Senate Debate on Empathy
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Text From the Congressional Record

http://www.c-spanarchives.org/congress/?q=node/77531&id=9027988


Cornyn, John [R-TX]
 
Begin 2009-08-05 11:42:15
End   11:58:12
Length 00:15:57
Mr. CORNYN. Mr. President, I wish to address the nomination of Judge Sonia Sotomayor to be an Associate Justice of the U.S. Supreme Court as well. I have spoken about this nomination several times, both here on the Senate floor and on the Senate Judiciary Committee on which I serve. I have shared what I admire about Judge Sotomayor, including her long experience as a Federal judge, her academic background, which is stellar, and her record of making decisions that for the most part are within
the judicial mainstream. I have also explained before why I will vote against this nomination and I wish to reiterate and expand on some of those comments here today as all of us are stating our intentions before this historic vote which I suspect will be held sometime tomorrow.

First, I cannot vote to confirm a nominee to the U.S. Supreme Court who restricts several of the fundamental rights and liberties in our Constitution, including our Bill of Rights. Based on her decision in the Maloney case, Judge Sotomayor apparently does not believe that the second amendment right to keep and bear arms is an individual right. Indeed, she held in that case that the second amendment did not apply to the States and local jurisdictions that might impose restrictions on the right
to keep and bear arms. Then based on her decision in the Didden v. The Village of Port Chester case, she apparently does not believe that the takings clause of the fifth amendment protects private property owners when that private property is taken by government for the purpose of giving it to another private property owner,
in this case a private developer. I am very concerned when the government's power to condemn property for a private purpose conflicts with the stated intention of the Framers of the Constitution that the right of condemnation of private property only extend to public uses and then, and only then, when just compensation is paid.

Then based upon her decision in the Ricci case--this is the New Haven firefighter case--which calls into question her commitment to ensure that equal treatment applies to all of us when it comes to our jobs or promotions without regard to the color of our skin. Indeed, in that case, because of her failure to even acknowledge the seriousness and novelty of the claims being made by the New Haven firefighters, she gave short shrift to those claims in an unpublished order and denied Frank Ricci,
Ben Vargas, and other New Haven firefighters an opportunity for a promotion, even though they excelled in a competitive, race-neutral examination, because of the color of their skin.

Fortunately, the Supreme Court of the United States saw fit to overrule [Page: S8799]
Judge Sotomayor's judgment in the New Haven firefighter case. Millions of Americans became aware, perhaps for the first time, of this notorious decision and what a morass some of our laws have created when, in fact, distinguished judges like Judge Sotomayor think they have no choice but to allow people to be denied a promotion based upon the color of their skin for fear of a disparate
impact lawsuit, even when substantial evidence is missing that such a disparate lawsuit would have merit or likely be successful.

I cannot vote to confirm a nominee who has publicly expressed support for many of the most radical legal theories percolating in the faculty lounges of our Nation's law schools.

We heard this during the confirmation hearings and, frankly, Judge Sotomayor's explanations were unconvincing. Previously, she said there is no such thing as neutrality or objectivity in the law--merely a series of perspectives, thus, I think undermining the very concept of equal justice under the law. If the law is not neutral, if it is not objective, then apparently, according to her, at least at that time, the law is purely subjective, and outcomes will be determined on which judge you get
rather than what the law says.

She has said in one notorious YouTube video that it is the role of judges to make policy on the court of appeals. She has said that foreign law can get the ``creative juices flowing'' as judges interpret the U.S. Constitution, and she has said, as we know, ethnicity and gender can influence a judge's decision and judges of a particular ethnicity or gender can actually make better decisions than individuals of a different gender or ethnicity.

Third, I cannot vote to confirm a judicial nominee who testified before the Judiciary Committee that her most controversial decisions were guided by precedent, when her colleagues on the Second Circuit, and indeed the Justices of the U.S. Supreme Court who reversed her, said just the opposite; or who testified that she meant the exact opposite of what she said--every time she said something controversial and was trying to explain that; or a person who testified that she had no idea what legal
positions the Puerto Rican Legal Defense and Education Fund was taking--even when she chaired the litigation committee of its board of directors.

The hearings before the Senate Judiciary Committee have a very important purpose, and that purpose is informed by article II of the U.S. Constitution that provides for advice and consent on nominations. It is not to serve as a rubberstamp. I have heard colleagues say that elections have consequences, and the President won. Well, it is obvious and evident that elections have consequences and that President Obama won. But that doesn't negate or erase the obligation each Senator has under the same
clause and article of the Constitution to provide advice and consent based on our best judgment and good conscience.

In the case of Judge Sotomayor, the question becomes: What will she do with the immense power given to a member of the U.S. Supreme Court? What impact will she have on our rights and liberties over the course of a lifetime? Of course, this appointment is for life. In short, the question is, what kind of Justice will she be on the Supreme Court, where her decisions are no longer reviewed by a higher court as they were as a Federal district court or a court of appeals justice. The question is,
will she be the judge she has been as a lower court judge, making decisions which, by and large, have been in the mainstream, with some notable exceptions, which I have talked about, or will she be untethered? Will she be the Judge Sotomayor of some of her radical speeches and writings, which cause me concern?

The answers to these questions, I regret, are no clearer after the hearings than before. The stakes are simply too high for me to confirm someone who could redefine ``the law of the land'' from a liberal, activist perspective.

