...nice wave and keep going. But finally you're able to speak, and I think your statement yesterday went a long way to answering the critic and the naysayers.

And so we're going to start with the questions here. I would hope that everybody will keep their questions pertaining to you and to your background as a judge. You're going to be the first Supreme Court nominee in more than 50 years who served as a federal trial court judge, the first in 50 years to have served as both a federal trial court and a federal appellate court judge.

Let me ask you the obvious one. What are the qualities that a judge should possess. I mean, you've had time on both the trial court and the appellate court. What qualities should a judge have and how does that experience you've had -- how does that shape your approach -- your approach to being on the bench?

SOTOMAYOR: Senator Leahy, yesterday, many of the senators emphasized that their -- the values they thought were important for judging, and central to many of their comments was the fact that a judge had to come to the process understanding the importance and respect the Constitution must receive in the judging process and an understanding that that respect is guided by, and should be guided by, a full appreciation of the limited jurisdiction of the court in our system of government, but understanding its importance as well.

That is the central part of judging. What my experiences on the trial court and the appellate court have reinforced for me is that the process of judging is a process of keeping an open mind. It's the process of not coming to a decision with a pre-judgment ever of an outcome and that reaching a conclusion has to start with understanding what the parties are arguing, but examining in all situations carefully the facts as they prove them or not prove them, the record as they create it, and then making a decision that is limited to what the law says on the facts before the judge.

LEAHY: Well, you -- let's go into some of the particulars on this. One of the things that I found appealing in your record, that you were a prosecutor, as many of us, both the ranking member and I had that privilege, and you worked on the front lines, an assistant district attorney in the Manhattan D.A.'s office. 

Your former boss, District Attorney Robert Morgenthal, the dean of the American Prosecutors, said one of the most important cases you worked on was the prosecution of the man known as the Tarzan Burglar. He terrorized people in Harlem. He would swing on ropes into their apartments and rob them and steal, and actually killed three people.

Your co-counsel, Hugh Mo, described how you threw yourself into every aspect of the investigation, the prosecution of the case. You helped to secure a conviction, sentence of 62 years to life for the murders. Your co-counsel described you, quote, as a "Skilled legal practitioner who not only ruthlessly pursued justice for victims of violent crimes, but understood the root cause of crime and how to curb it."

How did that experience -- did that experience shape your views in any way as -- both as a lawyer but also as a judge? I mean, this was getting into about as nitty-gritty as you could into the whole area of criminal law.

SOTOMAYOR: I became a lawyer in the prosecutor's office. To this day, I owe who I have become as a -- who I became as a lawyer and who have --who I have become as a judge to Mr. Morgenthal. He gave me a privilege and honor in working in his office that has shaped my life.When I say I became a lawyer in his office, it's because in law school, law schools teach you on hypotheticals.

SOTOMAYOR: They set forth facts for you. They give you a little bit of teaching on how those facts are developed, but not a whole lot. And then they ask you to opine about legal theory and apply legal theory to the facts before you. 

Well, when you work in a prosecutor's office, you understand that the law is not legal theory. It's facts. It's what witnesses say and don't say. It's how you develop your position in the record. And then it's taking those facts and making arguments based on the law as it exists.

That's what I took with me as a trial judge. It's what I take with me as an appellate judge. It is respect that each case gets decided case by case, applying the law as it exists to the facts before you.

You asked me a second question about the Tarzan murderer case, and that case brought to life for me in a way that perhaps no other case had fully done before the tragic consequences of needless deaths.

In that case, Mr. Maddicks was dubbed "the Tarzan murderer" by the press because he used acrobatic feats to gain entry into apartments. In one case, he took a rope, placed it on a pipe on top of a roof, put a paint can at the other end, and threw it into a window in a building below and broke the window. He then swung himself into the apartment and, on the other side, shot a person he found.

He did that repeatedly, and, as a result, he destroyed families. I saw a family that had been in tact, with a mother living with three of her children, some grandchildren. They all worked at various jobs. Some were going to school.

They stood as they watched one of their -- the mother stood as she watched one of her children be struck by a bullet that Mr. Maddicks fired and killed him because the bullet struck the middle of his head.

That family was destroyed. They scattered to the four winds, and only one brother remained in New York who could testify. That case taught me that prosecutors, as all participants in the justice system, must be sensitive to the price that crime imposes on our entire society.

At the same time, as a prosecutor in that case, I had to consider how to ensure that the presentation of that case would be fully understood by jurors. And to do that, it was important for us as prosecutors to be able to present those number of incidences that Mr. Maddicks had engaged in, in one trial, so the full extent of his conduct could be determined by a jury.

SOTOMAYOR: There had never been a case quite like that, where an individual who used different acrobatic feats to gain entry into an apartment was tried with all of his crimes in one indictment. I researched very carefully the law and found a theory in New York law, called the Molyneax (ph) theory then, that -- that basically said if you can show a pattern that established a person's identity or assisted in establishing a person's identity -- simplifying the argument, by the way -- then you can try different cases together.

This was not a conspiracy under law because Mr. Maddicks acted alone. So I had to find a different theory to bring all his acts together. Well, a presented that to the trial judge. It was a different application of the law. But what I did was draw on the principles of the Molyneax (ph) theory. And arguing those principles to the judge, the judge permitted that joint trial of all of Mr. Maddox's activities.

In the end, carefully developing the facts in the case, making my record -- our record, I should say -- Mr. Moe's (ph) and my record complete -- we convinced the judge that our theory was supported by law.
That harkens back to my earlier answer which is that's what being a trial judge teaches you.

LEAHY: And you -- so you see it from both ends having, obviously, to a novel theory and now a theory that is well established in the law but was novel at that time. But you also, as a trial judge, you've seen theories brought in by prosecutors or by defense and you have to make your decisions based on those.
The fairly easy answer to that is you do, do you not?

SOTOMAYOR: Well, it's important to remember that, as a judge, I don't make law. And so the task for me as a judge is not to accept or not accept new theories; it's to decide whether the law, as it exists, has principles that apply to new situations.

LEAHY: Let's go into that because I -- you know, obviously, the Tarzan case is -- was unique at least. And as I said, Mr. Morgenthal singled that out as an example of the kind of lawyer you are.
And I find compelling your story about being in the apartment. I've stood in homes at three o'clock in the morning as they're carrying the body out from a murder. I can understand how you're feeling. But in applying the law and applying the facts, you told me once that, ultimately and completely, the law is what controls.

And I was struck by that when you did. And so there's been a great deal of talk about the Ricci case -- Ricci v. DeStephano. And you and two other judges were assigned this appeal involving firefighters in New Haven. The plaintiffs were challenging the decision to voluntarily discard the result of a paper-and-pencil test to measure leadership abilities.

LEAHY: Now, the legal issue that was presented to you in that case was not a new one, not in your circuit. In fact, there was a unanimous decade's old Supreme Court decision as well. In addition, in 1991, Congress acted to reinforce (inaudible) the law.

I might note that every Republican member of this committee still serving in the Senate supported that statement of the law. So you have a binding precedent. You and two other judges came to a unanimous decision. Your decision deferred to the district court's ruling allowing the city's voluntary determination that could not justify using that paper-and-pencil test under our civil rights laws and settled -- you said it was settled judicial precedent.

A majority of the Second Circuit later voted not to revisit the panel's unanimous decision; therefore, they upheld your decision.

So you had Supreme Court precedent. You had your circuit precedent. You upheld within the circuit. Subsequently, it went to the Supreme Court and five -- a bare majority -- five justices reversed the decision, and reversed their precedent, and many have said that they created a new interpretation of the law.

Ironically, if you had done something other than follow the precedent, some would be now attacking you as being an activist. You followed the precedent. So now they attack you as being biased and racist. It's kind of a unique thing. You're damned if you do and damned if you don't. How do you react to the Supreme Court's decision in the New Haven firefighters case?

SOTOMAYOR: You are correct, Senator, that the panel, made up of myself and two other judges in the Second Circuit, decided that case on the basis of the very thorough 78-page decision by the district court and on the basis of established precedent.

The issue was not what we would do or not do, because we were following precedent, and you, when on (ph) circuit court, are obligated on a panel to follow established circuit precedent. The issue in Ricci was what the city did or could do when it was presented with a challenge to one of its tests that -- for promotion.

This was not a quota case; this was not an affirmative action case. This was a challenge to a test that everybody agreed had a very wide difference between the pass rate of a variety of different groups. The city was faced with the possibility recognized in law that the employees who were disparately impacted -- that's the terminology used in the law and is a part of the civil rights amendment that you were talking about in 1991 -- that those employees who could show a disparate impact, a disproportionate pass rate, that they could bring a suit and that then the employer had to defend the test that it gave.

The city here, after a number of days of hearings and a variety of different witnesses, decided that it wouldn't certify the test and it wouldn't certify it in an attempt to determine whether they could develop a test that was of equal value in measuring qualifications, but which didn't have a disparate impact.
And so the question before the panel was, was the decision a -- of the city based on race or based on its understanding of what the law required it to do?

SOTOMAYOR: Given Second Circuit precedent, Bushey v. New York State -- New York State Civil Services Commission, the panel concluded that the city's decision in that particular situation was lawful under established law.

The Supreme Court, in looking and review that case, applied a new standard. In fact, it announced that it was applying a standard from a different area of law and explaining to employers and the courts below how to look at this question in the future.

LEAHY: But when you were deciding the -- when you were deciding it, you had precedent from the Supreme Court and from your circuit that basically determined how -- determined the outcome you had to come up with. Is that correct?

SOTOMAYOR: Absolutely.

LEAHY: And if today, now that the Supreme Court has changed their decision without you having to relitigate the case, it would -- it may open, obviously, a different result. Certainly, the circuit would be bound by the new decision even though it's only a 5-to-4 decision, a circuit would be bound by the new decision of the Supreme Court. Is that correct?

SOTOMAYOR: Absolutely, sir.

LEAHY: Thank you.

SOTOMAYOR: That is now the statement of the Supreme Court of how employers and the Court should examine this issue.

LEAHY: During the course of this nomination, there have been some unfortunate comments, including outrageous charges of racism made about you on radio and television. Some -- one person referred to you as being the equivalent of the head of the Ku Klux Klan. Another leader in the other party referred to you as -- as being a bigot.

And to the credit of the senators, the Republican senators as well as the Democratic senators, they have not repeated those charges. But you haven't been able to respond to any of these things. You've had to be quiet. Your critics have taken a line out of your speeches and twisted it, in my view, to mean something you never intended.

You said that, quote, you "would hope that a wise Latina woman with the richness of her experiences would reach wise decisions." I remember other justices -- the most recent one, Justice Alito -- talking about the experience of his immigrants -- the immigrants in his family and how that would influence his thinking and help him reach decisions.

What -- and you also said in your speech, I quote, that you "love America and value its lessons," that great things could be achieved in one works hard for it.

And then you said judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of the fairness and integrity based on reason of law. And I'll throw one more quote in there. It's what you told me that ultimately and completely, the law is what counts -- or the law is what controls.
So tell us, you've heard all of these charges and countercharges, the wise Latina and on and on. Here's your chance. You tell us -- you tell us what's going on here, Judge.

SOTOMAYOR: Thank you for giving me an opportunity to explain my remarks. No words I have ever spoken for written have received so much attention. (LAUGHTER)

SOTOMAYOR: I gave a variant of my speech to a variety of different groups, most often to groups of women lawyers or to groups, most particularly, of young Latino lawyers and students. 

As my speech made clear in one of the quotes that you reference, I was trying to inspire them to believe that their life experiences would enrich the legal system, because different life experiences and backgrounds always do. I don't think that there is a quarrel with that in our society.

