Senate Debate on Empathy
=====================================

[SENATOR HATCH]why I cannot support the nomination of Judge Sonia Sotomayor
Congressional Record
 

Hatch, Orrin [R-UT]
Begin2009-08-04
19:55:18
End
19:58:26
Length00:03:08

Mr. HATCH. Mr. President, I enjoyed my colleague's remarks. I don't agree with him, but he is certainly a great colleague and we appreciate him.

Mr. President, I rise today to explain why I cannot support the nomination of Judge Sonia Sotomayor to be an Associate Justice of the Supreme Court. I do so with regret because the prospect of a woman of Puerto Rican heritage serving on the Supreme Court says a lot about America. Judge Sotomayor has achieved academic and professional success, and I applaud her public service. But in the end, her record creates too many conflicts with fundamental principles about the judiciary in which I deeply
believe.

It did not have to be this way. President Obama could have taken a very positive step for our country by choosing a Hispanic nominee whom all Senators could support. President Obama could have done so and I regret that he did not.

I commend the distinguished chairman and ranking member of the Judiciary Committee, Senators LEAHY and SESSIONS, for conducting a fair and thorough confirmation hearing. Judge Sotomayor herself said that the hearing was as gracious and fair as she could have asked for.

I evaluate judicial nominees by focusing on qualifications, which include not only legal experience but, more importantly, judicial philosophy. Judge Sotomayor's approach to judging is more important to me than her . I ask unanimous consent to have printed in the RECORD following my remarks an article that I published earlier this year in the Harvard Journal of Law & Public Policy. It is titled ``The Constitution as the Playbook for Judicial Selection'' and explains more fully the principles I will mention here.

------

Mr. HATCH.

President Obama has described the kind of judge he intends to appoint. As a Senator, he said that judges decide cases based on their ``deepest values ..... core concerns ..... broader perspectives ..... and the depth and breadth of [their] empathy.'' As a presidential candidate, he pledged to [Page: S8746] appoint judges who indeed have empathy for certain groups. And as President, he has said that a judge's personal empathy is an essential ingredient in judicial decisions.

This standard is seriously out of sync with mainstream America. By more than 3 to 1 Americans believe that judges should decide cases based on the law as written, rather than on their own sense of fairness or justice. The American people reject President Obama's standard for the kind of judge we need on the Federal bench.

At the Judiciary Committee hearing, Judge Sotomayor said that her judicial philosophy is simply fidelity to the law. While some of my Democratic committee colleagues said that they wanted to avoid slogans, codewords, and euphemistic phrases, they apparently accepted this one at face value. Unfortunately, it begs rather than answers the important questions.

Some Senators on the other side of the aisle try to confine concerns about Judge Sotomayor's record to a single case and a single phrase. That political spin, I will admit, makes for a quotable sound-bite. But even a casual observer of this process knows that this political spin is simply not true.

Ironically, those who would narrowly characterize the case against confirmation want us to confine our examination of Judge Sotomayor's record only to her cases while ignoring her speeches and articles. A partial review, however, cannot provide a complete picture. Appeals court decisions that are bound by Supreme Court precedent are not the same as Supreme Court decisions freed from such constraints. Taking Judge Sotomayor's entire record seriously not only gives us more of the information we need, but also gives her the respect she deserves.

Debates over judicial nominations are debates over judicial power, and America's founders gave us solid guidance about the proper role of judges in our system of government. Judges interpret and apply written law to decide cases. While judges cannot change the words of our laws, they can still control statutes and the Constitution by controlling the meaning of those words. That would result in the rule of judges, not the rule of law. To borrow Judge Sotomayor's phrase, judges would not have fidelity to the law, but fidelity to themselves.

In September 2001, Judge Sotomayor introduced Justice Antonin Scalia when he spoke at Hofstra Law School. She repeated a legend about Justice Oliver Wendell Holmes and Judge Learned Hand. Like Judge Sotomayor, Judge Hand served on both the Southern District of New York and the Second Circuit. As they departed after having lunch, Judge Hand called out: Do justice, sir, do justice. Justice Holmes replied: That is not my job, my job is to apply the law.

Is it a judge's role to do justice or to apply the law? President Obama says that a judge's personal empathy is an essential ingredient for doing justice. At the hearing on Judge Sotomayor's nomination, one of my Democratic colleagues invoked what he called ``America's common law inheritance'' to describe Federal judges with broad discretion to decide cases based on their personal notions of justice or fairness.

That may be the judiciary some of my colleagues would prefer, but it is not the judiciary America's Founders gave us. Federal judges are not common-law judges. They may not decide cases based on subjective feelings they find inside themselves, but only on objective law they find outside themselves. Thankfully, the American people overwhelmingly say today what

America's Founders said, that judges must follow the law rather than their personal empathy to decide cases.

The question is which kind of Supreme Court Justice Sonia Sotomayor will be. In one speech that she gave several times over nearly a decade while she was on the bench, she spoke directly about how judges should approach deciding cases. In this speech, she said that factors such as race and gender affect how judges decide cases and, as she put it, ``the facts I choose to see.'' She embraced the notion that there is no objectivity or neutrality in judging, and that impartiality is merely an aspiration which judges probably cannot achieve, and perhaps should not even attempt. She said that judges must decide when their personal sympathies and prejudices are appropriate in deciding cases.

Judge Sotomayor and her advocates have tried unsuccessfully to blunt this speech's more controversial edges. Their claim that she used the speech solely to inspire young lawyers or law students, even if true, is irrelevant because the speech is controversial for its content, not its audience.

My concern only grew after discussing this speech with Judge Sotomayor during the hearing. Rather than adequately defend or disavow these views, she presented a different, and contradictory, picture. I am not the only one who noticed. The Washington Post editorialized that Judge Sotomayor's attempts to explain away or distance herself from past statements ``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 another speech just a few months ago, Judge Sotomayor addressed whether judges may use foreign law to interpret and apply American law in deciding cases. The distinguished ranking member of the committee mentioned this as well. She said that foreign law ``will be very important in the discussion of how we think about the unsettled issues in our own legal system.'' She endorsed the idea that judges may, as they interpret American law, consider anything, from any source, that they find persuasive.


Once again, Senators discussed this issue with Judge Sotomayor at her hearing. And once again, she neither defended nor disavowed these controversial statements but presented a different, contradictory picture. In her speech, she hoped that judges would continue to consult what others have said, including foreign law, to ``interpret our law in the best way we can.'' But in the hearing, she said that ``I will not use foreign law, to interpret the Constitution or American statutes.'' In her speech, she said that judges may use ideas from any source that they find persuasive. But in the hearing, she said that foreign law cannot be used to influence a legal decision. These different versions are clearly at odds with each other.

Judge Sotomayor took a different tack in answering post-hearing questions. She said that decisions of foreign courts may not serve as ``binding or controlling precedent'' in deciding cases. The issue, however, is not whether a decision by the Supreme Court of France literally binds the Supreme Court of the United States. Of course it does not. The issue is whether that foreign decision may influence our Supreme Court in determining what our statutes and the Constitution mean. And in her answers to post-hearing questions, Judge Sotomayor once again said that decisions of foreign courts can indeed be ``a source of ideas informing our understanding of our own constitutional rights.''

In these speeches, Judge Sotomayor described how such things as race, gender, life experience, personal sympathies, or prejudices affect judges and their decisions. That is certainly possible. But I waited for her to say that judges have an obligation to eliminate the influence of these factors. I wanted her to say that because these things undermine a judge's impartiality, judges must be vigilant to prevent their influence. That would have given me more solace about what Judge Sotomayor's phrase, fidelity to the law, really means. But she never said it. Instead, she endorsed the notion that judges may look either inside themselves to their empathy, or outside to foreign law, for ideas and notions to guide their decisions.

Turning to her cases, the Supreme Court has disagreed with Judge Sotomayor in nine of the ten cases it has reviewed, three of them in the most recent Supreme Court term alone. That is nine of her ten cases they reviewed. And these were not close decisions, either. The total vote in the cases reversing Judge Sotomayor was a lopsided 52-19.

In one case, Judge Sotomayor had held that the Environmental Protection Agency could not consider cost-benefit analysis when adopting a regulation. The Supreme Court reversed [Page: S8747] her, citing its own precedents extending back more than 30 years and holding that the EPA's use of cost-benefit analysis was well within the bounds of its statutory authority.

In another case, Judge Sotomayor had reopened part of a bankruptcy proceeding that had closed more than 20 years ago to resurrect a tort suit. Justice Souter, whom Judge Sotomayor would replace, wrote the opinion for the Supreme Court's 7-2 decision reversing her.

In another case, Judge Sotomayor declared unconstitutional a State law providing for political party election of judges because she felt the law did not give people what she called a ``fair shot.'' The Supreme Court unanimously reversed her, saying that traditional electoral practice ``gives no hint of even the existence, much less the content,'' of the fair-shot standard Judge Sotomayor had invented.

In one case, the Supreme Court affirmed Judge Sotomayor's result but rejected her reasoning because her reading of the relevant statute ``flies in the face of the statutory language.''

And in the one case where the Supreme Court affirmed both Judge Sotomayor's result and reasoning, it did so by the slimmest 5-4 margin. This is a very shaky record on appeal.

The Ricci v. DeStefano case, which has been mentioned quite a lot around here, is one of the cases in which the Supreme Court reversed Judge Sotomayor. The Court reversed her result by a 5-4 vote but unanimously rejected her reasoning. In this case, Judge Sotomayor affirmed the city of New Haven's decision to throw out the results of a fairly designed and administered firefighter promotion exam because too few racial minorities passed it.

This case presents troubling questions of both process and substance. Judge Sotomayor initially used a summary order that did not have to be circulated to the full Second Circuit. That bothered me a great deal, because judges know when they issue a summary order, the rest of the judges are not going to see it. She then converted it to a per curiam opinion that is permissible only when the law is entirely settled. The summary order and the per curiam opinion were each a mere single paragraph and
neither appears to be an appropriate vehicle for deciding this challenging case.

On the merits, Title VII of the 1964 Civil Rights Act prohibits two kinds of discrimination. It prohibits disparate treatment, which is intentional, and disparate impact, which may be unintentional. Disparate treatment focuses on the motivation of an employment decision, while disparate impact focuses on its effect. While discrimination cases typically involve one or the other, the Ricci case involved both. In this case, the city claimed it had to engage in disparate treatment of those who passed
the promotion exam because it feared a disparate impact lawsuit by those who failed the exam.

I point out that this case involved both disparate treatment and disparate impact because Judge Sotomayor and her advocates claim that her decision was based squarely on settled and longstanding Second Circuit and Supreme Court precedent. We have heard some of that here on the floor tonight. Contrary to her statement to me at the hearing, however, her one-paragraph opinion cited no precedent at all. The only case she cited was the district court opinion in that very case. But the district court
actually acknowledged that this case was the opposite of the norm. Rather than those failing an employment test challenging the use of the results, in this case those who passed the test challenged the refusal to use the results. None of the precedents cited by the district court involved this kind of case.

For this reason, six of Judge Sotomayor's Second Circuit colleagues believed that the full circuit should have reviewed her decision, arguing that the case raised important questions of first impression in the Second Circuit and the entire Nation. When it reversed Judge Sotomayor, the Supreme Court similarly observed that there were few, if any, precedents in any court even discussing the issue in this case.

In a column published today in National Journal, the respected legal analyst Stuart Taylor carefully analyzed whether Judge Sotomayor's decision in Ricci was indeed compelled by precedent. We have all read Stuart Taylor over the years. He is one of the most prescient commentators and journalists with regard to the law. He concludes: ``The bottom line is that Circuit precedents did not make Sotomayor rule as she did. Supreme Court precedent favored the firefighters. Sotomayor's ruling was her own.'' I ask unanimous consent that Mr. Taylor's column appear in the Record following my remarks.

-=--------------

Mr. HATCH. In addition to claiming that her decision in Ricci was grounded in either Second Circuit or Supreme Court precedent, Judge Sotomayor offered at the hearing that the Sixth Circuit had addressed a similar issue in the same way. I can only assume she did so to imply that if the Sixth Circuit independently came to the same conclusion in a parallel case, then it would be difficult to say that Judge Sotomayor's decision in Ricci is controversial.

I would first note that in Oakley v. City of Memphis, the Sixth Circuit actually analyzed the case, applied the law to the facts, and issued a real opinion. I wish Judge Sotomayor had done that in her case. But more importantly, Judge Sotomayor failed to mention that the Sixth Circuit case was issued 3 months after hers and, in fact, relied upon her decision as persuasive authority. That is no evidence that her decision was procedurally or substantively sound.

Neither are her decisions on the Second Amendment right to keep and bear arms. Last year, in District of Columbia v. Heller, the Supreme Court clearly identified the proper analysis for deciding whether the Second Amendment binds States as well as the Federal Government. Several months later, Judge Sotomayor ignored that directive and clung to her previous insistence, following a different analysis the Supreme Court had discarded, that the right to bear arms does not apply to the States. She
also held that the right to bear arms is so insignificant that virtually any conceivable reason is sufficient to justify a weapons restriction.

When I asked her about these decisions at the hearing, she refused to acknowledge that the Supreme Court's so-called rational basis test is its most permissive legal standard. Yet this is practically a self-evident truth in the law, one that Judge Sotomayor herself cited and applied just last fall to uphold a weapons restriction in Maloney v. Cuomo.

She likewise gave short shrift to the fundamental right to private property. In Didden v. Village of Port Chester, Judge Sotomayor affirmed dismissal of a property owner's lawsuit after the village condemned his property and gave it to a developer. The Supreme Court, incorrectly in my view, had previously held in Kelo v. City of New London that economic

development can constitute the public use for which the Fifth Amendment allows the taking of private property. In Didden, however, the village had only announced a general plan for economic development. No taking of anyone's property had occurred. Mr. Didden sued only after the village actually took his property.

In yet another cursory opinion that for some reason took more than a year to produce, Judge Sotomayor denied Mr. Didden even a chance to argue his case. She said that the 3-year period for filing suit began not when the village actually took his property, but when the village earlier had merely announced its general development plan. In other words, Mr. Didden should have sued over the taking of his property before his property had been taken. But had he done so then, he would certainly have been denied his day in court because his legal rights had not yet been violated. This catch-22 amounts to a case of dismissed if he did, and dismissed if he did not. Once again, Judge Sotomayor gave inadequate protection to a fundamental constitutional right.

In another effort to blunt the impact of such controversial decisions, Judge Sotomayor's supporters attempt to portray her as moderate by observing that on the Second Circuit, she agreed with Republican-appointed colleagues 95 percent of the time. On the one hand, this is one of several misguided attempts to defend her by suggesting that a calculator is all it takes properly to evaluate a judicial record. On [Page: S8748]
the other hand, however, this claim comes from the same Democratic Senators who voted against Justice Samuel Alito just a few years ago. On the Third Circuit, he had agreed with his Democratic-appointed colleagues 99 percent of the time over a much longer tenure. It shows how specious some of the arguments are.

Let me return to where I began. I believe that Judge Sotomayor is a good person. I respect her achievements and applaud her service to her community, the judiciary, and the country. While appointment of the first Puerto Rican Justice says a lot about America, however, I believe that appointing a Justice with her judicial philosophy says the wrong thing about the power and role of judges in our system of government.

A nominee's approach to judging is more important than her , especially on the Supreme Court where Justices operate with the fewest constraints. Judge Sotomayor has expressed particular admiration for Justice Benjamin Cardozo. His book on the judicial process contains a chapter titled ``The Judge as a Legislator'' in which he compares judges to legislators who decide difficult cases on the basis of personal reflections and life considerations. That sounds very much like President Obama's
appointment standard and Judge Sotomayor's expressed judicial philosophy. I believe it is inconsistent with the limited role that America's founders prescribed for judges in our system of government.

My colleagues know that I take a generous approach to the confirmation process and I believe some deference to the President of the United States and his choice is appropriate. I have rarely voted against any judicial nominee and took very seriously the question of whether to do so now. To that end, I studied her speeches, articles, and cases. I spoke with experts and advocates from different perspectives. I participated in all three question rounds during the Judiciary Committee hearing.

But in the end, neither general deference to the President nor a specific desire to support a Hispanic nominee could overcome the serious conflicts between Judge Sotomayor's record and the principles about the judiciary and liberty in which I deeply believe.

I was the one who started the Republican Senatorial Hispanic Task Force and ran it for many years, bringing Democrats, Independents, and Republicans together in the best interest of the Hispanic community to try to give them more of a voice. I feel pretty deeply about Hispanic people, as I do all people.

I just want everybody to know that this took a lot of consideration on my part to come to the conclusion I have. I wish President Obama had taken a different course, but this is the decision I have to make in this case. As I say, I like Judge Sotomayor. I particularly like her life story and her wonderful family. I did not want to vote against her but I think I have explained here some of the serious concerns I have.

 

Exhibit 1

The Constitution as the Playbook for Judicial Selection
Orrin G. Hatch*

The Federalist Society plays an indispensable role in educating our fellow citizens about the principles of liberty, a task that is both critical and challenging. It is critical because, as James Madison put it, ``a well-instructed people alone can be permanently a free people.'' \1\ The ordered liberty we enjoy is neither self-generating nor self-sustaining, but is based on certain principles that require certain conditions. Knowledge and defense of those principles and conditions will be the
difference between keeping and losing our liberty.

This educational challenge, however, has perhaps never been more daunting. We live in a culture in which words mean anything to anyone, celebrities substitute for statesmen, and people are no longer well instructed. Forty-two percent of Americans do not know the number of branches in the federal government, and more than sixty percent cannot name all three \2\ Four times as many Americans say that a detailed knowledge of the Constitution is absolutely necessary as say they actually have such
knowledge.\3\ Twenty-one percent of Americans believe the First Amendment protects the right to own a pet.\4\

A few factors contribute to this state of affairs. Most people get their information about the legal system only from television. Unless people sue each other or commit crimes--habits we really should not encourage--they will likely have no firsthand knowledge or experience to draw from. Furthermore, people hold lawyers in low esteem. If you plug the term ``lawyer joke'' into Yahoo, it returns a whopping 25.7 million hits, a number on the rise almost as fast as the national debt. The problem
with lawyer jokes is that most lawyers do not think they are funny and most other people do not think they are jokes. This low view of lawyers means people have little motivation to learn more about what lawyers and judges really do.

The media do not help this state of affairs. The Harvard Journal of Law & Public Policy recently published an excellent article by Michigan Supreme Court Justice Stephen Markman,\5\ who served as my chief counsel when I chaired the Senate Judiciary Subcommittee on the Constitution in the early 1980s. He describes how the media's penchant for focusing on winners and losers significantly shapes and distorts how people understand what judges actually do, often for the worse.\6\

Nonetheless, the timing of this Essay is auspicious in several respects. First, I write in the wake of two very relevant Federalist Society student symposia, last year's about the people and the courts \7\ and this year's about the separation of powers.\8\ Second, President Obama has been particularly clear from the time he was a candidate about his intention to appoint judges who will exercise a strikingly political version of judicial power.\9\ Third, he has already started acting on that intention
by making his first judicial nominations.\10\ New Presidents typically make their first judicial nominations in July or even August, yet the Senate Judiciary Committee has already held a hearing on the President's first nominee to the U.S. Court of Appeals, and the President sent two more nominees to the Senate just a few days ago.