I respect different views of Senators on this nomination, and I have no doubt that Judge Sotomayor will be confirmed. But I am unwilling to abdicate the responsibility I believe I have as a Senator when it comes to voting my conscience and expressing my reservations. The Senate developed our confirmation process for a very important purpose: to learn more about the individual nominees. But over the last several weeks, I think we have also learned more about a rising consensus with regard to what
we should expect from a judge. I will highlight two important lessons we have learned.

One is encouraging to me and one is worrisome. Let's start with the good news. I believe Republicans and Democrats on the Judiciary Committee, and indeed Judge Sotomayor herself, seem to say the appropriate judicial philosophy for nominees to the Federal bench is one that expresses fidelity to the law and nothing else. Over years, we have been debating whether we have an original understanding of the Constitution or some evolving Constitution, even though it can be interpreted in different ways,
even though the words on the paper read exactly the same. We went back and forth on the merits, or lack of merits, of judicial activism--judges taking it upon themselves to impose their views rather than the law in decisions. On many occasions, our disagreements over judicial philosophy were anything but civil and dignified.

I think of the nomination of Miguel Estrada to the District of Columbia Court of Appeals, which some have said is the second highest court in the land. Miguel Estrada, although an immigrant from Honduras who didn't speak any English when he came to the United States, graduated from a top university and law school in this country. He was filibustered seven times an denied an up-or-down vote. One member of the Judiciary Committee, disparaging Mr. Estrada's character, called him a ``stealth missile,
with a nose cone, coming out of the right wing's deepest silo.''

Samuel Alito, an Italian-American who is proud of his heritage, had to defend himself against false charges of bigotry--accusations that left his wife in tears.

Then there was Clarence Thomas--perhaps the one we remember the best--an African American nominee to the Supreme Court who described his experience before the Judiciary Committee this way:



This is a circus. It's a national disgrace. And from my standpoint as a black American, it is a high-tech lynching for uppity blacks.



These nominees were accused at various times of certain offenses, even though the real crime, as we all know, was a crime of conscience. They dared to be judicial conservatives--a philosophy that the nominee we are talking about today and Senate Democrats now appear to embrace.

I hope the days of the unfair and uncivil and undignified Judiciary Committee hearings are behind us. I hope our hearings are more respectful of the nominees, as was this hearing for Judge Sotomayor. She herself proclaimed that she could not have received fairer treatment. I appreciated her acknowledging the fairness and dignity of the process.

I hope the ``thought crimes'' of yesterday have now become the foundation for a new bipartisan consensus, including the views that Judge Sotomayor affirmed at her hearing and that we affirmed as both Republicans and Democrats, and the views that Judge Sotomayor rejected at her hearings and we rejected as both Republicans and Democrats.

Let me give a few examples of our new bipartisan consensus on the appropriate judicial philosophy for a nominee to the U.S. Supreme Court. Judge Sotomayor, at her hearing, put it this way:



The intent of the Founders was set forth in the Constitution. ..... It is their words that [are] the most important aspect of judging. You follow what they said in their words, and you apply it to the facts you're looking at.



I cannot think of a better expression of a modest and judicially restrained philosophy that I embrace than what Judge Sotomayor said at her hearing. Both Republicans and Democrats appeared to be pleased with that statement.

We agreed that foreign law has no place in constitutional interpretation. Notwithstanding her earlier statements, Judge Sotomayor said at the hearing:



Foreign law cannot be used as a holding or a precedent, or to bind or influence the outcome of a legal decision interpreting the Constitution or American law.


[Page: S8800]


As I said, notwithstanding her earlier statements, I agree with that statement she made at the hearing. I believe both Republicans and Democrats were satisfied with that statement as well.

We agreed that ``empathy'' or ``what's in a person's heart''--to borrow a phrase from then-Senator Obama--should not influence the decisions of a judge. I think we were all a little surprised when Judge Sotomayor, at the hearing, rejected President Obama's standard. She said:

I wouldn't approach the issue of judging the way the President does. ..... Judges can't rely on what's in their heart. They don't determine the law. Congress makes the law. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases--it is the law.



I agree with that statement, and indeed Republicans and Democrats alike appeared to embrace that statement of an appropriate judicial philosophy. No one defended the statement that then-Senator Obama made with regard to empathy or what is in a person's heart. I was encouraged to see that.

Mr. President, supporters of Judge Sotomayor appear willing to accept her statements that I have just quoted at the Judiciary Committee at face value. I hope they are right; I really do. I certainly intend to take my colleagues' agreement with these statements at face value. I expect future nominees to the Federal judiciary to conform to this new consensus articulated by Judge Sotomayor at her hearing and embraced in a bipartisan fashion by the members of the Judiciary Committee.

Mr. President, I have no question about the outcome of this vote on Judge Sotomayor. I regret, for the reasons I have stated, that I cannot vote for her because I cannot reconcile her previous statements with her testimony at the Judiciary Committee hearing. Also, I wish Judge Sotomayor well as she serves on the Supreme Court. The concerns that I raised here, and the uncertainty I have about regarding what kind of Justice she will be--I hope she will prove those concerns unjustified by the way
she distinguishes herself as a member of the U.S. Supreme Court. I hope her tenure will strengthen the Court, as well as its fidelity to the plain meaning of the Constitution. I congratulate her and her loved ones on her historic achievement.