I was also trying to inspire them to believe that they could become anything they wanted to become, just as I had. The context of the words that I spoke have created a misunderstanding, and I want -- and misunderstanding -- and to give everyone assurances, I want to state up front, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences.

What -- the words that I use, I used agreeing with the sentiment that Justice Sandra Day O'Connor was attempting to convey. I understood that sentiment to be what I just spoke about, which is that both men and women were equally capable of being wise and fair judges.

That has to be what she meant, because judges disagree about legal outcomes all of the time -- or I shouldn't say all of the time, at least in close cases they do. Justices on the Supreme Court come to different conclusions. It can't mean that one of them is unwise, despite the fact that some people think that.
So her literal words couldn't have meant what they said. She had to have meant that she was talking about the equal value of the capacity to be fair and impartial.

LEAHY: Well, and isn't that what -- you've been on the bench for 17 years. Have you set your goal to be fair and show integrity, based on the law?

SOTOMAYOR: I believe my 17-year record on the two courts would show that, in every case that I render, I first decide what the law requires under the facts before me, and that what I do is explain to litigants why the law requires a result. And whether their position is sympathetic or not, I explain why the result is commanded by law.

LEAHY: Well, and doesn't your oath of office actually require you to do that?

SOTOMAYOR: That is the fundamental job of a judge.

LEAHY: Good. Let me (ph) talk to you about another decision that's been talked about, District of Columbia v. Heller. In that one, the Supreme Court held that the Second Amendment guarantees to Americans the right to keep and bear arms, and that it's an individual right.

LEAHY: I've owned firearms since my early teen years. I suspect a large majority of Vermonters do. I enjoy target shooting on a very regular basis at our home in Vermont. So I watched that decision rather carefully and found it interesting. Is it safe to say that you accept the Supreme Court's decision as establishing that the Second Amendment right is an individual right? Is that correct?

SOTOMAYOR: Yes, sir.

LEAHY: Thank you. And in the Second Circuit decision, Maloney v. Cuomo, you, in fact, recognized the Supreme Court decided in Heller that the personal right to bear arms is guaranteed by the Second Amendment of the Constitution against federal law restrictions. Is that correct?

SOTOMAYOR: It is.

LEAHY: And you accept and applied the Heller decision when you decided Maloney?

SOTOMAYOR: Completely, sir. I accepted and applied established Supreme Court precedent that the Supreme Court in its own opinion in Heller acknowledged, answered the -- a different question.

LEAHY: Well, that -- let me -- let me refer to that, because Justice Scalia's opinion in the Heller case expressly left unresolved and explicitly reserved as a separate question whether the Second Amendment guarantee applies to the states and laws adopted by the -- by the states.

Earlier this year, you were on a Second Circuit panel in a case posing that specific question, analyzing a New York state law restriction on so-called chuka sticks (ph), a martial arts device.

Now, the unanimous decision of your court cited Supreme Court precedent as binding on your decision, and that Supreme Court -- longstanding Supreme Court cases have held that the Second Amendment applies only to the federal government and not to the states.

And I noticed that the panel of the Seventh Circuit, including people like Judge Posner, one of the best-known very conservative judges, cited the same Supreme Court authority, agreed with the Second Circuit decision. We all know that not every constitutional right has been applied to the states by the Supreme Court. I know one of my very first cases as a prosecutor was a question of whether the Fifth Amendment guaranteed a grand jury indictment has been made applicable to the states. The Supreme Court has not held that applicable to the states.

Seventh Amendment right to jury trial, Eighth Amendment prohibition against excessive fines, these have not been made applicable to the states. And I understand that petitions asking -- seeking to have the Supreme Court revisit the question applied to the Second Amendment to the states are pending (inaudible) that case appears before the Supreme Court and you're there how you're going to rule, but would you have an open mind, as -- on the Supreme Court, in evaluating that, the legal proposition of whether the Second Amendment right should be considered fundamental rights and thus applicable to the states?

SOTOMAYOR: Like you, I understand that how important the right to bear arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller.

SOTOMAYOR: As you pointed out, Senator, in the Heller decision, the Supreme Court was addressing a very narrow issue, which was whether an individual right under the Second Amendment applied to limit the federal government's rights to regulate the possession of firearms. The court expressly -- Justice Scalia in a footnote -- identified that there was Supreme Court precedent that has said that that right is not incorporated against the states. What that term of incorporation means in the law is that that right doesn't apply to the states in its regulation of its relationship with its citizens.

In Supreme Court province (ph), the right is not fundamental. It's a legal term. It's not talking about the importance of the right in a legal term. It's talking about is that right incorporated against the states.
When Maloney (ph) came before the Second Circuit, as you indicated, myself and two other judges read what the Supreme Court said, saw that it had not explicitly rejected its precedent on application to the states and followed that precedent because it's the job of the Supreme Court to change it.

LEAHY: Well...

SOTOMAYOR: You asked me -- I'm sorry, Senator. I didn't mean...

LEAHY: No, no, go ahead.

SOTOMAYOR: ... to cut you off.
LEAHY: No, go ahead.

SOTOMAYOR: If you asked me whether I have an open mind on that question, absolutely. My decision in Maloney (ph) and on any case of this type would be to follow the precedent of the Supreme Court when it speaks directly on an issue. And I would not prejudge any question that came before me if I was a justice on the Supreme Court.

LEAHY: Let me just ask -- I just asked Senator Sessions if he might have one -- might want to ask one more question. And it goes to the area of prosecution. You've heard appeals in over 800 criminal cases. You affirmed 98 percent of the convictions for violent crimes, including terrorism cases. Ninety-nine percent of the time at least one of the Republican appointed judges on the panel agreed with you.

 

Let me just ask you about one, the United States vs. Giordano. It was a conviction against the mayor of Waterbury, Connecticut. The victim in that case are the young daughter and niece of a prostitute, young children who as young as nine and 11 were forced to engage in sexual acts with the defendant. The mayor was convicted under a law passed by Congress prohibiting the use of any facility or means of interstate commerce to transmit or contact information about persons under 16 for the purpose of illegal sexual activity.

You spoke for a unanimous panel in the Second Circuit, which included Judge Jacobs and Judge Hall. You upheld that conviction against the constitutional challenge that the federal criminal statute in question exceeded Congress' power in the commerce clause. I mention that only because I appreciate your deference to the constitutional congressional authority to prohibit illegal conduct. Did you have any difficulty in reaching the conclusion you did in the -- in the Giordano case?

SOTOMAYOR: No, sir.

LEAHY: Thank you. I'm glad you reached it. Senator Sessions? And I appreciate Senator Sessions' forbearance.

 

 

SESSIONS:

SESSIONS: Welcome. It's good to have you back, Judge, and your family and friends and supporters. And I hope we'll have a good day today, look forward to dialogue with you. I got to say that I liked your statement on the fidelity of the law yesterday and some of your comments this morning.

And I also have to say had you been saying that with clarity over the last decade or 15 years, we'd have a lot fewer problems today because you have evidenced, I think it's quite clear, a philosophy of the law that suggests that the judge's background and experiences can and should -- even should and naturally will impact their decision what I think goes against the American ideal and oath that a judge takes to be fair to every party. And every day when they put on that robe, that is a symbol that they're to put aside their personal biases and prejudices.

So I'd like to ask you a few things about it. I would just note that it's not just one sentence, as my chairman suggested, that causes us difficulty. It's a body of thought over a period of years that causes us difficulties.
And I would suggest that the quotation he gave was not exactly right of the wise Latina comment that you made. You've said, I think six different times, quote, "I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion." So that's a matter that I think we'll talk about as we go forward.

Let me recall that yesterday you said it's simple fidelity to the law. The task of a judge is not to make law; it's to apply law. I heartily agree with that. However, you previously have said the court of appeals is where policy is made. And you said on another occasion the law that lawyers practice and judge declare is not a definitive -- capital L -- Law that many would like to think exists," close quote.

So I guess I'm asking today what do you really believe on those subjects. That there is no real law and that judges do not make law? Or that there is no real law and the court of appeals is where policy is made? Discuss that with us, please.

SOTOMAYOR: I believe my record of 17 years demonstrates fully that I do believe that law -- that judges must apply the law and not make the law. Whether I've agreed with a party or not, found them sympathetic or not, in every case I have decided, I have done what the law requires.

With respect to judges making policy, I assume, Senator, that you were referring to a remark that I made in a Duke Law student dialogue. That remark, in context, made very clear that I wasn't talking about the policy reflected in the law that Congress makes. That's the job of Congress to decide what the policy should be for society.

In that conversation with the students, I was focusing on what district court judges do and what circuit court judges do. And I know noted that district court judges find the facts, and they apply the facts to the individual case. And when they do that, they're holding, they're finding doesn't bind anybody else.
Appellate judges, however, establish precedent. They decide what the law says in a particular situation. That precedent has policy ramifications because it binds not just the litigants in that case, it binds all litigants in similar cases, in cases that may be influenced by that precedent.

SOTOMAYOR: I think if my speech is heard outside of the minute and a half that YouTube presents and its full context examined, that it is very clear that I was talking about the policy ramifications of precedent and never talking about appellate judges or courts making the policy that Congress makes.

SESSIONS: Judge, I would just say, I don't think it's that clear. I looked at that on tape several times, and I think a person could reasonably believe it meant more than that.

But yesterday you spoke about your approach to rendering opinions and said, quote, "I seek to strengthen both the rule of law and faith in the impartiality of the justice system," and I would agree. But you have previously said this: "I am willing to accept that we who judge must not deny differences resulting from experiences and heritage, but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

So first, I'd like to know, do you think there's any circumstance in which a judge should allow their prejudices to impact their decision-making?

SOTOMAYOR: Never their prejudices. I was talking about the very important goal of the justice system is to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case.
What I was talking about was the obligation of judges to examine what they're feeling as they're adjudicating a case and to ensure that that's not influencing the outcome. Life experiences have to influence you. We're not robots to listen to evidence and don't have feelings. We have to recognize those feelings and put them aside. That's what my speech was saying ...

SESSIONS: Well, Judge ...

SOTOMAYOR: ... because that's our job.

SESSIONS: But the statement was, "I willingly accept that we who judge must not deny the differences resulting from experience and heritage, but continuously to judge when those opinions, sympathies and prejudices are appropriate." That's exactly opposite of what you're saying, is it not?

SOTOMAYOR: I don't believe so, Senator, because all I was saying is, because we have feelings and different experiences, we can be led to believe that our experiences are appropriate. We have to be open- minded to accept that they may not be, and that we have to judge always that we're not letting those things determine the outcome. But there are situations in which some experiences are important in the process of judging, because the law asks us to use those experiences.

SESSIONS: Well, I understand that, but let me just follow up that you say in your statement that you want to do what you can to increase the faith and the impartiality of our system, but isn't it true this statement suggests that you accept that there may be sympathies, prejudices and opinions that legitimately can influence a judge's decision? And how can that further faith in the impartiality of the system?

SOTOMAYOR: I think the system is strengthened when judges don't assume they're impartial, but when judges test themselves to identify when their emotions are driving a result, or their experience are driving a result and the law is not.

SESSIONS: I agree with that.

SESSIONS: I know one judge that says that if he has a feeling about a case, he tells his law clerks to, "Watch me. I do not want my biases, sympathies or prejudices to influence this decision, which I've taken an oath to make sure is impartial." I just am very concerned that what you're saying today is quite inconsistent with your statement that you willingly accept that your sympathies, opinions and prejudices may influence your decision-making.

SOTOMAYOR: Well, as I have tried to explain, what I try to do is to ensure that they're not. If I ignore them and believe that I'm acting without them, without looking at them and testing that I'm not, then I could, unconsciously or otherwise, be led to be doing the exact thing I don't want to do, which is to let something but the law command the result.

