Senate Debate on Empathy
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http://www.c-spanarchives.org/congress/?q=node/77531&id=9027857

James Inhofe

Mr. INHOFE. Mr. President, let me confess that I feel totally inadequate standing here tonight and talking about the subject of the confirmation of Judge Sotomayor. I am not a lawyer. I am amidst these brilliant lawyers. I listened to Senator Hatch and Senator Sessions. They have the kind of background where they can really get into this and look constitutionally and legally and evaluate, and I am not in that position.

I would like to speak on this nomination for the following reasons. I want to reaffirm my opposition to her confirmation.

I was the first Member of the Senate on the day she was nominated who announced I would not be supporting her. I recognize, as Senator Hatch said, that she will be confirmed. We know that.

I remember what Senator Schumer, the senior Senator from New York, said shortly after she was first nominated. He made the statement that Republicans are going to have to vote for her because they don't want to vote against a woman, vote against a Hispanic. He was right. But I would suggest that after the hearing, that statement is not nearly as true as it was before the hearings because of some of the extreme positions she has taken.

I have to say that from a nonlawyer perspective, I look at it perhaps differently than my colleagues who are learned scholars in the legal profession. A lifetime appointment to the Supreme Court requires not only a respect for the rule of law but also for the separation of powers and an acknowledgment that the Court is not a place where policy is made. The Court is about the application of the law and not where judges get to make the world a place they want it to be. I saw that all throughout
the hearings I watched with a great deal of interest.

In May of 2005, Judge Sotomayor asserted that the ``court of appeals is where policy is made.'' She also wrote in a 1996 law review article that ``change--sometimes radical change--can and does occur in a legal system that serves a society whose social policy itself changes.''

The Constitution is absolutely clear: Policy is made in the Halls of Congress, right here--that is what we do for a living--not in the courtroom. Legislators write the laws. Judges interpret them. We understand that. Even those of us who are nonlawyers remembered that all the way through school. Sotomayor is correct that societies change, but the policies that are made to reflect these changes are done through Members of Congress who are elected to represent the will of the people.

Obviously, we are talking about a lifetime appointment. There is no accountability after this point. When judges go beyond interpreting the laws and the Constitution and legislate from the bench, they overstep their jurisdiction and their constitutional duty. Allowing judges who are not directly elected by the people and who serve lifelong terms to rewrite laws from the bench is dangerous to the vitality of a representative democracy. Simply put, judicial activism places too much power in the
hands of those who are not directly accountable to the people. That is what we are talking about, a lifetime appointment.

Judge Sotomayor has overcome significant adversity to achieve great success, and I agree with Senator Hatch in his comments that we admire her for her accomplishments under adverse conditions. However, while her experiences as a Latina woman have shaped who she is as a person, they should not be used, as she affirms, to affect her judicial impartiality and significantly influence how she interprets the law and the Constitution.

In 2001, Judge Sotomayor gave a speech at the University of California, Berkeley in which she stated:


I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.


She has on several occasions conveyed the same idea. Between 1994 and 2003, she delivered speeches using similar language at Seton Hall University, the Woman's Bar Association of the State of New York, Yale University, the City University of New York School of Law. It is not a slip of the tongue once; this is a statement that has been reaffirmed and reaffirmed. Quite frankly, that was the reason for [Page: S8752]
my opposition back in 1998 when she was nominated to
be on the circuit court of appeals. The statements she made show a very biased opinion that someone who is not a lawyer sees and thinks should disqualify someone for the appointment.

She further stated in 1994, in a presentation in Puerto Rico, that:


Justice O'Connor has often been cited as saying that ``a wise old man and a wise old woman reach the same conclusion'' in deciding cases ..... [however] I am also not sure that I agree with that statement ..... I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion.

That is pretty emphatic. There is no other way you can interpret that. She thinks that a woman with her experience can make a better conclusion than a White male. I consider that racist. Sotomayor not only suggests the possibility of judicial impartiality but also that gender and ethnicity should influence a judge's decision.

Furthermore, President Obama said that in choosing the next Supreme Court nominee, he would use an empathy standard. While judges may and should be empathetic people, they must be impartial judges first. If empathy was a guiding standard, with whom should a judge empathize? Should more empathy be shown to one race, one gender, one religion, one lifestyle? True justice does not see race, gender, or creed. We are all equal in the eyes of the law, and the law must be applied equally.

That is why she wears a blindfold. It is supposed to be blind justice.

