Senate Debate on Empathy
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Text From the Congressional Record


Sessions, Jeff [R-AL]
 
Begin 2009-08-04 18:14:00
End   18:44:43
Length 00:30:43
Mr. SESSIONS. I appreciate the opportunity to speak. Before I do, I want to say that we had some disagreements as we went along about how to conduct the hearings. But Chairman Leahy made a commitment that we would have a fair hearing, that every Senator would have an opportunity to question the witnesses and have the time to follow up, and he complied with that. I think we had a good hearing.

Judge Sotomayor was voted out of the committee, and I appreciate her kind words to me and to our colleagues on how she felt she was treated. I think the hearings were fair and effectively discussed the important issues raised by this nomination.

Our confirmation process began with the President indicating that empathy was a standard that he believes should be applied to selecting judges. There is some disagreement about that. I am one of those who do not believe that is a legal standard. It is a kind of standard that is closer to a political standard, and we need to be careful that politics do not infect the judiciary.

I certainly do not profess to be able to say with certainty how Judge Sotomayor will perform if confirmed to the Supreme Court.

History shows that Justices, once confirmed, often surprise. I have previously expressed my evaluation and decision in this matter. I will just say I hope I am wrong. But I have concluded that the nominee has a fully formed judicial philosophy, one that is held by quite a few other lawyers and judges, but it is a philosophy contrary to the classical underpinnings of the American legal system, a system that has blessed us so much. Edmond Burke, in his famous speech ``On Conciliation with the Colonies,''
urged the King to avoid war, noting that the Colonies were simply asserting the rights to which they had become accustomed. He observed that almost as many copies of Blackstone's Commentaries on the Laws were being sold in America as in England.

From the beginning, Americans have honored law because, I suspect, it was the arena in which the poor individual citizen could and often did prevail against the powerful. Even before the Revolution, judges, juries, and English law decided cases. It was a people's power controlled by law that would prevail even over the political wishes of the powerful. Laws, Burke noted, were to be created by the people through their elected representatives, not judges. Law in the new Republic was not an abstract.
It was concrete. The laws meant what they said. If by some loophole even an evil act was not covered by criminal law, the prisoner was to go free.

Importantly, our system rested upon a near universally held belief that law and order were necessary for freedom and progress to occur. It further rested on the firm belief that there was such a thing as objective truth and that if a real effort was put forth, truth could be ascertained. For most, this was an easy concept, since a belief in God, the ultimate truth, was widespread. Thus, the legal system was arranged to best discover truth. Rules of evidence, cross-examination, and the adversarial system were parts of the design to discover truth. Many nations have tried to replicate it without success. It is a national treasure, our legal system.

I believe our Federal courts are the greatest dispensers of justice the world has ever known. For 15 years, I practiced full time as a Federal attorney before Federal judges. I saw the system operate. I have seen State and local judges, Republicans and Democrats, serve faithfully day after day, adhering to the ideal of objectivity, fairness, and law. But many intellectuals in recent decades look upon such an approach as anti-intellectual. They conclude such thinking that judges actually do in an ideal way, they find this is hopelessly naive. They think it is unrealistic. The brilliant jurist and intellectual Jerome Frank, quoted favorably by Judge Sotomayor in a law review article, said as much in the early part of the last century.

Since then, many theorists have gone even further, moral relativists, postmodernists, deconstructionists, critical legal studies adherents, they all come from the same pond. They don't believe--some don't--that there is an ascertainable truth. They believe these ideals actually confuse thinking and mislead. They believe it is results that count.

I don't agree. The American people don't agree. Ideals are important. High standards can be reached. Not every time, I am sure, but most times. If the ideal is not ardently sought, it will be reached less and less. The American people are not cynics who settle for less than the ideal of impartiality and equal justice for the poor and the rich under the Constitution and the laws of this country. Each judge operates under the Constitution and laws of this country. They expect, rightly, that every judge will be fully committed to the heritage of law and the judicial oath they take to follow it.

That is why I have expressed the view since this process has begun, that we are at a fork in the road, perhaps. Will we continue to adhere to the classical ideal of American jurisprudence, or will we follow results-oriented judging, where judges cease to be committed to the law and equal justice because they know it is not possible. Do they believe words are just words? Do they believe the Constitution can be made to say what one wants it to say? In this world, the Constitution cannot bind a judge to what the judge considers an unwise result. Instead, we should see the Constitution as a flexible, living document. Under this view, judges are not just umpires. Judges are more powerful. Judges can make the Constitution and law say what they would prefer it to say. Judges can ensure that the right team wins. Judges can make policy. That is the seductive siren call of judicial activism, and judicial activism is an impropriety that can be embraced by conservatives as well as liberals.

