KYL:
Mr. Chairman, before I begin, for those who are watching this on television, I would just note that I don't think we put Judge Sotomayor on the hot seat with our questions, but we certainly did with the temperature in this room yesterday. (LAUGHTER) And for that, I apologize. And I note that it could get a little steamy this morning too. I know it's cold back there, but it's not at all cool where we are.

LEAHY: If I can respond to--

KYL: If there's ever a question about Judge Sotomayor's stamina in a very hot room, that question has been dispelled without any doubt whatsoever. (LAUGHTER)

LEAHY: If I might -- and I'll have to set the clock back for 20 minutes so this doesn't go into your time -- but it -- it is really an interesting thing because anybody that's gone up where the press are, it's like an icebox up there. And I'm hoping we can get this -- at least the microphone is working. I want to thank Senator Sessions for offering me his microphone yesterday, but that didn't work.

And I want to thank Senator Franken for letting me use his. So if we start clock back over so I don't take this out of Senator Kyl's time. Senator Kyl, please go ahead.

KYL: Thank you, and good morning, Judge.

SOTOMAYOR: Good morning.

KYL: If response to one of Senator Sessions' questions on Tuesday about the Ricci case, you stated that your actions in the case where controlled by established Supreme Court precedent. You also said that a variety of different judges on the appellate court were looking at the case in light of stabled Supreme Court and 2nd Circuit precedent.

And you said that the Supreme Court was the only body that had the discretion and the power to decide how these tough issues should be decided. Those are all quotations from you.

Now, I've carefully reviewed the decision, and I think the reality is different. No Supreme Court case had decided whether rejecting an employment test because of its racial results would violate the civil rights laws.

Neither the Supreme Court's majority in Ricci nor the four dissenting judges discussed or even cited any cases that addressed the question. In fact, the court, in its opinion, even noted -- and I'm quoting here -- that this action presents two provisions of Title 7 to be interpreted and reconciled with few, if any, precedents in the court of appeals discussing the issue.

In other words, not only did the Supreme Court not identify any Supreme Court cases that were on point, it found few, if any, lower court opinions that even addressed the issue. Isn't it true that you were incorrect in your earlier statement that you were bound by established Supreme Court and 2nd Circuit precedent when you voted each time to reject the firefighters' civil rights complaint?

SOTOMAYOR: Senator, I was -- let me place the Ricci decision back in context. The issue was whether or not employees who had -- were a member of a disparately impacted group had a right under existing precedent to bring a lawsuit, that they have a right to bring a lawsuit on the basis of a prima facie case, and what would that consist of?

That was established 2nd Circuit precedent and had been -- at least up to that point -- been concluded from Supreme Court precedents describing the initial burden that employees had.

KYL: Well--...

SOTOMAYOR: That was...

KYL: Are you speaking here now -- I mean, you said the right to bring the lawsuit. It's not a question of standing. There was a question of summary judgment.

SOTOMAYOR: Exactly. Of -- exactly, which is when you speak about a right to bring a lawsuit, I mean, what's the minimum amount of good-faith evidence do they have to actually file the complaint?

An established precedent said, you can make out an employee a prima facie case of a violation of Title VII under just merely by -- not merely -- that's denigrating it -- by showing a disparate impact. Then, the city was faced with the choice of, OK, we're now facing two claims, one...

KYL: If I could just interrupt, we only have 20 minutes here, and I'm aware of the facts of the case. I know what the claims were. The question I asked was very simple. You said that you were bound by Supreme Court and 2nd Circuit precedent. What was it? There is no Supreme Court precedent. And as the court itself noted, they could find few, if any, 2nd Circuit precedents.

SOTOMAYOR: The question was, the precedent that existed and whether viewing it, one would view this as the city discriminating on the basis of race or the city concluding that because it was unsure that its test actually avoided disparate impact, but still tested for necessary qualifications, was it discriminating on the basis of race by not certifying the test?

KYL: Well, so you disagree with the Supreme Court's characterization of the precedents available to decide the case?

SOTOMAYOR: It's not that I disagree. The question was a more focused one that the court was looking at, which was saying -- not more focused. It was a different look. It was saying, OK, you got these precedents. It says employees can sue the city. The city -- the city is now facing liability. It's unsure whether it can defeat that liability. It's -- and so it decides not to certify the test and see if it could come up with one that would still measure the necessary qualifications.

KYL: Let me interrupt again, because you're not getting to the point of my question. And I know, as a good judge, if I were arguing a case before you, you would say, "That's all fine and dandy, counsel, but answer my question."

Isn't it true that -- two things -- first, the result of your decision was to grant summary judgment against these parties? In other words, it wasn't just a question of whether they had the right to sue; you actually granted a summary judgment against the parties.

KYL: And, secondly, that there was no Supreme Court precedent that required that result. And I'm not sure what the 2nd Circuit precedent is. The Supreme Court said few, if any. And I -- I -- I don't know what the precedent would be. I mean, I'm not necessarily going to ask you to cite the case. But was there a case? And if so, what is it?

SOTOMAYOR: It was the ones that we discussed yesterday, the bushy line of cases that talked about the prima facie case and the obligations of the city in terms of defending lawsuits claiming disparate impact. And so, the question then became how do you view the city's action. Was it a -- and that's what the District Court had done in its 78-page opinion to say you've got a city facing liability --

KYL: OK, all right. So, so you contend that there was 2nd Circuit precedent. Now, on the en banc review, of course, the question there is different because you're not bound by any three- judge panel decision in your circuit. So what precedent would have bound -- and yet, you took the same position in the en banc review.

For -- for those who aren't familiar, a three-judge court decides the case in the first instance. In some situations, if the case is important enough, judges on -- the other judges on the circuit -- there may be nine or 10 or 20. I think in the 9th Circuit there are like 28 judges in the circuit. And you can request an en banc review. The entire circuit would sit.

And in that case, of course, they're not bound by a three-judge decision because it's the entire circuit sitting of 10 or 12 or 20 judges. So what precedent then would have bound in -- bound the court in the en banc review?

SOTOMAYOR: The panel acted in accordance with its views by setting forth and incorporating the District Court's analysis of the case. Those who disagreed with the opinion made their arguments. Those who agreed that en banc certification wasn't necessary voted their way. And the majority of the court decided not to hear the case en banc.

I can't speak for why the others did or did not take the positions they did. They -- some of them have issued opinions. Others joined opinions.

KYL: But you felt you were bound by precedent?

SOTOMAYOR: That was what we did in terms of the decision, which was to accept the rule -- the -- not accept, but incorporate the District Court's decision analyzing the case and saying we agreed with it.

KYL: Understood. But the District Court's decision is not binding on the circuit court. And the en banc review means that the court should look at it in light of precedents that are stronger than a three-judge decision. So I'm still baffled as to what precedent you're -- you're -- you're speaking of.

SOTOMAYOR: Perhaps it's -- just one bit of background needs to be explained. When a court incorporates as we did in a per curiam, a district court decision below, it does become the court's precedent. And, in fact, the --

KYL: The three judges?

SOTOMAYOR: Yes, but when I was on the District Court, I issued also a lengthy decision on an issue, a constitutional issue, direct constitutional issue that the circuit had not addressed and very other few courts had addressed on the question of whether etbus (ph) statute of limitations on habeas (ph)...

KYL: OK. If you excuse me, we're -- I apologize for interrupting, but I've now used half of my time. And you -- you will not acknowledge that even though the Supreme Court said there was no precedent, even though the District Court judgment and a three-judge panel judgment cannot be considered precedent binding the en banc panel of the court, you still insist that somehow there was precedent there that you were bound by.

SOTOMAYOR: As I explained, when the circuit court incorporated the District Court's opinion, that became the court's holding.

KYL: Of course.

SOTOMAYOR: So, it did become circuit holding. With respect --

KYL: By three judges.

SOTOMAYOR: With respect -- yes, sir. I'm sorry. With respect to the question of precedent, it must be remembered that what the Supreme Court did in Ricci was say, "There isn't much law on how to approach this should we adopt a standard different than the circuit did," because it is a question that we must decide how to approach this issue to ensure that two provisions of Title VII are consistent with each other.

That argument of adopting a different test was not the one that was raised before us, but that was raised clearly before the Supreme Court. And so that approach is different than saying that the outcome that we came to was not based on our understanding of what it make out a prima facie case.

KYL: Well, if it's a matter of first impression, do judges on the 2nd Circuit typically disposed of important cases of first impression by a summary one-paragraph order per curiam opinion?

SOTOMAYOR: Actually, they did in one case I handled when I was a District Court judge.

KYL: Would that be typical?

SOTOMAYOR: I don't know how you define typical, but if the District Court opinion, in the judgment of the panel, is adequate and fulsome and persuasive, they do. In my Rodriguez v. Artus (ph) case, when I was at District Court on the constitutionality of an act by Congress with respect to the suspension clause of the habeas provision, the court did it in less than a paragraph. They just incorporated my decision as the law of the circuit, or the holding of the circuit.

KYL: Well, let me quote from Judge Cabranas' dissent. He said, "The use of pro curiam opinions of this sort, adopting in full the reasoning of a district court without further elaboration, is normally reserved for cases that present straightforward questions that do not require exploration or elaboration by the court of appeals. The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well settled."

I guess legal analysis -- analysts are simply going to have to research and debate the question of whether or not the cases of first impression or complex important cases are ordinarily dispensed of that way.

Let me just say that the implications -- the reason I address this is the implications of the decision are far-reaching. I think we would all agree with that. It's an important decision, and it can have far-reaching implications.

Let me tell you what three writers, in effect, said about it and get your reaction to it. Here is what the Supreme Court said in Ricci about the decision, about the rule that the -- that your court endorsed.

It said that the rule that you endorsed, and I'm quoting now, "Allowing employers to violate the disparate treatment prohibition based on a mere good-faith fear of disparate impact liability would encourage race-based action at the slightest hint of disparate impact." This is the Supreme Court. "Such a rule," it said, "would amount to a de facto quota system in which a focus on statistics could put undue pressure on employers to make hiring decisions on the basis of race. Even worse, an employer could discard test results or other employment practices with the intent of obtaining the employer's preferred racial balance."

Your colleague on the 2nd Circuit, Judge Cabranas, said, that, under the logic of your decision -- I quote again -- "municipal employers could reject the results of an employment examination whenever those results failed to yield a desirable racial income." In other words, failed to satisfy a racial quota.

That's why the case is so important. I mean, I would imagine you would hope that that result would not pertain. I guess I can just ask you that, that you would not have rendered this decision if you felt that that would be the result.

SOTOMAYOR: As I argued -- argued -- as I stated earlier, the issue for us, no, we weren't endorsing that result. We were just talking about what the Supreme Court recognized, which was that there was a good-faith basis for the city to act. It set a standard that was new, not argued before us below, and that set forth how to balance those considerations.

That is part of what the court does is in the absence of a case previously decided that sets forth the test. And what the court there said is good faith is not enough.

KYL: Understood.

SOTOMAYOR: Substantial evidence is what the city has to rely on. Those are different types of questions.

KYL: Of course. And the point is you don't endorse the result that either Judge Cabranes or the Supreme Court predicted would occur had your decision remained in effect. I'm sure that you would hope that result would not pertain.

SOTOMAYOR: Yes. But I didn't -- that wasn't the question we were looking at. We were looking at a more narrow question which was, could a city, in good faith, say we're trying to comply with the law. We don't know what standard to use. We have good faith for believing that we should not certify.
Now, the Supreme Court has made clear what standard they should apply. Those are different issues.

KYL: Well, I'm just quoting from the Supreme Court about the rule that was -- that you endorsed in your decision and, again, it said the Supreme Court said about your rule that such a rule would amount to a de facto quote system in which a focus on statistics could put undue pressure on employers to make hiring decisions on the basis of race. Even worse, an employer could disregard test results or other employment practices with the intent of obtaining an employer's preferred racial balance.