Mark Twain popularized the notion that there are three kinds of lies: lies, damned lies, and statistics.\11\ I prefer Senator Daniel Patrick Moynihan's comment that you may be entitled to your own opinion, but not your own set of facts.\12\ Either way, I will statistically describe two macro and two micro factors of the judicial confirmation process to show its recent transformation before turning to how it should be conducted going forward.

The two macro factors are hearings and confirmations. The Judiciary Committee held hearings for fewer judicial nominees during the 110th Congress than any Congress since before I entered the Senate. This lack of hearings is not the result of the Judiciary Committee's inability to multitask. Instead, it is the result of a political choice, one that has been reversed since the last election. The Judiciary Committee has already held a hearing on President Obama's first appeals court nominee, just
two weeks after that nominee arrived in the Senate.\13\ Under a Republican President, Judiciary Committee Chairman Patrick Leahy waited an average of 197 days to give an appeals court nominee a hearing.\14\ The last election amounted to the political equivalent of Drano, as the confirmation pipes are now wonderfully unobstructed and flowing freely once again.

Some might assume that Republicans demonstrate such strong partisan preference, but they would be wrong. Since I was first elected, Democrats running the Senate have granted hearings to forty-one percent more Democratic than Republican judicial
nominees. When Republicans run the Senate, the partisan differential is less than five percent.

Moving from the Judiciary Committee to the Senate floor, the second macro factor is confirmations. In the last eight years, President Bush had the slowest pace of judicial confirmations of any President since Gerald Ford. Last year, the Senate confirmed fewer judicial nominees than in any President's final year since 1968, the end of the Johnson Administration. By comparison, when I chaired the Judiciary Committee during President Clinton's last year in office, the Senate confirmed twice as many
appeals court nominees as it did last year.

As with hearings, the picture is not the same when Republicans are in charge. When Democrats run the Senate, they confirm forty-five percent more Democratic than Republican judicial nominees. When Republicans run the Senate, the differential is only nine percent.

At the ground level, the two micro factors in the confirmation process are votes and filibusters. The Senate has traditionally confirmed most unopposed lower court nominees by unanimous consent rather than by time-consuming roll call votes. From 1950 to 2000 the Senate confirmed only 3.2 percent of all district and appeals court nominees by roll call vote. During the Bush presidency, that figure jumped to nearly sixty percent. The percentage of roll calls without a single negative vote nearly
tripled. And under President Bush, for the first time in American history, the filibuster was used to defeat majority-supported judicial nominees.\15\ With all due respect to Mark Twain, I think these numbers accurately give you at least a taste for the partisan division and conflict that now characterize the judicial confirmation process. It has become, to edit Thomas Hobbes just a bit, quite nasty and brutish.

Turning from what has been to what should be, I believe we can get on a better path by, as Madison emphasized in The Federalist No. 39, ``recurring to principles.'' \16\ The judicial selection process has changed because ideas about judicial power have changed. My basic thesis is this: Our written Constitution and its separation of powers define both judicial power and judicial selection. They define the judicial philosophy [Page: S8749]
that is a necessary qualification
for judicial service, and they counsel that the Senate defer to the President when he nominates qualified individuals.

Consider a judicial nomination as a hiring process based on a job description. The job description of a judge is to interpret and apply law to decide cases. This job description does not mean whatever a President, political party, or Senate majority wants it to mean. Our written Constitution and its separation of powers set the judicial job description. Interpreting written law must be different than making written law. Because law written in statutes or the Constitution is not simply words,
but really the meaning of the words, only those with authority to make law may determine what the words of our laws say and what those words mean. Judges do not have authority to make law, so they do not have authority to choose what the words of our laws say or what they mean. In other words, judges apply
the law to decide cases, but they may not make the law they apply. Judges and the law they use to decide cases are two different things. Judging, therefore, is about a process that legitimates results, a process by which the law made by the people and those they elect determines winners and losers.

The Constitution and its separation of powers compel this judicial job description. This kind of judge is consistent with limited government and the ordered liberty it makes possible. Justice Markman's article describes what he calls a ``traditional jurisprudence--one that views the responsibility of the courts to say what the law `is' rather than what it `ought' to be.'' \17\ Such a philosophy of judicial restraint--an understanding of the limited power and role of judges--is a qualification
for judicial service. This is the kind of judge a President should nominate.

Our written Constitution and its separation of powers also define how the confirmation stage of the judicial selection process should operate. The Constitution gives the power to nominate and appoint judges to the President, not to the Senate. The best way to understand the Senate's role is that the Senate advises the President whether to appoint his nominees by giving or withholding its consent. I explored this role in more detail in the Utah Law Review a few years ago in the context of showing
that the use of the filibuster to defeat majority-supported judicial nominees is inconsistent with the separation of powers.\18\ One basis on which the Senate may legitimately withhold its consent to a judicial nominee, however, is that the nominee is not qualified for judicial service. Qualifications include more than information on
a nominee's . And with all due respect to the American Bar Association, their rating does not a qualification determine. Instead, qualifications for judicial service include whether a nominee's judicial philosophy--his understanding of a judge's power and role--is in sync with our written Constitution and its separation of powers.

Judges, after all, take an oath to support and defend the Constitution of the United States. To be qualified for judicial service, a nominee must believe there is such a thing, that the supreme law of the land is not simply in the eye of the judicial beholder, and that judges need something more than a legal education, a personal opinion, and an imagination to interpret it.

I propose looking to the basic principles of our written Constitution and its separation of powers to guide the judicial selection process. For the President, those principles require nominees with a restrained judicial philosophy. For the Senate, they require deference to a President's qualified nominees. Senators, of course, must decide how to balance qualifications and deference. Our written Constitution and its separation of powers, however, provide normative guidance for the judicial selection
process. Presidents and Senators will have to decide, and be accountable for, how they use or reject that guidance.

No matter how philosophically sound this proposal may be--and I believe it is philosophically rock solid--it may nevertheless be politically controversial. We have traveled a long way from Alexander Hamilton describing the judiciary as the weakest and least dangerous branch.\19\ We have traveled a long way from the Supreme Court saying in 1795 that the Constitution is ``certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it.'' \20\ We have traveled a long way from the Senate Judiciary Committee saying in 1872 that giving the Constitution a meaning different from what the people provided when adopting it would be unconstitutional.\21\

For a long time now, we have instead labored under Chief Justice Charles Evans Hughes's notion that the Constitution is whatever judges say it is.\22\ It has become fashionable to suppose that the only law judges may not make is law we do not like. Legal commentator Stuart Taylor correctly observes that ``[l]ike a great, ever-spreading blob, judicial power has insinuated itself into every nook and cranny.'' \23\ One of my predecessors as Senator from Utah who later served on the Supreme Court, George Sutherland, described the transformation in 1937 as it was literally under way. He warned that abandoning the separation of powers by ignoring the distinction between interpreting and amending the Constitution would convert ``what was intended as inescapable and enduring mandates into mere moral reflections.'' \24\ Less than two decades later, Justice Robert Jackson described what he saw as a widely held belief that the Supreme Court decides cases based on personal impressions rather than impersonal rules of law.\25\

Judicial power and judicial selection are inextricably linked. Sometimes the Senate can appear to produce a lot of activity but take very little action. To some, that means the Senate is the world's greatest deliberative body. To others, it means that it produces a lot of sound and fury signifying nothing. But I hope that the debate over President Obama's judicial nominees will really be a debate over the kind of judge our liberty requires. The debate should be about whether judges should decide cases by using enduring mandates and impersonal rules of law or by using their own moral reflections and personal impressions.

President Obama has already taken sides in this debate. When he was a Senator, he voted against the nomination of John Roberts to be Chief Justice, stating that judges decide cases based on their deepest values, their core concerns, and the content of their hearts.\26\ On the campaign trail, he pledged that he would select judges according to their empathy for certain groups such as the poor, African Americans, gays, the disabled, or the elderly.\27\ The real debate is about whether judges may decide cases based on empathy at all, not the groups for which they have empathy. It is about whether judges may make law at all, not about what law judges should make. Conservatives as well as liberals often evaluate judges and judicial decisions by their political results rather than by their judicial process. But a principle is just politics unless it applies across the board. Professor Steven Calabresi, one of the Federalist Society's founders, wrote last fall that ``[n]othing less than the very idea of liberty and the rule of law are at stake in this election.'' \28\ He was right, and they remain at stake in the ongoing selection of federal judges.

Judges have no authority to change the law, regardless of whether they change it in a way I like. I am distinguishing here between judicial philosophy, which relates to process, and political ideology, which relates to results. Senators often reveal their view of judicial power when participating in judicial selection, proving once again that the two are inextricably linked. During the debate over Chief Justice Roberts's nomination, for example, one of my Democratic colleagues wanted to know whether the nominee would stand with families or with special interests. She said the American people were entitled to know how he would decide legal questions even before he had considered them.\29\ Another Democratic Senator similarly said that the real question was whose side the nominee would be on when he decided important issues.\30\ Would he be on the side of corporate or consumer interests, the side of polluters or Congress when it seeks to regulate them, or the side of labor or management?

In this activist view of judicial power, the desired ends defined by a judge's empathy justify whatever means he uses to decide cases. This activist view of judicial power is at odds with our written Constitution and its separation of powers and, therefore, with ordered liberty itself. The people are not free if they do not govern themselves. The people do not govern themselves if their Constitution does not limit government. The Constitution cannot limit government if judges define the Constitution.


Terry Eastland aptly described the result of judicial activism in a 2006 essay titled The Good Judge: ``The people's text, whether made by majorities or, in the case of the Constitution, supermajorities, would be displaced by the judges' text. The justices became lawmakers.'' \31\ This quotation highlights one of the many differences between God and federal judges. God, at least, does not think He is a federal judge. And it brings up the question of how many federal judges it takes to screw in a light bulb. Only one, because the judge simply holds the bulb as the entire world revolves around him.

There is perhaps some reason for optimism. One poll found last year that, no matter for whom they voted, nearly three-quarters of Americans said they wanted judges ``who will interpret and apply the law as it is written and not take into account their own viewpoints and experiences.'' \32\ This debate is indeed the one we should be having, whether judges have the power to make law. When judges apply law they have properly interpreted rather than improperly made, their rulings may have the effect of helping or hurting a particular cause, of advancing or inhibiting a particular agenda. They may, at least by the political science bean counters, be considered liberal or conservative. The point, therefore, is not which side wins in a particular case, but whether the winner is decided by the law or by the judge. When judges interpret law, the law produces the results. Thus, the people can choose to change the law. When judges make law, judges produce the results and the people are left with no recourse at all. That state of affairs is the antithesis of self-government.

Let me close by saying that the effort to defend liberty never ends. Andrew Jackson reminded us as he left office in 1837 that
``eternal vigilance by the people is the price of liberty; and that you must pay the price if you wish to secure the blessing.'' \33\ The approach I outline actually joins an effort that began long ago and reminds me of a resolution passed by the Senate Republican Conference in 1997: [Page: S8750]


Be it resolved, that the Republican Conference opposes judicial activism, whereby life-tenured, unaccountable judges exceed their constitutional role of interpreting already enacted, written law, and instead legislate from the bench by imposing their personal preference or views of what is right or just. Such activism threatens the basic democratic values on which our Constitution is founded.\34\

There you have it. Our written Constitution and its separation of powers define both judicial power and judicial selection. They require judicial restraint as a qualification for judicial service and require Senate deference to a President's qualified nominees. The weeks and months ahead will provide opportunities to debate these principles and their application. Nothing less than ordered liberty is at stake. I know the Federalist Society will be right in the thick of that debate.

ENDNOTES
* United States Senator (R-Utah); J.D., University of Pittsburgh School of Law, 1962; B.A., Brigham Young University, 1959. This Essay was delivered as a speech to the Harvard Law School Federalist Society and Harvard Journal of Law & Public Policy at the Union Club in Boston, Massachusetts, on April 4, 2009.

1. James Madison, Second Annual Message, in 8 The Writings of James Madison 123, 127 (Gaillard Hunt ed., 1908).

2. Press Release, Nat'l Constitution Ctr., Startling Lack of Constitutional Knowledge Revealed in First-Ever National Poll (1997).

3. Steve Farkas et al., Knowing it by Heart: Americans Consider the Constitution and its Meaning 16 (2002), available at http://www.publicagenda.;org/files/pdf/knowing
Xby
Xheart.pdf.

4. Christopher Lee, Noted with Interest, Wash. Post, Mar. 3, 2006, at A15; see also McCormick Tribune Freedom Museum, Americans' Awareness of First Amendment Freedoms, Forum for Education and Democracy, Mar. 1, 2006, http://www.forumforeducation.org/node/147.

5. Stephen J. Markman, An Interpretivist Judge and the Media, 32 Harv. J.L. & Pub. Pol'Y 149 (2009).

6. Id. at 151-52.

7. Symposium, The People & The Courts, 32 Harv. J.L. & Pub. Pol'y 1 (2009).

8. Symposium, Separation of Powers in American Constitutionalism, 33 Harv. J.L. & Pub. Pol'y (forthcoming 2010).

9. See infra notes 26-27.

10. President Obama has nominated David Hamilton to the U.S. Court of Appeals for the Seventh Circuit, Gerard Lynch to the Second Circuit, and Andre Davis to the Fourth Circuit. Michael A. Fletcher, Obama Names Judge to Appeals Court, Wash. Post, Mar. 18, 2009, at A4; Jerry Markon, Obama Taps 2 for Key Appellate Courts, Wash. Post, Apr. 3, 2009, at A6. Each is currently a U.S. District Judge.

11. Mark Twain, Chapters from My Autobiography-XX, 186 N. Am. Rev. 465, 471 (1907) (quoting Benjamin Disraeli).

12. Timothy J. Penny, Facts Are Facts, Nat'l Rev. Online, Sept. 4, 2003, http://www.nationalreview.com/nrof
Xcomment/comment-penny090403.asp.

13. President Obama nominated David Hamilton to the Seventh Circuit on March 17, 2009. Fletcher, supra note 10. His hearing was on April 1, 2009. U.S. Senate Judiciary Comm., Official Hearing Notice (Apr. 1, 2009), http://judiciary.senate.gov/hearings/hearing.cfm?id=3757.

14. This statistic, like those that follow, was compiled by Senator Hatch's staff from sources including the Congressional Record; Federal Judicial Center, Biographical Directory of Federal Judges, http://www.fjc.gov/public/home.nsf/hisj; The Library of Congress, Legislative Information Service Databases, http://thomas.loc.gov/; and the records of the Senate Judiciary Committee and Senator Hatch's staff. The statistics are on file with Senator Hatch's staff.

15. See Orrin G. Hatch, Judicial Nomination Filibuster Cause and Cure, 2005 Utah L. Rev. 803, 819--23.

16. The Federalist No. 39, at 240 (James Madison) (Clinton Rossiter ed., 1961).

17. Markman, supra note 5, at 149.

18. See Hatch, supra note 15, at 82631.

19. The Federalist No. 78 (Alexander Hamilton).

20. Vanhorne's Lessee v. Dorrance, 2 U.S. 304, 308 (1795).

21. See Raoul Berger, Original Intention in Historical Perspective, 54 Geo. Wash. L. Rev. 296, 297--98 (1986) (citing S. Rep. No. 21, 42d Cong., 2d Sess. 2 (1872)).

22. Charles Evans Hughes, Speech before the Elmira Chamber of Commerce, May 3, 1907, in Addresses and Papers of Charles Evans Hughes 133, 139 (Robert H. Fuller & Gardner Richardson eds., 1908).

23. Stuart Taylor Jr., Imperial Judges Could Pick the President--Again, 36 Nat'l J. 2877, 2877 (2004).

24. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 404 (1937) (Sutherland, J., dissenting).

25. Brown v. Allen, 344 U.S. 443, 535 (1953) (Jackson, J., concurring in the result).

26. 151 Cong. Rec. S10366 (daily ed. Sept. 22, 2005) (statement of Sen. Obama).

27. Posting of Mark Murray to First Read, http://firstread.msnbc.msn.com/archive/2007/07/17/274143.aspx (July 17, 2007, 16:21 EDT) (report by Carrie Dann).

28. Steven G. Calabresi, Obama's ``Redistribution'' Constitution, Wall St. J., Oct. 28, 2008, at A17.

29. 109 Cong. Rec. S10641 (daily ed. Sept. 29, 2005) (statement of Sen. Stabenow).

30. Interview by Matt Lauer with Senator Edward Kennedy, available at http://www.tedkennedy.com/journal/165/senator-kennedy-nbctoday-show-interview.

31. Terry Eastland, The ''Good Judge'': Antonin Scalia's two decades on the Supreme Court, Wkly. Standard, Nov. 13, 2006.

32. Press Release, The Federalist Society, Key Findings from a National Survey of 800 Actual Voters (Nov. 5, 2008), available at http://www.fed-soc.org/publications/pubid.1183/pub
Xdetail.asp.

33. Andrew Jackson, Farewell Address, in 2 The Statesman's Manual: The Addresses and Messages of the Presidents of the United States 947, 957 (Edwin Williams ed., New York, Edward Walker 1846).

34. On file with Author.

Exhibit

===================================================

Posted on Wednesday, August 05, 2009 9:29:23 AM by Suck My AR-16

The Library of Congress > THOMAS Home > Congressional Record

EXECUTIVE SESSION -- (Senate - August 04, 2009)

[Page: S8745] GPO's PDF

The PRESIDING OFFICER. The Senator from Utah is recognized.

Mr. HATCH. Mr. President, I enjoyed my colleague's remarks. I don't agree with him, but he is certainly a great colleague and we appreciate him.

Mr. President, I rise today to explain why I cannot support the nomination of Judge Sonia Sotomayor to be an Associate Justice of the Supreme Court. I do so with regret because the prospect of a woman of Puerto Rican heritage serving on the Supreme Court says a lot about America. Judge Sotomayor has achieved academic and professional success, and I applaud her public service. But in the end, her record creates too many conflicts with fundamental principles about the judiciary in which I deeply believe.

It did not have to be this way. President Obama could have taken a very positive step for our country by choosing a Hispanic nominee whom all Senators could support. President Obama could have done so and I regret that he did not.

I commend the distinguished chairman and ranking member of the Judiciary Committee, Senators LEAHY and SESSIONS, for conducting a fair and thorough confirmation hearing. Judge Sotomayor herself said that the hearing was as gracious and fair as she could have asked for.

I evaluate judicial nominees by focusing on qualifications, which include not only legal experience but, more importantly, judicial philosophy. Judge Sotomayor's approach to judging is more important to me than her . I ask unanimous consent to have printed in the RECORD following my remarks an article that I published earlier this year in the Harvard Journal of Law & Public Policy. It is titled ``The Constitution as the Playbook for Judicial Selection'' and explains more fully the principles I will mention here.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See Exhibit 1)

Mr. HATCH. President Obama has described the kind of judge he intends to appoint. As a Senator, he said that judges decide cases based on their ``deepest values ..... core concerns ..... broader perspectives ..... and the depth and breadth of [their] empathy.'' As a presidential candidate, he pledged to

[Page: S8746] GPO's PDF

appoint judges who indeed have empathy for certain groups. And as President, he has said that a judge's personal empathy is an essential ingredient in judicial decisions.