Our former chairman, Senator Hatch, has often said: Activism is a tendency in a judge to allow their personal and political views and values to override the law and the facts of a case to achieve a result they think is desirable. That is what is not acceptable in our system.

That is why, at the most fundamental level, many have a problem with this nominee. It seems clear from her writings and speeches that she is a devotee of the new philosophy of judging. Her speeches, over the years, are quite clear on this matter, although her hearing testimony backtracked from it in a somewhat confusing manner.

Regrettably, I was not able to support her nomination in committee, nor will I support her nomination before the full Senate. I would like to discuss in greater detail a few of the reasons that lead me to that conclusion. There are more things that will be discussed later as we go along, but let me say a few things now.

Even before the nomination of Judge Sotomayor, I made clear what my criteria would be for assessing a Supreme Court nominee: impartiality, commitment to the rule of law, integrity, legal experience, and judicial temperament. Judge Sotomayor possesses the well-rounded I like to see in a Supreme Court Justice. She has a wonderful personal story. She was a prosecutor. She was a private practitioner. She was a trial judge, and she was an appellate judge. Those are good experiences for a judge
on the Supreme Court. However, her speeches and cases she has decided are troubling because they reflect the lack of a proper sense of the clearly stated constitutional rights that are guaranteed to American citizens. Her testimony was her opportunity to convince us she would be the type of Justice we could vote for. Instead her answers lacked clarity, the consistency and courage of conviction one looks for in a nominee to the Supreme Court.

In many instances, she raised more questions through her testimony than she answered. Judge Sotomayor's expressed judicial philosophy rejects openly the ideal of impartial and objective justice. Instead, her philosophy embraces and accepts the impact that background, personal experience, gender, sympathies, and prejudices--these are her words--have on judging. A fair and plain reading of these speeches--read in context--calls into question Judge Sotomayor's commitment to impartiality and objectivity.

When given an opportunity to explain this philosophy, as was reflected in speech after [Page: S8734]
speech, year after year, Judge Sotomayor dodged and deflected. In many cases, her answers could not be squared with the facts.

It has been suggested we should disregard those speeches. It has been suggested they are just words, that they are merely meant to inspire. In short, it has been suggested the words of the speeches simply do not matter. But words do matter. Words are important. They must have meaning or the result is chaos. No one should know this more than a judge. Her speeches and academic writings were not offhand comments delivered without the aid of notes. They were carefully crafted to dispute the notion that impartiality is realistic, or even possible. These were not the musings of a second-year law student. They were all delivered after she was a Federal judge. They were delivered to a number of different audiences, a number of different forums, including a bar association.

In her speeches and academic articles, Judge Sotomayor describes other approaches to judging and her approach to the law. She describes the factors judges should consider when reaching decisions. She describes her fully formed judicial philosophy. She challenges the mainstream concept of judging.

Make no mistake, judicial philosophy matters. It guides judges. It tells them what to consider. Importantly, it tells them what not to consider. Judicial philosophy is quite different from a judge's personal, political, moral or social views that a judge is to set

aside when they decide a case. That is what blindfolded justice means. When a judge puts on that robe, they are, in effect, saying to everyone in that courtroom that their personal biases and prejudices and so forth will not impact the fairness of the ruling they are called upon to make.

Judges in trial and appellate courts, of course, are constrained by precedent. Even if a trial or appellate judge harbors a radical approach to the law, the threat of reversal restricts that judge's ability to employ that philosophy. But on the Supreme Court, however, these restrictions are removed. On the Supreme Court, there is no additional review. On the Supreme Court, a judicial philosophy that is fully formed is permitted to reach full bloom. As a liberal law dean recently said in the Los
Angeles Times: ``There's a huge difference between being a court of appeals judge who is bound by precedent and a Supreme Court justice who can rewrite those precedents.''

That is why judicial philosophy matters. Frankly, after reviewing her consistent speeches in preparation for the confirmation hearing, I expected Judge Sotomayor to defend her views. I expected her to defend her statement that ``[t]he law that lawyers practice and judges declare is not a definitive, capital `L' law that many would like to think exists.''

I expected her to defend the notion that the court of appeals is where ``policy is made.'' I expected her to defend her statements in favor of using foreign law to interpret American statutes and her statement that there is ``no objective stance, but only a series of perspectives.''