SESSIONS: Well, yesterday, you also said that your decisions have always been made to serve the larger interest of impartial justice, a good -- good aspiration, I agree. But in the past, you've repeatedly said this: "I wonder whether achieving the goal of impartiality is possible at all in even most cases and I wonder whether by ignoring our differences as women, men or people of color we do a disservice to both the law and society." Aren't you saying there that you expect your background and -- and heritage to influence your decision-making?

SOTOMAYOR: What I was speaking about in that speech was -- harkened back to what we were just talking about a few minutes ago, which is life experiences to influence us, in good ways. That's why we seek the enrichment of our legal system from life experiences.

That can affect what we see or how we feel, but that's not what drives a result. The impartiality is an understanding that the law is what commands the result.

And so, to the extent that we are asking the questions, as most of my speech was an academic discussion about, what should we be thinking about, what should we be considering in this process, and accepting that life experiences could make a difference. But I wasn't encouraging the belief or attempting to encourage the belief that I thought that that should drive the result.

SESSIONS: Judge, I -- I think it's consistent in the comments I've quoted to you and your previous statements that you do believe that your backgrounds will accept -- affect the result in cases, and that's troubling me. So that is not impartiality. Don't you think that is not consistent with your statement, that you believe your role as a judge is to serve the larger interest of impartial justice?

SOTOMAYOR: No, sir. As I've indicated, my record shows that at no point or time have I ever permitted my personal views or sympathies to influence an outcome of a case. In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result.

SESSIONS: Judge...

SOTOMAYOR: I do not permit my sympathies, personal views, or prejudices to influence the outcome of my cases.

SESSIONS: Well, you -- you -- you said something similar to that yesterday, that in each case I applied the law to the facts at hand, but you've repeatedly made this statement: Quote, I "accept the proposition" -- I "accept the proposition that a difference there will be by the presence of women and people of color on the bench, and that my experiences affect the facts I choose to see as a judge."

First, that's troubling to me as a lawyer. When I present evidence, I expect the judge to hear and see all the evidence that gets presented. How is it appropriate for a judge ever to say that they will choose to see some facts and not others?

SOTOMAYOR: It's not a question of choosing to see some facts or another, Senator. I didn't intend to suggest that. And in the wider context, what I believe I was -- the point I was making was that our life experiences do permit us to see some facts and understand them more easily than others.

But in the end, you're absolutely right. That's why we have appellate judges that are more than one judge because each of us, from our life experiences, will more easily see different perspectives argued by parties.
But judges do consider all of the arguments of litigants. I have. Most of my opinions, if not all of them, explain to parties by the law requires what it does.

SESSIONS: Do you stand by your statement that my experiences affect the facts I choose to see?

SOTOMAYOR: No, sir. I don't stand by the understanding of that statement that I will ignore other facts or other experiences because I haven't had them. I do believe that life experiences are important to the process of judging. They help you to understand and listen but that the law requires a result. And it would command you to the facts that are relevant to the disposition of the case.

SESSIONS: Well, I will just note you made that statement in individual speeches about seven times over a number of years span. And it's concerning to me. So I would just say to you I believe in Judge Seiderbaum's (ph) formulation. She said -- and you disagreed. And this was really the context of your speech. And you used her -- her statement as sort of a beginning of your discussion.

And you said she believes that a judge, no matter what their gender or background, should strive to reach the same conclusion. And she believes that's possible. You then argued that you don't think it's possible in all, maybe even most, cases. You deal with the famous quote of Justice O'Connor in which she says a wise old man should reach the same decision as a wise old woman. And you pushed backed from that. You say you don't think that's necessarily accurate. And you doubt the ability to be objective in your analysis.

So how can you reconcile your speeches which repeatedly assert that impartiality is a near aspiration which may not be possible in all or even most cases with your oath that you've taken twice which requires impartiality?

SOTOMAYOR: My friend, Judge Seiderbaum (ph) is here this afternoon, and we are good friends. And I believe that we both approach judging in the same way which is looking at the facts of each individual case and applying the law to those facts.

I also, as I explained, was using a rhetorical flourish that fell flat. I knew that Justice O'Connor couldn't have meant that if judges reached different conclusions -- legal conclusions -- that one of them wasn't wise.
That couldn't have been her meaning, because reasonable judges disagree on legal conclusions in some cases. So I was trying to play on her words. My play was -- fell flat.

It was bad, because it left an impression that I believed that life experiences commanded a result in a case, but that's clearly not what I do as a judge. It's clearly not what I intended in the context of my broader speech, which was attempting to inspire young Hispanic, Latino students and lawyers to believe that their life experiences added value to the process.

SESSIONS: Well, I can see that, perhaps as a -- a layperson's approach to it. But as a judge who's taken this oath, I'm very troubled that you had repeatedly, over a decade or more, made statements that consistently -- any fair reading of these speeches -- consistently argues that this ideal and commitment I believe every judge is committed, must be, to put aside their personal experiences and biases and make sure that that person before them gets a fair day in court.

Judge, on the -- so philosophy can impact your judging. I think it's much more likely to reach full flower if you sit on the Supreme Court, and then you will -- than it will on a lower court where you're subject to review by your colleagues in the higher court.

And so, with regard to how you approach law and your personal experiences, let's look at the New Haven firefighters case, the Ricci case. In that case, the city of New Haven told firefighters that they would take an exam, set forth the process for it, that would determine who would be eligible for promotion.

The city spent a good deal of time and money on the exam to make it a fair test of a person's ability to see -- to serve as a supervisory fireman, which, in fact, has the awesome responsibility at times to send their firemen into a dangerous building that's on fire, and they had a panel that did oral exams and not -- wasn't all written, consisting of one Hispanic and one African-American and -- and one white.

And according to the Supreme Court, this is what the Supreme Court held: The New Haven officials were careful to ensure broad racial participation in the design of the test and its administration. The process was open and fair. There was no genuine dispute that the examinations were job-related and consistent with business purposes, business necessity.

But after -- but after the city saw the results of the exam, it threw out those results, because, quote, "not enough of one group did well enough on the test."

The Supreme Court then found that the city, and I quote, "rejected the test results solely because the higher scoring candidates were white. After the tests were completed, the raw racial results became the -- raw racial results became the predominant rationale for the city's refusal to certify the results," close quote.

So you stated that your background affects the facts that you choose to see. Was the fact that the New Haven firefighters had been subject to discrimination one of the facts you chose not to see in this case?

SOTOMAYOR: No, sir. The panel was composed of me and two other judges. In a very similar case of the 7th Circuit in an opinion offered by Judge Easterbrook -- I'm sorry. I misspoke. It wasn't Judge Easterbrook. It was Judge Posner -- saw the case in an identical way. And neither judge -- I've confused some statements that Senator Leahy made with this case. And I apologize.

In a very similar case, the 6th Circuit approached a very similar issue in the same way. So a variety of different judges on the appellate court were looking at the case in light of established Supreme Court and 2nd Circuit precedent and determined that the city facing potential liability under Title VII could choose not to certify the test if it believed an equally good test could be made with a different impact on affected groups.

The Supreme Court, as it is its prerogative in looking at a challenge, established a new consideration or a different standard for the city to apply. And that is was there substantial evidence that they would be held liable under the law. That was a new consideration.

Our panel didn't look at that issue that way because it wasn't argued to us in the case before us and because the case before us was based on existing precedent. So it's a different test.

SESSIONS: Judge, there was a -- apparently, unease within your panel. I -- I was really disappointed. And I think a lot of people have been that the opinion was so short. It was pro curiam. It did not discuss the serious legal issues that the case raised. And I believe that's legitimate criticism of what you did.

But it appears, according to Stuart Taylor, a respected legal writer for the National Journal -- that Stuart Taylor concluded that -- that it appears that Judge Cabranes was concerned about the outcome of the case, was not aware of it because it was a pro curiam unpublished opinion. But it began to raise the question of whether a rehearing should be granted.

You say you're bound by the superior authority. But the fact is when the re -- the question of rehearing that 2nd Circuit authority that you say covered the case, some say it didn't cover so clearly -- but that was up for debate. And the circuit voted, and you voted not to reconsider the prior case. You voted to stay with the decision of the circuit.

And, in fact, your vote was the key vote. Had you voted with Judge Cabranes, himself of -- of -- of Puerto Rican ancestry -- had you voted with him, you -- you -- you could have changed that case.
So in truth you weren't bound by that case had you seen it in a different way. You must have agreed with it and agreed with the opinion and stayed with it until it was reversed by the court. Let me just mention this. In 1997...

LEAHY: Is that a question or a...

SESSIONS: Well, that was a response to some of what you said, Mr. Chairman, because you misrepresented factually what the -- the posture of the case.

LEAHY: Well, I obviously...

SESSIONS: In 1997...

LEAHY: I obviously will disagree with that. But that -- we'll have a chance to vote on this issue.

SESSIONS: In 1997 when you came before the Senate and I was a new senator, I asked you this. In a suit challenging a government racial preference in quota or set-aside, will you follow the Supreme Court decision in Adarand and subject racial preferences to the strictest judicial scrutiny," close quote. In other words, I asked you would you follow the Supreme Court's binding decision in Adarand v. Pena.
In Adarand, the Supreme Court held that all governmental discrimination, including Affirmative Action programs, that discriminated by race of an applicant must face strict scrutiny in the courts. In other words, this is not a light thing to do. When one race is favored over another, you must have a really good reason for it, or it's not acceptable.

After Adarand, the government agencies must prove there is a compelling state interest in support of any decision to treat people differently by race. This is what you answered: "In my view, the Adarand court correctly determined that the same level of scrutiny -- strict scrutiny applies for the purpose of evaluating the constitutionality of all government classifications, whether at the state or federal level, based on race," close quote. So that was your answer, and it deals with government being the City of New Haven.

You made a commitment to this committee to follow Adarand. In view of this commitment you gave me 12 years ago, why are the words "Adarand," "Equal protection" and "Strict scrutiny" are completely missing from any of your panel's discussion of this decision?

SOTOMAYOR: Because those cases were not what was at issue in this decision. And in fact, those cases were not what decided the Supreme Court's decision. The Supreme Court parties were not arguing the level of scrutiny that would apply with respect to intentional discrimination. The issue is a different one before our court and the Supreme Court, which is what's a city to do when there is proof that its test disparately impacts a particular group.

And the Supreme Court decided, not on a basis of strict scrutiny, that what it did here was wrong -- what the city did here was wrong, but on the basis that the city's choice was not based on a substantial basis in evidence to believe it would be held liable under the law. Those are two different standards, two different questions that a case would present.

SESSIONS: But Judge, it wasn't that simple. This case was recognized pretty soon as a big case, at least. I noticed what perhaps kicked off Judge Cabranes's concern was a lawyer saying it was the most important discrimination case that the circuit had seen in 20 years. They were shocked they got a -- basically one-paragraph decision per curiam unsigned back on that case.

Judge Cabranes apparently raised this issue within the circuit, asked for re-hearing. Your vote made the difference in not having a re-hearing in bank. And he said, quote, "Municipal employers could reject the results" -- in talking about the results of your test, the impact of your decision -- "Municipal employers could reject the results of an employment examination whenever those results failed to yield a desirable outcome, i.e., fail to satisfy a racial quota," close quote.

SESSIONS: So that was Judge Trabanas's (sic) analysis of the impact of your decision, and he thought it was very important. He wanted to review this case. He thought it deserved a full and complete analysis and opinion. He wanted the whole circuit to be involved in it. And to the extent that some prior precedent in the circuit was different, the circuit could have reversed that precedent had they chose to do so.
Don't you think -- tell us how it came to be that this important case was dealt with in such a cursory manner.