This standard is seriously out of sync with mainstream America. By more than 3 to 1 Americans believe that judges should decide cases based on the law as written, rather than on their own sense of fairness or justice. The American people reject President Obama's standard for the kind of judge we need on the Federal bench.

At the Judiciary Committee hearing, Judge Sotomayor said that her judicial philosophy is simply fidelity to the law. While some of my Democratic committee colleagues said that they wanted to avoid slogans, codewords, and euphemistic phrases, they apparently accepted this one at face value. Unfortunately, it begs rather than answers the important questions.

Some Senators on the other side of the aisle try to confine concerns about Judge Sotomayor's record to a single case and a single phrase. That political spin, I will admit, makes for a quotable sound-bite. But even a casual observer of this process knows that this political spin is simply not true.

Ironically, those who would narrowly characterize the case against confirmation want us to confine our examination of Judge Sotomayor's record only to her cases while ignoring her speeches and articles. A partial review, however, cannot provide a complete picture. Appeals court decisions that are bound by Supreme Court precedent are not the same as Supreme Court decisions freed from such constraints. Taking Judge Sotomayor's entire record seriously not only gives us more of the information we need, but also gives her the respect she deserves.

Debates over judicial nominations are debates over judicial power, and America's founders gave us solid guidance about the proper role of judges in our system of government. Judges interpret and apply written law to decide cases. While judges cannot change the words of our laws, they can still control statutes and the Constitution by controlling the meaning of those words. That would result in the rule of judges, not the rule of law. To borrow Judge Sotomayor's phrase, judges would not have fidelity to the law, but fidelity to themselves.

In September 2001, Judge Sotomayor introduced Justice Antonin Scalia when he spoke at Hofstra Law School. She repeated a legend about Justice Oliver Wendell Holmes and Judge Learned Hand. Like Judge Sotomayor, Judge Hand served on both the Southern District of New York and the Second Circuit. As they departed after having lunch, Judge Hand called out: Do justice, sir, do justice. Justice Holmes replied: That is not my job, my job is to apply the law.

Is it a judge's role to do justice or to apply the law? President Obama says that a judge's personal empathy is an essential ingredient for doing justice. At the hearing on Judge Sotomayor's nomination, one of my Democratic colleagues invoked what he called ``America's common law inheritance'' to describe Federal judges with broad discretion to decide cases based on their personal notions of justice or fairness.

That may be the judiciary some of my colleagues would prefer, but it is not the judiciary America's Founders gave us. Federal judges are not common-law judges. They may not decide cases based on subjective feelings they find inside themselves, but only on objective law they find outside themselves. Thankfully, the American people overwhelmingly say today what

America's Founders said, that judges must follow the law rather than their personal empathy to decide cases.

The question is which kind of Supreme Court Justice Sonia Sotomayor will be. In one speech that she gave several times over nearly a decade while she was on the bench, she spoke directly about how judges should approach deciding cases. In this speech, she said that factors such as race and gender affect how judges decide cases and, as she put it, ``the facts I choose to see.'' She embraced the notion that there is no objectivity or neutrality in judging, and that impartiality is merely an aspiration which judges probably cannot achieve, and perhaps should not even attempt. She said that judges must decide when their personal sympathies and prejudices are appropriate in deciding cases.

Judge Sotomayor and her advocates have tried unsuccessfully to blunt this speech's more controversial edges. Their claim that she used the speech solely to inspire young lawyers or law students, even if true, is irrelevant because the speech is controversial for its content, not its audience.

My concern only grew after discussing this speech with Judge Sotomayor during the hearing. Rather than adequately defend or disavow these views, she presented a different, and contradictory, picture. I am not the only one who noticed. The Washington Post editorialized that Judge Sotomayor's attempts to explain away or distance herself from past statements ``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 another speech just a few months ago, Judge Sotomayor addressed whether judges may use foreign law to interpret and apply American law in deciding cases. The distinguished ranking member of the committee mentioned this as well. She said that foreign law ``will be very important in the discussion of how we think about the unsettled issues in our own legal system.'' She endorsed the idea that judges may, as they interpret American law, consider anything, from any source, that they find persuasive.

Once again, Senators discussed this issue with Judge Sotomayor at her hearing. And once again, she neither defended nor disavowed these controversial statements but presented a different, contradictory picture. In her speech, she hoped that judges would continue to consult what others have said, including foreign law, to ``interpret our law in the best way we can.'' But in the hearing, she said that ``I will not use foreign law, to interpret the Constitution or American statutes.'' In her speech, she said that judges may use ideas from any source that they find persuasive. But in the hearing, she said that foreign law cannot be used to influence a legal decision. These different versions are clearly at odds with each other.

Judge Sotomayor took a different tack in answering post-hearing questions. She said that decisions of foreign courts may not serve as ``binding or controlling precedent'' in deciding cases. The issue, however, is not whether a decision by the Supreme Court of France literally binds the Supreme Court of the United States. Of course it does not. The issue is whether that foreign decision may influence our Supreme Court in determining what our statutes and the Constitution mean. And in her answers to post-hearing questions, Judge Sotomayor once again said that decisions of foreign courts can indeed be ``a source of ideas informing our understanding of our own constitutional rights.''

In these speeches, Judge Sotomayor described how such things as race, gender, life experience, personal sympathies, or prejudices affect judges and their decisions. That is certainly possible. But I waited for her to say that judges have an obligation to eliminate the influence of these factors. I wanted her to say that because these things undermine a judge's impartiality, judges must be vigilant to prevent their influence. That would have given me more solace about what Judge Sotomayor's phrase, fidelity to the law, really means. But she never said it. Instead, she endorsed the notion that judges may look either inside themselves to their empathy, or outside to foreign law, for ideas and notions to guide their decisions.

Turning to her cases, the Supreme Court has disagreed with Judge Sotomayor in nine of the ten cases it has reviewed, three of them in the most recent Supreme Court term alone. That is nine of her ten cases they reviewed. And these were not close decisions, either. The total vote in the cases reversing Judge Sotomayor was a lopsided 52-19.

In one case, Judge Sotomayor had held that the Environmental Protection Agency could not consider cost-benefit analysis when adopting a regulation. The Supreme Court reversed

[Page: S8747] GPO's PDF

her, citing its own precedents extending back more than 30 years and holding that the EPA's use of cost-benefit analysis was well within the bounds of its statutory authority.

In another case, Judge Sotomayor had reopened part of a bankruptcy proceeding that had closed more than 20 years ago to resurrect a tort suit. Justice Souter, whom Judge Sotomayor would replace, wrote the opinion for the Supreme Court's 7-2 decision reversing her.

In another case, Judge Sotomayor declared unconstitutional a State law providing for political party election of judges because she felt the law did not give people what she called a ``fair shot.'' The Supreme Court unanimously reversed her, saying that traditional electoral practice ``gives no hint of even the existence, much less the content,'' of the fair-shot standard Judge Sotomayor had invented.

In one case, the Supreme Court affirmed Judge Sotomayor's result but rejected her reasoning because her reading of the relevant statute ``flies in the face of the statutory language.''

And in the one case where the Supreme Court affirmed both Judge Sotomayor's result and reasoning, it did so by the slimmest 5-4 margin. This is a very shaky record on appeal.

The Ricci v. DeStefano case, which has been mentioned quite a lot around here, is one of the cases in which the Supreme Court reversed Judge Sotomayor. The Court reversed her result by a 5-4 vote but unanimously rejected her reasoning. In this case, Judge Sotomayor affirmed the city of New Haven's decision to throw out the results of a fairly designed and administered firefighter promotion exam because too few racial minorities passed it.

This case presents troubling questions of both process and substance. Judge Sotomayor initially used a summary order that did not have to be circulated to the full Second Circuit. That bothered me a great deal, because judges know when they issue a summary order, the rest of the judges are not going to see it. She then converted it to a per curiam opinion that is permissible only when the law is entirely settled. The summary order and the per curiam opinion were each a mere single paragraph and neither appears to be an appropriate vehicle for deciding this challenging case.

On the merits, Title VII of the 1964 Civil Rights Act prohibits two kinds of discrimination. It prohibits disparate treatment, which is intentional, and disparate impact, which may be unintentional. Disparate treatment focuses on the motivation of an employment decision, while disparate impact focuses on its effect. While discrimination cases typically involve one or the other, the Ricci case involved both. In this case, the city claimed it had to engage in disparate treatment of those who passed the promotion exam because it feared a disparate impact lawsuit by those who failed the exam.

I point out that this case involved both disparate treatment and disparate impact because Judge Sotomayor and her advocates claim that her decision was based squarely on settled and longstanding Second Circuit and Supreme Court precedent. We have heard some of that here on the floor tonight. Contrary to her statement to me at the hearing, however, her one-paragraph opinion cited no precedent at all. The only case she cited was the district court opinion in that very case. But the district court actually acknowledged that this case was the opposite of the norm. Rather than those failing an employment test challenging the use of the results, in this case those who passed the test challenged the refusal to use the results. None of the precedents cited by the district court involved this kind of case.

For this reason, six of Judge Sotomayor's Second Circuit colleagues believed that the full circuit should have reviewed her decision, arguing that the case raised important questions of first impression in the Second Circuit and the entire Nation. When it reversed Judge Sotomayor, the Supreme Court similarly observed that there were few, if any, precedents in any court even discussing the issue in this case.

In a column published today in National Journal, the respected legal analyst Stuart Taylor carefully analyzed whether Judge Sotomayor's decision in Ricci was indeed compelled by precedent. We have all read Stuart Taylor over the years. He is one of the most prescient commentators and journalists with regard to the law. He concludes: ``The bottom line is that Circuit precedents did not make Sotomayor rule as she did. Supreme Court precedent favored the firefighters. Sotomayor's ruling was her own.'' I ask unanimous consent that Mr. Taylor's column appear in the Record following my remarks.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See Exhibit 2.)

Mr. HATCH. In addition to claiming that her decision in Ricci was grounded in either Second Circuit or Supreme Court precedent, Judge Sotomayor offered at the hearing that the Sixth Circuit had addressed a similar issue in the same way. I can only assume she did so to imply that if the Sixth Circuit independently came to the same conclusion in a parallel case, then it would be difficult to say that Judge Sotomayor's decision in Ricci is controversial.

I would first note that in Oakley v. City of Memphis, the Sixth Circuit actually analyzed the case, applied the law to the facts, and issued a real opinion. I wish Judge Sotomayor had done that in her case. But more importantly, Judge Sotomayor failed to mention that the Sixth Circuit case was issued 3 months after hers and, in fact, relied upon her decision as persuasive authority. That is no evidence that her decision was procedurally or substantively sound.

Neither are her decisions on the Second Amendment right to keep and bear arms. Last year, in District of Columbia v. Heller, the Supreme Court clearly identified the proper analysis for deciding whether the Second Amendment binds States as well as the Federal Government. Several months later, Judge Sotomayor ignored that directive and clung to her previous insistence, following a different analysis the Supreme Court had discarded, that the right to bear arms does not apply to the States. She also held that the right to bear arms is so insignificant that virtually any conceivable reason is sufficient to justify a weapons restriction.

When I asked her about these decisions at the hearing, she refused to acknowledge that the Supreme Court's so-called rational basis test is its most permissive legal standard. Yet this is practically a self-evident truth in the law, one that Judge Sotomayor herself cited and applied just last fall to uphold a weapons restriction in Maloney v. Cuomo.

She likewise gave short shrift to the fundamental right to private property. In Didden v. Village of Port Chester, Judge Sotomayor affirmed dismissal of a property owner's lawsuit after the village condemned his property and gave it to a developer. The Supreme Court, incorrectly in my view, had previously held in Kelo v. City of New London that economic

development can constitute the public use for which the Fifth Amendment allows the taking of private property. In Didden, however, the village had only announced a general plan for economic development. No taking of anyone's property had occurred. Mr. Didden sued only after the village actually took his property.

In yet another cursory opinion that for some reason took more than a year to produce, Judge Sotomayor denied Mr. Didden even a chance to argue his case. She said that the 3-year period for filing suit began not when the village actually took his property, but when the village earlier had merely announced its general development plan. In other words, Mr. Didden should have sued over the taking of his property before his property had been taken. But had he done so then, he would certainly have been denied his day in court because his legal rights had not yet been violated. This catch-22 amounts to a case of dismissed if he did, and dismissed if he did not. Once again, Judge Sotomayor gave inadequate protection to a fundamental constitutional right.

In another effort to blunt the impact of such controversial decisions, Judge Sotomayor's supporters attempt to portray her as moderate by observing that on the Second Circuit, she agreed with Republican-appointed colleagues 95 percent of the time. On the one hand, this is one of several misguided attempts to defend her by suggesting that a calculator is all it takes properly to evaluate a judicial record. On

[Page: S8748] GPO's PDF

TCH. President Obama has described the kind of judge he intends to appoint. As a Senator, he said that judges decide cases based on their ``deepest values ..... core concerns ..... broader perspectives ..... and the depth and breadth of [their] empathy.'' As a presidential candidate, he pledged to

[Page: S8746] GPO's PDF

appoint judges who indeed have empathy for certain groups. And as President, he has said that a judge's personal empathy is an essential ingredient in judicial decisions.

This standard is seriously out of sync with mainstream America. By more than 3 to 1 Americans believe that judges should decide cases based on the law as written, rather than on their own sense of fairness or justice. The American people reject President Obama's standard for the kind of judge we need on the Federal bench.

At the Judiciary Committee hearing, Judge Sotomayor said that her judicial philosophy is simply fidelity to the law. While some of my Democratic committee colleagues said that they wanted to avoid slogans, codewords, and euphemistic phrases, they apparently accepted this one at face value. Unfortunately, it begs rather than answers the important questions.

Some Senators on the other side of the aisle try to confine concerns about Judge Sotomayor's record to a single case and a single phrase. That political spin, I will admit, makes for a quotable sound-bite. But even a casual observer of this process knows that this political spin is simply not true.

Ironically, those who would narrowly characterize the case against confirmation want us to confine our examination of Judge Sotomayor's record only to her cases while ignoring her speeches and articles. A partial review, however, cannot provide a complete picture. Appeals court decisions that are bound by Supreme Court precedent are not the same as Supreme Court decisions freed from such constraints. Taking Judge Sotomayor's entire record seriously not only gives us more of the information we need, but also gives her the respect she deserves.

Debates over judicial nominations are debates over judicial power, and America's founders gave us solid guidance about the proper role of judges in our system of government. Judges interpret and apply written law to decide cases. While judges cannot change the words of our laws, they can still control statutes and the Constitution by controlling the meaning of those words. That would result in the rule of judges, not the rule of law. To borrow Judge Sotomayor's phrase, judges would not have fidelity to the law, but fidelity to themselves.

In September 2001, Judge Sotomayor introduced Justice Antonin Scalia when he spoke at Hofstra Law School. She repeated a legend about Justice Oliver Wendell Holmes and Judge Learned Hand. Like Judge Sotomayor, Judge Hand served on both the Southern District of New York and the Second Circuit. As they departed after having lunch, Judge Hand called out: Do justice, sir, do justice. Justice Holmes replied: That is not my job, my job is to apply the law.

Is it a judge's role to do justice or to apply the law? President Obama says that a judge's personal empathy is an essential ingredient for doing justice. At the hearing on Judge Sotomayor's nomination, one of my Democratic colleagues invoked what he called ``America's common law inheritance'' to describe Federal judges with broad discretion to decide cases based on their personal notions of justice or fairness.

That may be the judiciary some of my colleagues would prefer, but it is not the judiciary America's Founders gave us. Federal judges are not common-law judges. They may not decide cases based on subjective feelings they find inside themselves, but only on objective law they find outside themselves. Thankfully, the American people overwhelmingly say today what

America's Founders said, that judges must follow the law rather than their personal empathy to decide cases.

The question is which kind of Supreme Court Justice Sonia Sotomayor will be. In one speech that she gave several times over nearly a decade while she was on the bench, she spoke directly about how judges should approach deciding cases. In this speech, she said that factors such as race and gender affect how judges decide cases and, as she put it, ``the facts I choose to see.'' She embraced the notion that there is no objectivity or neutrality in judging, and that impartiality is merely an aspiration which judges probably cannot achieve, and perhaps should not even attempt. She said that judges must decide when their personal sympathies and prejudices are appropriate in deciding cases.

Judge Sotomayor and her advocates have tried unsuccessfully to blunt this speech's more controversial edges. Their claim that she used the speech solely to inspire young lawyers or law students, even if true, is irrelevant because the speech is controversial for its content, not its audience.

My concern only grew after discussing this speech with Judge Sotomayor during the hearing. Rather than adequately defend or disavow these views, she presented a different, and contradictory, picture. I am not the only one who noticed. The Washington Post editorialized that Judge Sotomayor's attempts to explain away or distance herself from past statements ``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 another speech just a few months ago, Judge Sotomayor addressed whether judges may use foreign law to interpret and apply American law in deciding cases. The distinguished ranking member of the committee mentioned this as well. She said that foreign law ``will be very important in the discussion of how we think about the unsettled issues in our own legal system.'' She endorsed the idea that judges may, as they interpret American law, consider anything, from any source, that they find persuasive.

Once again, Senators discussed this issue with Judge Sotomayor at her hearing. And once again, she neither defended nor disavowed these controversial statements but presented a different, contradictory picture. In her speech, she hoped that judges would continue to consult what others have said, including foreign law, to ``interpret our law in the best way we can.'' But in the hearing, she said that ``I will not use foreign law, to interpret the Constitution or American statutes.'' In her speech, she said that judges may use ideas from any source that they find persuasive. But in the hearing, she said that foreign law cannot be used to influence a legal decision. These different versions are clearly at odds with each other.

Judge Sotomayor took a different tack in answering post-hearing questions. She said that decisions of foreign courts may not serve as ``binding or controlling precedent'' in deciding cases. The issue, however, is not whether a decision by the Supreme Court of France literally binds the Supreme Court of the United States. Of course it does not. The issue is whether that foreign decision may influence our Supreme Court in determining what our statutes and the Constitution mean. And in her answers to post-hearing questions, Judge Sotomayor once again said that decisions of foreign courts can indeed be ``a source of ideas informing our understanding of our own constitutional rights.''

In these speeches, Judge Sotomayor described how such things as race, gender, life experience, personal sympathies, or prejudices affect judges and their decisions. That is certainly possible. But I waited for her to say that judges have an obligation to eliminate the influence of these factors. I wanted her to say that because these things undermine a judge's impartiality, judges must be vigilant to prevent their influence. That would have given me more solace about what Judge Sotomayor's phrase, fidelity to the law, really means. But she never said it. Instead, she endorsed the notion that judges may look either inside themselves to their empathy, or outside to foreign law, for ideas and notions to guide their decisions.

