Senate Debate on Empathy
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Leahy, Patrick [D-VT]
Begin2009-08-0417:50:03End18:13:57Length00:23:54

Mr. LEAHY. I thank the distinguished Presiding Officer, also himself a member of the Judiciary Committee. He sat through and participated in all of the hearings on Judge Sotomayor.

When the Judiciary Committee began the confirmation hearing on the nomination of Judge Sotomayor to the Supreme Court, in my opening statement I recounted an insight from Dr. Martin Luther King, Jr. I did this because it is often quoted by President Obama, the man who nominated her. The quote is:  Let us realize the arc of the moral universe is long, but it bends towards justice.

Each generation of Americans has sought that arc toward justice. Indeed, that national purpose is inherent in our Constitution. In the Constitution's preamble, the Founders set forth to establish justice as one of the principal reasons that ``We the people of the United States'' joined together to ``ordain and establish'' the Constitution. This is intertwined in the American journey with another purpose for the Constitution that President Obama often speaks about. We all admit it is the unfinished
goal of forming ``a more perfect Union.'' Our Union is not yet perfected, but we are making progress with each generation.

That journey began with improvements upon the foundation of our Constitution through the Bill of Rights and then it continued with the Civil War amendments, the 19th amendment's expansion of the right to vote for women, the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the 26th amendment's extension of the vote to young people. These actions have marked progress along the path of inclusion. They recognize the great diversity that is the strength of our Nation.

Judge Sotomayor's journey to this nomination is truly an American story. She was raised by a working mother in the Bronx after her father died when she was a child. She rose to win top honors as part of one of the first classes of women to graduate from Princeton. She excelled at Yale law school. She was one of the few women in the Manhattan District Attorney's Office in the mid-1970s. She became a Federal trial judge and then the first Latina judge on a Federal appeals court when she was confirmed
to the second circuit over a decade ago.

I might note on a personal basis, I am a member of the bar of the second circuit, as well as the Federal District Court of Vermont. That is the circuit I belong to as a member of the Vermont bar. I know how excited we were in the second circuit when she became a judge.

She is now poised to become the first Latina Justice and actually only the third woman to serve on the U.S. Supreme Court. She has broken barriers along the way. She has become a role model to many. Her life journey is a reminder to all of the continuing vitality of the American dream.

Judge Sotomayor's selection for the Supreme Court also represents another step toward the establishment of justice. I have spoken over the last several years about urging Presidents--I have done this with Presidents of both political parties--to nominate somebody from outside the judicial monastery to the Supreme Court. I believe that experience, perspective, an understanding of how the world works and how people live--how real people live and the effect decisions will have on the lives of people--these
have to be very important qualifications.

One need look no further than the Lilly Ledbetter and the Diana Levine cases to understand the impact each Supreme Court appointment has on the lives and freedoms of countless Americans.

In the Ledbetter case, five Justices on the Supreme Court struck a severe [Page: S8731]
blow to the rights of working families across our country. In effect, they said we can pay women less than men for the exact same work. Congress acted to protect women and others against discrimination in the workplace more than 40 years ago, yet we still struggle to ensure that all Americans, women and men, receive equal pay for equal work. It took a new Congress and a new President to strike down the immunity the Supreme Court had given to employers who discriminate against their workers and successfully hide their wrongdoing.

The Supreme Court had allowed them to do that. We changed that again. I remember the pride I had when I stood beside President Obama when he signed his first piece of legislation into law, the Lilly Ledbetter law, which says something that every one of us should know instinctively in our heart and soul: that women should be paid the same as men for the same kind of work.

But for all the talk about ``judicial modesty'' and ``judicial restraint'' with the nominees of a Republican President at their confirmation hearings, we have seen a Supreme Court these last 4 years that has been anything but modest and restrained.

I understand decrying judicial activism when judges have simply substituted their judgment for that of elected officials. That is what we have seen these last few years from the conservative members of the Supreme Court.