SOTOMAYOR: The panel decision was based on a 78-page district court opinion. The opinion referenced it. In its per curium, the court incorporated in differently, but it was referenced by the circuit. And it released on that very thoughtful, thorough opinion by the district court.

And that opinion discussed Second Circuit precedent in its fullest -- to its fullest extent. Justice Cabranes had one view of the case. The panel had another. The majority of the vote -- it wasn't just my vote -- the majority of the court, not just my vote, denied the petition for rehearing.

The court left to the Supreme Court the question of how and employer should address what no one disputed was prima facia evidence that its test disparately impacted on a group. That was undisputed by everyone, but the case law did permit employees who had been disparately impacted to bring a suit.
The question was, for city, was it racially discriminating when it didn't accept those tests or was it attempting to comply with the law.

SESSIONS: Well, Judge, I think it's not fair to say that a majority -- I guess it's fair to say a majority voted against rehearing. But it was 6 to 6. Unusual that one of the judges had to challenge a panel decision, and your vote made the majority not to rehear it.

Do you -- and Ricci did deal with some important questions. Some of the questions that we have got to talk about as a nation, we've got to work our way through. I know there's concern on both sides of this issue, and we should do it carefully and correctly.

But do you think that Frank Ricci and the other firefighters whose claims you dismissed felt that their arguments and concerns were appropriately understood and acknowledged by such a short opinion from the court?

SOTOMAYOR: We were very sympathetic and expressed our sympathy to the firefighters who challenged the city's decision, Mr. Ricci and the others. We stood the efforts that they had made in taking the test. We said as much.

They did have before them a 78-page thorough opinion by the district court. They, obviously, disagreed with the law as it stood under Second Circuit precedent. That's why they were pursuing their claims and did pursue them further.

In the end, the body that had the discretion and power to decide how these tough issues should be decided, let alone the precedent that had been recognized by our circuit court and another -- at least, the Sixth Circuit -- but along what the court thought would be the right test or standard to apply.

And that's what the Supreme Court did. It answered that important question because it had the power to do that -- not the power but the ability to do that because it was faced with the arguments that suggested that. The panel was dealing with precedent and arguments that rely on our precedent.

SESSIONS: Thank you, Judge. And I appreciate this opportunity. And I -- I would just say, though, had the procurement opinion stood without a rehearing requested by one of the judges in the whole circuit and kicked off the discussion, it's very, very unlikely that we would have heard about this case or the Supreme Court would have taken it up. Thank you, Mr. Chairman.

LEAHY: Thank you. Obviously, we can talk about your speeches, but, ultimately, we determine how you act as a judge and how you make decisions. I will put into the record the American Bar Association, which has unanimously -- unanimously -- given you their highest rating.

I put into the record the New York City Bar, which said you were extremely well credentialed to sit on the Supreme Court. I'll put that in there. I'll put in the Congressional Research Service, which analyzed your cases and found that you consistently deal with the law and with stare decisis, the upholding of past judicial precedent.

I've put in that the nonpartisan Brennan Center found you solidly in the mainstream and then another analysis of more than 800 of your cases which found you followed a (ph) traditional consensus judge on criminal justice issues.

I thought I'd put those in. It's one thing to talk about speeches you might give; I'm more interested on cases you might decide. Senator Kohl?

 

 

KOHL

KOHL: Thank you very much, Mr. Chairman, and good morning, Judge Sotomayor.

SOTOMAYOR: Good morning.

KOHL: Senator Sessions has spent a great deal of time on the New Haven case, and so I would like to see if we can't put it into some perspective. Isn't it true that Ricci was a very close case? Isn't it true that 11 of the 22 judges the reviewed the case did agree with you and that it was only reversed by the Supreme Court by a one-vote 5-4 margin?

So, do you agree, Judge, that it was a close case and that reasonable minds could have seen it in one way or another and not be seen as prejudiced or unable or -- unable to make a clear decision?

SOTOMAYOR: To the extent that reasonable minds can differ on any case, that's true, as to what the legal conclusion should be in a case. But the panel, at least as the case was presented to itself, was relying on the reasonable views that Second Circuit precedent had established.

And so, to the extent that one as a judge adheres to precedence, because it is that which guides and gives stability to the law, then those reasonable minds who decided the precedent and the judges who apply it are coming to the legal conclusion they think the facts and law require.

KOHL: All right. Judge, we've heard several of our colleagues now, particularly on the other side, criticize you because they believe some things that you have said in speeches show that you'll not be able to put your personal views aside.

But I believe rather than pulling lines out of speeches, oftentimes out of context, the better way is to examine your record as a judge. In fact, when I asked now-Justice Alito what sort of a justice he was going to make, he said, quote, "If you want to know what sort of justice I would make, look at what sort of judge I've been."

KOHL: So you've served now as a federal judge for the past 17 years, the last 11 as an appellate court judge. If we examine the record, I believe it's plain that you are a careful jurist, respectful of precedent, and author of dozens of moderate and carefully reasoned decisions. The best evidence, I believe, is the infrequency with which you have been reversed.

You have authored over 230 majority opinions in your 11 years on the Second Circuit Court of Appeals. But in only three out of those 230-plus cases have your decisions been reversed by the Supreme Court -- a very, very low reversal rate of 2 percent.

Doesn't this very low reversal rate indicate that you do have, in fact, an ability to be faithful to the law and put your personal opinions and background aside when deciding cases as you have in your experience as a federal judge?

SOTOMAYOR: I believe what my record shows is that I follow the law and that my small reversal rate vis-a-vis the vast body of cases that I have examined, as you mentioned, (inaudible) the opinions I've authored but I've been a participant in thousands more that have not been either reviewed by the Supreme Court or reversed.

KOHL: Well, I agree with what you're saying. And I would like to suggest that this constant criticism of you in terms of your inability to be an impartial judge is totally refuted by the record that you've compiled as a federal judge up to this point.

We heard as much recently about Chief Justice Roberts' view that judges are like umpires simply calling balls and strikes. So finally, would you like to take the opportunity to give us your view about this sort of an analogy?

SOTOMAYOR: Few judges could claim they love baseball more than I do. (LAUGHTER) For obvious reasons. But analogies are always imperfect. And I prefer to describe what judges do, like umpires, is to be impartial and bring an open mind to every case before them. And by an open mind, I mean a judge who looks at the facts of each case, listens and understands the arguments of the parties, and applies the law as the law commands. It's a refrain I keep repeating because that is my philosophy of judging -- applying the law to the facts at hand. And that's my description of judging.

KOHL: Thank you. Judge, which current one or two Supreme Court justices do you most identify with and which ones might we expect you to be agreeing with most of the time in the event that you are confirmed?

SOTOMAYOR: Senator, to suggest that I admire one of the sitting Supreme Court justices would suggest that I think of myself as a clone of one of the justices. I don't. Each one of them bring integrity, their sense of respect for the law, and their sense of their best efforts and hard work to come to the decisions they think the law requires.

Going further than that would put me in the position of suggesting that by picking one justice, I was disagreeing or criticizing another. And I don't wish to do that. I wish to describe just myself.

I'm a judge who believes that the facts drive the law and the conclusion that the law will apply to that case. And when I say "drives the law," I mean determines how the law will apply in that individual case. If you would ask me instead, if you permit me, to tell you a justice from the past that I admire for applying that approach to the law, it would be Justice Cardozo.

Now, Justice Cardozo didn't spend a whole lot of time on the Supreme Court. He had an untimely passing. But he had been a judge on the New York Court of Appeals for a very long time.

And during his short tenure on the bench, one of the factors that he was so well known for was his great respect for precedent and his great respect for -- respect and deference to the legislative branch and to the other branches of government and their powers under the Constitution.

In those regards, I do admire those parts of Justice Cardozo, which he was most famous for, and think that that is how I approach the -- the law as a case-by-case application of law to facts.
KOHL: Thank you. Appreciate that. Judge Sotomayor, many of us are impressed with you and your nomination, and we hold you in great regard, but I believe we have a right to know what we're getting before we give you a lifetime appointment to the highest court in the land.

In past confirmation hearings, we've seen nominees who tell us one thing during our private meetings and in the confirmation hearings and then go to the court and become a justice that is quite different from the way they've portrayed themselves at the hearing. So I'd like to ask you questions about a few issues that have generated much discussion. First, affirmative action.

Judge, first, I'd like to discuss the issue of affirmative action. We can all agree that it is good for our society when employers, schools, and government institutions encourage diversity. On the other hand, the consideration of ethnicity or gender should not trump qualifications or turn into a rigid quota system.
Without asking you how you would rule in any particular case, what do you think of affirmative action? Do you believe that affirmative action is a necessary part of our society today?

Do you agree with Justice O'Connor that she expects in 25 years the use of racial preferences will no longer be necessary to promote diversity? Do you believe affirmative action is more justified in education than in employment? Or do you think it makes no difference?

SOTOMAYOR: The question of whether affirmative action is necessary in our society or not and what form it should take is always, first, a legislative determination, in terms of legislative or government employer determination, in terms of what issue it is addressing and what remedy it is looking to structure.

The Constitution promotes and requires the equal protection of law of all citizens in its 14th Amendment. To ensure that protection, there are situations in which race in some form must be considered; the courts have recognized that. Equality requires effort, and so there are some situations in which some form of race has been recognized by the court.

SOTOMAYOR: It is firmly my hope, as it was expressed by Justice O'Connor in her decision involving the University of Michigan Law School admissions criteria, that in 25 years, race in our society won't be needed to be considered in any situation. That's the hope. And we've taken such great strides in our society to achieve that hope, but there are situations in which there are compelling state interests and the admissions case that Justice O'Connor was looking at, the court recognized that in the education field.

And the state is applying a solution that is very narrowly tailored. And there, the court determined that the law school's use of race is only one factor among many others with no presumption of admission whatsoever was appropriate under the circumstances.

In another case, companion case, the court determined that a more fixed use of race that didn't consider the individual was inappropriate, and it struck down the undergraduate admissions policy. That is what the court has said about the educational use of race in a narrow way.

The question, as I indicated, of whether that should apply in other contexts has not been looked at by the Supreme Court directly. The holdings of that case have not been applied or discussed in another case. That would have to await another state action that would come before the court where the state would articulate its reasons for doing what it did and the court would consider if those actions were constitutional or not.

KOHL: Judge, Bush v. Gore. Many critics saw the Bush v. Gore decision as an example of the judiciary improperly injecting itself into a political dispute. In your opinion, should the Supreme Court even have decided to get involved in Bush v. Gore?

SOTOMAYOR: That case took the attention of the nation, and there's been so much discussion about what the Court did or didn't do. I look at the case, and my reaction as a sitting judge is not to criticize it or to challenge it even if I were disposed that way because I don't take a position on that.

The Court took and made the decision it did. The question for me, as I look at that sui generis situation, it's only happened once in the lifetime of our country, is that some good came from that discussion. There's been and was enormous electoral process changes in many states as a result of the flaws that were reflected in the process that went on.

That is a tribute to the greatness of our American system which is whether you agree or disagree with a Supreme Court decision, that all of the branches become involved in the conversation of how to improve things. And as an indicated, both Congress, who devoted a very significant amount of money to electoral reform in certain of its legislation -- and states have looked to address what happened there.

KOHL: Judge, in a 5-4 decision in 2005, the Supreme Court ruled that Kelo v. City of New London was a -- that it was constitutional for local government to seize private property for private economic development.
Many people, including myself, were alarmed about the consequences of this landmark ruling because, in the words of dissenting Justice O'Connor, under the logic of the Kelo case, quote, "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory," unquote.

This decision was a major shift in the law. It said that private development was a permissible, quote, "public use," according to the Fifth Amendment, as long as it provided economic growth for the community.
What is your opinion of the Kelo decision, Judge Sotomayor? What is an appropriate, quote, "public use" for condemning private property?