Turning to her cases, the Supreme Court has disagreed with Judge Sotomayor in nine of the ten cases it has reviewed, three of them in the most recent Supreme Court term alone. That is nine of her ten cases they reviewed. And these were not close decisions, either. The total vote in the cases reversing Judge Sotomayor was a lopsided 52-19.

In one case, Judge Sotomayor had held that the Environmental Protection Agency could not consider cost-benefit analysis when adopting a regulation. The Supreme Court reversed

[Page: S8747] GPO's PDF

her, citing its own precedents extending back more than 30 years and holding that the EPA's use of cost-benefit analysis was well within the bounds of its statutory authority.

In another case, Judge Sotomayor had reopened part of a bankruptcy proceeding that had closed more than 20 years ago to resurrect a tort suit. Justice Souter, whom Judge Sotomayor would replace, wrote the opinion for the Supreme Court's 7-2 decision reversing her.

In another case, Judge Sotomayor declared unconstitutional a State law providing for political party election of judges because she felt the law did not give people what she called a ``fair shot.'' The Supreme Court unanimously reversed her, saying that traditional electoral practice ``gives no hint of even the existence, much less the content,'' of the fair-shot standard Judge Sotomayor had invented.

In one case, the Supreme Court affirmed Judge Sotomayor's result but rejected her reasoning because her reading of the relevant statute ``flies in the face of the statutory language.''

And in the one case where the Supreme Court affirmed both Judge Sotomayor's result and reasoning, it did so by the slimmest 5-4 margin. This is a very shaky record on appeal.

The Ricci v. DeStefano case, which has been mentioned quite a lot around here, is one of the cases in which the Supreme Court reversed Judge Sotomayor. The Court reversed her result by a 5-4 vote but unanimously rejected her reasoning. In this case, Judge Sotomayor affirmed the city of New Haven's decision to throw out the results of a fairly designed and administered firefighter promotion exam because too few racial minorities passed it.

This case presents troubling questions of both process and substance. Judge Sotomayor initially used a summary order that did not have to be circulated to the full Second Circuit. That bothered me a great deal, because judges know when they issue a summary order, the rest of the judges are not going to see it. She then converted it to a per curiam opinion that is permissible only when the law is entirely settled. The summary order and the per curiam opinion were each a mere single paragraph and neither appears to be an appropriate vehicle for deciding this challenging case.

On the merits, Title VII of the 1964 Civil Rights Act prohibits two kinds of discrimination. It prohibits disparate treatment, which is intentional, and disparate impact, which may be unintentional. Disparate treatment focuses on the motivation of an employment decision, while disparate impact focuses on its effect. While discrimination cases typically involve one or the other, the Ricci case involved both. In this case, the city claimed it had to engage in disparate treatment of those who passed the promotion exam because it feared a disparate impact lawsuit by those who failed the exam.

I point out that this case involved both disparate treatment and disparate impact because Judge Sotomayor and her advocates claim that her decision was based squarely on settled and longstanding Second Circuit and Supreme Court precedent. We have heard some of that here on the floor tonight. Contrary to her statement to me at the hearing, however, her one-paragraph opinion cited no precedent at all. The only case she cited was the district court opinion in that very case. But the district court actually acknowledged that this case was the opposite of the norm. Rather than those failing an employment test challenging the use of the results, in this case those who passed the test challenged the refusal to use the results. None of the precedents cited by the district court involved this kind of case.

For this reason, six of Judge Sotomayor's Second Circuit colleagues believed that the full circuit should have reviewed her decision, arguing that the case raised important questions of first impression in the Second Circuit and the entire Nation. When it reversed Judge Sotomayor, the Supreme Court similarly observed that there were few, if any, precedents in any court even discussing the issue in this case.

In a column published today in National Journal, the respected legal analyst Stuart Taylor carefully analyzed whether Judge Sotomayor's decision in Ricci was indeed compelled by precedent. We have all read Stuart Taylor over the years. He is one of the most prescient commentators and journalists with regard to the law. He concludes: ``The bottom line is that Circuit precedents did not make Sotomayor rule as she did. Supreme Court precedent favored the firefighters. Sotomayor's ruling was her own.'' I ask unanimous consent that Mr. Taylor's column appear in the Record following my remarks.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See Exhibit 2.)

Mr. HATCH. In addition to claiming that her decision in Ricci was grounded in either Second Circuit or Supreme Court precedent, Judge Sotomayor offered at the hearing that the Sixth Circuit had addressed a similar issue in the same way. I can only assume she did so to imply that if the Sixth Circuit independently came to the same conclusion in a parallel case, then it would be difficult to say that Judge Sotomayor's decision in Ricci is controversial.

I would first note that in Oakley v. City of Memphis, the Sixth Circuit actually analyzed the case, applied the law to the facts, and issued a real opinion. I wish Judge Sotomayor had done that in her case. But more importantly, Judge Sotomayor failed to mention that the Sixth Circuit case was issued 3 months after hers and, in fact, relied upon her decision as persuasive authority. That is no evidence that her decision was procedurally or substantively sound.

Neither are her decisions on the Second Amendment right to keep and bear arms. Last year, in District of Columbia v. Heller, the Supreme Court clearly identified the proper analysis for deciding whether the Second Amendment binds States as well as the Federal Government. Several months later, Judge Sotomayor ignored that directive and clung to her previous insistence, following a different analysis the Supreme Court had discarded, that the right to bear arms does not apply to the States. She also held that the right to bear arms is so insignificant that virtually any conceivable reason is sufficient to justify a weapons restriction.

When I asked her about these decisions at the hearing, she refused to acknowledge that the Supreme Court's so-called rational basis test is its most permissive legal standard. Yet this is practically a self-evident truth in the law, one that Judge Sotomayor herself cited and applied just last fall to uphold a weapons restriction in Maloney v. Cuomo.

She likewise gave short shrift to the fundamental right to private property. In Didden v. Village of Port Chester, Judge Sotomayor affirmed dismissal of a property owner's lawsuit after the village condemned his property and gave it to a developer. The Supreme Court, incorrectly in my view, had previously held in Kelo v. City of New London that economic

development can constitute the public use for which the Fifth Amendment allows the taking of private property. In Didden, however, the village had only announced a general plan for economic development. No taking of anyone's property had occurred. Mr. Didden sued only after the village actually took his property.

In yet another cursory opinion that for some reason took more than a year to produce, Judge Sotomayor denied Mr. Didden even a chance to argue his case. She said that the 3-year period for filing suit began not when the village actually took his property, but when the village earlier had merely announced its general development plan. In other words, Mr. Didden should have sued over the taking of his property before his property had been taken. But had he done so then, he would certainly have been denied his day in court because his legal rights had not yet been violated. This catch-22 amounts to a case of dismissed if he did, and dismissed if he did not. Once again, Judge Sotomayor gave inadequate protection to a fundamental constitutional right.

In another effort to blunt the impact of such controversial decisions, Judge Sotomayor's supporters attempt to portray her as moderate by observing that on the Second Circuit, she agreed with Republican-appointed colleagues 95 percent of the time. On the one hand, this is one of several misguided attempts to defend her by suggesting that a calculator is all it takes properly to evaluate a judicial record. On

[Page: S8748] GPO's PDF

the other hand, however, this claim comes from the same Democratic Senators who voted against Justice Samuel Alito just a few years ago. On the Third Circuit, he had agreed with his Democratic-appointed colleagues 99 percent of the time over a much longer tenure. It shows how specious some of the arguments are.

Let me return to where I began. I believe that Judge Sotomayor is a good person. I respect her achievements and applaud her service to her community, the judiciary, and the country. While appointment of the first Puerto Rican Justice says a lot about America, however, I believe that appointing a Justice with her judicial philosophy says the wrong thing about the power and role of judges in our system of government.

A nominee's approach to judging is more important than her , especially on the Supreme Court where Justices operate with the fewest constraints. Judge Sotomayor has expressed particular admiration for Justice Benjamin Cardozo. His book on the judicial process contains a chapter titled ``The Judge as a Legislator'' in which he compares judges to legislators who decide difficult cases on the basis of personal reflections and life considerations. That sounds very much like President Obama's appointment standard and Judge Sotomayor's expressed judicial philosophy. I believe it is inconsistent with the limited role that America's founders prescribed for judges in our system of government.

My colleagues know that I take a generous approach to the confirmation process and I believe some deference to the President of the United States and his choice is appropriate. I have rarely voted against any judicial nominee and took very seriously the question of whether to do so now. To that end, I studied her speeches, articles, and cases. I spoke with experts and advocates from different perspectives. I participated in all three question rounds during the Judiciary Committee hearing.

But in the end, neither general deference to the President nor a specific desire to support a Hispanic nominee could overcome the serious conflicts between Judge Sotomayor's record and the principles about the judiciary and liberty in which I deeply believe.

I was the one who started the Republican Senatorial Hispanic Task Force and ran it for many years, bringing Democrats, Independents, and Republicans together in the best interest of the Hispanic community to try to give them more of a voice. I feel pretty deeply about Hispanic people, as I do all people.

I just want everybody to know that this took a lot of consideration on my part to come to the conclusion I have. I wish President Obama had taken a different course, but this is the decision I have to make in this case. As I say, I like Judge Sotomayor. I particularly like her life story and her wonderful family. I did not want to vote against her but I think I have explained here some of the serious concerns I have.

Exhibit 1

The Constitution as the Playbook for Judicial Selection Orrin G. Hatch*

The Federalist Society plays an indispensable role in educating our fellow citizens about the principles of liberty, a task that is both critical and challenging. It is critical because, as James Madison put it, ``a well-instructed people alone can be permanently a free people.'' \1\ The ordered liberty we enjoy is neither self-generating nor self-sustaining, but is based on certain principles that require certain conditions. Knowledge and defense of those principles and conditions will be the difference between keeping and losing our liberty.

This educational challenge, however, has perhaps never been more daunting. We live in a culture in which words mean anything to anyone, celebrities substitute for statesmen, and people are no longer well instructed. Forty-two percent of Americans do not know the number of branches in the federal government, and more than sixty percent cannot name all three \2\ Four times as many Americans say that a detailed knowledge of the Constitution is absolutely necessary as say they actually have such knowledge.\3\ Twenty-one percent of Americans believe the First Amendment protects the right to own a pet.\4\

A few factors contribute to this state of affairs. Most people get their information about the legal system only from television. Unless people sue each other or commit crimes--habits we really should not encourage--they will likely have no firsthand knowledge or experience to draw from. Furthermore, people hold lawyers in low esteem. If you plug the term ``lawyer joke'' into Yahoo, it returns a whopping 25.7 million hits, a number on the rise almost as fast as the national debt. The problem with lawyer jokes is that most lawyers do not think they are funny and most other people do not think they are jokes. This low view of lawyers means people have little motivation to learn more about what lawyers and judges really do.

The media do not help this state of affairs. The Harvard Journal of Law & Public Policy recently published an excellent article by Michigan Supreme Court Justice Stephen Markman,\5\ who served as my chief counsel when I chaired the Senate Judiciary Subcommittee on the Constitution in the early 1980s. He describes how the media's penchant for focusing on winners and losers significantly shapes and distorts how people understand what judges actually do, often for the worse.\6\

Nonetheless, the timing of this Essay is auspicious in several respects. First, I write in the wake of two very relevant Federalist Society student symposia, last year's about the people and the courts \7\ and this year's about the separation of powers.\8\ Second, President Obama has been particularly clear from the time he was a candidate about his intention to appoint judges who will exercise a strikingly political version of judicial power.\9\ Third, he has already started acting on that intention by making his first judicial nominations.\10\ New Presidents typically make their first judicial nominations in July or even August, yet the Senate Judiciary Committee has already held a hearing on the President's first nominee to the U.S. Court of Appeals, and the President sent two more nominees to the Senate just a few days ago.

Mark Twain popularized the notion that there are three kinds of lies: lies, damned lies, and statistics.\11\ I prefer Senator Daniel Patrick Moynihan's comment that you may be entitled to your own opinion, but not your own set of facts.\12\ Either way, I will statistically describe two macro and two micro factors of the judicial confirmation process to show its recent transformation before turning to how it should be conducted going forward.

The two macro factors are hearings and confirmations. The Judiciary Committee held hearings for fewer judicial nominees during the 110th Congress than any Congress since before I entered the Senate. This lack of hearings is not the result of the Judiciary Committee's inability to multitask. Instead, it is the result of a political choice, one that has been reversed since the last election. The Judiciary Committee has already held a hearing on President Obama's first appeals court nominee, just two weeks after that nominee arrived in the Senate.\13\ Under a Republican President, Judiciary Committee Chairman Patrick Leahy waited an average of 197 days to give an appeals court nominee a hearing.\14\ The last election amounted to the political equivalent of Drano, as the confirmation pipes are now wonderfully unobstructed and flowing freely once again.

Some might assume that Republicans demonstrate such strong partisan preference, but they would be wrong. Since I was first elected, Democrats running the Senate have granted hearings to forty-one percent more Democratic than Republican judicial nominees. When Republicans run the Senate, the partisan differential is less than five percent.

Moving from the Judiciary Committee to the Senate floor, the second macro factor is confirmations. In the last eight years, President Bush had the slowest pace of judicial confirmations of any President since Gerald Ford. Last year, the Senate confirmed fewer judicial nominees than in any President's final year since 1968, the end of the Johnson Administration. By comparison, when I chaired the Judiciary Committee during President Clinton's last year in office, the Senate confirmed twice as many appeals court nominees as it did last year.

As with hearings, the picture is not the same when Republicans are in charge. When Democrats run the Senate, they confirm forty-five percent more Democratic than Republican judicial nominees. When Republicans run the Senate, the differential is only nine percent.

At the ground level, the two micro factors in the confirmation process are votes and filibusters. The Senate has traditionally confirmed most unopposed lower court nominees by unanimous consent rather than by time-consuming roll call votes. From 1950 to 2000 the Senate confirmed only 3.2 percent of all district and appeals court nominees by roll call vote. During the Bush presidency, that figure jumped to nearly sixty percent. The percentage of roll calls without a single negative vote nearly tripled. And under President Bush, for the first time in American history, the filibuster was used to defeat majority-supported judicial nominees.\15\ With all due respect to Mark Twain, I think these numbers accurately give you at least a taste for the partisan division and conflict that now characterize the judicial confirmation process. It has become, to edit Thomas Hobbes just a bit, quite nasty and brutish.

Turning from what has been to what should be, I believe we can get on a better path by, as Madison emphasized in The Federalist No. 39, ``recurring to principles.'' \16\ The judicial selection process has changed because ideas about judicial power have changed. My basic thesis is this: Our written Constitution and its separation of powers define both judicial power and judicial selection. They define the judicial philosophy [Page: S8749] GPO's PDF

case, Judge Sotomayor had held that the Environmental Protection Agency could not consider cost-benefit analysis when adopting a regulation. The Supreme Court reversed

[Page: S8747] GPO's PDF

her, citing its own precedents extending back more than 30 years and holding that the EPA's use of cost-benefit analysis was well within the bounds of its statutory authority.

In another case, Judge Sotomayor had reopened part of a bankruptcy proceeding that had closed more than 20 years ago to resurrect a tort suit. Justice Souter, whom Judge Sotomayor would replace, wrote the opinion for the Supreme Court's 7-2 decision reversing her.

In another case, Judge Sotomayor declared unconstitutional a State law providing for political party election of judges because she felt the law did not give people what she called a ``fair shot.'' The Supreme Court unanimously reversed her, saying that traditional electoral practice ``gives no hint of even the existence, much less the content,'' of the fair-shot standard Judge Sotomayor had invented.

In one case, the Supreme Court affirmed Judge Sotomayor's result but rejected her reasoning because her reading of the relevant statute ``flies in the face of the statutory language.''

And in the one case where the Supreme Court affirmed both Judge Sotomayor's result and reasoning, it did so by the slimmest 5-4 margin. This is a very shaky record on appeal.

The Ricci v. DeStefano case, which has been mentioned quite a lot around here, is one of the cases in which the Supreme Court reversed Judge Sotomayor. The Court reversed her result by a 5-4 vote but unanimously rejected her reasoning. In this case, Judge Sotomayor affirmed the city of New Haven's decision to throw out the results of a fairly designed and administered firefighter promotion exam because too few racial minorities passed it.

This case presents troubling questions of both process and substance. Judge Sotomayor initially used a summary order that did not have to be circulated to the full Second Circuit. That bothered me a great deal, because judges know when they issue a summary order, the rest of the judges are not going to see it. She then converted it to a per curiam opinion that is permissible only when the law is entirely settled. The summary order and the per curiam opinion were each a mere single paragraph and neither appears to be an appropriate vehicle for deciding this challenging case.

On the merits, Title VII of the 1964 Civil Rights Act prohibits two kinds of discrimination. It prohibits disparate treatment, which is intentional, and disparate impact, which may be unintentional. Disparate treatment focuses on the motivation of an employment decision, while disparate impact focuses on its effect. While discrimination cases typically involve one or the other, the Ricci case involved both. In this case, the city claimed it had to engage in disparate treatment of those who passed the promotion exam because it feared a disparate impact lawsuit by those who failed the exam.

I point out that this case involved both disparate treatment and disparate impact because Judge Sotomayor and her advocates claim that her decision was based squarely on settled and longstanding Second Circuit and Supreme Court precedent. We have heard some of that here on the floor tonight. Contrary to her statement to me at the hearing, however, her one-paragraph opinion cited no precedent at all. The only case she cited was the district court opinion in that very case. But the district court actually acknowledged that this case was the opposite of the norm. Rather than those failing an employment test challenging the use of the results, in this case those who passed the test challenged the refusal to use the results. None of the precedents cited by the district court involved this kind of case.

For this reason, six of Judge Sotomayor's Second Circuit colleagues believed that the full circuit should have reviewed her decision, arguing that the case raised important questions of first impression in the Second Circuit and the entire Nation. When it reversed Judge Sotomayor, the Supreme Court similarly observed that there were few, if any, precedents in any court even discussing the issue in this case.

In a column published today in National Journal, the respected legal analyst Stuart Taylor carefully analyzed whether Judge Sotomayor's decision in Ricci was indeed compelled by precedent. We have all read Stuart Taylor over the years. He is one of the most prescient commentators and journalists with regard to the law. He concludes: ``The bottom line is that Circuit precedents did not make Sotomayor rule as she did. Supreme Court precedent favored the firefighters. Sotomayor's ruling was her own.'' I ask unanimous consent that Mr. Taylor's column appear in the Record following my remarks.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See Exhibit 2.)

Mr. HATCH. In addition to claiming that her decision in Ricci was grounded in either Second Circuit or Supreme Court precedent, Judge Sotomayor offered at the hearing that the Sixth Circuit had addressed a similar issue in the same way. I can only assume she did so to imply that if the Sixth Circuit independently came to the same conclusion in a parallel case, then it would be difficult to say that Judge Sotomayor's decision in Ricci is controversial.

