a different standard for Judge Sotomayor than the standard
they used for judges such as Roberts, Alito, and Thomas.

But let me give my friends some reassurance. The proof is in the pudding. Judge Sotomayor is and always has been a moderate judge. Similar to many judges across the country, she has remained neutral in race cases, in spite of her race; in gender cases in spite of her gender; in first amendment cases in spite of racist and repugnant speakers. The scales of justice in her courtroom are not weighted.

Let me now conclude by discussing the precedent set by past nominations--more broadly, where I think my colleagues are headed and where we ought to be going instead. In 2001, I wrote an op-ed arguing that we need to take ideology into account when evaluating judges. I wrote that op-ed because I was astounded by the nominees President Bush's administration was sending to the Senate.

The conservative movement had captured Congress and the White House for the first time. But even though conservatives--strong conservatives, hard-right conservatives--controlled these two branches, the hard right was not able to move the country as far to the right as they had hoped. So they turned to the judiciary. They couldn't do it with the President, even though they had elected him. They couldn't do it with the House or the Senate, even though, again, the hard right had predominated. So
they turned to the one unelected branch--the judiciary--to advance the agenda they weren't able to move through the democratically elected branches of government.

The Bush administration complied with the hard right and nominated judges who were so far out of the mainstream it would have been irresponsible for us to confirm them blindly. So we asked them questions about their judicial philosophy and their ideology, and our questions were not

met with thorough answers or with a demonstrated record of mainstream judging but with banalities or even obstinate silence.

If we tried to rank the ideology of nominees on a scale of 1 to 10, with 1 being all the way to the right, such as Judge Thomas, and 10 being all the way to the left, such as Justice Brennan, I think the Bush nominees to the Supreme Court and court of appeals were almost exclusively 1's and 2's--way over. If you looked at President Clinton's nominees, they were somewhat left of center. But not much, mainly sixes and sevens--prosecutors, partners in law firms--not lawyers who had spent their careers
in activist causes.

President Obama has taken a different approach. He is trying to return the Court to the middle, to the pre-Bush days, the days of having judges who may not be exactly what the right wants in a judge or even what the left--the far left--wants in a judge. We are returning to the days where judges were fives and sixes and sevens--maybe fours. They were squarely in the mainstream. We are returning to the days when judges put the rule of law first.

Somehow my Republican colleagues are aghast. The only judges they seem to want to vote for are ones and twos--judges who are on the hard right. The President is not going to nominate judges who have that view. After all, elections do matter.

My colleagues say they do not want activist judges. What they mean is they do not want judges who will put the rule of law first. They only want judges who will impose their own ultraconservative views. An activist now seems to be not someone who respects the rule of law but someone who is not hard right. If you are mainstream, even though you are interpreting the law, you are an activist because you will not turn the clock back.

We must and will continue to fight for mainstream judges.

I have heard some say this fight isn't about Judge Sotomayor, given her proven record of mainstream judging and fidelity to the law. These commentators argue that Republicans are laying down their marker for President Obama's next nominee. I don't know who that nominee will be, but I am confident it will be a qualified candidate who is significantly more in the mainstream, if you take the mainstream being the actual place where the middle of America is--more in the mainstream than Justices Thomas
or Scalia or Roberts or Alito or some of the nominations we considered under the Bush administration, such as Miguel Estrada or Janice Rogers Brown or Charles Pickering. I am confident the next nominee will be consistent with the nominees President Obama has been sending us--moderate, mainstream, and rule of law.

At one point, the Republican Party argued for precedent and for strict construction because they wanted to push back on certain new precedents they thought were beyond the Constitution--precedents such as Roe and Miranda. But things have changed. Americans have accepted Roe and Americans have accepted Miranda. Now my colleagues want to change the law, so they have changed their methodology without changing the nomenclature. They still call judges activist, even though they want to stick to established
law. I think it is a shame.

It is a shame that some of my colleagues can't put aside their own personal ideology and vote for a judge whom they might not have chosen but who is unquestionably mainstream. It is a shame we will not have the kind of nearly unanimous vote in favor of this nominee that judges on both sides of the aisle--from Justice Ginsburg to Justice Scalia--have received in the past. I think it is a shame the debate about this historic nomination has [Page: S8818]
been distilled
to disputes over snippets of speeches.

But we are not going to let that stop the national pride we take in this moment. We are not going to let it stop us from confirming, by a broad and bipartisan margin, Judge Sonia Sotomayor to be the first Hispanic Justice on the U.S. Supreme Court.

In conclusion, as John Adams said: ``We are a Nation of laws, not of men.'' But if the law were just words on parchment, it would never evolve to reflect our own changing society. ``Separate but equal'' would never have been understood to be ``inherently unequal.'' Equality for women would never have been viewed as guaranteed under the Constitution's promise of equal protection under law. In fact, the second amendment might never have been viewed to extend beyond the right to possess a front-loading
musket to defend, in a militia, against an occupying force.

With the nomination of Judge Sotomayor, we have an opportunity--a noble opportunity--to restore faith in the notion that the courts should reflect the same mainstream ideals that are embraced by America. Our independent judiciary has served as a beacon of justice for the rest of the world. Our system of checks and balances is the envy of every freedom-seeking nation. As I look at the arc of Judge Sotomayor's life, her record, and these hearings, I am confident we are getting a Justice who both
reflects American values and who will serve them.