SOTOMAYOR: Kelo is now a precedent of the court. I must follow it. I am bound by a Supreme Court decision as a Second Circuit judge.

As a Supreme Court judge, I must give it the deference that the doctrine of stare decisis, which suggests the question of the reach of Kelo has to be examined in the context of each situation, and the court did, in Kelo, note that there was a role for the courts to play in ensuring that takings by a state did, in fact, intend to serve the public -- a public purpose and public use.

I understand the concern that many citizens have expressed about whether Kelo did or did not honor the importance of property rights, but the question in Kelo was a complicated one about what constituted public use. And there, the court held that a taking to develop an economically blighted area was appropriate.

KOHL: Yes. That's what they decided in Kelo. I asked you your opinion, and apparently you feel that you're not in a position to offer an opinion because it's precedent, and now you're required to follow precedent as an appellate court judge. But I asked you if you would express your opinion, assuming that you became a Supreme Court Justice, and assuming that you might have a chance some day to review the scope of that decision.

SOTOMAYOR: I don't pre-judge issues.

KOHL: OK.

SOTOMAYOR: That is actually -- I come to every case with an open mind.

KOHL: All right.

SOTOMAYOR: Every case is new for me.

KOHL: That's good. All right. Let's leave that. As you know, Judge, the landmark case of Griswold v. Connecticut guarantees that there is a fundamental constitutional right to privacy as it applies to contraception. Do you agree with that? In your opinion, is that settled law?

SOTOMAYOR: That is the precedent of the court, so it is settled law.

KOHL: Is there a general constitutional right to privacy? And where is the right to privacy, in your opinion, found in the Constitution?

SOTOMAYOR: There is a right of privacy. The court has found it in various places in the Constitution, has recognized rights under those various provisions of the Constitution. It's found it in the Fourth Amendment's right and prohibition against unreasonable search and seizures.

Most commonly, it's considered -- I shouldn't say most commonly, because search and seizure cases are quite frequent before the court, but it's also found in the 14th Amendment of the Constitution when it is considered in the context of the liberty interests protected by the due process clause of the Constitution.

KOHL: All right. Judge, the court's ruling about the right to privacy in Griswold laid the foundation for Roe v. Wade. In your opinion, is Roe settled law?

SOTOMAYOR: The court's decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled, in terms of the holding of the court.

KOHL: Do you agree with Justices Souter, O'Connor, and Kennedy in their opinion in Casey, which reaffirmed the core holding in Roe?

SOTOMAYOR: As I said, I -- Casey reaffirmed the holding in Roe. That is the Supreme Court's settled interpretation of what the core holding is and its reaffirmance of it.

KOHL: All right. Let's talk a little bit about cameras in the court. You sit on a court of appeals which does allow cameras into court. And, from all indications, your experience with it has not been negative. In fact, I understand it's been somewhat positive.

So how would you feel about allowing cameras in the Supreme Court, where the country would have a chance to view discussions and arguments about the most important issues that the Supreme Court decides with respect to our Constitution, our rights, and our future?

SOTOMAYOR: I have had positive experiences with cameras. When I have been asked to join experiments of using cameras in the courtroom, I have participated. I have volunteered.

Perhaps it would be useful if I explain to you my approach to collegiality on a court. It is my practice, when I enter a new enterprise, whether it's on a court or in my private practice or when I was a prosecutor, to experience what those courts were doing or those -- those individuals doing that job were doing, understand and listen to the arguments of my colleagues about why certain practices were necessary or helpful or why certain practices shouldn't be done or new procedures tried, and then spend my time trying to convince them.

But I wouldn't try to come in with prejudgment so that they thought that I was unwilling to engage in a conversation with them or unwilling to listen to their views. I go in, and I try to share my experiences, to share my thoughts, and to be collegial and come to a conclusion together.

And I can assure you that, if this august body gives me the privilege of becoming a justice of the Supreme Court, that I will follow that practice with respect to the tall issues of procedure on the court, including the question of cameras in the courtroom.

KOHL: I appreciate the fact that, if you can't convince them, it won't happen. But how do you feel?
(LAUGHTER) How do you feel about admitting cameras in the Supreme Court, recognizing that, you know, you cannot decree it by fiat?

SOTOMAYOR: You know, I'm a pretty...

KOHL: Think it's a good idea?

SOTOMAYOR: I'm a pretty good litigator, or I was a really good litigator, and -- and I know that when I worked hard at trying to convince my colleagues of something after listening to them, they'll often try it for a while. I mean, we'll have to talk together. We'll have to figure out that issue together.

KOHL: OK.

SOTOMAYOR: I will -- I would be, again, if I was fortunate enough to be confirmed, the new voice in the discussion. A new voices often see things and talk about them and consider taking new approaches.

KOHL: All right. Judge, all of us in public office, other than federal judges, have specific fixed terms. And we must periodically run for reelection if you want to remain in office. Even most state court judges have fixed terms of office.

The federal judiciary, as you know, is very different. You have no term of office. Instead you serve for life. So I'd like to ask you -- would you support term limits for Supreme Court justices, for example, 15, 20 or 25 years? Would this help ensure that justices do not become victims of a cloistered, ivory tower existence and that you will be able to stay in touch with the problems of ordinary Americans -- term limits for Supreme Court justices?

SOTOMAYOR: All questions of policy are within the providence of Congress first. And so, that particular question would have to be considered by Congress first. But it'd have to consider it in light of the Constitution and then of statutes that govern these issues. And so, that first step and decision would be Congress'.

I can only know that there was a purpose to the structure of our Constitution. And it was a view by the -- by the founding fathers that they wanted justices who would not be subject to political whim or to the emotions of a moment. And they felt that by giving them certain protections that that would ensure that -- their objectivity and their impartiality over time.

KOHL: Sure.

SOTOMAYOR: I do know, having served with many of my colleagues who have been members of the court, sometimes for decades -- I had one colleague who was still an active member of the court in his 90s. And at close to 90, he was learning the Internet and encouraging my colleagues of a much younger age to participate in learning the Internet.

So I don't think that it's service or the length of time. I think there is wisdom that comes to judges from their experience that helps them in the process over time. I think in the end it is a question of one of what the structure of our government is best served by. And as I said, that policy question will be considered first by Congress and the processes set forth by the Constitution. But I do think there is a value in the services of judges for long periods of time.

KOHL: All right, Judge. Finally, I'd like to turn to anti-trust law. Anti-trust law is not some mysterious legal theory, as you know, that only lawyers can understand. Anti-trust is just an old-fashioned word for fair competition, Judge. And it is a law we use to protect consumers and competitors alike from unfair and illegal trade practices.

A prominent anti-trust lawyer named Kyle Hittinger (ph) was quoted in an A.P. story recently of saying that, quote, "Judge Sotomayor has surprisingly broke the pro-business record in the area of anti-trust. In nearly every case in which she has -- she was one of the three judges considering a dispute, the court ruled against the plaintiff bringing an anti-trust complaint." I'd like you to respond to that and to one other thing I'd like to -- to raise.

In 2007, Leegin case in a 5-4 decision, Supreme Court overturned a 97-year-old precedent and held that vertical price fixing no longer automatically violated anti-trust law. In effect, this means that a manufacturer is now free to set minimum prices at retail for its products and, thereby, to prohibit discounting of its products.

What do you think of this decision? Do you think it was appropriate for the Supreme Court, by judicial fiat, to overturn a nearly century-old decision on the meaning of the Sherman Act that businesses and consumers had come it rely on and which had been never altered by Congress? Those two things -- anti-trust.

SOTOMAYOR: I cannot speak, Senator, to whether Leegin was right or wrong. It's now the established law of the court. That case, in large measure, centered around the justices' different views of the effects of stare decisis on a question which none of them seemed to dispute that there were a basis to question the economic assumptions of the court in this field of law.

Leegin is the court's holding. Its teachings and holding I will have to apply in new cases, so I can't say more that what I know about it and what I thought the court was doing there.

With respect to my record, I can't speak for why someone else would view my record as suggesting a pro an anti approach to any series of cases. All of the businesses cases, as with all of the cases, my structure of approaching is the same. What is the law requiring?

I would note that I have cases that have upheld anti-trust complaints and uphold those cases going forward. I did it in my Visa- Mastercard anti-trust decision. And that was also a major decision in this field. All I can say is that with business and the interest of any party before me, I will consider and apply the law as it is written by Congress and informed by precedent.

KOHL: Thank you very much, Judge Sotomayor. I thank you, Mr. Chairman.

LEAHY: Thank you. Judge Sotomayor, we've -- this would probably be an appropriate place to take a short break, and we will. And then what we will -- we will come back. At some point, we will break for the both the Republicans and the Democrats to be in a caucus lunch but it also gives you a chance to have lunch.
So we'll take a -- we'll take a 10-minute -- flexible 10-minute break. And I thank you for your patience here, Judge Sotomayor. And we'll be back.

(RECESS)

LEAHY: There's been some question during the break from -- from the press what our schedule will be. And I fully -- I fully understand that they have to work out their own schedules.

But I -- what I would suggest would just -- Senator Kohl ask questions. We'll go to -- next is Senator Hatch, a former chairman of this committee. Following Senator Hatch, we'll go to Senator Feinstein. They'll bring us to roughly 12:30.

Because of the caucuses, we'll break at 12:30, but then right at 2 o'clock, which will mean -- I've -- I've talked to Republicans and Democrats. It means everybody will have to leave their -- want to come back and leave their caucus a few minutes early, but I think -- I think everybody will understand that.
So Senator Hatch is a former chairman of this committee and a friend of many years. And I recognize Senator Hatch.

 

 

HATCH:

HATCH: Well, thank you, Mr. Chairman. Welcome again and to your lovely family. We're -- we're grateful to have you all here. Now, let me ask you a question about settled law. If a holding in the Supreme Court means it is settled, do you believe that -- that Gonzales v. Carhart, upholding the partial-birth abortion ban, is settled law?

SOTOMAYOR: All precedents of the Supreme Court I consider settled law, subject to the deference to doctrine of stare decisis would counsel.

(MORE TO COME) Part 2 of the complete transcript is now available by clicking here
Part 2

 

...which the president can leave the four corners of this bill. So it will remain to be seen how that works out, over time, but I can certainly say to you that it's a most important consideration as we looked at these matters of national security.

So let me ask you this: you joined a Second Circuit opinion last year that held that the executive should not forbid companies that receive national security letters to tell the public about those letters.

The panel's opinion in the case said, quote, "The national security context in which NSLs" -- national security letters -- "are authorized imposes on courts a significant obligation to defer to the judgments of executive branch officials," end quote, but also that "Under no circumstance should the judiciary become the handmaiden of the executive," end quote. That's Doe v. Mukasey.

Given that the executive branch has responsibility for protecting the national security, how should courts balance the executive branch's expertise in national security matters with the judicial branch's constitutional duty to enforce the Constitution and prevent abuse of power?

SOTOMAYOR: I can talk about what we did in Doe as reflective of the approach that I took and joined in that case. It's difficult to talk about an absolute approach in any case because each case presents its own actions by parties and its own set of competing considerations often.

In Doe, the district court had invalidated a congressional statue altogether, reasoning that the statute violated the Constitution in a number of different ways and that those violations did not authorize Congress to act in the manner it did.

As the panel said in that decision, recognizing that deference to the executive is important in national security questions, and that deference to congress, because the court was -- district court was invalidating an act of Congress, that we had, as an appellate court, to be very cautious about what we were doing in this area and to balance and keep consistent with constitutional requirements the actions that were being taken.

SOTOMAYOR: Giving that due deference, we upheld to most of the statute, and what we did was address two provisions of the statute that didn't pass, in our judgment, constitutional muster. One of them was that the law, as Supreme Court precedent had commanded, required that if the government was going to stop an individual from speaking in this particular context, that the government had to come to court immediately to get court approval of that step.