I would first note that in Oakley v. City of Memphis, the Sixth Circuit actually analyzed the case, applied the law to the facts, and issued a real opinion. I wish Judge Sotomayor had done that in her case. But more importantly, Judge Sotomayor failed to mention that the Sixth Circuit case was issued 3 months after hers and, in fact, relied upon her decision as persuasive authority. That is no evidence that her decision was procedurally or substantively sound.

Neither are her decisions on the Second Amendment right to keep and bear arms. Last year, in District of Columbia v. Heller, the Supreme Court clearly identified the proper analysis for deciding whether the Second Amendment binds States as well as the Federal Government. Several months later, Judge Sotomayor ignored that directive and clung to her previous insistence, following a different analysis the Supreme Court had discarded, that the right to bear arms does not apply to the States. She also held that the right to bear arms is so insignificant that virtually any conceivable reason is sufficient to justify a weapons restriction.

When I asked her about these decisions at the hearing, she refused to acknowledge that the Supreme Court's so-called rational basis test is its most permissive legal standard. Yet this is practically a self-evident truth in the law, one that Judge Sotomayor herself cited and applied just last fall to uphold a weapons restriction in Maloney v. Cuomo.

She likewise gave short shrift to the fundamental right to private property. In Didden v. Village of Port Chester, Judge Sotomayor affirmed dismissal of a property owner's lawsuit after the village condemned his property and gave it to a developer. The Supreme Court, incorrectly in my view, had previously held in Kelo v. City of New London that economic

development can constitute the public use for which the Fifth Amendment allows the taking of private property. In Didden, however, the village had only announced a general plan for economic development. No taking of anyone's property had occurred. Mr. Didden sued only after the village actually took his property.

In yet another cursory opinion that for some reason took more than a year to produce, Judge Sotomayor denied Mr. Didden even a chance to argue his case. She said that the 3-year period for filing suit began not when the village actually took his property, but when the village earlier had merely announced its general development plan. In other words, Mr. Didden should have sued over the taking of his property before his property had been taken. But had he done so then, he would certainly have been denied his day in court because his legal rights had not yet been violated. This catch-22 amounts to a case of dismissed if he did, and dismissed if he did not. Once again, Judge Sotomayor gave inadequate protection to a fundamental constitutional right.

In another effort to blunt the impact of such controversial decisions, Judge Sotomayor's supporters attempt to portray her as moderate by observing that on the Second Circuit, she agreed with Republican-appointed colleagues 95 percent of the time. On the one hand, this is one of several misguided attempts to defend her by suggesting that a calculator is all it takes properly to evaluate a judicial record. On

[Page: S8748] GPO's PDF

the other hand, however, this claim comes from the same Democratic Senators who voted against Justice Samuel Alito just a few years ago. On the Third Circuit, he had agreed with his Democratic-appointed colleagues 99 percent of the time over a much longer tenure. It shows how specious some of the arguments are.

Let me return to where I began. I believe that Judge Sotomayor is a good person. I respect her achievements and applaud her service to her community, the judiciary, and the country. While appointment of the first Puerto Rican Justice says a lot about America, however, I believe that appointing a Justice with her judicial philosophy says the wrong thing about the power and role of judges in our system of government.

A nominee's approach to judging is more important than her , especially on the Supreme Court where Justices operate with the fewest constraints. Judge Sotomayor has expressed particular admiration for Justice Benjamin Cardozo. His book on the judicial process contains a chapter titled ``The Judge as a Legislator'' in which he compares judges to legislators who decide difficult cases on the basis of personal reflections and life considerations. That sounds very much like President Obama's appointment standard and Judge Sotomayor's expressed judicial philosophy. I believe it is inconsistent with the limited role that America's founders prescribed for judges in our system of government.

My colleagues know that I take a generous approach to the confirmation process and I believe some deference to the President of the United States and his choice is appropriate. I have rarely voted against any judicial nominee and took very seriously the question of whether to do so now. To that end, I studied her speeches, articles, and cases. I spoke with experts and advocates from different perspectives. I participated in all three question rounds during the Judiciary Committee hearing.

But in the end, neither general deference to the President nor a specific desire to support a Hispanic nominee could overcome the serious conflicts between Judge Sotomayor's record and the principles about the judiciary and liberty in which I deeply believe.

I was the one who started the Republican Senatorial Hispanic Task Force and ran it for many years, bringing Democrats, Independents, and Republicans together in the best interest of the Hispanic community to try to give them more of a voice. I feel pretty deeply about Hispanic people, as I do all people.

I just want everybody to know that this took a lot of consideration on my part to come to the conclusion I have. I wish President Obama had taken a different course, but this is the decision I have to make in this case. As I say, I like Judge Sotomayor. I particularly like her life story and her wonderful family. I did not want to vote against her but I think I have explained here some of the serious concerns I have.

Exhibit 1

The Constitution as the Playbook for Judicial Selection Orrin G. Hatch*

The Federalist Society plays an indispensable role in educating our fellow citizens about the principles of liberty, a task that is both critical and challenging. It is critical because, as James Madison put it, ``a well-instructed people alone can be permanently a free people.'' \1\ The ordered liberty we enjoy is neither self-generating nor self-sustaining, but is based on certain principles that require certain conditions. Knowledge and defense of those principles and conditions will be the difference between keeping and losing our liberty.

This educational challenge, however, has perhaps never been more daunting. We live in a culture in which words mean anything to anyone, celebrities substitute for statesmen, and people are no longer well instructed. Forty-two percent of Americans do not know the number of branches in the federal government, and more than sixty percent cannot name all three \2\ Four times as many Americans say that a detailed knowledge of the Constitution is absolutely necessary as say they actually have such knowledge.\3\ Twenty-one percent of Americans believe the First Amendment protects the right to own a pet.\4\

A few factors contribute to this state of affairs. Most people get their information about the legal system only from television. Unless people sue each other or commit crimes--habits we really should not encourage--they will likely have no firsthand knowledge or experience to draw from. Furthermore, people hold lawyers in low esteem. If you plug the term ``lawyer joke'' into Yahoo, it returns a whopping 25.7 million hits, a number on the rise almost as fast as the national debt. The problem with lawyer jokes is that most lawyers do not think they are funny and most other people do not think they are jokes. This low view of lawyers means people have little motivation to learn more about what lawyers and judges really do.

The media do not help this state of affairs. The Harvard Journal of Law & Public Policy recently published an excellent article by Michigan Supreme Court Justice Stephen Markman,\5\ who served as my chief counsel when I chaired the Senate Judiciary Subcommittee on the Constitution in the early 1980s. He describes how the media's penchant for focusing on winners and losers significantly shapes and distorts how people understand what judges actually do, often for the worse.\6\

Nonetheless, the timing of this Essay is auspicious in several respects. First, I write in the wake of two very relevant Federalist Society student symposia, last year's about the people and the courts \7\ and this year's about the separation of powers.\8\ Second, President Obama has been particularly clear from the time he was a candidate about his intention to appoint judges who will exercise a strikingly political version of judicial power.\9\ Third, he has already started acting on that intention by making his first judicial nominations.\10\ New Presidents typically make their first judicial nominations in July or even August, yet the Senate Judiciary Committee has already held a hearing on the President's first nominee to the U.S. Court of Appeals, and the President sent two more nominees to the Senate just a few days ago.

Mark Twain popularized the notion that there are three kinds of lies: lies, damned lies, and statistics.\11\ I prefer Senator Daniel Patrick Moynihan's comment that you may be entitled to your own opinion, but not your own set of facts.\12\ Either way, I will statistically describe two macro and two micro factors of the judicial confirmation process to show its recent transformation before turning to how it should be conducted going forward.

The two macro factors are hearings and confirmations. The Judiciary Committee held hearings for fewer judicial nominees during the 110th Congress than any Congress since before I entered the Senate. This lack of hearings is not the result of the Judiciary Committee's inability to multitask. Instead, it is the result of a political choice, one that has been reversed since the last election. The Judiciary Committee has already held a hearing on President Obama's first appeals court nominee, just two weeks after that nominee arrived in the Senate.\13\ Under a Republican President, Judiciary Committee Chairman Patrick Leahy waited an average of 197 days to give an appeals court nominee a hearing.\14\ The last election amounted to the political equivalent of Drano, as the confirmation pipes are now wonderfully unobstructed and flowing freely once again.

Some might assume that Republicans demonstrate such strong partisan preference, but they would be wrong. Since I was first elected, Democrats running the Senate have granted hearings to forty-one percent more Democratic than Republican judicial nominees. When Republicans run the Senate, the partisan differential is less than five percent.

Moving from the Judiciary Committee to the Senate floor, the second macro factor is confirmations. In the last eight years, President Bush had the slowest pace of judicial confirmations of any President since Gerald Ford. Last year, the Senate confirmed fewer judicial nominees than in any President's final year since 1968, the end of the Johnson Administration. By comparison, when I chaired the Judiciary Committee during President Clinton's last year in office, the Senate confirmed twice as many appeals court nominees as it did last year.

As with hearings, the picture is not the same when Republicans are in charge. When Democrats run the Senate, they confirm forty-five percent more Democratic than Republican judicial nominees. When Republicans run the Senate, the differential is only nine percent.

At the ground level, the two micro factors in the confirmation process are votes and filibusters. The Senate has traditionally confirmed most unopposed lower court nominees by unanimous consent rather than by time-consuming roll call votes. From 1950 to 2000 the Senate confirmed only 3.2 percent of all district and appeals court nominees by roll call vote. During the Bush presidency, that figure jumped to nearly sixty percent. The percentage of roll calls without a single negative vote nearly tripled. And under President Bush, for the first time in American history, the filibuster was used to defeat majority-supported judicial nominees.\15\ With all due respect to Mark Twain, I think these numbers accurately give you at least a taste for the partisan division and conflict that now characterize the judicial confirmation process. It has become, to edit Thomas Hobbes just a bit, quite nasty and brutish.

Turning from what has been to what should be, I believe we can get on a better path by, as Madison emphasized in The Federalist No. 39, ``recurring to principles.'' \16\ The judicial selection process has changed because ideas about judicial power have changed. My basic thesis is this: Our written Constitution and its separation of powers define both judicial power and judicial selection. They define the judicial philosophy

[Page: S8749] GPO's PDF

that is a necessary qualification for judicial service, and they counsel that the Senate defer to the President when he nominates qualified individuals.

Consider a judicial nomination as a hiring process based on a job description. The job description of a judge is to interpret and apply law to decide cases. This job description does not mean whatever a President, political party, or Senate majority wants it to mean. Our written Constitution and its separation of powers set the judicial job description. Interpreting written law must be different than making written law. Because law written in statutes or the Constitution is not simply words, but really the meaning of the words, only those with authority to make law may determine what the words of our laws say and what those words mean. Judges do not have authority to make law, so they do not have authority to choose what the words of our laws say or what they mean. In other words, judges apply the law to decide cases, but they may not make the law they apply. Judges and the law they use to decide cases are two different things. Judging, therefore, is about a process that legitimates results, a process by which the law made by the people and those they elect determines winners and losers.

The Constitution and its separation of powers compel this judicial job description. This kind of judge is consistent with limited government and the ordered liberty it makes possible. Justice Markman's article describes what he calls a ``traditional jurisprudence--one that views the responsibility of the courts to say what the law `is' rather than what it `ought' to be.'' \17\ Such a philosophy of judicial restraint--an understanding of the limited power and role of judges--is a qualification for judicial service. This is the kind of judge a President should nominate.

Our written Constitution and its separation of powers also define how the confirmation stage of the judicial selection process should operate. The Constitution gives the power to nominate and appoint judges to the President, not to the Senate. The best way to understand the Senate's role is that the Senate advises the President whether to appoint his nominees by giving or withholding its consent. I explored this role in more detail in the Utah Law Review a few years ago in the context of showing that the use of the filibuster to defeat majority-supported judicial nominees is inconsistent with the separation of powers.\18\ One basis on which the Senate may legitimately withhold its consent to a judicial nominee, however, is that the nominee is not qualified for judicial service. Qualifications include more than information on a nominee's . And with all due respect to the American Bar Association, their rating does not a qualification determine. Instead, qualifications for judicial service include whether a nominee's judicial philosophy--his understanding of a judge's power and role--is in sync with our written Constitution and its separation of powers.

Judges, after all, take an oath to support and defend the Constitution of the United States. To be qualified for judicial service, a nominee must believe there is such a thing, that the supreme law of the land is not simply in the eye of the judicial beholder, and that judges need something more than a legal education, a personal opinion, and an imagination to interpret it.

I propose looking to the basic principles of our written Constitution and its separation of powers to guide the judicial selection process. For the President, those principles require nominees with a restrained judicial philosophy. For the Senate, they require deference to a President's qualified nominees. Senators, of course, must decide how to balance qualifications and deference. Our written Constitution and its separation of powers, however, provide normative guidance for the judicial selection process. Presidents and Senators will have to decide, and be accountable for, how they use or reject that guidance.

No matter how philosophically sound this proposal may be--and I believe it is philosophically rock solid--it may nevertheless be politically controversial. We have traveled a long way from Alexander Hamilton describing the judiciary as the weakest and least dangerous branch.\19\ We have traveled a long way from the Supreme Court saying in 1795 that the Constitution is ``certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it.'' \20\ We have traveled a long way from the Senate Judiciary Committee saying in 1872 that giving the Constitution a meaning different from what the people provided when adopting it would be unconstitutional.\21\

For a long time now, we have instead labored under Chief Justice Charles Evans Hughes's notion that the Constitution is whatever judges say it is.\22\ It has become fashionable to suppose that the only law judges may not make is law we do not like. Legal commentator Stuart Taylor correctly observes that ``[l]ike a great, ever-spreading blob, judicial power has insinuated itself into every nook and cranny.'' \23\ One of my predecessors as Senator from Utah who later served on the Supreme Court, George Sutherland, described the transformation in 1937 as it was literally under way. He warned that abandoning the separation of powers by ignoring the distinction between interpreting and amending the Constitution would convert ``what was intended as inescapable and enduring mandates into mere moral reflections.'' \24\ Less than two decades later, Justice Robert Jackson described what he saw as a widely held belief that the Supreme Court decides cases based on personal impressions rather than impersonal rules of law.\25\

Judicial power and judicial selection are inextricably linked. Sometimes the Senate can appear to produce a lot of activity but take very little action. To some, that means the Senate is the world's greatest deliberative body. To others, it means that it produces a lot of sound and fury signifying nothing. But I hope that the debate over President Obama's judicial nominees will really be a debate over the kind of judge our liberty requires. The debate should be about whether judges should decide cases by using enduring mandates and impersonal rules of law or by using their own moral reflections and personal impressions.

President Obama has already taken sides in this debate. When he was a Senator, he voted against the nomination of John Roberts to be Chief Justice, stating that judges decide cases based on their deepest values, their core concerns, and the content of their hearts.\26\ On the campaign trail, he pledged that he would select judges according to their empathy for certain groups such as the poor, African Americans, gays, the disabled, or the elderly.\27\ The real debate is about whether judges may decide cases based on empathy at all, not the groups for which they have empathy. It is about whether judges may make law at all, not about what law judges should make. Conservatives as well as liberals often evaluate judges and judicial decisions by their political results rather than by their judicial process. But a principle is just politics unless it applies across the board. Professor Steven Calabresi, one of the Federalist Society's founders, wrote last fall that ``[n]othing less than the very idea of liberty and the rule of law are at stake in this election.'' \28\ He was right, and they remain at stake in the ongoing selection of federal judges.

Judges have no authority to change the law, regardless of whether they change it in a way I like. I am distinguishing here between judicial philosophy, which relates to process, and political ideology, which relates to results. Senators often reveal their view of judicial power when participating in judicial selection, proving once again that the two are inextricably linked. During the debate over Chief Justice Roberts's nomination, for example, one of my Democratic colleagues wanted to know whether the nominee would stand with families or with special interests. She said the American people were entitled to know how he would decide legal questions even before he had considered them.\29\ Another Democratic Senator similarly said that the real question was whose side the nominee would be on when he decided important issues.\30\ Would he be on the side of corporate or consumer interests, the side of polluters or Congress when it seeks to regulate them, or the side of labor or management?

In this activist view of judicial power, the desired ends defined by a judge's empathy justify whatever means he uses to decide cases. This activist view of judicial power is at odds with our written Constitution and its separation of powers and, therefore, with ordered liberty itself. The people are not free if they do not govern themselves. The people do not govern themselves if their Constitution does not limit government. The Constitution cannot limit government if judges define the Constitution.

Terry Eastland aptly described the result of judicial activism in a 2006 essay titled The Good Judge: ``The people's text, whether made by majorities or, in the case of the Constitution, supermajorities, would be displaced by the judges' text. The justices became lawmakers.'' \31\ This quotation highlights one of the many differences between God and federal judges. God, at least, does not think He is a federal judge. And it brings up the question of how many federal judges it takes to screw in a light bulb. Only one, because the judge simply holds the bulb as the entire world revolves around him.

There is perhaps some reason for optimism. One poll found last year that, no matter for whom they voted, nearly three-quarters of Americans said they wanted judges ``who will interpret and apply the law as it is written and not take into account their own viewpoints and experiences.'' \32\ This debate is indeed the one we should be having, whether judges have the power to make law. When judges apply law they have properly interpreted rather than improperly made, their rulings may have the effect of helping or hurting a particular cause, of advancing or inhibiting a particular agenda. They may, at least by the political science bean counters, be considered liberal or conservative. The point, therefore, is not which side wins in a particular case, but whether the winner is decided by the law or by the judge. When judges interpret law, the law produces the results. Thus, the people can choose to change the law. When judges make law, judges produce the results and the people are left with no recourse at all. That state of affairs is the antithesis of self-government.

Let me close by saying that the effort to defend liberty never ends. Andrew Jackson reminded us as he left office in 1837 that ``eternal vigilance by the people is the price of liberty; and that you must pay the price if you wish to secure the blessing.'' \33\ The approach I outline actually joins an effort that began long ago and reminds me of a resolution passed by the Senate Republican Conference in 1997:

[Page: S8750] GPO's PDF

ther effort to blunt the impact of such controversial decisions, Judge Sotomayor's supporters attempt to portray her as moderate by observing that on the Second Circuit, she agreed with Republican-appointed colleagues 95 percent of the time. On the one hand, this is one of several misguided attempts to defend her by suggesting that a calculator is all it takes properly to evaluate a judicial record. On

[Page: S8748] GPO's PDF

the other hand, however, this claim comes from the same Democratic Senators who voted against Justice Samuel Alito just a few years ago. On the Third Circuit, he had agreed with his Democratic-appointed colleagues 99 percent of the time over a much longer tenure. It shows how specious some of the arguments are.

Let me return to where I began. I believe that Judge Sotomayor is a good person. I respect her achievements and applaud her service to her community, the judiciary, and the country. While appointment of the first Puerto Rican Justice says a lot about America, however, I believe that appointing a Justice with her judicial philosophy says the wrong thing about the power and role of judges in our system of government.