However, during her testimony, many of Judge Sotomayor's answers were inconsistent with her record and others were evasive and not adequate. On several occasions, Judge Sotomayor appeared to run away from the philosophy she had so publicly articulated. Other answers, I concluded, were not plausible.

It has been repeatedly suggested that Judge Sotomayor's words and speeches are being taken out of context. I have read the speeches in their entirety. Her words are not taken out of context. In fact, when one reads her speeches in their entirety, in context, the impact is more troubling, not less.

For example, Judge Sotomayor said, on repeated occasions, that she ``willingly accept[s] that ..... judge[s] must not deny the differences resulting from experience and heritage but attempt ..... continuously to judge when those opinions, sympathies and prejudices are appropriate.''

When I asked whether there was ``any circumstance in which a judge should allow prejudices to impact decision-making,'' she replied: ``Never their prejudices.''

This is quite the opposite of what her speeches said. In the hearing, she said her speeches discussed ``the very important goal of the justice system ..... to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case.'' Well said. But that is not what her speeches said--in context or line by line. She was not urging that judges guard against their prejudices, as their oath calls on them to do. She was accepting that a judge's prejudices may influence their
decisions.

Similarly, Judge Sotomayor repeatedly stated she accepts that who she is will ``affect the facts I choose to see'' as a judge--the facts she chooses to see as a judge. She accepts this. When I asked her about this statement, she said: ``It's not a question of choosing to see some facts or another, Senator. I didn't intend to suggest that.''

But that is what she said repeatedly. She accepts the fact that who she is will ``affect the facts I choose to see'' as a judge. The context of her speech states a clear philosophy. Judge Sotomayor was contrasting her own views with that of Judge Cedarbaum and Justice O'Connor, two women judges of prominence. Of course, Justice O'Connor was a former member of the Supreme Court. The context was her view that ``[i]n short ..... the aspiration''--I am quoting her--``the aspiration to impartiality
..... is just that, an aspiration.'' Such a statement evidences a lack of the kind of firm commitment to fairness and to the judicial oath of impartiality that is expected, in my opinion.

We have heard again and again that our concerns are based on three words: The ``wise Latina woman.'' That is not the case. We are talking about a judicial philosophy, as reflected in speech after speech, year after year. That is what is causing the problem here.

Senator Coburn, at the hearing, made a point that I think is worthy of emphasizing: that her refusal to effectively defend her own speeches and statements was almost as troubling as the philosophy contained within those speeches.

As the Washington Post, in endorsing her, on July 19, in their editorial, said:

Judge Sotomayor's attempts to explain away and distance herself from [the ``wise Latina'' statement] were unconvincing and at times uncomfortably close to disingenuous, especially when she argued that her reason for raising questions about gender or race was to warn against injecting personal biases into the judicial process. Her repeated and lengthy speeches on the matter do not support that interpretation.



In Judge Sotomayor's opening statement, she said that her philosophy is ``fidelity to the law.'' But her record demonstrates that, if true, her view is far different than mine. For example, she has advocated for the use of foreign law by American judges. Once again, we are left with statements made at the hearing, though, that were in direct conflict with statements made before she was nominated.

As Judge Sotomayor noted in her April 2009 speech--April of this year--before the Puerto Rico American Civil Liberties Union, the current debate regarding the use of foreign law in the courts, she noted, pits two distinct views against one another. On one side sit Justices Scalia and Thomas, who believe that foreign law should not be used in interpreting the U.S. Constitution. That is correct, in my view. On the other side is Justice Ginsburg, who believes that courts should be more aggressive
in their use of foreign law.

In this speech in April, Judge Sotomayor clearly indicated who she thinks has the better view of the issue, stating that she ``share[s] more the ideas of Justice Ginsburg ..... in believing, that unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases, that we are going to lose influence in the world.''

Moreover, Judge Sotomayor talked approvingly about two recent Supreme Court cases in which Justices did look to foreign law precisely to interpret our Constitution. That is a very clear position. I think it is incorrect, but it is a clear one. Others adhere to it.

When she came before the Judiciary Committee, however, Judge Sotomayor articulated a very different view of foreign law, stating:

Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law.


[Page: S8735]

Well, that is quite a different position from the theme and statements in her April speech.

So I agree with my colleagues who lamented Judge Sotomayor's tendency to avoid answering questions, with one colleague noting her ``extreme caution'' in answering. I do not think many would dispute that she was less forthcoming than Judges Alito and Roberts, our latest confirmations to the Court just a few years ago.