The statute, instead, required the individual who was restricted to come and challenge the restriction. We said, "No, government's acting. You have a right to speak." If you have a right to speak, you should know what the grounds for that right are and you should be told or brought to court to be given an opportunity to have that restriction lifted.

The other was a question of who bore the burden of supporting that restriction, and the statute held that it was the individual who was being burdened who had to prove that there wasn't a reason for it. The government agreed with our court that that burden violated Supreme Court precedent and the premises of freedom of speech and agreed that the burden should not be that way and we read the statute to explain what the proper burden was.

There is, in all of these cases, a balance and deference that's needed to be given to the executive and to Congress in certain situations, but we are a court that the protects the Constitution and the rights of individuals under it and we must ensure and act with caution whenever reviewing a claim before us.

FEINSTEIN: Thank you very much. One question on the commerce clause in the Constitution. That clause, as you well know, is used to pass laws in a variety of contexts, from protecting schools from guns to highway safety to laws on violent crime, child pornography, laws to prevent discrimination and to protect the environment, to name just a few examples.

When I questioned now Chief Justice Roberts, I talked about how, for 60 years, the court did not strike down a single federal law for exceeding congressional power under the commerce clause. In the last decade, however, the court has changed its interpretation of the commerce clause and struck down more than three dozen cases. My question to the chief justice and now to you is: do you agree with the direction the Supreme Court has moved in more narrowly, interpreting congressional authority to enact laws under the commerce clause?

SOTOMAYOR: It is...

FEINSTEIN: Generally, not relating to any one case.

SOTOMAYOR: No, I know. But the question assumes a prejudgment by me of what's an appropriate approach or not in a new case that may come before me as a second circuit judge or, again, if I'm fortunate enough to be a justice on the Supreme Court.

So it's not a case I can answer in a broad statement. I can say that the court, in reviewing congressional acts as it relates to an exercise of powers under the commerce clause, has looked at a wide variety of factors and considered that in different areas.

But there is a framework that those cases have addressed and that framework would have to be considered with respect to each case that comes before the court.

SOTOMAYOR: Now, I know that you mentioned the number of different cases and if you have one in particular that concerns you, perhaps I could talk about what the framework is that the court established in those cases.

FEINSTEIN: All right. I'll give you one very quickly: restricting the distance that somebody could bring a gun close to a school.

SOTOMAYOR: Well, the gun-free zones school act, which the court struck down in Lopez...

FEINSTEIN: Right, Lopez.

SOTOMAYOR: ... in that case and in some of its subsequent cases, the court was examining, as I mentioned, a wide variety of factors. They included whether the activity that the government was attempting to regulate was economic or non-economic, whether it was an area in which states traditionally regulated, whether the statute at issue had an interstate commerce provision to -- as an element of the crime, and then considered whether there was a substantial effect on commerce.

It looked at the congressional findings on that last element, the court did, and determined that there weren't enough in the confluence of factors that it was looking at to find that the Constitution -- that that particular statute was within Congress's powers.

That's the basic approach it has used to other statutes it has looked at. I would note that its most recent case in this area, the Raich case, the court did upheld a crime that was non-economic, in the sense of that it involved just the possession of marijuana. And there, it looked at the broader statute in which that provision was passed and the intent of Congress to regulate a market in illegal drugs.

So the broad principles established in those cases have been the court's precedent. Its most recent holding suggested another factor for courts to look at in each situation will provide a unique factual setting that the court will apply those principles to.

FEINSTEIN: One last question on that point. One of the main concerns is that this interpretation, which is much more restrictive now, could impact important environmental laws, whether it be the Endangered Species Act, the Clean Air Act, the Clean Water Act, or anything that we might even do in cap and trade.

SOTOMAYOR: Oh, in fact, there are cases pending before the courts raising those arguments. And so those are issues that the courts are addressing. I can't speak much more...

FEINSTEIN: Right, I understand.

SOTOMAYOR: ... further than that because of the restrictions on me.

FEINSTEIN: It's just that Congress has to have the ability to legislate. And in those general areas, it's the commerce clause that enables that legislation.

Now, as you pointed out, we did revise the gun -- and make -- the Lopez case -- and make specific findings and perhaps, you know, with more care toward the actual findings that bring about the legislative conclusion, that we might be able to continue to legislate in these areas.

FEINSTEIN: But my hope is that you would go to the court with the sensitivity that this body has to be able to legislate in those areas. They involve all of the states. And they're very important questions involving people's well-being, control of the environment, the air, the water, et cetera.

SOTOMAYOR: I do believe that in all of the cases the court has addressed this issue that it pays particular attention to congressional findings. I know that individuals may disagree with what the court has done in individual cases. But it has never disavowed the importance of deference to legislative findings with respect to legislation that it's passing within its powers under the Constitution.

FEINSTEIN: Thank you. I wish you best of luck.

SOTOMAYOR: Thank you.

FEINSTEIN: Thank you very much.

SESSIONS: Mr. Chairman, I correct one thing. I said I had a letter earlier from Miguel Estrada. That was not correct. It wasn't a letter. Thank you.

LEAHY: Yes, if we could have a copy of whatever you put in the...

SESSIONS: OK.

LEAHY: I did send Mr. Estrada a note last night because I had (inaudible) something I said about him I wanted to let him know that.

SESSIONS: Well, we both made an error talking about him.

LEAHY: OK. Well -- but then one thing we should remember that Mr. Estrada is not the nominee here. Just as with all the statements made about President Obama's philosophy, his confirmation hearing was last November, not now. It's just you, Judge Sotomayor. And have a good lunch. And we will come back.
I'm trying to think who's next. Senator Grassley will be recognized when we come back in. And we will start right at 2:00. Chuck? OK. This hearing is in recess.

(RECESS)

LEAHY: Judge, I once on a television interview said, if I could do what -- anything I wanted to do in life, I said, "Well, if I ever have to work for a living, I want to be a photographer," because I do, at which point, two minutes after the interview, the phone rang. My mom was still alive. She called. She said, "Don't you ever say that. They'll think you don't work."  (LAUGHTER) Actually, I don't. I just recognize senators here. You're doing all of the work. And I -- I appreciate the way you're doing it.

I turn next to -- to Senator Grassley. Then, after Senator Grassley, to Senator Feingold.
Senator Grassley?

 

 

GRASSLEY:

GRASSLEY: Welcome once again, Judge. I hope you had a good break. And I appreciate very much the opportunity to ask you some questions.I'd like to start off my round with some questions about your understanding of individual property rights and how they're protected by the Constitution.

And let me say, as I observe property rights around the world, there's a big difference between developed nations and developing nations. And respect for private property has a great deal to do with the advancement of societies.

So I believe all Americans care about this right. They want to protect their homes and anything they own from unlawful taking by government. But this is also a right that is important for agricultural interests. As you know, besides being a senator, I come from an agricultural state in Iowa and am a farmer, as well.

I'm sure that ordinary Americans, besides the economic interests that might be involved, are all very well concerned about where you stand on property rights. So some of these issues have been discussed, but I want to go into a little more depth on Kelo as an example.

Could you explain what your understanding is of the state of the Fifth Amendment's taking cause jurisprudence after the Supreme Court decision in Kelo? Senator Brownback said this aptly when Chief Justice Roberts was before this committee: Quote, "Isn't it now the case that it is much easier for one man's home to become another man's castle?" Your general understanding of the takings clause?

SOTOMAYOR: Good afternoon, Senator Grassley. And it's wonderful to see you again.

GRASSLEY: Thank you.

SOTOMAYOR: I share your view of the importance of property rights under the Constitution. As you know, I was a commercial litigator that represented national and international companies, and it wasn't even the case that it was a difference between developed and underdeveloped countries.
Many of my clients who were from developed countries chose to -- in part, to invest in the United States because of the respect that our Constitution pays to property rights in its various positions, in its various amendments.

With respect to the Kelo question, the issue in Kelo, as I understand it, is whether or not a state who had determined that there was a public purpose to the takings under the -- the takings clause of the Constitution that requires the payment of just compensation when something is -- is condemned for use by the government, whether the takings clause permitted the state, once it's made a proper determination of public purpose and use, according to the law, whether the state could then have a private developer do that public act, in essence. Could they contract with a private developer to effect the public purpose?
And so the holding as I understood it in Kelo was a question addressed to that issue.

SOTOMAYOR: With respect to the importance of property rights and the process that the state must use, I just point out to you that in -- in another case involving that issue that came before me in a particular series of cases that I had involving a village in New York, that I -- I ruled in favor of the property rights -- the property owner's rights to challenge the process that the state had followed in his case and to hold that the state had not given him adequate notice of their intent to use the property -- well, not adequate notice not to use the property, but to be more precise, that they hadn't given him an adequate opportunity to express his objection to the public taking in that case.

GRASSLEY: Could I zero in on two words in the Kelo case? The Constitution uses the word use, public use. Where as the Kelo case talked about taking private property for public purpose. In your opinion, is public use and public purpose the same thing?

SOTOMAYOR: Well, as I understood the Supreme Court's decision in Kelo, it was looking at the court's precedence over time and determining that its precedence had suggested that the two informed each other, that public purpose in terms of developing an area that would have a public improvement and use that the two would inform each other.

GRASSLEY: Do you believe that the Supreme Court overstepped their constitutional authorities when they went beyond the words of the Constitution, in other words, to the word purpose, and thus expanded the ability of government to take an individual's private property? Because I think everybody believes that Kelo was an expansion of previous precedent there.

SOTOMAYOR: I know that there are many litigants who have expressed that view. And, in fact, there has been many state legislators that have passed state legislation not permitting state governments to take in the situation that the Supreme Court approved of in Kelo. The question of whether the Supreme Court overstepped the Constitution, as I've indicated, the court, at least my understanding of the majority's opinion, believed and explained why it thought not.

I have to accept because it is precedent that as precedent. And so, I can't comment further than to say that I understand the questions and I understand what state legislatures have done and would have to await another situation, or the court would, to apply the holding in that case.

GRASSLEY: Then I think that answers my next question. But it was going to be to ask you whether you think that Kelo improperly undermines the constitutionally-protected private property rights. I p you're saying that you believe that's what the court said and it doesn't undermine property rights.

SOTOMAYOR: I can only talk about what the -- the courts said in the context of that particular case and to explain that it is the court's holding. And so, it's entitled to stare decisis effect and deference.

GRASSLEY: I see.

SOTOMAYOR: But the extent of that has to await the next step, the next cases.

GRASSLEY: OK. Well, then maybe it would be fair for me to ask you what is your understanding of the constitutional limitations then on government entity -- any government entity taking land for public purpose?

SOTOMAYOR: Well, that was the subject of much discussion in the Kelo case among the justices. And with certain justices in the dissent hypothesizing that the limits were difficult to see, the majority taking the position that there were limits. As I've indicated to you, opining on a hypothetical is very, very difficult for a judge to do.

GRASSLEY: OK.

SOTOMAYOR: And as a potential justice on the Supreme Court but, more importantly, as a Second Circuit judge still sitting, I can't engage in a question that involves hypotheses.

GRASSLEY: Right. Let me ask you a couple obvious then. Does the Constitution allow for takings without any compensation?

SOTOMAYOR: Well, the Constitution provides when the government takes it has to pay compensation. As you know, the question of what constitutes an actual taking is a very complex one because there is a difference between taking a home and regulation that may or may not constitute a taking. It's -- so I'm not at all trying to not answer your question.

GRASSLEY: OK. Well, then let me ask you another question. Maybe you can't answer it. Would you strike down a taking that provided no compensation at all?

SOTOMAYOR: Well, as I explained, if the taking violates the Constitution, I would be required to strike it down.