When evaluating Judge Sotomayor's nomination, I believe Senators should consider what kind of Justice she will be. Will she be in the mold of these activists who have gutted legislation designed to protect Americans from discrimination in their jobs and in voting, laws meant to protect the access of Americans to health care and education, and laws meant to protect the privacy of all Americans from an overreaching government? I think not and I hope not.

The reason I think not and hope not is I have been looking at what kind of judge she has been for the last 17 years and that is not the kind of judge she has been for 17 years. Keep in mind, this is a nominee who has had more experience on the Federal court than any nominee to the Supreme Court in decades. What we see is she has applied the law to the facts of the cases she has considered. She has done that while understanding the impact of her decisions on those before the court.

Those who struggle to pin the label of judicial activist on Judge Sotomayor are met by her very solid record of judging based on the law. She is a restrained, experienced, and thoughtful judge who has shown no bias in her rulings.

The charge of some Senate Republican leaders that they fear she will show bias is refuted over and over again in her record of 17 years. In fact, her record as a judge is one of rendering decisions impartially and neutrally. No one has pointed to decisions that evidence bias. No one has shown any pattern of her inserting her own personal preferences into her judicial decisions. No one can because that does not exist. That is not who she is nor is it the type of judge she has been.

As her record demonstrates and her testimony before the Judiciary Committee reinforced, she is a restrained and fair and impartial judge who applies the law to the facts to decide cases--the kind of judge that any one of us who practiced law would want to appear before, whether we were plaintiff or defendant, government or respondent, rich or poor. Ironically, the few decisions for which she has been criticized are cases in which she did not reach out to change the law or to defy judicial precedent;
in other words, cases in which she refused to ``make law'' from the bench.

In her 17 years on the bench there is not one example, let alone a pattern, of her ruling based on bias or prejudice or sympathy. She has been true to her oath. She has faithfully and impartially performed her duties under the Constitution.

As a prosecutor--a distinguished prosecutor--and then as a judge, she has administered justice without favoring one group of persons over another. In fact, she testified directly to this point. She said:

I have now served as an appellate judge for over a decade, deciding a wide range of constitutional, statutory and other legal questions. Throughout my 17 years on the bench, I have witnessed the human consequences of my decisions. Those decisions have not been made to serve the interest of any one litigant, but always to serve the larger interests of impartial justice.

About 12 years ago in a case called City of Boerne v. Florida, the Supreme Court struck down the Religious Freedom Restoration Act, a law that Congress had passed to protect religious freedom. Since then, an activist conservative group of Justices has issued a number of rulings that further restricted the power of Congress under section 5 of the 14th amendment.

They have limited other important Federal statutes such as the Violence Against Women Act, and they have done this by using a test created out of whole cloth, without any root in either history or in the text of our Constitution. Scholars across the political spectrum have criticized the Supreme Court's rulings in this line of cases, including Judge Michael McConnell and Judge John Noonan, Jr., both Republican appointees to the Federal bench.

Let's have some history. Hundreds of thousands of Americans lost their lives fighting a civil war to end the enslavement of millions of Americans. After the war, we transformed our founding charter, the Constitution, into one that embraced equal rights and human dignity through the reconstruction amendments by not only abolishing slavery but also by guaranteeing equal protection of the law for all Americans and prohibiting the infringement of the right to vote on the basis of race.

But these reconstruction amendments to our Constitution are not self-implementing. Both the 14th and 15th amendments to the Constitution contain sections giving Congress the power to enforce the amendments. Congress acts to secure Americans' voting rights when it passes statutes like the Voting Rights Act pursuant to its authority to implement the 14th and 15th amendment's guarantees of equality. Congress acts to ensure the basis for our democratic system of government when we provide for implementation
of this principle.

In contrast to the resistance that met the initial enactment of the Voting Rights Act of 1965--something that brought about enormous debate in this country--3 years ago, Republicans and Democrats in the Senate and House of Representatives came together to reauthorize key expiring provisions of the Voting Rights Act. This overwhelmingly bipartisan effort sought to preserve the rights of all Americans to equal access to the democratic process.