Rather than looking to factors beyond the law, judges must solely examine the facts of the case and the law itself. Their ability to equally apply justice under the law is the standard by which we should select judges. So we have two different standards right now with which I disagree. One is that judges should make policy and, secondly, that gender and ethnicity should influence decisions.

Another belief on which Judge Sotomayor and I fundamentally disagree is that American judges should consider foreign law when deciding cases. This probably concerns me more than any of the rest of them--the fact that we have this obsession in these Halls, in this Senate, that nothing is good unless it somehow comes from the United Nations or is coming from some multinational origin.

In 2007, in the forward to a book--and I read this myself--titled, ``The International Judge,'' Sotomayor wrote:

[T]he question of how much we have to learn from foreign law and the international community when interpreting our Constitution is not the only one worth posing.



This past spring, Judge Sotomayor gave an alarming speech at the ACLU which addressed this topic. She said:



[T]o suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that is based on a fundamental misunderstanding, what you would be asking American judges to do is to close their minds to good ideas. .....



No, Judge Sotomayor, it is sovereignty that we are talking about. Statements like these make it clear that President Obama has nominated a judge to our highest Court who believes our courts should rely on foreign decisions when interpreting our Constitution. And I have to say, whatever happened to sovereignty? This obsession with multinationalism has to come to an end. I believe America will reject this type of thought. Americans do not want the rest of the world interpreting our laws, and neither
do I.

Finally, Mr. President, Judge Sotomayor's record on the second amendment is constitutionally outrageous. Maybe it is because I come from Oklahoma, but that is the thing I hear about more than anything else down there, and my own kids, I might add.

I do not believe Judge Sotomayor can be trusted to uphold the individual freedom to keep and bear arms if future second amendment cases come before her. I have received no assurances from her past decisions or public testimony that she will be willing to fairly consider the question of whether the second amendment is a fundamental right and thus restricts State action as it relates to the second amendment. It is incomprehensible to me that our Founding Fathers could have intended the right to
keep and bear arms as nonbinding upon the States and instead leave the right to be hollowed out by State and local laws and regulations. History and common sense do not support this.

I have to tell you, this has been more of a concern in my State of Oklahoma than anything else. I cannot confirm a nominee who believes the second amendment is something other than a fundamental right and instead treats it as a second class amendment to the Constitution. I do not know what a second class amendment to the Constitution is. This is not in line with my beliefs and not in line with the beliefs of the majority of Americans--certainly from my State of Oklahoma.

Today, I am persuaded the confirmation hearings served only to highlight many of my concerns. The numerous inconsistencies of her testimony with her record have persuaded not only me but the American people that Judge Sotomayor is not qualified to serve as a Justice on the highest Court, the U.S. Supreme Court. I say that because a recent Zogby Poll--and as several other polls have also consistently confirmed--following the confirmation hearings revealed that only 49 percent of Americans support
Judge Sotomayor's confirmation, with an equal number opposing it. This is significant because she played the race card all the way through this thing and was talking about the Hispanic effect. But the same poll showed that among Hispanic voters, only 47 percent say they are in favor of her confirmation.

In other words, there are fewer people in the Hispanic community who are favoring her confirmation than in the non-Hispanic. These numbers are evidence of the fact that Judge Sotomayor has not gained the approval of the American people during her confirmation hearings, and she certainly has not gained mine.

I was the first Member of the Senate to publicly announce my opposition to Judge Sotomayor after her nomination to the Supreme Court on May 26. On that date, I stated I could not confirm her. In addition to all the above, there is another reason. While I do not often agree with Vice President Biden, I do agree with his statement that once you oppose a Federal court nominee, you cannot support that nominee for a higher court because the bar is higher. I think that is very significant
to point out here because there are several who are still serving today, as I am, who opposed her to the circuit court in 1998. I think Vice President Biden is correct. As the standard goes up, once you get to the U.S. Supreme Court, that is the end. So that should be the very highest standard. So it is unconceivable that anyone who would have opposed her in 1998 could turn around and support her now.

I have to say there are a lot of reasons I have pointed out. One is judges making policy. I object to that; I find that offensive. Gender and ethnicity should be a consideration; that is wrong. The international thing, that we have to go to the international community to see that we are doing the right thing in interpreting our Constitution; that is a sovereignty issue. The second amendment, that is a concern.

So even though Judge Sotomayor will be confirmed, it will be without my vote. I would have to say for the sake of my 20 kids and grandkids that I will oppose Judge Sotomayor's nomination to the U.S. Supreme Court.

Mr. President, I yield the floor and suggest the absence of a quorum.