GRASSLEY: Let me move on to the Didden case v. the Village of Port Chester. It raised serious concerns about whether you understand the protection provided by the Constitution for individual property rights. In this case, Mr. Didden alleged that his local village government violated his Fifth Amendment rights when it took his property to build a national chain drugstore. At the meeting with the government agency, another developer, Mr. Didden was told that he could give the developer $800,000 or a 50 percent interest in his pharmacy project. And if Mr. Didden did not accept either condition, the government would simply take his property.

Two days after Mr. Didden refused to comply with these demands, the government began proceeding to take his land. The district court denied Mr. Didden his day in court, and your panel affirmed that decision in a five-paragraph opinion. Why did you deny Mr. Didden his day in court? How can these facts, in essence, allegations of extortion at least not warrant the opportunity to call witnesses to see if Mr. Didden was telling an accurate story?

SOTOMAYOR: The Didden case presented a narrow issue that the court below...
PROTESTER: (OFF-MIKE)

LEAHY: Officer, remove that man immediately.

PROTESTER: (OFF-MIKE)

LEAHY: We will stand in order...

PROTESTER: (OFF-MIKE)

LEAHY: We will stand in order...

PROTESTER: (OFF-MIKE)

LEAHY: Officers, you will remove that man.

PROTESTER: (OFF-MIKE)

LEAHY: You know...(LAUGHTER) And they did. And they did.

LEAHY: Again, both Senator Session is and I have said, as all previous chairs and ranking members of this have said, this is a hearing of the United States Senate. The judge deserves respect. Senators in asking questions deserve respect.

I will order the removal of anyone who disrupts it, whether they're supportive of the nominee or opposed to the nominee, whether they're supportive of a position I take or opposed to it. We will have the respect that should be accorded to both the nominee and to the United States Senate.

SESSIONS: Thank you, Mr. Chairman. I think you've handled this well throughout, and I support you 100 percent.

LEAHY: Thank you. Senator -- Senator Grassley, we did stop the clock, so it did not take from your time.

GRASSLEY: Thank you. People always say I have the ability to turn people on. (LAUGHTER) Maybe you could start over again with your -- with your sentence, please.

(UNKNOWN): Where were we?

SOTOMAYOR: I hope I remember where we were.

GRASSLEY: OK.

SOTOMAYOR: Senator, the right of property owners to have their day in court is a very important one, but there is a corollary to the right to have your day in court, which is that you have to bring it to court in a timely manner...

GRASSLEY: OK.

SOTOMAYOR: ... because people who are relying on your assertion of rights should know when you're going to make them. And so there's a doctrine called the statute of limitations that says if a party knows or has reason to know of their injury, then that party has to come in to court and raise their arguments within that statute that sets the limits of the action. GRASSLEY: I...
SOTOMAYOR: In the -- oh, I'm sorry.

GRASSLEY: No, no, no...

SOTOMAYOR: No, no, no.

GRASSLEY: ... you, please. I interrupted you. I should not have interrupted you.

SOTOMAYOR: No, I...

GRASSLEY: Please, go ahead.

SOTOMAYOR: In the Didden case, the question was whether Mr. Didden knew that the state was intending to take his property and for what it, the state, claimed was a public use and that it had plans to have a private developer take his -- they take his property and the private developer develop the land.

So there was a full hearing by the village on this question of whether there was a public use of the land. Mr. Didden didn't claim in the action before the courts that he didn't have notice of that hearing. He did not raise a challenge in that hearing to the public taking. And he didn't raise a challenge to the state's intent to have a private developer develop the land.

Now, in that case, the developer was developing not just Mr. Didden's property. It was one piece of property in a larger development project. And that larger development project had been based on the village's conclusions from its very lengthy hearings in accordance with New York law that the area was blighted and that the area needed economic development.

 

SOTOMAYOR: So to that issue became the issue before the court in the sense of, had Mr. Didden, knowing that he could be injured by the state's finding of public use and the state's decision to let a private developer develop this land -- did he bring his lawsuit in a timely manner. And the court below and our court ruled on that basis that he hadn't because he had reason to know about the injury that could -- that could come to him.

GRASSLEY: Well, since Mr. Didden's claim was based on conduct of the developer, how could he ever have filed a successful claim under the standard that you just mentioned?

SOTOMAYOR: Mr. Didden alleged in his complaint that the private developer had extorted him. Extortion, under the law, is defined as an unlawful demand for money. On this one piece of property, within a larger development that the private developer was actively engaged in doing what he had contracted with the state to do, to revive the economic base by making investments in it, the private developer knew that Mr. Didden had his claims. The private developer had his agreement with state.

And so he was doing -- at least this was the private developer's argument -- what he was entitled to do which is to say we disagree. I'm claiming that I have a right under contract. You're claiming that you have a right under the takings clause. Let's settle this.

I'm going to lose X amount of money. So you pay me back for me not to do what I'm entitled to do under the law. That's, however, was -- those were the claims of the parties in the action. In the end, the decision of the court was if you believe that the takings of your property were not proper under the public use -- under the takings clause, and you knew that the state had entered a contract with this private developer, then you had knowledge that you could be injured and you should have come to court earlier.

GRASSLEY: Why was the situation in Didden not the kind of prohibited pretextual (ph) taking articulated in Kelo? How was this not some sort of form of extortion? And if there wasn't a pretext in the Didden case where the developer says give me the money personally or we'll take your land, then what is the pretext?

SOTOMAYOR: Well, as I -- as I have described the case...

GRASSLEY: Yes, I understand.

SOTOMAYOR: ... the question comes up in the context of what did Mr. Didden know, did he have enough to know he could be injured, was there no public use to the -- to which the property would apply, and what rights did the private developer have with the state.

And so the extortion question came up in a legal context surrounding the relative rights of the parties. And so as I said, extortion is a term -- a legal term which is someone demanding money with no lawful claim to it. I'm simplifying this. There's different definitions of extortion that apply to different situations. But in the context of this case, that's the simplest description of the case, I believe.

GRASSLEY: The Second Circuit panel in Didden took over a year to issue its rulings, suggesting that you understood the novelty and importance of this case, yet your opinion dealt with Mr. Didden's Fifth Amendment claim in just one paragraph. Did you believe that this was an ordinary takings case?

SOTOMAYOR: Well, cases present claims by parties. And to the extent that Mr. Didden was raising claims that sounded in the issues the court was looking at in Kelo, certainly if Kelo had not come out and the court had to, for whatever reason, determine that somehow the Kelo decision affected the statute of limitations question, it may have had to reach the question.

But courts do often wait for supreme courts to act on cases that are pending in order to see if some form of its analysis changes or not or inform whether a different look should be given to the case. But on the bottom-line issue, Kelo didn't change, in the judgment of the panel, the statute of limitations question.

GRASSLEY: OK. Regardless of the statutes of limitations, I am curious why you didn't elaborate on your Kelo analysis. And why wasn't this opinion published?

SOTOMAYOR: Well, Kelo didn't control the outcome; the statute of limitations did. So there was no basis to go into an elaborate discussion of Kelo.

The discussion of Kelo really was to say that we had understood the public taking issue that Mr. Didden had spent a lot of time in his argument about, but the ruling was based on the narrow statute of limitations ground. So the Kelo discussion didn't need to be longer because it wasn't the holding of the case. The holding of the case was the statute of limitations.

GRASSLEY: OK. This -- on another case, the Supreme Court reversed you 6-3 just three months ago in Entergy Corporation v. Riverkeeper. You had held that the Environmental Protection Agency, which is the agency with expertise, could not use a cost-benefit analysis in adopting regulations from the construction of water structures that had an impact on fish.

Rather, you interpreted the Clean Water Act to hold that EPA had to require upgrades to technology that achieved the greatest reduction in adverse environmental impact, even when the costs of those upgrades were disproportionate to benefit. Following long-established precedent, the Supreme Court held that the EPA was reasonable in providing a cost-benefit analysis when adopting regulations under the Clean Water Act. In reversing, the Supreme Court questioned your proper applications of settled law that agency regulations should be upheld, so long as they're reasonable.

Under Chevron, agency interpretation of statutes are entitled to deference so long as they are reasonable, in other words, if they aren't capricious and arbitrary. Do you find it unreasonable that the EPA was willing to allow money to be spent in a cost-effective manner by not requiring billions of additional dollars to be spent to save a minimal number of additional fish?

SOTOMAYOR: To be able to answer your question, I would need to explain a little bit more about the background. The Supreme Court has now ruled in that case that the conclusion of the Second Circuit would not be upheld on this narrow question. But the question the 2nd Circuit was looking at is what did Congress intend or mean when in the statute at issue it said that the agency had to use the best technology available to minimize an adverse environmental impact. Those were the statute's words.

In looking at that, the circuit applied general statutory construction principles, which is, in our judgment, what was the ordinary meaning of that and...

GRASSLEY: Are you saying you're not bound by Chevron then?

SOTOMAYOR: No, absolutely not.

GRASSLEY: OK, go ahead.

SOTOMAYOR: Chevron -- Chevron speaks to agency action or interpretation. But ultimately the task of a court is to give deference to what Congress wants. That's the very purpose of Congress' legislation. And so, what the court was trying to do there was to see if the agency's interpretation in light of the words of the statute and how Congress has used cost-benefit analysis in other statutes in this area and determine what Congress intended.

And so, we looked at the language. And it said just what it said -- best technology available to minimize adverse environmental impact. We looked at how Congress used cost benefit in similar statutes and similar provisions. Or I shouldn't say similar -- in other provisions. We noted that under the statutes at issue when Congress wanted the agency to use cost-benefit analysis, it said so.

In this provision, Congress was silent. But the language, in the panel's judgment, was the language. And so, in trying to discern what Congress' intent was, we came to the conclusion, not that cost had no role in the agency's evaluation, but that Congress had specified a more limited role than cost benefit. We described it as cost effectiveness.

And, in fact, we voted to vote it past our decision, asked and sent the case back to describe to us exactly what the agency had done and why. Had it used cost benefit? Had it used cost effectiveness? The cost was always going to be a part of what the agency could consider. The issue was more in what approach did Congress' words intend.

And so, agency deference is important. But Congress is the one who writes the statutes. So you have to start as a court with what did Congress intend.

GRASSLEY: It seems to me like you're saying when going (ph) the expertise of the statute that the agency was being arbitrary and capricious in...

SOTOMAYOR: Not -- not at all, sir. We were trying to look at the statute as a whole and determine what Congress meant by words that appeared to say that best technology available had to minimize an environmental effect.

GRASSLEY: OK.

SOTOMAYOR: As I said, that does have -- and as our opinion said, considerations of cost. But given that Congress didn't use the cost benefit -- give the agency cost benefit approval in the terms of this particular provision while it had in others, we determined that the agency and precedent interpreting provisions limited the use of cost benefit analysis.

GRASSLEY: In another 2004 administrative law case dealing with environmental issues, NRDC v. Abraham, you voted to strike down a Bush administration regulation and reinstate a Clinton administration environmental rule that had never even become final. In this case, it appears you also fairly narrowly interpreted Chevron deference when striking down EPA adoptions of reasonable regulations.

If you were elevated to the Supreme Court, do you intend to replace an agency's policy decisions with your own personal policy opinions, as it appears you did in both -- in the Abraham case?

SOTOMAYOR: No, sir. In that case, we were talking about and deciding an issue of whether the agency had followed its own procedures in changing policy. We weren't substituting our judgment for that of the agency. We were looking at the agency's own regulations as to the procedure that it had to follow in order to change an approach by the agency.

So that was a completely different question. With respect to deference to administrative bodies, in case after case where Chevron deference required deference, I have voted in favor of upholding administrative -- executive and administrative decisions.