In addition to her stated judicial philosophy, I am also quite concerned regarding how Judge Sotomayor has approached the most important constitutional cases that have come to her court. Most of the cases a court of appeals judge considers are routine, fact dominated, and do not offer novel questions or require substantial legal discussion. Still, a few important cases that present new and critical issues do periodically come before the courts of appeals. These cases can give insight into how
the nominee will handle the many such cases that regularly come before the Supreme Court.

Within the last 3 years, Judge Sotomayor has heard three monumentally important cases at the circuit level: the constitutional right to be free of racial discrimination, the right to keep and bear arms, and the fifth amendment right to keep one's own property.

In all three of these cases, Judge Sotomayor joined or authored very brief opinions--very brief opinions, oddly brief opinions--that avoided the kind of careful analysis we would expect of an appellate judge. In all three cases, individuals went to court with the plain text of the Constitution on their side. In each case, Judge Sotomayor reached conclusions that denied individual Americans their rights that they were asserting against governmental power.

When confronted with an appeal based on fundamental notions of equal protection of the laws, Judge Sotomayor, to be charitable, took a pass. By now we are familiar with the basic facts of the New Haven firefighters, the Ricci case. Eighteen firefighters brought suit against the city of New Haven after the city threw out the results of a promotional exam. It was thrown out because not enough of certain minorities did well enough on the exam. Judge Sotomayor's decision in the case is troubling.
Her curious one-paragraph summary order, and the Supreme Court's subsequent reversal, are the starting points. But there is more. And there is a reason that so much attention has been focused on this case.

Her initial attempted disposal of the case by summary order was, quite simply, unacceptable and an embarrassment. A summary order is, by circuit rule, only for cases in which there is no legal principle worthy of discussion. In the end, every Supreme Court Justice concluded she applied the wrong legal standard in granting a judgment against the firefighters and for the city before a trial occurred, and a majority of the Supreme Court found that the firefighters' case was so strong that they were
entitled to a verdict for their side on the evidence that already existed without a trial.

The Supreme Court understood the importance of this case--why we care about it as Americans. As they said of Judge Sotomayor's logic:

Allowing employers to violate the disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. .....That would amount to a de facto quota system. .....

That is the Supreme Court language.
I was struck by something one firefighter, Lieutenant Vargas, said to us--that his testimony before the Senate was the first opportunity he had to tell his story because the district court threw out the case before he even had a trial. On appeal, Judge Sotomayor initially dismissed the case by summary order, meaning that a hard copy of her order was never even delivered to the other judges on the court. Had one of her colleagues, Judge Cabranes, apparently, independently, not heard about the
case and sought a full review--a rehearing en banc is what he sought through the whole Second Circuit--it is likely the Supreme Court would never have even known the case existed or considered the case. It is also likely Lieutenant Vargas would never have had the opportunity to tell his story, to explain to his children his profound hope that, as a result of his efforts, they would be judged on their merit and not on their race or their ethnicity.

In response to my questions, Judge Sotomayor also claimed that her Ricci decision was controlled by ``established'' Supreme Court precedent, saying ``a variety of different judges on the appellate court were looking at the case in light of established Supreme Court and Second Circuit precedent.'' But the Supreme Court did not see it that way. The Supreme Court noted that ``few, if any, precedents in the Court of Appeals'' discuss this issue.

As noted commentator Stuart Taylor has recently confirmed, even if Judge Sotomayor had believed her panel was bound by Second Circuit precedent, review and rehearing by the whole Second Circuit would have provided the opportunity to review those previous cases afresh and to overrule them if they were unsound. But Judge Sotomayor cast the deciding vote against rehearing this case by the full circuit. She defended her ruling and defended whatever authority existed at the time in the Second Circuit.

The case is also troubling to me because Judge Sotomayor had pledged to me during her confirmation, in 1997, that she would follow the Supreme Court's decision in Adarand--a well-known case--and subject any preference for one race over another race to the Court's established standard of strict judicial scrutiny. When I asked her about this promise she had made, I, once again, found her answer to be dismaying. She stated that the cases I asked about, the seminal equal protection cases--Adarand
and so forth--``were not what was at issue in this decision.'' She was talking about the Ricci case.

But that is not right. There were two very clear claims made by the firefighters in this case--one based on a statutory right and one based on the equal protection clause of the Constitution.

One need only look at----