I stood with President George W. Bush when he proudly signed that restoration. But earlier this year, I attended the oral argument in a case challenging the constitutionality of the reenacted Voting Rights Act.

It appeared from the questions posed by the conservative Justices that they were ready to apply the troubling line of rulings in which they have second guessed Congress in order to strike down a key provision of the Voting Rights Act, one of this country's most important civil rights laws. Lacking a fifth vote for such a seismic shift, the constitutional ruling was avoided. But I remain concerned that the Supreme Court nonetheless remains poised to overturn other decisions made by Congress in
which we decide how best to protect the rights and well-being of all American people.

I believe Judge Sotomayor will be a Justice who will continue to do what she has done as a judge for the last 17 years. I believe she will show appropriate deference to Congress when it passes laws to protect the freedoms of Americans.

I also believe she will have an understanding of the real world impact of the Supreme Court's decisions, which will be a welcome addition. When she was designated by the President, Judge Sotomayor said:  The wealth of experiences, personal and professional, have helped me appreciate the variety of perspectives that present themselves in every case that I hear. It has helped me to understand, respect and respond to the concerns and arguments of all litigants who appear before me, as well as the views of my colleagues on the bench. I strive never to forget the real-world consequences of my decisions on individuals, businesses, and government.

Well, it took a Supreme Court that understood the real world to see that the seemingly fair-sounding doctrine of ``separate but equal'' was in reality a straitjacket of inequality and it was offensive to the Constitution.

We had ``separate but equal.'' For years in this country, we had segregation. We had segregation in our schools. It was a blight on the idea of a colorblind Constitution. And all Americans have come to respect the Supreme Court's unanimous rejection of racial discrimination and inequality in Brown v. Board of Education. That was a case about the real-world impact of a legal doctrine.

But just 2 years ago, in the Seattle school desegregation case, we saw a narrowly divided Supreme Court undercut the heart of the landmark Brown v. Board decision, a decision that was unanimous. The Seattle school district valued racial diversity and was voluntarily trying to maintain diversity in its schools. By a five-to-four vote, the conservative activists on the Court said that program was prohibited. That decision broke with more than half a century of equal protection jurisprudence, and
I believe it set back the long struggle for equality in this country.

Justice Stevens wrote that the Chief Justice's opinion twisted Brown v. Board in a ``cruelly ironic'' way.

I think most Americans understand that there is a crucial difference between a community that does its best to ensure that schools include children of all races and one that prevents children of some races from attending certain schools. I mean, real-world experience tells us that. Those of us who are parents, grandparents, we know this.

Justice Breyer's dissent criticized the Chief Justice's opinion as applying an ``overly theoretical approach to case law, an approach that emphasizes rigid distinctions ..... in a way that serves to mask the radical nature of today's decision. Law is not an exercise in mathematical logic.''

Actually, I might say, if it were, we could just have computers on our Supreme Court.

Chief Justice Warren, a Justice who came to the Supreme Court with real-world experience as a State attorney general and Governor, recognized the power of a unanimous decision in Brown v. Board.

The Roberts Court, in its narrow desegregation decision 2 years ago, ignored the real-world experience of millions of Americans and chose to depart from the most hallowed precedents of the Supreme Court.

I am hopeful and confident that when she serves as a Justice on the Supreme Court of the United States, Sonia Sotomayor, a woman from the South Bronx who has overcome so much, will be mindful of the real-world experiences of Americans.

Those critics who devalue her judicial record and choose to misconstrue a few lines from speeches, ignore the aspiration behind those speeches. In fact, Judge Sotomayor begins the part of the speech so quoted by critics with the words ``I would hope.'' She would ``hope'' that she and other Latina judges would be ``wise'' in their decision-making and that their experiences would help inform them and help provide that wisdom. I hope so, too. Just as I hope that Justices Thomas' early life leads
him to, as he testified in his confirmation hearing, ``stand in the shoes of other people.'' And I hope that Justice Alito's immigrant heritage, as he too discussed in his confirmation hearing, helps him understand the plight of the powerless in our society.