GRASSLEY: This will probably have to be my last question. Since 2005, you have been a presiding judge on a panel of an appeal filed by eight states and environmental groups arguing that greenhouse gases are a public nuisance that warrant a court-imposed injunction to reduce emissions.

Your panel, in Connecticut v. American Electric Power, has sat on that case for 45 months or nearly three times the average of the Second Circuit. Why, after four years, have you failed to issue a decision in this case?

SOTOMAYOR: The American Bar Association rule on code of conduct does not permit me to talk about a pending case. I can talk to you about one of the delays for substantial a period of time in that decision, and it was that the Supreme Court was considering a case, a Massachusetts case, that had some relevancy or at least had relevancy to the extent that the panel asked the parties to brief further the applicability of that case to that decision.

GRASSLEY: OK. Thank you, Mr. Chairman.

LEAHY: Thank you, Senator Grassley. Senator Feingold?

 

FEINGOLD:

FEINGOLD: Judge, let me first say I don't mind telling how much I'm enjoying listening to you, both your manner and your obvious, tremendous knowledge and understanding of the law. In fact, I'm enjoying it so much that I hope when you go into these deliberations about cameras in the courtroom, that you consider the possibility that I and other Americans would like the opportunity to observe your skills for many years to come in the comfort of our family rooms and living rooms.

SOTOMAYOR: You were a very good lawyer, weren't you, Senator? (LAUGHTER)

FEINGOLD: But I'm not going to ask you about that one now. Others have covered it.
Let me get into a topic that I discussed at length with -- with two most recent Supreme Court nominees, Chief Justice Roberts and Justice Alito, and that's the issue of executive power.

In 2003, you spoke at a law school class about some of the legal issues that have arisen since 9/11. You started your remarks with a moving description of how Americans stood together in the days after those horrific events and how people from small, Midwestern towns and people from New York City found their common threads as Americans, you said.

As you said in that speech, while it's hard to imagine that something positive could ever result from such a tragedy, that there was a sense in those early days of coming together as one community, that we would all help each other get through this.

And it was, of course, something that none of us had ever experienced before and something I've often discussed, as well. But what I have to also say is that, in the weeks and months that followed, I was gravely disappointed that the events of that awful day, the events that had brought us so close together as one nation, were sometimes used, Judge, to justify policies that departed so far from what America stands for.

So I'm going to ask you some questions that I asked now-Chief Justice Roberts at his hearing. Did that day, 9/11, change your view of the importance of individual rights and civil liberties and how they can be protected?

SOTOMAYOR: September 11th was a horrific tragedy for all of the victims of that tragedy and for the nation. I was in New York. My home is very close to the World Trade Center. I spent days not being able to drive a car into my neighborhood because my neighborhood was used as a staging area for emergency trucks.

The issue of the country's safety and the consequences of that great tragedy are the subject of continuing discussion among not just senators, but the whole nation.

In the end, the Constitution, by its terms, protects certain individual rights. That protection is often fact-specific. Many of its terms are very broad. So what's an unreasonable search and seizure? What are other questions or facts specific?

But in answer to your specific question, did it change my view of the Constitution? No, sir, the Constitution is a timeless document. It was intended to guide us through decades, generation after generation, to everything that would develop in our country. It has protected us as a nation. It has inspired our survival. That doesn't change.

FEINGOLD: Well, I appreciate that answer, Judge. Are there any elements of the government's response to September 11th that you think maybe 50 or 60 years from now we as a nation will look back on with some regret?

SOTOMAYOR: I'm a historian by undergraduate training. I also love history books. It's amazing how difficult it is to make judgments about one's current positions. That's because history permits us to look back and to examine the actual consequences that have arisen, and then judgments are made.

As a judge today, all I can do, because I'm not part of the legislative branch -- it's the legislative branch who has the responsibility to make laws consistent with that branch's view of constitutional requirements and its powers. It's up to the president to take his actions. And then, it's up to the court to just examine each situation as it arises.

FEINGOLD: I can understand some hesitance on this. But the truth is that courts are already dealing with these very issues. The Supreme Court itself has now struck down a number of post- 9/11 policies. And you yourself sat on a panel that struck down one aspect of the National Security Letter statutes that were expanded by the Patriot Act.

So, I'd like to hear your thoughts a bit on whether you see any common themes or important lessons in the Court's decisions in Rasul, Hamdi, Hamdan and Boumediene. What is your general understanding of that line of cases?

SOTOMAYOR: That the Court is doing its task as judges. It's looking, in each of those cases, at what the actions are of either the military, and what Congress has done or not done, and applied constitutional review to those actions.

FEINGOLD: And is it fair to say, given that line of cases, that we can say that, at least as regards the Supreme Court, it believes mistakes were made with regard to the post-9/11 policies? Because in each of those cases, there was an overturning of a decision, either by the Congress or the executive.

SOTOMAYOR: I smiled only because that's not the way that judges look at that issue. We don't decide whether mistakes were made. We look at whether action was consistent with constitutional limitations, or statutory limitations.

FEINGOLD: And in each of those cases, there was a problem with either a constitutional violation or a problem with a congressional action. Right?

SOTOMAYOR: Yes.

FEINGOLD: That's fine. As I'm sure you're aware, many of us on the committee discussed at length with the prior Supreme Court nominees the framework for evaluating the scope of executive power in the national security context. You already discussed this at some length with Senator Feinstein, Justice Jackson's test in the Youngstown case.

And I and others on the committee are deeply concerned about the very broad assertion of executive power that's been made in recent years, an interpretation that has been used to authorize the violation of clear statutory prohibitions, from the Foreign Intelligence Surveillance Act and the anti-torture statute.

You discussed with Senator Feinstein the third category, the lowest ebb category, in the Youngstown framework. And that's where, as Justice Jackson said, the president's power is at its lowest ebb, because Congress has, as you well explained it, specifically prohibited some action.

I take the point of careful scholars who argue that, hypothetically speaking, Congress could conceivably pass a law that is plainly unconstitutional. For example, if Congress passed a law that said that somebody other than the president would be the commander in chief of a particular armed conflict, and not subject to presidential direction, presumably, that would be out of bounds.

But setting aside such abstract hypotheticals, as far as I'm aware -- and I'm pretty sure this is accurate -- the Supreme Court has never relied on the Youngstown framework to conclude that the president may violate a clear statutory prohibition. In fact, in Youngstown itself, the court rejected President Truman's plan to seize the steel mills. Now, is that your understanding of the Supreme Court precedent in this area?

SOTOMAYOR: I haven't cases, or a sufficient number of cases, in this area to say that I can remember every Supreme Court decision on a question related to this topic.

As you know, in the Youngstown case, the court held that the president had not acted within his powers in seizing the steel mills in the particular situation existing before him at the time.
But the question or the framework doesn't change, which is, each situation would have to be looked at individually, because you can't determine ahead of time with hypotheticals what a potential constitutional conclusion will be.

As I may have said in -- to an earlier question, academic discussion is just that. It's presenting the extremes of every issue and attempting to debate about, on that extreme of the legal question, how should the judge rule?

FEINGOLD: I'll concede that point, Judge. I just -- I mean, given your tremendous knowledge of the law and your preparation, I'm pretty sure you would have run into any example of where this had happened.
And I just want to note that I am unaware of and if anybody is aware of an example of where something was justified under the president's power under the lowest ebb, I'd love to know about it, but I -- I think that's a -- that's not a question of a hypothetical. That's a factual question about what the history of the case law is.

SOTOMAYOR: I -- I can only accept your assumption. As I said, I -- I have not had sufficient cases to have looked at what I know in light of that particular question that you're posing.

FEINGOLD: In August 2002, the Office of Legal Counsel at the Department of Defense issued two memoranda considering the legal limits on interrogation of terrorism detainees. And one of these contained a detailed legal analysis of the criminal law prohibiting torture.

It concluded, among other things, that enforcement of the anti- torture statute would be an unconstitutional infringement on the president's commander-in-chief authority.

But, Judge, that memo did not once cite to the Youngstown case or to Justice Jackson's opinion in Youngstown. And we just learned on Friday in a new inspector general report that a November 2001 OLC memo providing the legal basis for the so-called terrorist surveillance program also did not cite Youngstown.

Now, I don't think you would have to be familiar with those memos to answer my question. Does it strike you as odd that a complex legal analysis of the anti-torture statute or the FISA act that considers whether the president could violate those statutes would not even mention the Youngstown case?

SOTOMAYOR: I have never been an adviser to a president. That's not a function I have served, so I don't want to comment on what was done or not done by those advisers in that case. And it's likely that some question -- and I know some are pending before the court in one existing case, so I can't comment.

All I can comment -- on whether that's surprising or not, I can only tell you that I would be surprised if a court didn't consider the Youngstown framework in a decision involving this question, because it is -- that case's framework is how these issues are generally approached.

FEINGOLD: Good. I appreciate that answer.
Let me go to a topic that Senator Leahy and Senator Hatch discussed with you at some length, the Second Amendment. And I have long believed that the Second Amendment grants citizens an individual right to own firearms. And, frankly, I was elated when the court ruled in Heller last year basically what I think had been a mistake all along, to not recognize it as an individual right.

FEINGOLD: The question of whether the Second Amendment rights are incorporated in the 14th Amendment's guarantee of due process of law and, therefore, applicable to the states, as you pointed out, was not decided in Heller. And a Supreme Court decision in 1886 specifically held that the Second Amendment applies only to the federal government.

So, in my view, it is unremarkable that as a circuit court judge in the Maloney case you would follow applicable Supreme Court precedent that directly controlled the case rather than apply your own guess of where the court may be headed after Heller. In other words, I think that's -- would be an unfair criticism of a case that I think you needed to rule that way given the state of the law.

But let me move on that from because many of my constituents would like to know more about how you would make such a decision as a member of the highest courts. So I want to follow up on that.
First of all, am I right that if you're confirmed and the court grants cert in the Maloney case, you would have to recuse yourself from its consideration?

SOTOMAYOR: Yes, sir. My own judgment is that it would seem odd, indeed, if any justice would sit in review of a decision that they authored. I would think that the judicial code of ethics that govern recusals would suggest and command that that would be inappropriate.

FEINGOLD: Fair enough. What about if one of the other pending appeals comes to the Court such as the Seventh Circuit decision in NRA v. Chicago which took the same position as your position in Maloney, would you have to recuse yourself from that one as well?

SOTOMAYOR: There are many cases in which a justice, I understand, has decided cases as a circuit court judge that are not the subject of review that raise issues that the Supreme Court looks at later. What I would do in this situation, I would look at the practices of the justices to determine whether or not that would counsel to recuse myself.

I would just note that many legal issues, once they come before the Court, present a different series of questions than one addresses at the circuit court.

FEINGOLD: Well, let's assume you were able to sit to one of these cases or a future case that deals with this issue of incorporating the right to bear arms as applied to the states. How would you assess whether the Second Amendment or any other amendment that has not yet been incorporated through the 14th Amendment should be made applicable to the states? What's the test that the Supreme Court should apply?

SOTOMAYOR: That's always the issue that litigants are arguing in litigation. So to the extent that the Supreme Court has not addressed this question yet and there's a strong likelihood it may in the future, I can't say to you that I've prejudged the case and decided this is exactly how I'm going to approach it...

FEINGOLD: But what would be the general test for incorporation?

SOTOMAYOR: Well...

FEINGOLD: I mean, what is the general principle?

SOTOMAYOR: One must remember that the Supreme Court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.
And so the framework established in those cases may well inform -- as I said, I've hesitant of prejudging and saying they will or won't because that will be what the parties are going to be arguing in the litigation. But it is...

FEINGOLD: Well...

SOTOMAYOR: I'm sorry.

FEINGOLD: No, no. Go ahead.             (More to Come)