A nominee's approach to judging is more important than her , especially on the Supreme Court where Justices operate with the fewest constraints. Judge Sotomayor has expressed particular admiration for Justice Benjamin Cardozo. His book on the judicial process contains a chapter titled ``The Judge as a Legislator'' in which he compares judges to legislators who decide difficult cases on the basis of personal reflections and life considerations. That sounds very much like President Obama's appointment standard and Judge Sotomayor's expressed judicial philosophy. I believe it is inconsistent with the limited role that America's founders prescribed for judges in our system of government.

My colleagues know that I take a generous approach to the confirmation process and I believe some deference to the President of the United States and his choice is appropriate. I have rarely voted against any judicial nominee and took very seriously the question of whether to do so now. To that end, I studied her speeches, articles, and cases. I spoke with experts and advocates from different perspectives. I participated in all three question rounds during the Judiciary Committee hearing.

But in the end, neither general deference to the President nor a specific desire to support a Hispanic nominee could overcome the serious conflicts between Judge Sotomayor's record and the principles about the judiciary and liberty in which I deeply believe.

I was the one who started the Republican Senatorial Hispanic Task Force and ran it for many years, bringing Democrats, Independents, and Republicans together in the best interest of the Hispanic community to try to give them more of a voice. I feel pretty deeply about Hispanic people, as I do all people.

I just want everybody to know that this took a lot of consideration on my part to come to the conclusion I have. I wish President Obama had taken a different course, but this is the decision I have to make in this case. As I say, I like Judge Sotomayor. I particularly like her life story and her wonderful family. I did not want to vote against her but I think I have explained here some of the serious concerns I have.

Exhibit 1

The Constitution as the Playbook for Judicial Selection Orrin G. Hatch*

The Federalist Society plays an indispensable role in educating our fellow citizens about the principles of liberty, a task that is both critical and challenging. It is critical because, as James Madison put it, ``a well-instructed people alone can be permanently a free people.'' \1\ The ordered liberty we enjoy is neither self-generating nor self-sustaining, but is based on certain principles that require certain conditions. Knowledge and defense of those principles and conditions will be the difference between keeping and losing our liberty.

This educational challenge, however, has perhaps never been more daunting. We live in a culture in which words mean anything to anyone, celebrities substitute for statesmen, and people are no longer well instructed. Forty-two percent of Americans do not know the number of branches in the federal government, and more than sixty percent cannot name all three \2\ Four times as many Americans say that a detailed knowledge of the Constitution is absolutely necessary as say they actually have such knowledge.\3\ Twenty-one percent of Americans believe the First Amendment protects the right to own a pet.\4\

A few factors contribute to this state of affairs. Most people get their information about the legal system only from television. Unless people sue each other or commit crimes--habits we really should not encourage--they will likely have no firsthand knowledge or experience to draw from. Furthermore, people hold lawyers in low esteem. If you plug the term ``lawyer joke'' into Yahoo, it returns a whopping 25.7 million hits, a number on the rise almost as fast as the national debt. The problem with lawyer jokes is that most lawyers do not think they are funny and most other people do not think they are jokes. This low view of lawyers means people have little motivation to learn more about what lawyers and judges really do.

The media do not help this state of affairs. The Harvard Journal of Law & Public Policy recently published an excellent article by Michigan Supreme Court Justice Stephen Markman,\5\ who served as my chief counsel when I chaired the Senate Judiciary Subcommittee on the Constitution in the early 1980s. He describes how the media's penchant for focusing on winners and losers significantly shapes and distorts how people understand what judges actually do, often for the worse.\6\

Nonetheless, the timing of this Essay is auspicious in several respects. First, I write in the wake of two very relevant Federalist Society student symposia, last year's about the people and the courts \7\ and this year's about the separation of powers.\8\ Second, President Obama has been particularly clear from the time he was a candidate about his intention to appoint judges who will exercise a strikingly political version of judicial power.\9\ Third, he has already started acting on that intention by making his first judicial nominations.\10\ New Presidents typically make their first judicial nominations in July or even August, yet the Senate Judiciary Committee has already held a hearing on the President's first nominee to the U.S. Court of Appeals, and the President sent two more nominees to the Senate just a few days ago.

Mark Twain popularized the notion that there are three kinds of lies: lies, damned lies, and statistics.\11\ I prefer Senator Daniel Patrick Moynihan's comment that you may be entitled to your own opinion, but not your own set of facts.\12\ Either way, I will statistically describe two macro and two micro factors of the judicial confirmation process to show its recent transformation before turning to how it should be conducted going forward.

The two macro factors are hearings and confirmations. The Judiciary Committee held hearings for fewer judicial nominees during the 110th Congress than any Congress since before I entered the Senate. This lack of hearings is not the result of the Judiciary Committee's inability to multitask. Instead, it is the result of a political choice, one that has been reversed since the last election. The Judiciary Committee has already held a hearing on President Obama's first appeals court nominee, just two weeks after that nominee arrived in the Senate.\13\ Under a Republican President, Judiciary Committee Chairman Patrick Leahy waited an average of 197 days to give an appeals court nominee a hearing.\14\ The last election amounted to the political equivalent of Drano, as the confirmation pipes are now wonderfully unobstructed and flowing freely once again.

Some might assume that Republicans demonstrate such strong partisan preference, but they would be wrong. Since I was first elected, Democrats running the Senate have granted hearings to forty-one percent more Democratic than Republican judicial nominees. When Republicans run the Senate, the partisan differential is less than five percent.

Moving from the Judiciary Committee to the Senate floor, the second macro factor is confirmations. In the last eight years, President Bush had the slowest pace of judicial confirmations of any President since Gerald Ford. Last year, the Senate confirmed fewer judicial nominees than in any President's final year since 1968, the end of the Johnson Administration. By comparison, when I chaired the Judiciary Committee during President Clinton's last year in office, the Senate confirmed twice as many appeals court nominees as it did last year.

As with hearings, the picture is not the same when Republicans are in charge. When Democrats run the Senate, they confirm forty-five percent more Democratic than Republican judicial nominees. When Republicans run the Senate, the differential is only nine percent.

At the ground level, the two micro factors in the confirmation process are votes and filibusters. The Senate has traditionally confirmed most unopposed lower court nominees by unanimous consent rather than by time-consuming roll call votes. From 1950 to 2000 the Senate confirmed only 3.2 percent of all district and appeals court nominees by roll call vote. During the Bush presidency, that figure jumped to nearly sixty percent. The percentage of roll calls without a single negative vote nearly tripled. And under President Bush, for the first time in American history, the filibuster was used to defeat majority-supported judicial nominees.\15\ With all due respect to Mark Twain, I think these numbers accurately give you at least a taste for the partisan division and conflict that now characterize the judicial confirmation process. It has become, to edit Thomas Hobbes just a bit, quite nasty and brutish.

Turning from what has been to what should be, I believe we can get on a better path by, as Madison emphasized in The Federalist No. 39, ``recurring to principles.'' \16\ The judicial selection process has changed because ideas about judicial power have changed. My basic thesis is this: Our written Constitution and its separation of powers define both judicial power and judicial selection. They define the judicial philosophy

[Page: S8749] GPO's PDF

that is a necessary qualification for judicial service, and they counsel that the Senate defer to the President when he nominates qualified individuals.

Consider a judicial nomination as a hiring process based on a job description. The job description of a judge is to interpret and apply law to decide cases. This job description does not mean whatever a President, political party, or Senate majority wants it to mean. Our written Constitution and its separation of powers set the judicial job description. Interpreting written law must be different than making written law. Because law written in statutes or the Constitution is not simply words, but really the meaning of the words, only those with authority to make law may determine what the words of our laws say and what those words mean. Judges do not have authority to make law, so they do not have authority to choose what the words of our laws say or what they mean. In other words, judges apply the law to decide cases, but they may not make the law they apply. Judges and the law they use to decide cases are two different things. Judging, therefore, is about a process that legitimates results, a process by which the law made by the people and those they elect determines winners and losers.

The Constitution and its separation of powers compel this judicial job description. This kind of judge is consistent with limited government and the ordered liberty it makes possible. Justice Markman's article describes what he calls a ``traditional jurisprudence--one that views the responsibility of the courts to say what the law `is' rather than what it `ought' to be.'' \17\ Such a philosophy of judicial restraint--an understanding of the limited power and role of judges--is a qualification for judicial service. This is the kind of judge a President should nominate.

Our written Constitution and its separation of powers also define how the confirmation stage of the judicial selection process should operate. The Constitution gives the power to nominate and appoint judges to the President, not to the Senate. The best way to understand the Senate's role is that the Senate advises the President whether to appoint his nominees by giving or withholding its consent. I explored this role in more detail in the Utah Law Review a few years ago in the context of showing that the use of the filibuster to defeat majority-supported judicial nominees is inconsistent with the separation of powers.\18\ One basis on which the Senate may legitimately withhold its consent to a judicial nominee, however, is that the nominee is not qualified for judicial service. Qualifications include more than information on a nominee's . And with all due respect to the American Bar Association, their rating does not a qualification determine. Instead, qualifications for judicial service include whether a nominee's judicial philosophy--his understanding of a judge's power and role--is in sync with our written Constitution and its separation of powers.

Judges, after all, take an oath to support and defend the Constitution of the United States. To be qualified for judicial service, a nominee must believe there is such a thing, that the supreme law of the land is not simply in the eye of the judicial beholder, and that judges need something more than a legal education, a personal opinion, and an imagination to interpret it.

I propose looking to the basic principles of our written Constitution and its separation of powers to guide the judicial selection process. For the President, those principles require nominees with a restrained judicial philosophy. For the Senate, they require deference to a President's qualified nominees. Senators, of course, must decide how to balance qualifications and deference. Our written Constitution and its separation of powers, however, provide normative guidance for the judicial selection process. Presidents and Senators will have to decide, and be accountable for, how they use or reject that guidance.

No matter how philosophically sound this proposal may be--and I believe it is philosophically rock solid--it may nevertheless be politically controversial. We have traveled a long way from Alexander Hamilton describing the judiciary as the weakest and least dangerous branch.\19\ We have traveled a long way from the Supreme Court saying in 1795 that the Constitution is ``certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it.'' \20\ We have traveled a long way from the Senate Judiciary Committee saying in 1872 that giving the Constitution a meaning different from what the people provided when adopting it would be unconstitutional.\21\

For a long time now, we have instead labored under Chief Justice Charles Evans Hughes's notion that the Constitution is whatever judges say it is.\22\ It has become fashionable to suppose that the only law judges may not make is law we do not like. Legal commentator Stuart Taylor correctly observes that ``[l]ike a great, ever-spreading blob, judicial power has insinuated itself into every nook and cranny.'' \23\ One of my predecessors as Senator from Utah who later served on the Supreme Court, George Sutherland, described the transformation in 1937 as it was literally under way. He warned that abandoning the separation of powers by ignoring the distinction between interpreting and amending the Constitution would convert ``what was intended as inescapable and enduring mandates into mere moral reflections.'' \24\ Less than two decades later, Justice Robert Jackson described what he saw as a widely held belief that the Supreme Court decides cases based on personal impressions rather than impersonal rules of law.\25\

Judicial power and judicial selection are inextricably linked. Sometimes the Senate can appear to produce a lot of activity but take very little action. To some, that means the Senate is the world's greatest deliberative body. To others, it means that it produces a lot of sound and fury signifying nothing. But I hope that the debate over President Obama's judicial nominees will really be a debate over the kind of judge our liberty requires. The debate should be about whether judges should decide cases by using enduring mandates and impersonal rules of law or by using their own moral reflections and personal impressions.

President Obama has already taken sides in this debate. When he was a Senator, he voted against the nomination of John Roberts to be Chief Justice, stating that judges decide cases based on their deepest values, their core concerns, and the content of their hearts.\26\ On the campaign trail, he pledged that he would select judges according to their empathy for certain groups such as the poor, African Americans, gays, the disabled, or the elderly.\27\ The real debate is about whether judges may decide cases based on empathy at all, not the groups for which they have empathy. It is about whether judges may make law at all, not about what law judges should make. Conservatives as well as liberals often evaluate judges and judicial decisions by their political results rather than by their judicial process. But a principle is just politics unless it applies across the board. Professor Steven Calabresi, one of the Federalist Society's founders, wrote last fall that ``[n]othing less than the very idea of liberty and the rule of law are at stake in this election.'' \28\ He was right, and they remain at stake in the ongoing selection of federal judges.

Judges have no authority to change the law, regardless of whether they change it in a way I like. I am distinguishing here between judicial philosophy, which relates to process, and political ideology, which relates to results. Senators often reveal their view of judicial power when participating in judicial selection, proving once again that the two are inextricably linked. During the debate over Chief Justice Roberts's nomination, for example, one of my Democratic colleagues wanted to know whether the nominee would stand with families or with special interests. She said the American people were entitled to know how he would decide legal questions even before he had considered them.\29\ Another Democratic Senator similarly said that the real question was whose side the nominee would be on when he decided important issues.\30\ Would he be on the side of corporate or consumer interests, the side of polluters or Congress when it seeks to regulate them, or the side of labor or management?

In this activist view of judicial power, the desired ends defined by a judge's empathy justify whatever means he uses to decide cases. This activist view of judicial power is at odds with our written Constitution and its separation of powers and, therefore, with ordered liberty itself. The people are not free if they do not govern themselves. The people do not govern themselves if their Constitution does not limit government. The Constitution cannot limit government if judges define the Constitution.

Terry Eastland aptly described the result of judicial activism in a 2006 essay titled The Good Judge: ``The people's text, whether made by majorities or, in the case of the Constitution, supermajorities, would be displaced by the judges' text. The justices became lawmakers.'' \31\ This quotation highlights one of the many differences between God and federal judges. God, at least, does not think He is a federal judge. And it brings up the question of how many federal judges it takes to screw in a light bulb. Only one, because the judge simply holds the bulb as the entire world revolves around him.

There is perhaps some reason for optimism. One poll found last year that, no matter for whom they voted, nearly three-quarters of Americans said they wanted judges ``who will interpret and apply the law as it is written and not take into account their own viewpoints and experiences.'' \32\ This debate is indeed the one we should be having, whether judges have the power to make law. When judges apply law they have properly interpreted rather than improperly made, their rulings may have the effect of helping or hurting a particular cause, of advancing or inhibiting a particular agenda. They may, at least by the political science bean counters, be considered liberal or conservative. The point, therefore, is not which side wins in a particular case, but whether the winner is decided by the law or by the judge. When judges interpret law, the law produces the results. Thus, the people can choose to change the law. When judges make law, judges produce the results and the people are left with no recourse at all. That state of affairs is the antithesis of self-government.

Let me close by saying that the effort to defend liberty never ends. Andrew Jackson reminded us as he left office in 1837 that ``eternal vigilance by the people is the price of liberty; and that you must pay the price if you wish to secure the blessing.'' \33\ The approach I outline actually joins an effort that began long ago and reminds me of a resolution passed by the Senate Republican Conference in 1997: [Page: S8750] GPO's PDF

g from what has been to what should be, I believe we can get on a better path by, as Madison emphasized in The Federalist No. 39, ``recurring to principles.'' \16\ The judicial selection process has changed because ideas about judicial power have changed. My basic thesis is this: Our written Constitution and its separation of powers define both judicial power and judicial selection. They define the judicial philosophy

[Page: S8749] GPO's PDF

that is a necessary qualification for judicial service, and they counsel that the Senate defer to the President when he nominates qualified individuals.

Consider a judicial nomination as a hiring process based on a job description. The job description of a judge is to interpret and apply law to decide cases. This job description does not mean whatever a President, political party, or Senate majority wants it to mean. Our written Constitution and its separation of powers set the judicial job description. Interpreting written law must be different than making written law. Because law written in statutes or the Constitution is not simply words, but really the meaning of the words, only those with authority to make law may determine what the words of our laws say and what those words mean. Judges do not have authority to make law, so they do not have authority to choose what the words of our laws say or what they mean. In other words, judges apply the law to decide cases, but they may not make the law they apply. Judges and the law they use to decide cases are two different things. Judging, therefore, is about a process that legitimates results, a process by which the law made by the people and those they elect determines winners and losers.

The Constitution and its separation of powers compel this judicial job description. This kind of judge is consistent with limited government and the ordered liberty it makes possible. Justice Markman's article describes what he calls a ``traditional jurisprudence--one that views the responsibility of the courts to say what the law `is' rather than what it `ought' to be.'' \17\ Such a philosophy of judicial restraint--an understanding of the limited power and role of judges--is a qualification for judicial service. This is the kind of judge a President should nominate.

Our written Constitution and its separation of powers also define how the confirmation stage of the judicial selection process should operate. The Constitution gives the power to nominate and appoint judges to the President, not to the Senate. The best way to understand the Senate's role is that the Senate advises the President whether to appoint his nominees by giving or withholding its consent. I explored this role in more detail in the Utah Law Review a few years ago in the context of showing that the use of the filibuster to defeat majority-supported judicial nominees is inconsistent with the separation of powers.\18\ One basis on which the Senate may legitimately withhold its consent to a judicial nominee, however, is that the nominee is not qualified for judicial service. Qualifications include more than information on a nominee's . And with all due respect to the American Bar Association, their rating does not a qualification determine. Instead, qualifications for judicial service include whether a nominee's judicial philosophy--his understanding of a judge's power and role--is in sync with our written Constitution and its separation of powers.

Judges, after all, take an oath to support and defend the Constitution of the United States. To be qualified for judicial service, a nominee must believe there is such a thing, that the supreme law of the land is not simply in the eye of the judicial beholder, and that judges need something more than a legal education, a personal opinion, and an imagination to interpret it.

I propose looking to the basic principles of our written Constitution and its separation of powers to guide the judicial selection process. For the President, those principles require nominees with a restrained judicial philosophy. For the Senate, they require deference to a President's qualified nominees. Senators, of course, must decide how to balance qualifications and deference. Our written Constitution and its separation of powers, however, provide normative guidance for the judicial selection process. Presidents and Senators will have to decide, and be accountable for, how they use or reject that guidance.

No matter how philosophically sound this proposal may be--and I believe it is philosophically rock solid--it may nevertheless be politically controversial. We have traveled a long way from Alexander Hamilton describing the judiciary as the weakest and least dangerous branch.\19\ We have traveled a long way from the Supreme Court saying in 1795 that the Constitution is ``certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it.'' \20\ We have traveled a long way from the Senate Judiciary Committee saying in 1872 that giving the Constitution a meaning different from what the people provided when adopting it would be unconstitutional.\21\

For a long time now, we have instead labored under Chief Justice Charles Evans Hughes's notion that the Constitution is whatever judges say it is.\22\ It has become fashionable to suppose that the only law judges may not make is law we do not like. Legal commentator Stuart Taylor correctly observes that ``[l]ike a great, ever-spreading blob, judicial power has insinuated itself into every nook and cranny.'' \23\ One of my predecessors as Senator from Utah who later served on the Supreme Court, George Sutherland, described the transformation in 1937 as it was literally under way. He warned that abandoning the separation of powers by ignoring the distinction between interpreting and amending the Constitution would convert ``what was intended as inescapable and enduring mandates into mere moral reflections.'' \24\ Less than two decades later, Justice Robert Jackson described what he saw as a widely held belief that the Supreme Court decides cases based on personal impressions rather than impersonal rules of law.\25\

Judicial power and judicial selection are inextricably linked. Sometimes the Senate can appear to produce a lot of activity but take very little action. To some, that means the Senate is the world's greatest deliberative body. To others, it means that it produces a lot of sound and fury signifying nothing. But I hope that the debate over President Obama's judicial nominees will really be a debate over the kind of judge our liberty requires. The debate should be about whether judges should decide cases by using enduring mandates and impersonal rules of law or by using their own moral reflections and personal impressions.