I guess we both agree that that is not a good result. Let me ask you about a comment you made about the dissent in the case. A lot of legal commentators have noted that, while the basic decision was 5 to 4, that all nine of the justices disagreed with your panel's decision to grant some rejudgment; that all nine of the judges believed that the court should have been -- that the district court should have found the facts in the case that would allow it to apply a test. Your panel had one test. The Supreme Court had a different test. The dissent had yet a different test.

But in any case, whatever the test was, all nine of the justices believed that the lower court should have heard the facts of the case before some rejudgment was granted. I heard you to say that you disagreed with that assessment. Do you agree that the way I stated it is essentially correct?

SOTOMAYOR: It's difficult because there were a lot of opinions in that case. But the engagement among the judges was varied on different levels. And the first engagement that the dissent did with the majority was saying if you're going to apply this new test, this new standard, then you should give the circuit court an opportunity to evaluate the evidence --

KYL: Judge, I have to interrupt you there. The court didn't say, "If you're going to apply a new standard, you need to send it back." All nine justices said that summary judgment was inappropriate, that the case should have been decided on the facts.

There were three different tests: the test from your court, the test of the majority of the Supreme Court, and the test of the dissent. Irrespective of what test it was, they said that the case should not have been decided on summary judgment. All nine justices agreed with that, did they not?

SOTOMAYOR: I don't believe that's how I read the dissent. It may have to speak for itself, but I -- Justice Ginsburg took the position that the 2nd Circuit's panel opinion should be affirmed. And she took it by saying that, no matter how you looked at this case, it should be affirmed. And so I don't believe that that was my conclusion reading the dissent, but obviously, it will speak for itself.

KYL: Well, it -- it -- it will. And I guess commentators can -- can opine on it.

I could read commentary from people like Stuart Taylor, for example, who have an opinion different from yours. But let me ask you one final question in the minute and a half that I have remaining.

I was struck by your response to a question that Senator Hatch asked you about yet another speech that you gave in which you made a distinction between the justice of a district court and the justice of a circuit court, saying that the district court provides justice for the parties, the circuit court provides justice for society.

Now, for a couple of days here, you've testified to us that you believe that not only do district and circuit courts have to follow precedent, but that the Supreme Court should follow precedent.

So it's striking to me that you would suggest -- and this goes back to another comment you made perhaps flippantly about courts of appeals making law -- but it -- it would lead one to believe that you think the circuit court has some higher calling to create precedent for society.

In all of my experience, you have Smith v. Jones in a district court. The court says, "The way we read the law, Smith wins." It goes to the court of appeals. The court has only one job to decide: Does Smith win or does Jones win?

It doesn't matter what the effect of the case is on society; that's for legislators to decide. You have one job: Who wins, Smith or Jones, based on the law? And you decide, "Yes, lower court was right. Smith wins." 

You're applying precedent, and you're deciding the case between those parties. You're not creating justice for society, except in the most indirect sense, that any court that follows precedent and follows the rule of law helps to build on this country's reliance on the rule of law.

SOTOMAYOR: I think we're in full agreement. When precedent is set, it's set -- it follows the rule of law. And in all of the speeches where I've discussed this issue, I've described the differences between the two courts as one where precedents are set, that those precedents have policy ramifications, but not in the meaning that the legislature gives to it.

The legislature gives it a meaning in terms of making law. When I'm using that term, it's very clear that I'm talking about having a holding, it becomes precedent, and it binds other courts. You're following the rule of law when you're doing that.

KYL: Mr. Chairman, I'm over the time, but just a final follow-up question, if I could. 

You yourself noted that you have created precedent as a district court judge. Both district courts and circuit courts create precedent simply by deciding a case, but they're both required to follow precedent, isn't that correct?

SOTOMAYOR: Yes. (More to Come)

SOTOMAYOR: It's essentially a unanimous opinion where the court is taking an act that -- where it's not saying more than what either incorporating a decision by the court below because it's not adding anything to it.

FEINSTEIN: Right.

SOTOMAYOR: In some cases, it's when there's, as Judge Cabranes in his dissent pointed out, in some cases, it's simply used to denote that an issue is so clear and unambiguous that we're just going to state the rule of law. It can be used in a variety of different ways. But it's generally where some -- where you're doing something fairly -- in a very cursory fashion, either because a district court judge has done a thorough job...

FEINSTEIN: Which was the case in this case.

SOTOMAYOR: Yes.

FEINSTEIN: It was a very voluminous opinion that, I believe, was over 50 pages long. Is that correct?

SOTOMAYOR: I keep saying 78 because that's what I reviewed.

FEINSTEIN: Right, well, over 50, in any event.

SOTOMAYOR: But -- and as I said, my circuit did that in a case where I addressed as a district court judge a case of first impression on a constitutional, direct constitutional issue, the suspension clause. Or it can have -- one of the meanings can be that given by Judge Cabranes.

FEINSTEIN: Right. Now, my understanding also is that there is precedent in other courts. I'm looking at a decision, Oakley v. the City of Memphis, written by the circuit court. And essentially what it does is uphold the lower court that did exactly the same thing. Are you familiar with that case?

SOTOMAYOR: I am.

FEINSTEIN: It's an unpublished opinion, I believe. Is that correct?

SOTOMAYOR: Yes.

FEINSTEIN: And it was a racially mixed group of male and female lieutenants, took the test. The results came in. The test was canceled. And the court upheld the cancellation.

SOTOMAYOR: Yes.

FEINSTEIN: So this -- your case is not starkly out of the mainstream. And the reason I say this is going back to my days as mayor, particularly in the 1980s when there were many courts and many decisions involving both our police and fire departments. And it was a very controversial area of the law.

But the point I wanted to make is there is precedent, and this is certainly one of them.

SOTOMAYOR: I would agree that it was precedent. I won't choose to quarrel with the Supreme Court's decision.

FEINSTEIN: Right. I'm not asking you to. Right. Now, many have made comments regarding your Latina — "wise Latina" comment. And I'd like to just take a moment to put your comments in the context of the experiences of women. And this country is built on very great accomplishments. We forged a new country. We broke away from the British. We wrote documents that have stood the test of time. The Declaration of Independence, the Constitution, the Bill of Rights.

But we also have a history of slavery, segregated schools, of employment discrimination, of hate crimes, and unspoken prejudices that can make it very hard for individuals to be treated fairly or even to believe that they can do well in this society.

So I understand empowerment and the role that it plays. And everything has been hard fought. We, as women, didn't have the right to vote until 1920. And that was after a tremendous battle waged by a group of very brave women called Suffragettes. And when you graduated law school in 1979, there had never been a woman on the Supreme Court.

Today, women represent 50.7% of the population, 47% of law school graduates, and 30% of American lawyers. But there are only 17 women senators, and only one woman is currently serving on the Supreme Court, and we still make only $0.78 on the dollar that a man makes.

So we're making progress, but we're not there yet, and we should not lose sight of that. My question is, as you have seen this — and you must have seen how widely broadcast this is — that you become an instant role model for women. And how do you look at this — your appointment to the court — affecting empowerment for women? And I'd be very interested in any comments you might make. And this has nothing to do with the law.

SOTOMAYOR: I chose the law because it's more suited to that part of me that's never sought the kind of attention that public figures — other public figures — get. When I was in law school, some of my friends thought I would go into the political arena, not knowing that what I sought was more the life of a judge, thinking, involved in that and the process of the rule of law.

My career as a judge has shown me that, regardless of what my desires were, that my life, what I have accomplished, does serve as an inspiration for others. It's a sort of awesome sense of responsibility. It's one of the reasons that I do so many activities with people in the community, not just Latinos but all groups, because I understand that it is women. It's Latinos. It's immigrants. It's Americans of all kinds and all backgrounds.

Each one of us faces challenges in our life. Whether you were born rich or poor, of any color or background, life's challenges place hurdles every day. And one of the wonderful parts of the courage of America is that we overcome them. And I think that people have taken that sense that, on some levels, I've done some of that at various stages in my life.

And so, for me, I understand my responsibility. That's why I understand and have tried as much as I can to reach out to all different kinds of groups and to make myself as available as much as I can.
Often I have to say no; otherwise I'd never work. But I meet my responsibilities and work very hard at my job, but I also know I have a responsibility to reach out.

FEINSTEIN: Well, for whatever it's worth, I think you're a walking, talking example of the best part of the United States of America. And I just want to say how very proud I am that you are here today.
And it is my belief that you are going to be a great Supreme Court justice. And I just wanted to say that to you directly and publicly.
Thank you. Thank you, Mr. Chairman.

LEAHY: Thank you. That was great.

FEINSTEIN: Thank you.

LEAHY: Sen. Graham?

SEN. LINDSEY GRAHAM:

Thank you, Mr. Chairman.
And something I would like to say to you directly and publicly and with admiration for -- for your life's story is that a lot of the wrongs that have been mentioned, some have been righted, some have yet to come, Judge. I hope you understand the difference between petitioning one's government and having a say in the electoral process, and voting for people that if you don't like you can get rid of, and the difference of society being changed by nine unelected people who have a lifetime appointment.
Do you understand the difference in how those two systems work?

SOTOMAYOR: Absolutely, sir. I understand the Constitution.

GRAHAM: And the one thing I can tell you -- this will probably be the last time we get to talk in this fashion. I hope to have a chance to get to know you better, and we'll see what your future holds, but I think it's going to be pretty bright.

The bottom line is, one of the problems the court has now is that Mr. Ricci has a story to tell, too. There are all kinds of stories to tell in this country, and the court has, in the opinion of many of us, gone into the business of societal change not based on the plain language of the Constitution, but based on motivations that can never be checked at the ballot box.

Brown v. Board of Education is instructive in the sense that the court pushed the country to do something politicians were not brave enough to do, certainly were not brave enough in my state. And if I had been elected as a senator from South Carolina in 1955, the year I was born, I would be amazed if I would have had the courage of a Judge Johnson in the political arena.

But the court went through an analysis that separate was not equal. It had a basis in the Constitution after fact-finding to reach a reasoned conclusion in the law and the courage to implement that decision. And society had the wisdom to accept the court's opinion, even though it was contentious and literally people died.

We're going to talk about some very difficult societal changes that are percolating in America today, like who should get married, and what boundaries are on the definition of marriage, and who's best able or the most capable of making those fundamental decisions?

GRAHAM: The full faith and credit clause, in essence, says that when a valid enactment of one state is entered into, the sister states have to accept it. But there's a public policy exception in the full faith and credit clause. Are you aware of that?

SOTOMAYOR: I am. Applied in different situations.

GRAHAM: Some states have different age limits for marriage. Some states treat marriage differently than others. And the court defer based on public policy. The reason these speeches matter and the reasons elections matter is because people now understand the role of the court in modern society when it comes to social change.

That's why we fight so hard to put on the court people who see the world like us. That's true from the left, and that's true from the right. And let me give you an example of why that's important.
We've talked a lot about the Second Amendment, whether or not it is a fundamental right. We all know agree it is an individual right. Is that correct?

SOTOMAYOR: Correct.

GRAHAM: Well, that's groundbreaking precedent in the sense that just until a few months ago, or last year I guess, that was not the case. But it is today. It is the law of the land by the Supreme Court that the Second Amendment is an individual right. And you acknowledge that, that's correct?

SOTOMAYOR: That was...

GRAHAM: The Heller case.

SOTOMAYOR: ... the decision. And it is what the court has held, and so it is unquestionably an individual right.

GRAHAM: But here's the next step for the court. You will have to, if you get on the court, with your fellow justices, sit down and discuss whether or not it is a fundamental right to the point that it is incorporated through the due process clause of the 14th Amendment and applied to every state.
Isn't it fair to say, Judge, that when you do that, not only will you listen to your colleagues, you will read whatever case law is available, you're going to come down based on what you think America is all about?

SOTOMAYOR: No, sir.

GRAHAM: So what binds you when it comes to a fundamental right?

SOTOMAYOR: The rule of law. And...

GRAHAM: Isn't the rule of law, when it comes to what you consider to be a fundamental right, your opinion as to what is fundamental among all of us?