Judge Sotomayor also said in her speeches that she embraced the goal that: ``[J]udges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.'' I am going to be saying more about this as we go along, but I would note that her critics missed that Judge Sotomayor was pointing out a path to greater fairness and fidelity to the law by acknowledging that despite the aspirations of impartiality she shares with
other judges, judges are human. Her critics seem to ignore her modesty in claiming not to be perfect. I would like to know which one of the 100 U.S. Senators could claim to be perfect. There are some who could; I am not one of them.

By acknowledging that judges come to the bench with experiences and personal viewpoints, they can be on guard against those views influencing judicial outcomes. By striving for a more diverse bench drawn from judges with a wider set of backgrounds and experiences, we can better ensure that the decisions of the Court will be freer of limited viewpoints or narrow biases.

All Supreme Court nominees have talked about the value they will bring to the bench from their backgrounds and experiences. That diversity of experience is a strength, not a weakness, in achieving an impartial judiciary. A more diverse bench with a better understanding of the real world impact of decisions can help avoid the pitfalls of the Supreme Court's decisions these last years.

Let me point to just one example because judges--just as Senators bring their experience to this body--judges do, too.

Judge Sotomayor sat on a three-judge panel that heard a case involving strip searches of adolescent girls in a juvenile detention center. The parents of two female children challenged Connecticut's blanket strip search policy for all those admitted to juvenile detention centers as a violation of the fourth amendment's prohibition against unreasonable searches. Two of the male judges on the Second Circuit upheld the strip searches of the young girl.

In dissent, Judge Sotomayor cited controlling circuit precedent describing what is involved in the strip searches of these girls who had never been charged with a crime--keep in mind that they had never been charged with a crime--and without any basis for individual suspicion. She said that courts ``should be especially wary of strip searches of children, since youth is a time and condition of life when a person may be most susceptible to influence and to psychological damage.'' She also emphasized
that since many of these girls had been victims of abuse and neglect, they may be more vulnerable mentally and emotionally than other youths their age.

The Supreme Court recently decided a similar case, the Redding case. They found that school officials violated the fourth amendment rights of a young girl by conducting an intrusive strip search of her underclothes while looking for the equivalent of a pain reliever many of us have in our medicine cabinet. During oral arguments in that case, one of the male Justices compared the search to simply changing for gym classes. Several of the other Justices answered with laughter--not the reaction I
would have if that was my adolescent daughter. And Justice Ginsburg, the lone female Justice on the Supreme Court, described the search as humiliating to young girls. She spoke out. She did not join in that laughter.

Ultimately, the Supreme Court decided that case by a vote of 8 to 1. Justice Souter, the Justice whom Judge Sotomayor is nominated to replace, wrote the opinion for the Court. Of course, that position mirrored that of Judge Sotomayor. I suspect that it was Justice Ginsburg's understanding of the intrusiveness of the strip search of the young girl that ultimately prevailed. Can we say our life experience bears no weight in what we do?

Among the very first purposes of the Constitution is ``to establish justice.'' It is a purpose that has animated the improvements we have made over generations to our Constitution. It is a purpose engraved in the words over the entrance of the Supreme Court. These words are in Vermont marble, and they say, ``Equal Justice Under Law.'' All the dozens and dozens of times I have walked into the Supreme Court, up those steps straight out across from this Chamber, I have always paused to read those
words, ``Equal Justice Under Law.'' Is that not what we should stand for?

I hope and believe Judge Sotomayor understands the critical importance of both fairness and justice. A decade ago, she gave another speech in which she spoke about the meaning of justice. She said, ``Almost every person in our society is moved by that one word. It is a word embodied with a spirit that rings in the hearts of people. It is an elegant and beautiful word that moves people to believe that the law is something special.''

I believe Judge Sotomayor will live up to those words when she is confirmed, as she will be confirmed to the U.S. Supreme Court. The senior Senator from Vermont will vote for that confirmation. [Page: S8733]


I yield the floor and reserve the remainder of my time.