President Obama has already taken sides in this debate. When he was a Senator, he voted against the nomination of John Roberts to be Chief Justice, stating that judges decide cases based on their deepest values, their core concerns, and the content of their hearts.\26\ On the campaign trail, he pledged that he would select judges according to their empathy for certain groups such as the poor, African Americans, gays, the disabled, or the elderly.\27\ The real debate is about whether judges may decide cases based on empathy at all, not the groups for which they have empathy. It is about whether judges may make law at all, not about what law judges should make. Conservatives as well as liberals often evaluate judges and judicial decisions by their political results rather than by their judicial process. But a principle is just politics unless it applies across the board. Professor Steven Calabresi, one of the Federalist Society's founders, wrote last fall that ``[n]othing less than the very idea of liberty and the rule of law are at stake in this election.'' \28\ He was right, and they remain at stake in the ongoing selection of federal judges.

Judges have no authority to change the law, regardless of whether they change it in a way I like. I am distinguishing here between judicial philosophy, which relates to process, and political ideology, which relates to results. Senators often reveal their view of judicial power when participating in judicial selection, proving once again that the two are inextricably linked. During the debate over Chief Justice Roberts's nomination, for example, one of my Democratic colleagues wanted to know whether the nominee would stand with families or with special interests. She said the American people were entitled to know how he would decide legal questions even before he had considered them.\29\ Another Democratic Senator similarly said that the real question was whose side the nominee would be on when he decided important issues.\30\ Would he be on the side of corporate or consumer interests, the side of polluters or Congress when it seeks to regulate them, or the side of labor or management?

In this activist view of judicial power, the desired ends defined by a judge's empathy justify whatever means he uses to decide cases. This activist view of judicial power is at odds with our written Constitution and its separation of powers and, therefore, with ordered liberty itself. The people are not free if they do not govern themselves. The people do not govern themselves if their Constitution does not limit government. The Constitution cannot limit government if judges define the Constitution.

Terry Eastland aptly described the result of judicial activism in a 2006 essay titled The Good Judge: ``The people's text, whether made by majorities or, in the case of the Constitution, supermajorities, would be displaced by the judges' text. The justices became lawmakers.'' \31\ This quotation highlights one of the many differences between God and federal judges. God, at least, does not think He is a federal judge. And it brings up the question of how many federal judges it takes to screw in a light bulb. Only one, because the judge simply holds the bulb as the entire world revolves around him.

There is perhaps some reason for optimism. One poll found last year that, no matter for whom they voted, nearly three-quarters of Americans said they wanted judges ``who will interpret and apply the law as it is written and not take into account their own viewpoints and experiences.'' \32\ This debate is indeed the one we should be having, whether judges have the power to make law. When judges apply law they have properly interpreted rather than improperly made, their rulings may have the effect of helping or hurting a particular cause, of advancing or inhibiting a particular agenda. They may, at least by the political science bean counters, be considered liberal or conservative. The point, therefore, is not which side wins in a particular case, but whether the winner is decided by the law or by the judge. When judges interpret law, the law produces the results. Thus, the people can choose to change the law. When judges make law, judges produce the results and the people are left with no recourse at all. That state of affairs is the antithesis of self-government.

Let me close by saying that the effort to defend liberty never ends. Andrew Jackson reminded us as he left office in 1837 that ``eternal vigilance by the people is the price of liberty; and that you must pay the price if you wish to secure the blessing.'' \33\ The approach I outline actually joins an effort that began long ago and reminds me of a resolution passed by the Senate Republican Conference in 1997:

[Page: S8750] GPO's PDF

Be it resolved, that the Republican Conference opposes judicial activism, whereby life-tenured, unaccountable judges exceed their constitutional role of interpreting already enacted, written law, and instead legislate from the bench by imposing their personal preference or views of what is right or just. Such activism threatens the basic democratic values on which our Constitution is founded.\34\

There you have it. Our written Constitution and its separation of powers define both judicial power and judicial selection. They require judicial restraint as a qualification for judicial service and require Senate deference to a President's qualified nominees. The weeks and months ahead will provide opportunities to debate these principles and their application. Nothing less than ordered liberty is at stake. I know the Federalist Society will be right in the thick of that debate.

ENDNOTES

* United States Senator (R-Utah); J.D., University of Pittsburgh School of Law, 1962; B.A., Brigham Young University, 1959. This Essay was delivered as a speech to the Harvard Law School Federalist Society and Harvard Journal of Law & Public Policy at the Union Club in Boston, Massachusetts, on April 4, 2009.

1. James Madison, Second Annual Message, in 8 The Writings of James Madison 123, 127 (Gaillard Hunt ed., 1908).

2. Press Release, Nat'l Constitution Ctr., Startling Lack of Constitutional Knowledge Revealed in First-Ever National Poll (1997).

3. Steve Farkas et al., Knowing it by Heart: Americans Consider the Constitution and its Meaning 16 (2002), available at http://www.publicagenda.;org/files/pdf/knowing Xby Xheart.pdf.

4. Christopher Lee, Noted with Interest, Wash. Post, Mar. 3, 2006, at A15; see also McCormick Tribune Freedom Museum, Americans' Awareness of First Amendment Freedoms, Forum for Education and Democracy, Mar. 1, 2006, http://www.forumforeducation.org/node/147.

5. Stephen J. Markman, An Interpretivist Judge and the Media, 32 Harv. J.L. & Pub. Pol'Y 149 (2009).

6. Id. at 151-52.

7. Symposium, The People & The Courts, 32 Harv. J.L. & Pub. Pol'y 1 (2009).

8. Symposium, Separation of Powers in American Constitutionalism, 33 Harv. J.L. & Pub. Pol'y (forthcoming 2010).

9. See infra notes 26-27.

10. President Obama has nominated David Hamilton to the U.S. Court of Appeals for the Seventh Circuit, Gerard Lynch to the Second Circuit, and Andre Davis to the Fourth Circuit. Michael A. Fletcher, Obama Names Judge to Appeals Court, Wash. Post, Mar. 18, 2009, at A4; Jerry Markon, Obama Taps 2 for Key Appellate Courts, Wash. Post, Apr. 3, 2009, at A6. Each is currently a U.S. District Judge.

11. Mark Twain, Chapters from My Autobiography-XX, 186 N. Am. Rev. 465, 471 (1907) (quoting Benjamin Disraeli).

12. Timothy J. Penny, Facts Are Facts, Nat'l Rev. Online, Sept. 4, 2003, http://www.nationalreview.com/nrof Xcomment/comment-penny090403.asp.

13. President Obama nominated David Hamilton to the Seventh Circuit on March 17, 2009. Fletcher, supra note 10. His hearing was on April 1, 2009. U.S. Senate Judiciary Comm., Official Hearing Notice (Apr. 1, 2009), http://judiciary.senate.gov/hearings/hearing.cfm?id=3757.

14. This statistic, like those that follow, was compiled by Senator Hatch's staff from sources including the Congressional Record; Federal Judicial Center, Biographical Directory of Federal Judges, http://www.fjc.gov/public/home.nsf/hisj; The Library of Congress, Legislative Information Service Databases, http://thomas.loc.gov/; and the records of the Senate Judiciary Committee and Senator Hatch's staff. The statistics are on file with Senator Hatch's staff.

15. See Orrin G. Hatch, Judicial Nomination Filibuster Cause and Cure, 2005 Utah L. Rev. 803, 819--23.

16. The Federalist No. 39, at 240 (James Madison) (Clinton Rossiter ed., 1961).

17. Markman, supra note 5, at 149.

18. See Hatch, supra note 15, at 82631.

19. The Federalist No. 78 (Alexander Hamilton).

20. Vanhorne's Lessee v. Dorrance, 2 U.S. 304, 308 (1795).

21. See Raoul Berger, Original Intention in Historical Perspective, 54 Geo. Wash. L. Rev. 296, 297--98 (1986) (citing S. Rep. No. 21, 42d Cong., 2d Sess. 2 (1872)).

22. Charles Evans Hughes, Speech before the Elmira Chamber of Commerce, May 3, 1907, in Addresses and Papers of Charles Evans Hughes 133, 139 (Robert H. Fuller & Gardner Richardson eds., 1908).

23. Stuart Taylor Jr., Imperial Judges Could Pick the President--Again, 36 Nat'l J. 2877, 2877 (2004).

24. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 404 (1937) (Sutherland, J., dissenting).

25. Brown v. Allen, 344 U.S. 443, 535 (1953) (Jackson, J., concurring in the result).

26. 151 Cong. Rec. S10366 (daily ed. Sept. 22, 2005) (statement of Sen. Obama).

27. Posting of Mark Murray to First Read, http://firstread.msnbc.msn.com/archive/2007/07/17/274143.aspx (July 17, 2007, 16:21 EDT) (report by Carrie Dann).

28. Steven G. Calabresi, Obama's ``Redistribution'' Constitution, Wall St. J., Oct. 28, 2008, at A17.

29. 109 Cong. Rec. S10641 (daily ed. Sept. 29, 2005) (statement of Sen. Stabenow).

30. Interview by Matt Lauer with Senator Edward Kennedy, available at http://www.tedkennedy.com/journal/165/senator-kennedy-nbctoday-show-interview.

31. Terry Eastland, The ''Good Judge'': Antonin Scalia's two decades on the Supreme Court, Wkly. Standard, Nov. 13, 2006.

32. Press Release, The Federalist Society, Key Findings from a National Survey of 800 Actual Voters (Nov. 5, 2008), available at http://www.fed-soc.org/publications/pubid.1183/pub Xdetail.asp.

33. Andrew Jackson, Farewell Address, in 2 The Statesman's Manual: The Addresses and Messages of the Presidents of the United States 947, 957 (Edwin Williams ed., New York, Edward Walker 1846).

34. On file with Author.

Exhibit 2 [From the National Journal, Aug. 4, 2009] (By Stuart Taylor Jr.)

Did Precedent Make Sotomayor Rule Against Ricci?

Judge Sonia Sotomayor has not defended her most widely criticized decision--the one rejecting a discrimination lawsuit by 17 white firefighters, and one Hispanic, against the city of New Haven, Conn.--as a just or fair result.

That would have been an uphill battle: Polls in June showed that huge majorities of the public wanted the Supreme Court to reverse Sotomayor's decision.

And as I've explained elsewhere, although the Supreme Court split 5-4 in ruling for the firefighters in Ricci v. DeStefano, all nine justices rejected the specific legal rule applied by Sotomayor's three judge panel. That rule would allow employers to deny promotions after the fact to those who did best on any measure of qualifications--no matter how job-related and racially neutral--on which blacks or Hispanics did badly.

Instead of defending her panel's quota-friendly rule and its harsh impact on the high-scoring firefighters, Sotomayor and her supporters have argued that she essentially had no choice. The rule that her panel applied had been dictated, they say, by three precedents of her own court, the U.S. Court of Appeals for the 2nd Circuit.

Some critics have expressed skepticism about this claim, but the media have shed little light on its plausibility. I seek to shed some below.

Because some of this gets technical, I'll begin with critics' simplest rebuttal to Sotomayor's precedent-made-me-do-it claim:

Even assuming for the sake of argument that the Sotomayor panel's decision was dictated by the three 2nd Circuit precedents, it is undisputed that the full 2nd Circuit could have modified or overruled them if Sotomayor had voted to rehear the case en banc, meaning with all active 2nd Circuit judges participating. Instead, Sotomayor cast a deciding vote in the 7-6 decision not to rehear the case, suggesting she was satisfied with the ruling.

There is also ample reason to doubt that any of the three 2nd Circuit precedents actually required the Sotomayor panel to rule as it did, as some politicized professors have pretended.

Sotomayor fleshed out her vague testimony about the issue in answers to senators' written questions. She quoted her 2nd Circuit colleague Barrington Parker's concurrence, which she and three other judges had joined, in the 7-6 vote not to rehear Ricci. Judge Parker wrote:

There was controlling authority in our decisions--among them, Hayden v. County of Nassau [in 1999] and Bushey v. N.Y. State Civil Serv. Comm'n [in 1984]. These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability.

To unpack the legal language: Title VII is the employment discrimination portion of the 1964 Civil Rights Act. Title VII disparate-impact lawsuits are typically brought by blacks or Hispanics who challenge as discriminatory employers' use of objective tests on which those minorities do poorly. New Haven's ostensible reason for denying promotions to the white and Hispanic firefighters who had done well on qualifying exams was fear of being hit with a disparate impact lawsuit by blacks who had done poorly. And any black plaintiffs would indeed have had a prima facie disparate-impact case, which is legalese for proof that blacks had done much worse on the tests than whites.

But Judge Parker gave short shrift to the fact that even when plaintiffs have a prima facie case, an employer such as the city ``could be held liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative,'' as the Supreme Court stressed in Ricci.

In addition, Parker's reading of both Hayden and Bushey is conspicuously overbroad. Their facts (especially Hayden's) were quite different from those of Ricci. And Bushey has been undermined by subsequent Supreme Court precedents and legislation.

That's why Judge Jose Cabranes, in the main dissent from the 2nd Circuit's 7-6 denial of rehearing en banc, began:

``This appeal raises important questions of first impression''--meaning questions not controlled by precedent--``in our circuit and, indeed, in the nation, regarding the application of the Fourteenth Amendment's Equal

[Page: S8751] GPO's PDF

nal vigilance by the people is the price of liberty; and that you must pay the price if you wish to secure the blessing.'' \33\ The approach I outline actually joins an effort that began long ago and reminds me of a resolution passed by the Senate Republican Conference in 1997:

[Page: S8750] GPO's PDF

Be it resolved, that the Republican Conference opposes judicial activism, whereby life-tenured, unaccountable judges exceed their constitutional role of interpreting already enacted, written law, and instead legislate from the bench by imposing their personal preference or views of what is right or just. Such activism threatens the basic democratic values on which our Constitution is founded.\34\

There you have it. Our written Constitution and its separation of powers define both judicial power and judicial selection. They require judicial restraint as a qualification for judicial service and require Senate deference to a President's qualified nominees. The weeks and months ahead will provide opportunities to debate these principles and their application. Nothing less than ordered liberty is at stake. I know the Federalist Society will be right in the thick of that debate.

ENDNOTES

* United States Senator (R-Utah); J.D., University of Pittsburgh School of Law, 1962; B.A., Brigham Young University, 1959. This Essay was delivered as a speech to the Harvard Law School Federalist Society and Harvard Journal of Law & Public Policy at the Union Club in Boston, Massachusetts, on April 4, 2009.

1. James Madison, Second Annual Message, in 8 The Writings of James Madison 123, 127 (Gaillard Hunt ed., 1908).

2. Press Release, Nat'l Constitution Ctr., Startling Lack of Constitutional Knowledge Revealed in First-Ever National Poll (1997).

3. Steve Farkas et al., Knowing it by Heart: Americans Consider the Constitution and its Meaning 16 (2002), available at http://www.publicagenda.;org/files/pdf/knowing Xby Xheart.pdf.

4. Christopher Lee, Noted with Interest, Wash. Post, Mar. 3, 2006, at A15; see also McCormick Tribune Freedom Museum, Americans' Awareness of First Amendment Freedoms, Forum for Education and Democracy, Mar. 1, 2006, http://www.forumforeducation.org/node/147.

5. Stephen J. Markman, An Interpretivist Judge and the Media, 32 Harv. J.L. & Pub. Pol'Y 149 (2009).

6. Id. at 151-52.

7. Symposium, The People & The Courts, 32 Harv. J.L. & Pub. Pol'y 1 (2009).

8. Symposium, Separation of Powers in American Constitutionalism, 33 Harv. J.L. & Pub. Pol'y (forthcoming 2010).

9. See infra notes 26-27.

10. President Obama has nominated David Hamilton to the U.S. Court of Appeals for the Seventh Circuit, Gerard Lynch to the Second Circuit, and Andre Davis to the Fourth Circuit. Michael A. Fletcher, Obama Names Judge to Appeals Court, Wash. Post, Mar. 18, 2009, at A4; Jerry Markon, Obama Taps 2 for Key Appellate Courts, Wash. Post, Apr. 3, 2009, at A6. Each is currently a U.S. District Judge.

11. Mark Twain, Chapters from My Autobiography-XX, 186 N. Am. Rev. 465, 471 (1907) (quoting Benjamin Disraeli).

12. Timothy J. Penny, Facts Are Facts, Nat'l Rev. Online, Sept. 4, 2003, http://www.nationalreview.com/nrof Xcomment/comment-penny090403.asp.

13. President Obama nominated David Hamilton to the Seventh Circuit on March 17, 2009. Fletcher, supra note 10. His hearing was on April 1, 2009. U.S. Senate Judiciary Comm., Official Hearing Notice (Apr. 1, 2009), http://judiciary.senate.gov/hearings/hearing.cfm?id=3757.

14. This statistic, like those that follow, was compiled by Senator Hatch's staff from sources including the Congressional Record; Federal Judicial Center, Biographical Directory of Federal Judges, http://www.fjc.gov/public/home.nsf/hisj; The Library of Congress, Legislative Information Service Databases, http://thomas.loc.gov/; and the records of the Senate Judiciary Committee and Senator Hatch's staff. The statistics are on file with Senator Hatch's staff.

15. See Orrin G. Hatch, Judicial Nomination Filibuster Cause and Cure, 2005 Utah L. Rev. 803, 819--23.

16. The Federalist No. 39, at 240 (James Madison) (Clinton Rossiter ed., 1961).

17. Markman, supra note 5, at 149.

18. See Hatch, supra note 15, at 82631.

19. The Federalist No. 78 (Alexander Hamilton).

20. Vanhorne's Lessee v. Dorrance, 2 U.S. 304, 308 (1795).

21. See Raoul Berger, Original Intention in Historical Perspective, 54 Geo. Wash. L. Rev. 296, 297--98 (1986) (citing S. Rep. No. 21, 42d Cong., 2d Sess. 2 (1872)).

22. Charles Evans Hughes, Speech before the Elmira Chamber of Commerce, May 3, 1907, in Addresses and Papers of Charles Evans Hughes 133, 139 (Robert H. Fuller & Gardner Richardson eds., 1908).

23. Stuart Taylor Jr., Imperial Judges Could Pick the President--Again, 36 Nat'l J. 2877, 2877 (2004).

24. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 404 (1937) (Sutherland, J., dissenting).

25. Brown v. Allen, 344 U.S. 443, 535 (1953) (Jackson, J., concurring in the result).

26. 151 Cong. Rec. S10366 (daily ed. Sept. 22, 2005) (statement of Sen. Obama).