SOTOMAYOR: No. In fact the question that you raise is it fundamental in the sense of the law.

GRAHAM: Right.

SOTOMAYOR: That's a legal term. It's very different. And it is important to remember that the Supreme Court's precedent on the Second Amendment predated its...

GRAHAM: I hate to interrupt, but we have -- is there sort of a legal cookbook that you can go to and say this is a fundamental right, A, and B is not?

SOTOMAYOR: Well, there's not a cookbook, but there's precedent that was established after the older precedent that has talked and described that doctrine of incorporation. That's a set of precedents that...

GRAHAM: Are you talking about the 1890 case?

SOTOMAYOR: Yes. Well, no. The 1890 case was the Supreme Court's holding on this issue. But since that time, there has been a number of decisions discussing the incorporation doctrine applying it to different provisions of the Constitution.

GRAHAM: Is there any personal judgment to be relied upon by a Supreme Court justice in deciding whether or not the 2nd Amendment is a fundamental right?

SOTOMAYOR: Well, you hire judges for their judgment, not their personal views or what their sense of what the outcome should be. You hire your point judges for the purpose of understanding whether they respect law, whether they respect precedent and apply it in a ...

GRAHAM: I don't doubt that you respect the law, but you're going to be asked, along with eight other colleagues, if you get on the court, to render a decision as to whether or not the 2nd Amendment is a fundamental right shared by the American people. There is no subjective judgment there?

SOTOMAYOR: The issue will be controlled by the court's analysis of that question in the case, fundamental as defined by incorporation in -- likely will be looked at by the court in a case that challenges a state regulation. At that ...

GRAHAM: I have -- go ahead.

SOTOMAYOR: I'm sorry. At that point, I would p that the court will look at its older precedent in the way it did in Heller, consider whether it controls the issue or not. It will decide, even if it controls it, whether it should be revisited under the doctrine of stare decisis. It could decide it doesn't control it, and that would be its decision. It could decide it does control, but it should revisit it.

In revisiting it, it will look at a variety of different factors, among them have there been changes in related areas of law that would counsel questioning this. As I've indicated, there was a lot of law after the older cases on incorporation. I suspect, but I don't know, because I can't prejudge the issue that the court will consider that with all of the other arguments that the parties will make.

GRAHAM: Well, maybe I've got it wrong, then. Maybe I'm off base here. Maybe you've got the 7th Circuit talking about the Heller case did not decide the issue of whether it should be incorporated to the states, because it's only dealt with the District of Columbia.

You've got the 9th Circuit -- and I never thought I'd live to hear myself say this -- look at the 9th Circuit. They have a pretty good rationale as to why the 2nd Amendment should be considered a fundamental right. And they talked about the longstanding relationship of the English man -- and they should have put woman. At least in South Carolina that would have applied -- to gun ownership. They talked about it was this right to bear arms that led to our independence. It was this right to bear arms that put down a rebellion in this country. And they talked about who we are as a people and our history as a people.

And Judge, that's why the Supreme Court matters. I do believe, at the end of the day, you're not going to find a law book that tells you whether or not a fundamental right exists vis-a-vis the 2nd Amendment, that you're going to have to rely upon your view of America, who we are, how far we've come and where we're going to go in our relationship to gun ownership. That's why these choices are so important.

And here's what I'll say about you. And you may not agree with that, but I believe that's what you're going to do, and I believe that's what every other justice is going to do.

And here's what I will say about you. I don't know how you're going to come out on that case, because I think fundamentally, Judge, you're able, after all these years of being a judge, to embrace a right that you may not want for yourself, to allow others to do things that are not comfortable to you, but for the group, they're necessary. That is my hope for you.

That's what makes you, to me, more acceptable as a judge and not a activist, because an activist would be a judge who would be champing at the bit to use this wonderful opportunity to change America through the Supreme Court by taking their view of life and imposing it on the rest of us.

I think and believe, based on what I know about you so far, that you're broad-minded enough to understand that America is bigger than the Bronx, it's bigger than South Carolina. Now, during your time as an advocate, do you understand identity politics? What is identity politics?

SOTOMAYOR: Politics based simply on a person's characteristics, generally referred to either race or ethnicity or gender, religion. It is politics based on...

GRAHAM: Do you embrace identity politics personally?

SOTOMAYOR: Personally, I don't as a judge in any way embrace it with respect to judging. As a person, I do believe that certain groups have and should express their views on whatever social issues may be out there. But as I understand the word "identity politics," it's usually denigrated because it suggests that individuals are not considering what's best for America.

GRAHAM: Do you think...

SOTOMAYOR: That's my -- and that I don't believe in. I think that whatever a group advocates, obviously, it advocates on behalf of its interests and what the group thinks it needs, but I would never endorse a group advocating something that was contrary to some basic constitutional right as it was known at the time...

GRAHAM: Do you...

SOTOMAYOR: ... although people advocate changes in the law all the time.

GRAHAM: Do you believe that your speeches properly read embrace identity politics?

SOTOMAYOR: I think my speeches embrace the concept that I just described, which is, groups, you have interests that you should seek to promote, what you're doing is important in helping the community develop, participate, participate in the process of your community, participate in the process of helping to change the conditions you live in.

I don't describe it as identity policies, because -- politics -- because it's not that I'm advocating the groups do something illegal.

GRAHAM: Well, Judge, to be honest with you, your record as a judge has not been radical by any means. It's, to me, left of center. But your speeches are disturbing, particularly to -- to conservatives, quite frankly, because they don't talk about, "Get involved. Go to the ballot box. Make sure you understand that America can be whatever you'd like it to be. There's a place for all of us."

It really did, to suggest -- those speeches to me suggested gender and racial affiliations in a way that a lot of us wonder, will you take that line of thinking to the Supreme Court in these cases of first precedent?

GRAHAM: You have been very reassuring here today and throughout this hearing that you're going to try to understand the difference between judging and whatever political feelings you have about groups or gender.

Now, when you were a lawyer, what was the mission statement of the Puerto Rican Legal Defense Fund?

SOTOMAYOR: To promote the civil rights and equal opportunity of Hispanics in the United States.

GRAHAM: During your time on the board -- and you had about every job a board member could have -- is it a fair statement to say that all of the cases embraced by this group on abortion advocated the woman's right to choose and argued against restrictions by state and federal government on abortion rights?

SOTOMAYOR: I didn't -- I can't answer that question because I didn't review the briefs. I did know that the fund had a healthcare docket...

GRAHAM: Judge?

SOTOMAYOR: ... that included challenges to certain limitations on a woman's right to terminate her pregnancy under certain circumstances.

GRAHAM: Judge, I -- I may be wrong, but every case I've seen by the Puerto Rican Legal Defense Fund advocated against restrictions on abortion, advocated federal taxpayer funding of abortion for low- income women. Across the board when it came to the death penalty, it advocated against the death penalty. When it came to employment law, it advocated against testing and for quotas.

I mean, that's just the record of this organization. And the point I'm trying to make is that whether or not you advocate those positions and how you will judge can be two different things. I haven't seen in your judging this advocate that I saw or this board member. But when it came to the death penalty, you filed a memorandum with the Puerto Rican Legal Defense Fund in 1981 -- and I would like to submit this to the record -- where you signed this memorandum.

LEAHY: Without objection.

GRAHAM: And you basically said that the death penalty should not be allowed in America because it created a racial bias and it was undue burden on the perpetrator and their family. What led you to that conclusion in 1981?

SOTOMAYOR: The question in 1991...

GRAHAM: '81.

SOTOMAYOR: I misspoke about the year -- was an advocacy by the fund taking a position on whether legislation by the state of New York outlawing or permitting the death penalty should be adopted by the state. I thank you for recognizing that my decisions have not shown me to be an advocate on behalf of any group. That's a different, dramatically different question than what -- whether I follow the law. And in the one case I had as a district court judge, I followed the law completely.

GRAHAM: The only reason we -- I mention this is when Alito and Roberts were before this panel, they were asked about memos they wrote in the Reagan administration, clients they represented. A lot to try to suggest that if you wrote a memo about this area of the law to your boss, Ronald Reagan, you must not be fit to judge. Well, they were able to explain the difference between being a lawyer in the Reagan administration and being a judge. And to the credit of many of my Democratic colleagues, they understood that.

GRAHAM: I'm just trying to make the point that when you are an advocate, when you are on this board, the board took positions that I think are left of center. And you have every right to do it. Have you ever known a low-income Latina woman who was devoutly pro-life?

SOTOMAYOR: Yes.

GRAHAM: Have you ever known a low-income Latina family who supported the death penalty?

SOTOMAYOR: Yes.

GRAHAM: So the point is there are many points of view within groups based on income. You have, I think, consistently, as an advocate, took a point of view that was left of center. You have, as a judge, been generally in the mainstream.

The Ricci case, you missed one of the biggest issues in the country or you took a pass. I don't know what it is. But I am going to say this, that, as Senator Feinstein said, you have come a long way. You have worked very hard. You have earned the respect of Ken Starr. And I would like to put his statement in the record.
And you have said some things that just bugged the hell out of me.

SOTOMAYOR: May I...

GRAHAM: The last question on the "wise Latina woman" comment. To those who may be bothered by that, what do you say?

SOTOMAYOR: I regret that I have offended some people. I believe that my life demonstrates that that was not my intent to leave the impression that some have taken from my words.

GRAHAM: You know what, Judge? I agree with you. Good luck.

LEAHY: Thank you. Sen. Durbin has actually responded to my so-far-vain request that senators may want to pass on the basis that all questions may have been asked, not everybody has asked them, but Sen. Klobuchar yesterday had some very serious and succinct areas that she was asking. I know time ran out, and I'd like to yield to Sen. Klobuchar because she may want to follow on those.

SEN. AMY KLOBUCHAR: Thank you very much, Mr. Chair.

And thank you again, Judge. I think they've turned the air conditioning on, so this is good. (LAUGHTER)
I just had two quick follow-ups following Sen. Graham's question. The first is that the only death penalty case that I know of -- there may be another one that you ruled on -- the Heatley case -- you, in fact, sustained the death penalty in that case. Is that correct?

SOTOMAYOR: I sustained -- or a rejected the challenges of the defendant that the application of the death penalty to him was based on race, yes.

KLOBUCHAR:
OK. Thank you. And then just the second one, Sen. Graham mentioned the issues of Justice Roberts and the difference between an advocate and a judge. And I just came across the quote that Justice Roberts gave about his work during the Reagan administration.

And he said I can give the commitment that I appreciate that my role as a judge is different than my role as a staff lawyer for an administration. As a judge, I have no agenda. I have a guide in the Constitution and the laws and the precedents of the court. And those are what I would apply with an open mind after fully and fairly considering the arguments and assessing the considered views of my colleagues on the bench.
Would you agree with that statement?

SOTOMAYOR: Wholeheartedly.

KLOBUCHAR: All right. Thank you. There were some letters that have not yet been put on the record, and there are quite a collection of letters. I considered reading them all on the record but thought better of that.

I thought I would ask the chair if I could put these letters on the record. And these are letters of support for you from, first of all, the National Fraternal Order of Police, in support of your nomination, the Police Executive Research Forum, the national enforcement of black law enforcement executives, the National Latino Peace Officers Association, the New York State Law Enforcement Council, the National District Attorneys Association, the Association of Prosecuting Attorneys, the National Association of Police Organizations, the National Sheriffs' Association, the Major City Chiefs Association, the Detectives Endowment Association, and then also a letter from 40 of your past colleagues in the Manhattan D.A.'s office, former district attorney colleagues.

And all of these groups have given you their support. And I did want to note just two very brief portions from the letter.

The one from the Police Executive Research Forum reads, "Sonia Sotomayor went out of her way to stand shoulder to shoulder with those of us in public safety at a time when New York City needed strong, tough and fair prosecutors."

And then, also, the letter from your colleagues I found very enlightening. It was much more personal. It said that, "She began as a rookie in 1979, working long hours, prosecuting an enormous caseload of misdemeanors before judges managing overwhelming dockets. Sonia so distinguished herself in this challenging assignment that she was among the very first in her starting class to be selected to handle felonies."

"She prosecuted a wide variety of felony cases, including serving as co-counsel at a notorious murder trial. She developed a specialty in the investigation and prosecution of child pornography case. Throughout all of this, she impressed us as one who was singularly determined in fighting crime and violence."

"For Sonia, service as a prosecutor was a way to bring order to the streets of a city she dearly loved. We are proud to have served with Sonia Sotomayor. She solemnly adheres to the rule of law and believes that it should be applied equally and fairly to all Americans."

"As a group," your former colleagues say, "we have different world views, and political affiliations, but our support for Sonia is entirely nonpartisan. And the fact that so many of us have remained friends with Sonia over three decades speaks well, we think, of her warmth and collegiality." Pretty nice letter.

In reading these letters from these law enforcement groups, there was just one follow-up case that you had that I wanted to allow you to enlighten the country about. And this is one that a former New York police detective, Chris Monino spoke about recently in an article, and he spoke about a case you worked on as district attorney.

He talked about the child pornography case, how he had gone to various prosecutors to try to get them interested in the case, and he couldn't get them interested. And I have some guesses. Some of these cases, as you know, can be very involved with a lot of evidence and sometimes computer forensics and things like that. But he wasn't able to interest them in taking on the case.

But you were the one that was willing to take on the case, and it led to the prosecution of two perpetrators. Could you talk a little bit about that case, why you think others didn't and why you decided to take on the case?

SOTOMAYOR: Well, I can't speak to why others decided to pass on the case. I can talk to you about my views at the time.

The New York Court of Appeals had invalidated the New York statute on child pornography on the grounds of a constitutional violation, federal constitutional violation, that the statute did not comport with the federal Constitution. Supreme Court took that case directly from the Court of Appeals, as is its right to review all issues of federal constitutional law, and reversed the New York Court of Appeals and reinstated the statute.

My sense is, because there were still so many open questions about both the legality of the statute and the question of the difficulty in proving the particular crime at issue, that involved two men who worked in a change of -- chain of adult bookstores in the then-Times Square area. Times Square has changed dramatically since that time.

It was mostly circumstantial. We had some tapes, but their knowledge of what those tapes contained, their intent to sell and distribute child pornography involving children below a certain age, it was a difficult, difficult legal and factual case, but it was clear that it was a serious case. We're talking about the distribution of films that show children who were anywhere from 8 years old to 12 years old being explicitly sexually abused.

And it seemed to me that, regardless of the outcome of the case, whether I secured the convictions or not, whether it was held up on appeal or not, that the issues it raised had to be presented in court because of the importance of the crime.

And so I brought the prosecution. I had a co-counsel in that case who was second-seating me in that case, meaning she was assisting me. And the case took a while at trial, because, as I said, it was circumstantial. The jury returned a verdict against both defendants. They were sentenced quite severely, and the cases held up on appeal.

It was an enormously complicated case. I assisted in the appeal because it was so complicated that one of the heads of the Appeals division of the New York County District Attorney's Office had to become involved in it. But the convictions were sustained.

And so the effort resulted in a conviction of two men who were distributing films that had the vilest of sexual acts portrayed against children.

KLOBUCHAR: And one last case I wanted to ask you about, which the chairman had briefly mentioned in his opening, and it was a troubling case because it involved an elected official. It was U.S. v. Giordano, and this case when you -- happened when you were a judge.

And it involved very troubling facts with the mayor of Waterbury, Conn., in a variety of crimes stemming from his repeated sexual abuse of a minor daughter and a niece and of a prostitute. And you wrote for the majority in that case. There was actually a dissent from one of your fellow judges on the 2nd Circuit.

And you held, in part, that the mayor could, in fact, be charged with the separate crime of violating the young girl's civil rights under color of state law. And I think -- and I don't want to put words in your mouth, but the reason you were able to use that theory is that you note how frequently the mayor reiterated to his young victims that they would be in trouble with law enforcement if they didn't submit to what he wanted them to do. Could you talk about how that case fits in to your overall approach to judging?

SOTOMAYOR: As I have indicated, the role of a judge is to look at Congress' words in a statute and discern its intent. And in cases that present you facts, you must take existing precedents and apply the teachings of those precedents to those new facts.

In the Giordano case, that had been another situation quite like this one. This was a mayor who, working through a woman, secured sexual acts by very young girls that were taking place in his office. And through the woman he was working with and also through his own exhortations, don't tell anybody or you'll get into trouble, and the woman's exhortations to the child, the person he was conspiring with, that they would get in trouble with the police because the police wouldn't believe them. They would believe him because he was a mayor.

The question for the court became is that acting under color the state law. Is he using his office to promote this illegal activity against these young girls? The majority viewing these facts said yes, that's the principles we discern from precedent about what the use of state law -- of acting color of state law means.

The dissent disagreed, and it disagreed using its own rationale about why the law should not be read that way. But these are cases that rely upon an understanding both of what the words say and how precedent has interpreted them. And that's what the majority of the panel did in that case.

KLOBUCHAR: Thank you very much. And I think it's been enlightening for people to hear about some of your views on these criminal cases. And I'd just like to ask one last question then. It's the exact question that my friend and colleague, Senator Graham, asked Chief Justice Roberts as his confirmation hearing.
And he asked: What would be like history to say about you when all is said and done?

SOTOMAYOR: I can't live my life to write history's story. That will be the job of historians long after I'm going. Some of them start now, but long after I'm gone. (LAUGHTER) In the end, I hope it will say I'm a fair judge, that I was a caring person, and that I lived my life serving my country.

KLOBUCHAR: I think you can't say much more that thank you. Thank you very much, Judge.

LEAHY: Thank you, Judge. I appreciate that. Thank you, Sen. Klobuchar. Sen. Cornyn, who, as I mentioned yesterday, is a former Supreme Court justice of Texas as well as former attorney general, a valued member of this committee. Sen. Cornyn?

 

SEN. JOHN CORNYN:
 Thank you, Mr. Chairman. Good morning, judge.

SOTOMAYOR: Good morning, senator.

 

CORNYN: Judge, when we met the first time, as I believe I recounted earlier, I made a pledge to you that I would do my best to make sure you were treated respectfully and this would be a fair process. I just want to ask you upfront: Do you feel like you've been given a chance to explain your record and your judicial philosophy to the American people?

SOTOMAYOR: I have, sir. And every senator on both sides of the aisle that have made that promise to me have kept it fully.

CORNYN: And, Judge, you know, the test is not whether Judge Sonia Sotomayor is intelligent. You are. The test is not whether we like you. I think, speaking personally, I think we all do. The test is not even whether we admire you or we respect you, although we do admire you and respect what you've accomplished.

The test is really, what kind of justice will you be if confirmed to the Supreme Court of the United States? Will you be one that adheres to a written Constitution and written laws, that -- and respect the right of the people to make their laws through their elected representatives, or will you pursue a -- some other agenda, personal, political, ideological, that is something other than enforcing the law?

I think those are the -- that is really the question.  And, of course, the purpose of these hearings is -- as you've gone through these tedious rounds of questioning, is to allow us to clear up any confusion about your record and about your judicial philosophy, yet so far I find there's still some confusion.

For example, in 1996, you said the idea of a stable, quote, "capital L Law" was a public myth. This week, you said that fidelity to the law is your only concern.

In 1996, you argued that indefiniteness in the law was a good thing because it allowed judges to change the law. Today you characterized that argument as being only that ambiguity can't exist and that it is Congress's job to change the law.

In 2001, you said that innate physiological differences of judges would or could impact their decisions. Yesterday, you characterized that argument as being only that innate physiological differences of litigants could change decisions. In 2001, you disagreed explicitly with Justice O'Connor's view of whether a wise man and wise woman would reach the same decision. Yet, during these hearings, you characterized your argument as being that you agreed with her.

A few weeks ago, in your speech on foreign law to the American Civil Liberties Union, you rejected the approach of Justices Alito and Thomas with regard to foreign law, and yet it seems to me, during these hearings, you have agreed with them.

So, Judge, what should I tell my constituents who are watching these hearings and saying to themselves, "In Berkeley and other places around the country, she says one thing, but at these hearings, you are saying something which sounds contradictory, if not diametrically opposed, to some of the things you've said in speeches around the country"?

SOTOMAYOR: I would tell them to look at my decisions for 17 years and note that, in every one of them, I have done what I say that I so firmly believe in. I prove my fidelity to the law, the fact that I do not permit personal views, sympathies or prejudices to influence the outcome of cases, rejecting the challenges of numerous plaintiffs with undisputably sympathetic claims, but ruling the way I have on the basis of law rejecting those claims, I would ask them to look at the speeches completely, to read what their context was and to understand the background of those issues that are being discussed.

I didn't disagree with what I understood was the basic premise that Justice O'Connor was making, which was that being a man or a woman doesn't affect the capacity of someone to judge fairly or wisely. What I disagreed was with the literal meaning of her words because neither of us meant the literal meaning of our words. My use of her words was pretty bad in terms of leaving a bad impression. But both of us were talking about the value of experience and the fact that it gives you equal capacity.

In the end, I would tell your constituents, senators, look at my record and understand that my record talks about who I am as a person, what I believe in and my judgment and my opinion. But following the rule of law is the foundation of our system of justice.

CORNYN: Thank you for that -- for your answer, judge. You know, I actually agree that your judicial record strikes me as pretty much in the mainstream of -- of judicial decision making by district court judges and by court of appeals judges on the federal bench. And while I think what is creating this cognitive dissidence for many of us and for many of my constituents who I've been hearing from is that you appear to be a different person almost in your speeches and in some of the comments that you've made. So I guess part of what we need to do is to try to reconcile those, as I said earlier.

You said that -- I want to pivot to a slightly different subject and go back to your statement that the courts should not make law. You've also said that the Supreme Court decisions that a lot of us believe made law actually were an interpretation of the law.

So I'm -- I would like for you to clarify that. If the Supreme Court in the next few years holds that there is a constitutional right to same-sex marriage, would that be making the law? Or would that be interpreting the law? I'm not asking you to classify -- excuse me. I'm not asking you to prejudge that case or the merits of the arguments, but just to characterize whether that would be interpreting the law or whether that would be making the law.

SOTOMAYOR: Senator, that question is so embedded with its answer, isn't it? Meaning if the court rules one way and I say that's making law, then it forecasts that I have a particular view of whatever arguments may be made on this issue, suggesting that it's interpreting the Constitution. I understand the seriousness of this question. I understand the seriousness of same-sex marriage.

But I also know, as I think all America knows, that this issue is being hotly debated on every level of our three branches of government. It's being debated in Congress. And Congress has passed an act relating to same-sex marriage. It's being debated in various courts on the state level. Certain higher courts have made rulings.

This is the type of situation where even the characterizing of whatever the court may do as one way or another suggests that I have both prejudged an issue and that I come to that issue with my own personal views suggesting an outcome. And neither is true. I would look at that issue in the context of the case that came before me with a completely open mind.

CORNYN: Forget the same-sex marriage hypothetical. Is there a difference, in your mind, between making the law and interpreting the law? Or is this a distinction without a difference?

SOTOMAYOR: Oh, no. It's a very important distinction. Laws are written by Congress. If has -- it makes factual findings. In determines, in its judgment, what the fit is between the law it's passing and the remedy. It's -- that its giving as a right.

The courts, when they're interpreting, always have to start with what does the Constitution say, what is the words of the Constitution, how has precedent interpreting those, what are the principles that it has discussed govern a particular situation.

CORNYN: How do you reconcile that answer with your statement that courts of appeals make policy?

SOTOMAYOR: In both cases in which I've used that word in two different speeches -- one was a speech, one was a remark to students -- this is almost like the discussion fundamental -- what does it mean to a non-lawyer and fundamental, what it means in the context of Supreme Court legal theory.

CORNYN: Are you saying it's only a discussion that lawyers could lot of?