27. Posting of Mark Murray to First Read, http://firstread.msnbc.msn.com/archive/2007/07/17/274143.aspx (July 17, 2007, 16:21 EDT) (report by Carrie Dann).

28. Steven G. Calabresi, Obama's ``Redistribution'' Constitution, Wall St. J., Oct. 28, 2008, at A17.

29. 109 Cong. Rec. S10641 (daily ed. Sept. 29, 2005) (statement of Sen. Stabenow).

30. Interview by Matt Lauer with Senator Edward Kennedy, available at http://www.tedkennedy.com/journal/165/senator-kennedy-nbctoday-show-interview.

31. Terry Eastland, The ''Good Judge'': Antonin Scalia's two decades on the Supreme Court, Wkly. Standard, Nov. 13, 2006.

32. Press Release, The Federalist Society, Key Findings from a National Survey of 800 Actual Voters (Nov. 5, 2008), available at http://www.fed-soc.org/publications/pubid.1183/pub Xdetail.asp.

33. Andrew Jackson, Farewell Address, in 2 The Statesman's Manual: The Addresses and Messages of the Presidents of the United States 947, 957 (Edwin Williams ed., New York, Edward Walker 1846).

34. On file with Author.

Exhibit 2 [From the National Journal, Aug. 4, 2009] (By Stuart Taylor Jr.)

Did Precedent Make Sotomayor Rule Against Ricci?

Judge Sonia Sotomayor has not defended her most widely criticized decision--the one rejecting a discrimination lawsuit by 17 white firefighters, and one Hispanic, against the city of New Haven, Conn.--as a just or fair result.

That would have been an uphill battle: Polls in June showed that huge majorities of the public wanted the Supreme Court to reverse Sotomayor's decision.

And as I've explained elsewhere, although the Supreme Court split 5-4 in ruling for the firefighters in Ricci v. DeStefano, all nine justices rejected the specific legal rule applied by Sotomayor's three judge panel. That rule would allow employers to deny promotions after the fact to those who did best on any measure of qualifications--no matter how job-related and racially neutral--on which blacks or Hispanics did badly.

Instead of defending her panel's quota-friendly rule and its harsh impact on the high-scoring firefighters, Sotomayor and her supporters have argued that she essentially had no choice. The rule that her panel applied had been dictated, they say, by three precedents of her own court, the U.S. Court of Appeals for the 2nd Circuit.

Some critics have expressed skepticism about this claim, but the media have shed little light on its plausibility. I seek to shed some below.

Because some of this gets technical, I'll begin with critics' simplest rebuttal to Sotomayor's precedent-made-me-do-it claim:

Even assuming for the sake of argument that the Sotomayor panel's decision was dictated by the three 2nd Circuit precedents, it is undisputed that the full 2nd Circuit could have modified or overruled them if Sotomayor had voted to rehear the case en banc, meaning with all active 2nd Circuit judges participating. Instead, Sotomayor cast a deciding vote in the 7-6 decision not to rehear the case, suggesting she was satisfied with the ruling.

There is also ample reason to doubt that any of the three 2nd Circuit precedents actually required the Sotomayor panel to rule as it did, as some politicized professors have pretended.

Sotomayor fleshed out her vague testimony about the issue in answers to senators' written questions. She quoted her 2nd Circuit colleague Barrington Parker's concurrence, which she and three other judges had joined, in the 7-6 vote not to rehear Ricci. Judge Parker wrote:

There was controlling authority in our decisions--among them, Hayden v. County of Nassau [in 1999] and Bushey v. N.Y. State Civil Serv. Comm'n [in 1984]. These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability.

To unpack the legal language: Title VII is the employment discrimination portion of the 1964 Civil Rights Act. Title VII disparate-impact lawsuits are typically brought by blacks or Hispanics who challenge as discriminatory employers' use of objective tests on which those minorities do poorly. New Haven's ostensible reason for denying promotions to the white and Hispanic firefighters who had done well on qualifying exams was fear of being hit with a disparate impact lawsuit by blacks who had done poorly. And any black plaintiffs would indeed have had a prima facie disparate-impact case, which is legalese for proof that blacks had done much worse on the tests than whites.

But Judge Parker gave short shrift to the fact that even when plaintiffs have a prima facie case, an employer such as the city ``could be held liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative,'' as the Supreme Court stressed in Ricci.

In addition, Parker's reading of both Hayden and Bushey is conspicuously overbroad. Their facts (especially Hayden's) were quite different from those of Ricci. And Bushey has been undermined by subsequent Supreme Court precedents and legislation.

That's why Judge Jose Cabranes, in the main dissent from the 2nd Circuit's 7-6 denial of rehearing en banc, began:

``This appeal raises important questions of first impression''--meaning questions not controlled by precedent--``in our circuit and, indeed, in the nation, regarding the application of the Fourteenth Amendment's Equal

[Page: S8751] GPO's PDF

Protection Clause and Title VII's prohibition on discriminatory employment practices.''

The question at the core of the case, Cabranes said, was: ``May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race neutrality, on the ground that the results of the examination yielded too many qualified applicants of one race and not enough of another?''

This and other questions raised by the case, Cabranes continued, were ``indisputably complex and far from well-settled'' and ``not addressed by any precedent of the Supreme Court or our Circuit,'' including Hayden and Bushey.

Ricci differed from Hayden in three critical respects. First, as Cabranes explained, Hayden had approved Nassau County's ``race-conscious design of an employment examination,'' which was achieved mainly by eliminating tests of cognitive skills. Ricci, on the other hand, involved ``race-based treatment of examination results'' (emphasis added) to override local civil service laws under which promotions are virtually automatic for the firefighters with the best scores on job-related oral and written tests.

Second, Hayden stressed that the white plaintiffs ``cannot establish that they were injured or disadvantaged'' by the Nassau County test's race-conscious design. The Ricci plaintiffs were very clearly injured: They were denied promotions that they had done everything possible to earn under New Haven's civil service laws, and thus were ``deprived of the pursuit of happiness on account of race,'' in the words of Washington Post columnist Richard Cohen.

Third, Hayden upheld the Nassau County exam's black-friendly design in part ``to rectify prior discrimination'' by the county against blacks seeking police jobs. Ricci involved no claim of prior discrimination by New Haven against blacks.

Bushey was a lawsuit by whites challenging New York State's race-norming of scores--by substantially raising each minority applicant's score--on a qualifying exam to become a correction captain. The 2nd Circuit's mixed ruling in the case was entitled to little or no weight as a precedent in Ricci for at least four reasons:

While Bushey held that the state could use unspecified ``race-conscious remedies'' to avert a lawsuit by minorities who had done badly on a test, the 2nd Circuit ordered further proceedings to determine whether the race-norming remedy chosen by the state went too far, and violated Title VII by ``trammel[ing] the interests of nonminority candidates.'' In Ricci, the Sotomayor panel gave no weight at all to the interests of non-minority candidates.

In a key provision of the 1991 Civil Rights Act, Congress banned the sort of race-norming that the state had used in Bushey. This provision stated broadly that employers may not ``adjust the scores of, use different cutoff scores for, or otherwise alter the results of employment-related tests on the basis of race.'' Indeed, by throwing out (``altering''?) the results of its test, New Haven arguably violated the 1991 provision, as well as others, in Ricci itself.

Bushey noted that the white plaintiffs' initial claims that their constitutional rights had been violated ``are not before us,'' because on appeal they had relied solely on their Title VII claims. In Ricci, ``significant constitutional claims ..... of first impression [were] at the core of this case,'' as Cabranes wrote. The Sotomayor panel completely ignored them.

The high-scoring firefighters' constitutional claims in Ricci were especially strong because landmark Supreme Court decisions in 1989 and 1995 had washed away the foundations of Bushey and another 2nd Circuit decision cited by Sotomayor defenders, Kirkland v. New York State Department of Correctional Services (1980). The 1989 and 1995 decisions held for the first time that (respectively) state and federal favoritism toward blacks is just as suspect under the Constitution as favoritism toward whites. ``Any preference based on racial or ethnic criteria must necessarily receive a most searching examination'' and be struck down unless ``narrowly tailored'' to serve a ``compelling'' governmental interest, according to the 1995 decision, Adarand Constructors v. Pena.

The justices' constitutional rulings seem quite contrary to the 2nd Circuit's approach not only in Bushey but also in Ricci, in which--Cabranes suggested--Sotomayor and her allies ``took the city's justifications at face value,'' ignoring strong evidence that its decision to dump the test scores was driven by racial politics, not legal principle. The result, Cabranes said, was that ``municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome--i.e. failed to satisfy a racial quota.''

Later, in the Supreme Court's June 29 majority opinion in Ricci, Justice Anthony Kennedy said it was unnecessary to address the firefighters' constitutional claims because their Title VII claims alone were sufficient to win the case. But Kennedy stressed that there were ``few, if any, precedents in the courts of appeals discussing the issue.''

The bottom line is that 2nd Circuit precedents did not make Sotomayor rule as she did. Supreme Court precedent favored the firefighters. Sotomayor's ruling was her own.

The PRESIDING OFFICER. The Senator from Oklahoma.

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] GPO's PDF

appeal raises important questions of first impression''--meaning questions not controlled by precedent--``in our circuit and, indeed, in the nation, regarding the application of the Fourteenth Amendment's Equal

[Page: S8751] GPO's PDF

Protection Clause and Title VII's prohibition on discriminatory employment practices.''

The question at the core of the case, Cabranes said, was: ``May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race neutrality, on the ground that the results of the examination yielded too many qualified applicants of one race and not enough of another?''

This and other questions raised by the case, Cabranes continued, were ``indisputably complex and far from well-settled'' and ``not addressed by any precedent of the Supreme Court or our Circuit,'' including Hayden and Bushey.

Ricci differed from Hayden in three critical respects. First, as Cabranes explained, Hayden had approved Nassau County's ``race-conscious design of an employment examination,'' which was achieved mainly by eliminating tests of cognitive skills. Ricci, on the other hand, involved ``race-based treatment of examination results'' (emphasis added) to override local civil service laws under which promotions are virtually automatic for the firefighters with the best scores on job-related oral and written tests.

Second, Hayden stressed that the white plaintiffs ``cannot establish that they were injured or disadvantaged'' by the Nassau County test's race-conscious design. The Ricci plaintiffs were very clearly injured: They were denied promotions that they had done everything possible to earn under New Haven's civil service laws, and thus were ``deprived of the pursuit of happiness on account of race,'' in the words of Washington Post columnist Richard Cohen.

Third, Hayden upheld the Nassau County exam's black-friendly design in part ``to rectify prior discrimination'' by the county against blacks seeking police jobs. Ricci involved no claim of prior discrimination by New Haven against blacks.

Bushey was a lawsuit by whites challenging New York State's race-norming of scores--by substantially raising each minority applicant's score--on a qualifying exam to become a correction captain. The 2nd Circuit's mixed ruling in the case was entitled to little or no weight as a precedent in Ricci for at least four reasons:

While Bushey held that the state could use unspecified ``race-conscious remedies'' to avert a lawsuit by minorities who had done badly on a test, the 2nd Circuit ordered further proceedings to determine whether the race-norming remedy chosen by the state went too far, and violated Title VII by ``trammel[ing] the interests of nonminority candidates.'' In Ricci, the Sotomayor panel gave no weight at all to the interests of non-minority candidates.

In a key provision of the 1991 Civil Rights Act, Congress banned the sort of race-norming that the state had used in Bushey. This provision stated broadly that employers may not ``adjust the scores of, use different cutoff scores for, or otherwise alter the results of employment-related tests on the basis of race.'' Indeed, by throwing out (``altering''?) the results of its test, New Haven arguably violated the 1991 provision, as well as others, in Ricci itself.

Bushey noted that the white plaintiffs' initial claims that their constitutional rights had been violated ``are not before us,'' because on appeal they had relied solely on their Title VII claims. In Ricci, ``significant constitutional claims ..... of first impression [were] at the core of this case,'' as Cabranes wrote. The Sotomayor panel completely ignored them.

The high-scoring firefighters' constitutional claims in Ricci were especially strong because landmark Supreme Court decisions in 1989 and 1995 had washed away the foundations of Bushey and another 2nd Circuit decision cited by Sotomayor defenders, Kirkland v. New York State Department of Correctional Services (1980). The 1989 and 1995 decisions held for the first time that (respectively) state and federal favoritism toward blacks is just as suspect under the Constitution as favoritism toward whites. ``Any preference based on racial or ethnic criteria must necessarily receive a most searching examination'' and be struck down unless ``narrowly tailored'' to serve a ``compelling'' governmental interest, according to the 1995 decision, Adarand Constructors v. Pena.

The justices' constitutional rulings seem quite contrary to the 2nd Circuit's approach not only in Bushey but also in Ricci, in which--Cabranes suggested--Sotomayor and her allies ``took the city's justifications at face value,'' ignoring strong evidence that its decision to dump the test scores was driven by racial politics, not legal principle. The result, Cabranes said, was that ``municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome--i.e. failed to satisfy a racial quota.''

Later, in the Supreme Court's June 29 majority opinion in Ricci, Justice Anthony Kennedy said it was unnecessary to address the firefighters' constitutional claims because their Title VII claims alone were sufficient to win the case. But Kennedy stressed that there were ``few, if any, precedents in the courts of appeals discussing the issue.''

The bottom line is that 2nd Circuit precedents did not make Sotomayor rule as she did. Supreme Court precedent favored the firefighters. Sotomayor's ruling was her own.

The PRESIDING OFFICER. The Senator from Oklahoma.

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] GPO's PDF

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.

The PRESIDING OFFICER. The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. SESSIONS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. SESSIONS. Mr. President, I believe there are a few minutes left on this side of the aisle. I would just like to share a few thoughts. I see Senator Brown is here and would also like to speak tonight. I think some others may also.

One of the things that has been discussed tonight from my Democratic colleagues is the great American ideal of equal justice under law. Those words are indeed chiseled on the face of the Supreme Court across the street, and it has been invoked as a reason to support this nominee. But I would suggest that at its most fundamental level that is one of the serious objections and concerns we have.

[Page: S8753] GPO's PDF

Lawsuits have parties. If you have empathy for one party, if you have a sympathy for one party, if you have a prejudice that favors one party, then that is not equal justice. In her own speeches and statements, Judge Sotomayor has said: I accept the fact that my background, my sympathies, even my prejudices--those are her words--will affect the facts, affect how I decide cases--that her background will ``affect the facts I choose to see.'' These were not just speeches given one time but repeated over a period of a decade.

So it raises real questions about that because the oath that a judge takes is a powerful thing. The oath reflects the ideal of American justice. And the oath says a judge will not be a respecter of persons. The oath says a judge shall do equal justice to the poor and the rich alike. The

oath says a judge will be impartial; that they will carry out their duties under the Constitution and under the laws of the United States--not above the laws of the United States. A judge is not above the law. They are not empowered to utilize any of their personal views, politics, morals, or values in the process of their judging to manipulate the law, to carry out an agenda they may believe is the greatest thing for all of America. They are not entitled to do that.

So from her speeches and her approach to the law, there is a great concern to the extent of which I have not seen before in speeches and expressions, in Law Review articles by this nominee that suggests an acceptance of the fact that her background and experiences, opinions, sympathies, and prejudices will affect her rulings.

She goes on to say: I accept the fact that my background will ``affect the facts I choose to see.'' For a lawyer like myself who has practiced a good bit in Federal court, tried quite a few cases, this is a stunning development that a judge is going to tell me: Well, I may not see those facts because of my background, my sympathies, and my prejudices. That is what a judge puts on that robe for. The robe is to symbolize they pull themselves apart from the everyday pressures that are on them, the everyday biases and prejudices; that they will be a neutral, fair, objective umpire and will call the balls and strikes, call the game without taking sides, without trying to achieve a given result. This is the ideal of American justice.

One of our colleagues said he objected because some of us were advocating a strange and strained conservative orthodoxy, that we would not vote for anybody who did not agree with some sort of philosophy like that. What I said at the opening of the hearing was that I would not vote for her, and no Senator should vote for any nominee, whether liberal or conservative, who was not committed--committed--as their oath commits them, to setting aside personal values, opinions, and so forth, and rendering true justice based on the law and the facts, whether they like the law or not.

So I think this is a big deal. They say: Well, you never confirmed a liberal Democrat, Sessions. You are a conservative Republican. But I would. And I voted for quite a number of them under President Clinton. I expect I will vote for quite a number under President Obama. I voted for 95 percent of President Clinton's nominees in the time I was in the Senate. It is not their politics. It is not the church they belong to. It is not whether they go to church. It is not what their moral values are. It is when they get on that bench and they decide cases, are they going to follow the law and the facts? That is the question, and that is what we are looking for.

It is sort of surprising to see a nominee express repeatedly over a period of years a contrary view. And to suggest that, well, it may be an aspiration to be unbiased, but it is just a mere aspiration--and to explicitly reject the classical formulation of a judge's role as expressed by Justice O'Connor, when she said: A wise old woman and a wise old man should reach the same conclusion--well, that is what we always have believed in America. Now we have this new theory that, well, you can bring to bear your background, and you might reach a better conclusion because you have different experiences you can bring to bear. That is not our goal in America, in my view.

Our legal system is built on a belief that there is a right answer to even the most difficult cases, and judges ought to give their absolute best effort to find that right answer.

It is based on law and the facts and not what their personal views and values are. That is what we are all about. I think it is an important issue. And the activist, whether liberal or conservative, the activist judge allows those values and prejudices and political views and ideology to affect their rulings. It causes them to find some way to achieve a result that furthers an agenda they believe in. That is not justice, that is politics.

When President Obama says he wants a judge who will show empathy, I ask: Whom does he show empathy for? If you show empathy for one party, haven't you had a bias against the other? Who got empathy in the firefighters case? Was that equal justice under law--under law?

The Constitution says no one shall be deprived of equal protection of the laws on account of their race. But the firefighters who passed the test--a test that was never found to be defective, and the Supreme Court found it was not found to be defective--they had that test thrown out because they didn't like the racial results of it. Isn't that discriminating against the people who worked hard and studied and passed the test?

Lieutenant Vargas testified before our committee. I asked him, and he said if everybody had studied as hard as he had, a lot more of them would have passed. It was just a question of the commitment to learn the things necessary to be a leader in a fire department where you send people into life-and-death situations. This is not a little matter. You need to know things.

So I don't want anybody to think that what we are doing is some strange or strained approach to the law. I believe we are asking fundamental questions about law and justice in America and the Supreme Court of the United States. Aren't we entitled to expect that this nominee, such as every other judge who has ever taken the bench in any Federal court in America, should be not mildly committed to the oath but absolutely committed to the oath; committed to not being a respecter of persons; committed to equal justice for the poor and the rich; committed to impartiality; committed to conducting their office under the Constitution and under the laws of the United States and not above it.

I think that is what we need to be looking for. I am afraid this nominee, based on several important cases and a plethora of speeches over a decade, doesn't meet the standard. I wish it weren't so. I thought things would get better at the hearing. I don't think they did. That is my best judgment. So that is why I have concluded I cannot support her nomination.

I thank the Chair and yield the floor.

[Page: S8754] GPO's PDF