SOTOMAYOR: Not love. But in the context in both contexts, it's very, very clear that I'm talking about completely the difference between the two judgings and that circuit courts, when they issue a holding, it becomes precedent on all similar cases.

In both comments, those -- that statement was made absolutely expressly that that was the context of the kind of policy I was talking about, which is the ramifications of a precedent on all similar cases. When Congress talks about policy, it's talking about someone totally different. It's talking about making law, what are the choices that I'm going to make in law -- in making the law.

Those are two different things. I wasn't talking about courts making law. In fact, in the Duke speech, I said -- I used making policy in terms of its ramifications on existing cases. But I never said in either speech we make law in the sense that Congress would.

CORNYN: Let me turn to another topic. In 1996, when you -- after you'd been on the federal bench for four years, you wrote a law review article -- the Suffolk University Law Review. And this pertains to campaign financing.

You said, quote, "Our system of election financing permits extensive private, including corporate, financing of candidates' campaigns raising again and again the question of whether -- of what the difference is between contributions and bribes and how legislators or other officials can operate objectively on behalf of the electorate."

CORNYN: You said, "Can elected officials say with credibility that they're carrying out the mandate of a democratic society representing only the generally public good when private money plays such a large role in their campaigns?"Judge Sotomayor, what is the difference, to your mind, between a political contribution and a bribe?

SOTOMAYOR: The context of that statement was a question about what was perking through the legal system at the time and has been, as you know, before the Supreme Court since Buckley v. Vallejo. In Buckley...

CORNYN: I -- I agree, your honor. But what -- my question is, what, in your mind, is the difference between a political contribution and a bribe?

SOTOMAYOR: The question is, is a contributor seeking to influence or to buy someone's vote? And there are situations in which elected officials have been convicted of taking a bribe because they have agreed in exchange for a sum of money to vote on a particular legislation in a particular way. That is -- violates the federal law.

The question that was discussed there was a much broader question as to, where do you draw that line as a society? What choices do you think about in terms of what -- what Congress will do, what politicians will do?

I've often spoken about the difference between what the law permits and what individuals should use to guide their conduct. The fact that the law says you can do this doesn't always mean that you as a person should choose to do this.

And, in fact, we operate within the law. You don't -- you should not be a lawbreaker. But you should act in situations according to that sense of what's right or wrong.

We had the recent case that the Supreme Court considered of the judge who was given an extraordinary amount of money by a campaign contributor, dwarfing everything else in his campaign in terms of contributions, funding a very expensive campaign.

CORNYN: In fact -- in fact -- in fact, that was not a direct contribution to the judge, was it?

SOTOMAYOR: Well, it wasn't a direct contribution, but it was a question there where the Supreme Court said, the appearance of impropriety in this case would have counseled the judge to get off, because...

CORNYN: Let's get back to my question, if I can, and let me ask you this. Last year, President Obama set a record in fundraising from private sources, raising an unprecedented amount of campaign contributions. Do you think, given your law review article, that President Obama can say with credibility that he's carrying out the mandate of a democratic society?

SOTOMAYOR: That wasn't what I was talking about in that speech. I don't -- I don't know...

CORNYN: Well, I realize he wasn't elected in 1996, but what I'm -- what I'm getting at is, are you basically painting with such a broad brush when it comes to people's rights under the First Amendment to participate in the political process, either to volunteer their time, make in-kind contributions, make financial contributions? Do you consider that a form of bribery or in any way improper?

SOTOMAYOR: No, sir.

CORNYN: OK. Thank you.

SOTOMAYOR: No, sir.

CORNYN: Thank you for your answer.
In the short time we have remaining, let me return to -- to the New Haven firefighter case briefly. As you know, two witnesses, I believe, will testify after you're through, and I'm sure you will welcome being finished with this period of questioning.

A lot of attention has been given to the lead plaintiff, Frank Ricci, who is a dyslexic and the hardship he's endured in order to prepare for this competitive examination only to see the competitive examination results thrown out.

But I was struck on July the 3rd in the New York Times, when they featured another firefighter, who will testify here today, and that was Benjamin Vargas. Benjamin Vargas is the son of Puerto Rican parents, as you probably know, and he found himself in the odd position, to say the least, of being discriminated against based on his race, based on the decisions by the circuit court panel that you sat on.

The closing of the article, because Lieutenant Vargas -- who hopes to be Captain Vargas as a result of the Supreme Court decision because he scored sixth on the comprehensive examination -- at the very last paragraph in this article, he -- it says, "Gesturing toward his three sons, Lieutenant Vargas explained why he had no regrets. He said, 'I want to give them a fair shake. To get a job on the merits, not because they're Hispanic or to fill a quota.' He said, 'What a lousy way to live.'" That's his testimony.

So I want to ask you, in conclusion, do you agree with Chief Justice John Roberts when he says, "The best way to stop discriminating based on race is to stop discriminating based on race"?

SOTOMAYOR: The best way to live in our society is to follow the command of the Constitution, provide equal opportunity for all. And I follow what the Constitution says, that is, how the law should be structured and how it should be applied to whatever individual circumstances come before the court.

CORNYN: With respect, Judge, my question was do you agree with Chief Justice John Roberts's statement, or do you disagree?

SOTOMAYOR: The question of agreeing or disagreeing suggests an opinion on what the ruling was in the case he used it in, and I accept the court's ruling in that case. And that was a very recent case.
There is no quarrel that I have, no disagreement. I don't accept that, in that situation, that statement the court found applied. I just said the issue is a constitutional one - equal opportunity for all under the law.

CORNYN: I understand that you might not want to comment on what Chief Justice John Roberts wrote in an opinion, even though I don't think he was speaking of a specific case but rather an approach to the law which would treat us all as individuals with equal dignity and equal rights.
But let me ask you whether you agree with Martin Luther King when he said he dreamed of a day when his children would be judged not by the color of their skin, but by the content of their character. Do you agree with that?

SOTOMAYOR: I think every American agrees with that (inaudible).

CORNYN: Amen. Yield back, Mr. Chairman.

LEAHY: Thank you, Sen. Cornyn. Just so we'll note for the schedule, we're going to go to Sen. Specter, who is a long-time member of this committee and one of the most senior members here. And I would, once Sen. Specter's questions are finished, we will take a very short break. And does that work for you, judge? I...

SOTOMAYOR: It most certainly does.

LEAHY: OK. So...

SOTOMAYOR: Thank you.    (More to come)

And as I understand it, the manner in which you go about rating a judge is not only her experience, but also the way that she's gone about reaching her decisions from the point of view of the appropriate role of a judge, her judicial temperament, and the absence of biased in rendering those decisions. And they're exactly what we are looking for for the next justice on the Supreme Court.

So I just really wanted to thank you for giving us this information and participating in the process.

(UNKNOWN): Thank you, Senator.

ACTING CHAIRMAN: Senator Cornyn?

CORNYN: Thank you, Mr. Chairman. I just want to welcome our two witnesses and thank you for your assistance to the committee, and particularly to say how good it is to see Kim Askew, my constituent from Dallas, Texas, and she does great work as chair of the committee, and welcome. Thank you for your assistance to the committee and performing its constitutional function.

ASKEW: Thank you.

ACTING CHAIRMAN: There being no further questions, the panel is excused with our gratitude for a commendable and very diligent effort.

SESSIONS: Thank you very much.

ASKEW: Thank you.

ACTING CHAIRMAN: We will take a five-minute recess while the next panel assembles.

(RECESS)

ACTING CHAIRMAN: The hearing of the Judiciary Committee will come back to order. We are awaiting the arrival of Mayor Bloomberg and District Attorney Morgenthau, who are coming down from New York. I am told that they are five minutes away, but the five minutes that people are away can be a longer five minutes than a regular five minutes. So in the interest of the time of the proceeding and of the other witnesses, we will proceed and come to them when they arrive and have a chance to take their seats.

SESSIONS: Well, in -- in the mayor's defense, he probably thought we would be operating under Senate time, and we would certainly be late, and he could have a little extra time.

ACTING CHAIRMAN: That is our custom.

SESSIONS: We're moving along well. Thank you, Mr. Chairman.

ACTING CHAIRMAN: Our first witness, then, will be Dustin McDaniel. He is the attorney general for the state of Arkansas and the southern chair of the National Association of Attorneys General. Previous to his election as attorney general, he worked in private practice in Jonesboro, Arkansas. Prior to taking office, Mr. McDaniel also served as a uniform patrol officer in his hometown of Jonesboro, Arkansas. He is a graduate of the University of Arkansas Little Rock Law School.

Attorney General McDaniel, would you please stand to be sworn? Do you affirm that the testimony you're about to give before the committee will be the truth, the whole truth and nothing but the truth, so help you God?

MCDANIEL:
 I do.

ACTING CHAIRMAN: Please be seated. Attorney General McDaniel, please proceed with your statement

MCDANIEL: Thank you, Mr. Chairman and Ranking Member Sessions. My name is Dustin McDaniel, and I'm the attorney general of the state of Arkansas. I am here today to speak in support of the nomination of Judge Sonia Sotomayor to the Supreme Court of the United States.

You've all heard all week about her compelling life story and impressive accomplishment. I have the highest respect and admiration for her, and I'm proud to testify on behalf of this person, who was first appointed by President George H.W. Bush, and then by my most famous predecessor in the Arkansas attorney general's office, President Bill Clinton.

More specifically, I'm here to rebut any assertion that her participation in the matter of Ricci v. DeStefano in any way reflects upon her qualifications or abilities to serve as a justice of the United States Supreme Court. When the Supreme Court granted certiorari in the Ricci case, I, on behalf of the state of Arkansas, joined with five other attorneys general in support of the Second Circuit. Before I address the case in the brief, let me adjust the parties and their issues.

I entered the world of public service long before I became an elected official. After college I turned down my admission into law school and took a civil service exam in my hometown of Jonesboro, Arkansas. I became a police officer, and I saw firsthand the heroism and dedication of the men and women who protect and serve our communities every day.

Firefighters like Frank Ricci and his colleagues run into homes and buildings when everyone else is running out. I have the highest respect and gratitude for all who serve our communities, states and nation. They are heroes among us, and they deserve to be treated fairly by our system.

My personal experience with a civil service exam was a favorable one, but not all are so lucky. I understand the frustration that the firefighters felt with this process. I also understand the cities fear of litigation and unfair results. I am for a process that is fair. No one should be given an unfair advantage, but no one should be subject to an unfair disadvantage either.

As attorney general, I represent hundreds of state agencies, boards and commissions in matters of employment law. My job is to allow my clients to do their job without fear of unreasonable litigation. The law had, until recently, allowed for flexibility necessary for public employers. The Supreme Court's ruling in this case will likely increase costly litigation, and the taxpayers will ultimately pay the bill.

All who have commented on the nomination process in recent years have been critical of those who have been labeled an activist judge. It's important to note that the Second Circuit's ruling in this case was not judicial activism at work. To the contrary, they followed existing law.

MCDANIEL: In Ricci, the panel adopted the lengthy analysis of the district courts, which they called "thorough," "thoughtful," and "well-reasoned." The district court cited cases dating back some 28 years. The ruling was consistent with the law, and the doctrine of stare decisis.

Granted, the Supreme Court, in a closely divided opinion, ruled differently. But in doing so, it set new precedent.

It's also important to note that the 2nd Circuit's ruling was supported by many prestigious groups, including the EEOC, the Department of Justice, the National League of Cities, the National Association of Counties, International Municipal Lawyers Association and the Republican and Democratic attorneys general of Alaska, Iowa, Arkansas, Maryland, Nevada and Utah.

There's a large body of research available on Judge Sotomayor's record. No allegation that she rules based on anything other than the law can stand, when cast in the light of her actual record.
The Congressional Research Service concluded, quote, "Perhaps the most consistent characteristic of her approach as an appellate judge could be described as an adherence to the doctrine of stare decisis, that is upholding of past judicial precedents."

One only has to look so far as to her own words. In Hayden v. Pataki she wrote in a dissent, quote, "It is the duty of a judge to follow the law, not question its plain terms." She concluded by saying, quote, "Congress would prefer to make any needed changes itself, rather than have courts do so for it."

In my opinion, Judge Sotomayor is abundantly qualified and is an excellent nominee. I believe that the people of the United States would be well-served by her presence on the court. It is my great honor and privilege to be here at this committee, and I thank you ever so much for the opportunity to appear here today.

ACTING CHAIRMAN: Thank you ever so much, Attorney General McDaniel. We will do a round of questions for the attorney general, and then once the panel is completely assembled, I will have all the witnesses sworn. And then we will proceed to Mayor Bloomberg, to District Attorney Morgenthau and on across the panel, with one brief interruption to allow the distinguished senator from the state of New York, Senator Schumer, to introduce Mayor Bloomberg.

Attorney General McDaniel, as a -- as an experienced lawyer, let me ask you, is it not the case that it's the Supreme Court's task very frequently to resolve conflicts between the circuit courts of appeal?

MCDANIEL: Yes, of course it is, Senator.

ACTING CHAIRMAN: And if a circuit court is bound by its own prior precedent and therefore the doctrine of stare decisis controls a particular decision, that does not in any way inhibit the Supreme Court from reviewing that second decision against conflicting decisions from other circuits in its task in resolving those conflicts. Correct?

MCDANIEL: That is correct.

ACTING CHAIRMAN: Is it your sense that that is what occurred in this case, that the 2nd Circuit in Ricci felt itself bound by stare decisis, as a result of its prior precedent, but that the Supreme Court took the case to resolve issues of conflict with other circuits?

MCDANIEL: Well, it certainly seems clear that the -- the binding law from the Supreme Court, which dated back up to 28 years, made it clear that remedial actions, although race-conscious but race-neutral, were permissible.

I think that that is precisely what the case demonstrated and how the court ruled and why the states that participated, Arkansas included, thought that it was important to preserve for our clients the ability to try to avoid litigation, if they think they cannot defend an existing practice. If they cannot defend it, no lawyer would tell their client, "Oh, go do it, anyway."

MCDANIEL: But clearly the Supreme Court thought that it was ripe for review, and they also thought that it was ripe to change the law, which is their purview.

WHITEHOUSE:

 That's an interesting point, and many observers, including prominent observers who have had their views expressed in the public media about this, have indicated that that decision changed the landscape of civil rights law.

If a judge is a cautious and small "c" conservative jurist on a circuit court, do you believe it's appropriate for the circuit court to change the landscape of civil rights law?

MCDANIEL: Absolutely not. I don't think that the 2nd Circuit did anything short of what it had to do, which was to apply the existing law.

The fact that the majority, a bare majority in the United States Supreme Court decided to change existing law, frankly, that would have been inappropriate for the 2nd Circuit to take that responsibility on itself.

WHITEHOUSE: Thank you, Attorney General.

SESSIONS: Thank you. Mr. McDaniel (inaudible) attorney general, and it was a great honor.
With regard to the Ricci case, are you aware that the panel attempted to decide this case on a summary order, writing no opinion, not even a per curiam opinion?

MCDANIEL: I am aware of that.

SESSIONS: And are you aware that, by chance, one of the other members of the circuit found out about that and an uproar of sorts occurred because the people -- the other members -- other members of the circuit were very concerned about the opinion and thought it was an important opinion? Are you aware of that?

MCDANIEL: I know that the -- I know that the panel, or at least the body of judges chose to review the matter and they voted not to meet en banc and that there was a per curiam that was issued. (CROSSTALK)

SESSIONS: That's correct. That's correct. Now, you say that there was 2nd Circuit opinion and authority to uphold this case. But -- but on rehearing, the slate is wiped clean and the panel can develop or formulate new authority or determine clearly whether or not that previous case may have applied.

And are you aware that when they voted, the vote was 6-6, and Judge Sotomayor was the key vote in deciding not to rehear the case? And therefore we can conclude that not only did she decide this case, but it's really not accurate to say she was just following authority since it was her vote that didn't allow that authority to be reevaluated.

MCDANIEL: Well, Senator, she was in the majority, so it's fair to say that any one of those judges could be the deciding vote...(CROSSTALK)

SESSIONS: That is correct. But it's not fair, I think, to say that she didn't have an opportunity to reevaluate it. She was simply applying law that she was bound to follow when she could have, if she felt differently, she could have allowed it to have been rediscussed.

MCDANIEL: I also think that there were Supreme Court cases, not just 2nd Circuit cases.

SESSIONS: Well, are you aware the Supreme Court says there were not? Are you aware the Supreme Court, in their opinion, said there was no Supreme Court authority on this matter?

MCDANIEL: I have read their opinion, and I tend to agree with the minority that this was, in fact, squarely within the...(CROSSTALK)

SESSIONS: Now, you filed, which I give you credit for, and I did some of these things when I was attorney general, you -- you joined with 32 other state attorneys general in submitting an amicus brief to the U.S. Supreme Court on the Heller case.

GRAHAM: You took the provision -- the brief argues that the right to keep and bear arms is among the most fundamental of rights because it is essential to securing all other liberties, close quote.
I see the mayor not happily listening to that. (LAUGHTER)

You -- but -- so you believe that the Second Amendment is a fundamental right. Are you aware that Sandy Froman, the former president of the NRA -- you're probably not familiar with this letter, but she's a lawyer and pointed out that Heller was just a 5-4 opinion, with some justices arguing that the Second Amendment does not apply to private citizens or that, if it does, even a total gun ban would be upheld if a legitimate government interest could be found.

The dissenting justices also found that D.C.'s absolute gun ban on handguns within the home a reasonable restriction. That wouldn't play too well in Alabama; probably not Arkansas, Oklahoma or Texas. But most places.

So I guess I'm saying, are you concerned that -- and are you aware, of course, the Maloney case, in which Judge Sotomayor -- and I think she can contend there was authority in that case that justified her concluding the Second Amendment does not apply to the states. But I was disappointed in the -- and the way she wrote it gave me concern.

So are you aware that one vote on the Supreme Court could make the difference on the question of whether or not the right to keep and bear arms is protected against mayors or legislatures of states who disagree?

MCDANIEL: Well, I was proud to join Arkansas into the brief on Heller v. The District of Columbia. I intend to join again in the NRA v. Chicago in the attempt to have the Supreme Court review and take up the question, which I believe is ripe, as to whether or not the Second Amendment is applied to the states, as incorporated by the Fourteenth Amendment.

I do believe that the Second Amendment is a fundamental right, and I do believe that it is an individual right, not one tied to participation in a militia.

The attorney general -- the current attorney general in Texas, Senator Cornyn's successor and I have spent some time on that issue, even recently, and I am not, nonetheless, concerned with Judge Sotomayor's position. I am confident that her answers that she's provided to this committee and her record are consistent with one another, and I do not believe that the right to keep and bear arms is at risk with this nominee or, frankly, I wouldn't testify for her.

SESSIONS: Well, thank you. And I think it is.

WHITEHOUSE: Now that the panel is assembled, I will swear the entire panel in. We will return to regular order. You can all give your opening statements, and then questioning will begin at the conclusion of those opening statements. Would you please stand to be sworn?

Do you affirm that the testimony you're about to give before the committee will be the truth, the whole truth and nothing but the truth, so help you God? Please be seated. I will recognize Senator Schumer for a moment to welcome his constituent and the mayor of New York City, Michael Bloomberg.

SCHUMER: Well, it's my honor to welcome two very distinguished constituents here. I want to thank every witness for coming, but particularly extend a welcome to two of New York's greatest public servants, Mayor Bloomberg and District Attorney Morgenthau.

SCHUMER: As you know, this nomination is a source of enormous pride to all New Yorkers. And your support for Judge Sotomayor has been extremely helpful to this committee, to the Senate as a whole, and to the nation, in understanding what kind of justice she will be, and very much appreciate your being here. Thank you, Mr. Chairman. Welcome.

(UNKNOWN): Mayor Bloomberg is the mayor of New York City. He is currently serving in his third term as mayor. He founded Bloomberg, L.P., a New York City company that now has employees in more than 100 cities. Mayor Bloomberg's a graduate of Johns Hopkins University, located in Baltimore, Maryland, and Harvard Business School. We look forward to your testimony.

BLOOMBERG:

Mr. Chairman, thank you. Ranking Member Sessions, thank you very much. Senator, Senator, Senator. Senator Sessions, I must say, as a former gun owner, a former member of the NRA, and also a staunch defender of the 2nd amendment, we probably don't disagree very much, if we really had a chance to talk.

In any case, I wanted to thank everyone for the opportunity to testify before you today. I'm Mike Bloomberg, and I'm here not only as the mayor of New York City, the city where Judge Sonia Sotomayor has spent her entire career, but also as someone who has appointed or reappointed more than 140 judges to New York City's criminal and family courts. So I do appreciate the job before you.

About three months ago, when President Obama invited Governor Schwarzenegger and Rendell and me to the White House to discuss infrastructure policy, I did find an opportunity to tell him what many of the best legal minds in New York were telling me: Judge Sonia Sotomayor would be a superb Supreme Court justice. I strongly believe that she should be supported by Republicans, Democrats and independents. And I should know because I've been all three. (LAUGHTER)

Judge Sotomayor has all of the key qualities that I look for when I appoint a judge. First, she is someone with a sharp and agile mind, as he distinguished record and her testimony, I think, made clear.
And as a former prosecutor, commercial litigator, district court judge and appellate judge, she certainly brings a wealth of unique experience.

Second, she is an independent jurist who does not fit squarely into an ideological box. A review of her rulings by New York University's Brennan Center found that judges on the 2nd circuit court who were appointed by Republicans agreed with her more than 90 percent of the time when overruling a lower court decision and when ruling a governmental action unconstitutional.

So this is clearly someone whose decisions have cut across party lines, which is something I think the Supreme Court could use more of.

And, third, whether you agree or disagree with her on particular cases, she has a record of sound reasoning.

In interviewing judicial candidates, I like to ask questions that have no easy answers and then listen to how they develop their responses. I want to know that they are open-minded enough to change their views if they hear compelling evidence and to see if they can provide a strong rationale for their legal conclusions, even if I disagree with it.

The fact is, you are never going to agree with a judicial candidate on every issue. I have appointed plenty of judges whose answers I don't agree with at all. And I should point out that includes times when Judge Sotomayor has ruled against New York City, as she has done on a number of cases. So I'm not here as someone who agrees with the outcome of her decisions 100 percent of the time. And I don't think that that should be the standard.

Now, I'm not a lawyer or a constitutional scholar, but I think the standard should be, does she apply the law based on rational legal reasoning, and is she within the bounds of mainstream thinking on issues of basic civil rights?

And on both questions, I think the answer is unequivocally yes. It's impossible to know how she will rule on cases in the future, or even what those cases might be. Given that a Supreme Court judge is likely to serve for decades, focusing on the issues du jour rather than intellectual capacity, analytical ability and just plain common sense would miss what this country clearly needs -- someone who has the ability to provide us with the legal reasoning and guidance that will be necessary to navigate the uncharted waters of tomorrow's great debate. And I'm very confident that Judge Sotomayor has that ability.

Finally, as the mayor of her hometown, I would just like to make two brief points. First, on the issue of diversity, the Supreme Court currently includes one member who grew up in Brooklyn and one who grew up in Queens. And so there's no doubt that having someone who comes from the Bronx would improve the diversity of this court. (LAUGHTER) And if you disagree with me, you haven't been to Brooklyn, Queens and the Bronx. (LAUGHTER)

But seriously, Sonia Sotomayor is the quintessential New York success story. She has beaten all the odds and rose to the top. If that's not the American dream, I don't know what is. And however, I don't believe she should be confirmed on the strength of her biography, but I do think that her life story tells an awful lot about her character and ability.

And second, I just want to add a caution against those who would suggest that Judge Sotomayor's service to the Puerto Rican Legal Defense and Education Fund is somehow a negative.

That's an organization that is well respected for its civil rights work in New York City, and although I certainly have not always seen eye-to-eye on every issue with them, there is no question that they make countless contributions to our city. And Judge Sotomayor should be based solely on her record, and not on the record of -- of others in the group.

So thank you very much for the opportunity to testify. And I urge you to confirm Sonia Sotomayor as a justice of the United States Supreme Court.

ACTING CHAIRMAN: Mayor Bloomberg, thank you very much for your testimony.

We'll now hear from Robert Morgenthau. Mr. Morgenthau has been the district attorney of New York County since 1975 and is the longest-serving incumbent of that position. During his nine terms in office, his staff has conducted about 3.5 million criminal prosecutions in homicides in Manhattan and has been -- and has a rate of 90 percent success. A graduate of Yale Law School, District Attorney Morgenthau served aboard a naval destroyer through World War II. It's a real pleasure to have you before our committee.

MORGENTHAU:
 Thank you, Mr. Chairman. I appreciate the opportunity of testifying today. I am pleased to join those who endorse the nomination of Judge Sotomayor to the United States Supreme Court.
I first came to know Judge Sotomayor when I was on a recruiting trip for the Yale Law School. At that time, Jose Febrenes was Yale's general counsel, and he also tailored the law school.

I asked him if he knew anyone special I should speak with, and he said, yes. He said the remarkable student named Sonia Sotomayor was deciding where to work. And while he did not know whether she'd given any thought to being a prosecutor, it would be well worth my while to meet her. He was decidedly correct. I'm happy to be able to say that the judge joined my office and remained with us for five years. In my conversations with her, I learned about the compelling story of her life, with which you are now familiar.

In a nutshell, she was raised by a mother in a working-class home in South Bronx and as a teenager worked the evening shift in a garment factory to help make ends meet. She went on through hard work, force of will to overcome her initial difficulties with English composition to win Princeton University's highest undergraduate honor, the Pine Prize and to graduate with honors from the Yale Law School.

In the district attorney's office, the judge was immediately recognized by trial (inaudible) supervisors as someone a step ahead of her colleagues, one of the brightest and most mature, hard-working, standout who was marked for rapid advancement. Ultimately, she took on every kind of criminal case that comes into an urban courthouse, from turnstile-jumping to homicide.

One of those cases, the Tarzan murder case, involved an addicted burglar named Richard Maddicks, who would terrorize the neighborhood during a crime spree that left three dead and involved his swinging into apartment windows from rooftops, shooting anyone in his way. He is now serving 137 years to life sentence.

Another case prosecuted by Assistant D.A. Sotomayor in 1983 involved a Times Square child pornography operation.

That was the first child prosecution in New York after a landmark 1982 Supreme Court decision, People v. Ferber, upholding New York's new child pornography laws. Assistant D.A. Sotomayor left the jurors in tears over what the defendants had done to child victims.

These cases happened to grab the public's attention. But Judge Sotomayor -- Assistant D.A. Sotomayor understood that every case is important to the victim and appropriately gave undivided attention to the proper disposition of all of them.

Assistant District Attorney Sotomayor soon developed a reputation. Unlike many prosecutors, she simply would not be pushed around by judges or by attorneys. Some judges were eager to dispose of cases cheaply to clear their calendars. ADA Sotomayor instead fought for the right conclusion in each case. Maybe that experience from the criminal court in New York City helped her prepare for these hearings.

After leaving my office, Judge Sotomayor joined a prominent law firm and also accepted a part-time appointment as a member of the New York City Campaign Finance. While there, she continued to earn a reputation for being tough, fair, non-political in an arena where those characteristics were sorely needed. And she has taken those characteristics with her to the federal bench, where they are equally important.

Judge Sotomayor's career in the law spans three decades, and she has worked in almost every level of our judicial system -- prosecutor, private litigator, trial court judge, and an appellate court judge, and what I think is the second-most important court in the world. She has been an able champion of the law, and her depth of experience will be invaluable on our highest court.

Judge Sotomayor is highly qualified for any position in which a first-rate intellect, common sense, collegiality and good character would be assets. I might add that the judge will be the only member of the Supreme Court with experience trying criminal cases in the state courts. The overwhelming majority of American prosecutions occur in state courts.

Judge Sotomayor will bring to the court a full understanding of the problems faced by prosecutors in those cases as well as a firsthand knowledge of the trauma faced by victims and of the legitimate needs of police officials that work in the state law enforcement system.

She will also understand the impact of federal judicial decisions on state prosecutions. In short, the judge is uniquely qualified by until that, experience and commitment to the rule of law to be an outstanding -- and I repeat outstanding -- member of the court.

President Obama, and for that matter the United States, should be proud to see once more the realization of that central American credo that in this country a hard-working person with talent can rise from humble beginnings to one of the highest positions in the land. Thank you, Mr. Chairman, for the opportunity to testify today.

ACTING CHAIRMAN: Thank you very much for your testimony. We'll now hear from Wade Henderson, a familiar person to this committee. Wade Henderson is the president and CEO of the Leadership Conference on Civil Rights and counsel to the Leadership Conference Education Fund. He is a professor of public interest law at the University of the District of Columbia. Prior to his role with the Leadership Conference, Mr. Henderson was the Washington Bureau director of the NAACP. Mr. Henderson is a graduate from Rutgers University School of Law. Mr. Henderson?

HENDERSON:

 Thank you, Mr. Chairman, Ranking Member Sessions, members of the committee.
I have the privilege of representing the views of the Leadership Conference, the nation's leading civil and human rights coalition, consisting of more than 200 organizations working to build an America that's as good as its ideals.

This afternoon I will briefly address four of the points that have figured in the debate about Judge Sotomayor's nomination:

•  first, her qualifications for serving on the nation's highest court;
• second, her personal background and her empathy for others who have had to work hard to succeed;
• third, her role in the unanimous ruling by a three-judge panel in the case of Ricci vs. DeStefano;
• and fourth, her past membership on the board of one of the Leadership Conference's member organizations, the Puerto Rico Legal Defense and Education Fund.

First, let me rejoice in what is self-evident. The nomination of Judge Sotomayor to be an associate justice on our nation's highest court is a milestone by many standards. The nation's first African- American president has nominated the first Hispanic American, only the third woman, and only the third person of color to serve on the Supreme Court.

While great challenges remain on our nation's quest for equal opportunity, we have truly reached an historic marker on the journey toward our goal of equal justice for all, the phrase inscribed not far from here on the front of the Supreme Court building.

But hopeful and historic as her nomination has been, Judge Sotomayor should herself be judged not by who she is, but by what she has done. Now, let me be as clear as I can. There is no question that she is qualified.

Judge Sotomayor's eloquent and thoughtful testimony before this committee speaks for itself. Her distinguished career at Princeton and Yale Law School have been much stated.

She then spent five years as a prosecutor, as we've heard, in Manhattan, working for the legendary district attorney, Robert Morgenthau -- pleased to have him here today -- and eight years as a corporate litigator, 17 years as a federal district court judge and appellate court judge add up to an individual who was one of the most qualified to have overcome before this committee.

Second, as with other nominees across the philosophical spectrum, including Justices Thomas and Alito, Judge Sotomayor has spoken of her family history and her personal struggles. These experiences help her to understand others and to do justice. They further qualify her for the highest court, and she has said and done nothing that could reasonably be understood otherwise.

Third, Judge Sotomayor has participated in thousands of cases and authored hundreds of opinions, but much of the debate about her nomination has concentrated on the difficult case of Ricci v. Destefano.

Whatever one may feel about the facts of this case, we all agree that the Supreme Court, in its Ricci decision, set a new standard for interpreting Title VII of the '64 Civil Rights Act. Using this one decision to negate Judge Sotomayor's 17 years on the bench does a disservice to her record and to this country.
Fourth, I must speak to the attacks on Judge Sotomayor because of her service on the board of one of our nation's leading civil rights organizations. These attacks do an injustice not only to Judge Sotomayor and to the Puerto Rican Legal Defense and Education Fund, but also to the entire civil rights community and to all those who look to us for a measure of justice.

Make no mistake -- legal defense funds play an indispensable role in American life. They are private  attorneys general that assist individuals, often those with few resources and no other representation, to become full shareholders in the American dream. When Justice Thurgood Marshall was nominated, there were those who questioned his role with the NAACP Legal Defense Fund. But history does not remember their quibbles kindly.

Judge Sotomayor has lived the American dream, and she understands all who aspire to it. Her qualifications are unquestioned, and the lessons that she has learned in her life, as well as in libraries, will serve her and our country well in the years ahead. All those who walk through the entrance to the Supreme Court seeking what is inscribed above its door, "Equal Justice Under Law," can be confident that a Justice Sotomayor will continue to do her part to keep the promise of our courts and our country. Thank you very much.

ACTING CHAIR: Well, thank you very much for your testimony. We'll now hear from Frank Ricci, a name that's been mentioned second only to Sotomayor during this hearing. Frank Ricci has over a decade of experience as a firefighter with the New Haven Fire Department, and was the plaintiff in the case of Ricci v. Destefano. He's a contributing author of two books on firefighting. It's a pleasure to have you before the committee.

RICCI:

Thank you, Senator. Thank you for the opportunity to appear before this distinguished committee. I accepted, with honor, the invitation to tell my story. Many others have a similar story, and I feel I'm speaking for them, as well.

The New Haven firefighters were not alone in their struggle. Firefighters across the country have had to resort to the federal courts to vindicate their civil rights.

Technology and modern threats have challenged our profession. We have become more effective and efficient, but not safer. The structures we respond to today are more dangerous, constructed with lightweight components that are prone to early collapse, and we face fires that can double in size every 30 to 60 seconds.

Too many think that firefighters just fight fires. Officers are also responsible for mitigating vehicle accidents, hazardous material incidents, and handling complicated rescues.

Rescue works can be very technical. All of these things require a great deal of knowledge and skill. Lieutenants and captains must understand the dynamic fire environment and the critical boundaries we operate in. They are forced to make stressful decisions based on imperfect information and coordinate tactics that support our operational objectives.

Almost all our tasks are time-sensitive. When your house is on fire or your life is in jeopardy, there are no time for do-overs.

The lieutenant's test that I took was without a doubt a job-related exam that was based on skills, knowledge and abilities needed to ensure public and the firefighters' safety. We all had an equal opportunity to succeed as individuals, and we were all provided a road map to prepare for the exam.

Achievement is neither limited nor determined by one's race but by one's skills, dedication, commitment and character. Ours is not a job that can be handed out without regard to merit and qualifications.
For this reason, I and many others prepared for these positions throughout our careers. I studied harder than I ever had before, reading, making flash cards, highlighting, reading again, all while listening to prepared tapes.

I went before numerous panels to prepare for the oral assessment. I was a virtual absentee father and husband for months because of it.

In 2004 the city of New Haven felt not enough minorities would be promoted and that the political price for complying with Title VII, the city civil service rules, and the charter, would be too high. Therefore they chose not to fill the vacancies. Such action deprived all of us the process set forth by the rule of law. Firefighters who earned promotions were denied them.

Despite the important civil rights and constitutional claims we raised, the Court of Appeals panel disposed of our case in an unsigned, unpublished summary order that consisted of a single paragraph that made mention of my dyslexia and thus led many to think that this was a case about me and a disability.

This case had nothing to do with that. It had everything to do with ensuring our command officers were competent to answer the call and our right to advance in our profession based on merit, regardless of race. Americans have the right to go into our federal courts and have their cases judged based on the Constitution and our laws, not on politics or personal feelings.

The lower court's belief that citizens should be reduced to racial statistics is flawed. It only divides people who don't wish to be divided along racial lines. The very reason we have civil service rules is to root out politics, discrimination and nepotism.

Our case demonstrates that these ills will exist if the rules of merit and the law are not followed. Our courts are the last resorts for Americans whose rights are violated. Making decisions on who should have command positions solely based on statistics and politics, where the outcome of the decision could result in injury or death, is contrary to sound public policy.

The more attention our case got, the more some people tried to distort it. It bothered us greatly that some perceived this case as involving a testing process that resulted in minorities being completely excluded from promotions.

That was entirely false, as minority firefighters were victimized by the city's decision as well. As a result of our case, they should now enjoy the career advancement that they've earned and deserve.
Enduring over five years of court proceedings took its toll on us and our families. That case was longer -- was no longer just about as, but about so many Americans who have lost faith in the court system.
When we finally won our case and saw the messages we received from every corner of the country, we understood that we did something important together. We sought basic fairness and evenhanded enforcement of the laws, something all Americans believe in. Again, thank you for the honor and privilege of speaking to you today.

ACTING CHAIRMAN: Mr. Ricci, thank you very much for your testimony. We'll now hear from Lieutenant Ben Vargas. Ben -- Benjamin Vargas is a lieutenant in the New Haven Fire Department and was a plaintiff in the case of Ricci vs. DeStefano. He also worked part-time as a consultant for a company that sells equipment to firefighters. Mr. Vargas?

VARGAS:

Thank you. Members of this committee, it is truly an honor to be invited here today. Notably, since our case was summarily dismissed by both the District Court and the Court of Appeals panel, this is the first time I am being given the opportunity to sit and testify before a body and tell my story. I thank for this -- thank you to this committee for the opportunity.

Senators of both parties have noted the importance of this proceeding, because decisions of the United States Supreme Court greatly impact the everyday lives of ordinary Americans. I suppose that I and my fellow plaintiffs have shown how true that is. I never envisioned being a plaintiff in a Supreme Court case, much less one that generated so much media and public interest.

I am Hispanic and proud of their heritage and background that Judge Sotomayor and I share. And I congratulate Judge Sotomayor on her nomination.

But the focus should not have been on me being Hispanic. The focus should have been on what I did to earn a promotion to captain and how my own government and some courts responded to that. In short, they didn't care. I think it important for you to know what I did, that I played by the rules and then endured a long process of asking the courts to enforce those rules.

I am the proud father of three young sons. For them I sought to better my life, and so I spent three months in daily study, preparing for an exam that was unquestionably job-related. My wife, a special education teacher, took time off from work to see me and our children through this process.

I knew we would see little of my sons during these months, when I studied every day at a desk in our basement, so I placed photographs of my boys in front of me. When I would get tired and wanted to stop -- wanted to stop, I would look at the pictures, realize that their own future depended on mine, and I would keep going. At one point I packed up and went to a hotel for a day to avoid any distractions, and those pictures came with me.

I was shocked when I was not rewarded for this hard work and sacrifice, but I actually was penalized for it. I became not Ben Vargas, the fire lieutenant who proved themselves qualified to be captain, but a racist statistic. I had to make decisions whether to join those who wanted promotions to be based on race and ethnicity or join those who would insist on being judged solely on their qualifications and the content of their character.   (More to come)

KIRSANOW: That's correct, Senator. We took a very strong look as to whether or not there was anything on point. There may have been some peripheral cases that wouldn't provide any definitive guidance. But as I indicated in my statement, to the extent there were cases to provide guidance, maybe equal protection clause cases -- Wygant's one and so forth -- those were the kind of cases you'd have to look through, but none -- none under Title VII.

HATCH: Well, explain what was the issue of first impression that these six judges found.

KIRSANOW: It was...

HATCH: They were in the minority 7-6, but they -- they -- Judge Cabranes got very alarmed, because this was a summary order that ordinarily they wouldn't have seen, but he caught it in the newspaper, asked to see it, and then said, "My gosh, this is a case of first impression. We ought to do more than just a summary order on it," which is something that I've been very critical of.

KIRSANOW: Senator, it was the tension between two provisions of Title VII and...

HATCH: You're talking about disparate treatment and disparate impact?

KIRSANOW: Precisely.

HATCH: And this was...

KIRSANOW: And trying to balance the two. And keep in mind that the 1991 amendments were really a product of Griggs v. Duke Power and its progeny. And remember that Griggs was really a response to the difficulty in demonstrating intentional discrimination so that there was a resort to disparate impact to try to help prove the case.

So whether you give primacy to intentional discrimination or disparate impact was, what was trying to be determined here? Or not necessarily primacy, but trying to evaluate both consistently with the purposes of Title VII.

HATCH: Well, please explain the difference between what the Supreme Court split 5-4 and what all nine of the justices on the Supreme Court, why they criticized Judge Sotomayor's decision.

(UNKNOWN): Had to do with the process by which the decision was reached. Even the dissent, Justice Ginsburg, noted in (inaudible) 10 that this is something that ordinarily should have been sent back on remand because it was to determine whether -- that is, to determine whether or not there was good cause for taking the decision New Haven took.

The majority, on the other hand, said the city of New Haven had to have a strong basis in evidence before it discarded the test results.

So there are two separate standards by both the majority and the dissent, but neither agreed with the manner in which the Sotomayor panel disposed of the case.

HATCH: So all nine justices on the court agreed that the appropriate law wasn't followed.

(UNKNOWN): Correct.

HATCH: And five of them said the city of New Haven was wrong.

(UNKNOWN): Correct.

HATCH: So the firefighters won.

(UNKNOWN): Now, Mr. Vargas, I just wanted to make that clear, because I don't think a lot of people realize that, and that's a very, very big thing to me.  Mr. Vargas, your comments about your sons were powerful. What difference does it make for them whether merit or race determines opportunity? And what difference does this case mean for them?

VARGAS: I believe this is going to be a greater opportunity for them in the future because they're not going to be stigmatized that way, they're not going to be looked at that ways, and they're going to rise and fall on their own merits...(CROSSTALK)

HATCH: And that's one reason why you brought this case...

VARGAS: That's absolutely right.

HATCH: Mr. Ricci, I only have a few seconds, but let me say this. I want to thank you for your service for protecting your fellow citizens up there.

As I understand it, the City of New Haven went to great lengths to devise this promotion test that was -- the lengths were fair, objective -- the test was fair, objective and not tilted toward or against any demographic group. In fact, I understand the test was not questioned.

They worked on the kind and context of the question so that they were relevant to the job, but would not create a hurdle for anyone. They used both a written and an oral exam format, right?

Is your understanding of how they worked to put together the test and did -- that that's the way they put it together? And did that make you believe that you would be judged on your merits?

RICCI: Yes, Senator. The rules of the game were set up and we have a right to be judged fairly. And just by taking the test we knew that the test -- we didn't even need to go any further -- just by taking the test we knew that the test was job-related and measured the skills, ability and knowledge need for a competent fire officer.

HATCH: Well, did that make you see this as a genuine opportunity that might, indeed, be open to you?

RICCI: Yes, Senator.

HATCH: Now, tell me more about your expectations when you looked at this opportunity. You were no doubt familiar with the racial dynamics that existed in New Haven at the time. Anyone involved in their community anywhere would be aware of that.

Do you think that at all, that because the test was so rigorously and fairly designed that any of those outside racial dynamics would become an obstacle to your future service in the fire department as long as you were qualified for the job?

RICCI: No. Myself and all 20 plaintiffs, including other firefighters that didn't join the suit, including African Americans and Hispanics, I think we all had the expectation when we took the test that the test would be fair and job-related and that it was going to be dictated by one's merit on how well you did you did on the exam, not by the color of your skin.

HATCH: OK. General, I just have one statement to make. You made the comment that the Supreme Court changed the law by a majority. They didn't change the law. They actually recognized there was a case of first impression here that had to be decided, and they decided it. They didn't change any laws.

(UNKNOWN): No.

(UNKNOWN): And it wasn't by their majority. I mean nine of them said the case should be reexamined. Five of them said that New Haven was wrong. And I just wanted to make that clear so that everybody would understand it because this is not some itty-bitty case. This is one of the most important cases in the country's history, and that's why it's caused such a furor.

And I want to compliment all of you firemen who have been willing to stand up in this issue because this is an important issue for people of whatever race or gender or ethnicity. And I -- you know you've taken a lot of flack for it, and you shouldn't.  Thank you, Mr. Chairman.

LEAHY: Thank you. Senator Specter?

SPECTER: Thank you, Mr. Chairman.  Mr. Ricci, I agree with just about everything you said, but you had a right to go to federal court and get justice that racial statistics are wrong. What we sought was even-handed justice, and as the court finally decided, you have been deprived of your rights and made a change. The question that I have for you, do you have any reason to think that Judge Sotomayor acted in anything other than good faith in trying to reach a fair decision in the case?

RICCI: That's beyond my legal expertise. I am not an attorney or a legal scholar. I simply welcome an invitation by the United State Senate to come here today, and this is our first time that we've gotten to testify about our story. So I can't comment on...

SPECTER: Well I think that it's very good that you've been here and had a chance to testify. I agree with that totally. And there's enormous appreciation for the work the firefighters do.

I had a lot of association with the firefighters in my day as a city official in Philadelphia, and on the Homeland Security been in the forefront of funding for firefighters. And what the firefighters did on 9/11 was -- words are inadequate: heroism and bravery and the loss of lives and the suffering.

Lieutenant Vargas, again, agree with all of your testimony. In your work you have to get it right the first time.

Well, when you have 5-4 decisions it's hard to say which way the ball bounces, especially when they get reversed from time to time. But I would ask you the same question I asked of Mr. Ricci: whether you have any reason to doubt the good faith of Judge Sotomayor in coming to the conclusion she did.

VARGAS: I would have to defer to pretty much the same response: that we were invited here to give our story, and we wanted to focus on that. And I -- I really didn't took much to that, no.

SPECTER: OK. Well that's fair enough. And it's up to the Senate. We hope we get it right. But all anybody can use is their best judgment.  Mr. Boies, when you place so much reliance on Ricci v. Adista Funnel was a basis for opposing Judge Sotomayor. Isn't that case just overloaded with subtlety and nuance? Could've gone the other way? Could you really place much reliance on criticism of Judge Sotomayor as a disqualifier?

BOIES: Well first of all, Senator Specter, I think I actually went back to criticize Judge Sotomayor's activities going all the way back to Princeton University, so I don't think I relied exclusively.

I think what -- and I would answer the questions that you asked Mr. Vargas and Mr. Ricci. I do think that Judge Sotomayor, based on her history, her involvement with the Puerto Rican Legal Defense and Education Fund, her writings, her activism, has indicated a preference to eliminate testing. She has fought to -- to get rid of civil service testing. She has challenged tests as being inherently -- standardized tests as being inherently unequal and as always arriving arriving at a disparate impact.

And I think that activism, that involvement, going back decades, did in fact influence the way she approached this case. So I think it is relevant. And that is the reason I'm criticizing it. It's not just her one decision in one case. It is her whole body of work, her whole life experience and the views that she has expressed over several decades.

SPECTER: Well, we consistently have nominees for the Supreme Court come to this panel, Justice Alito, Chief Justice Roberts, Justice Thomas, on both sides of the ideological divide, and what they do in an advocacy position is customarily set aside to make an evaluation as to their -- their competency.
When you talk about being a woman or being an Hispanic, it's my view that that kind of diversity is enormously helpful.

I go back to a question I asked Attorney General Meese more than 25 years ago. If you have -- the debate was raging on affirmative action even more than it is now -- if you have two people of equal competency and one is a minority, Attorney General Meese, not known for being a flaming liberal, took -- took the minority position.

And my own view is that it's time we have more women and we had more diversity. And we have to have qualifications -- have to have qualifications. And I think that's what ultimately determines this nomination.
Attorney General McDaniel, let me ask you a loaded question. You can handle a loaded question.

Do you think, with all of the critical issues we have to face on separation of powers and what the Congress does by way of fact-finding and what is done on the Americans With Disabilities Act and trying to find out about warrantless wiretaps and the Foreign Intelligence Surveillance Act and compensation for the survivors of the victims of 9/11 and the intricate relationship to the State Department influencing the way Congress interprets the foreign sovereign immunity, that there's a little too much attention paid to the Ricci case -- not that it's not very important, but there are lot of other matters that are important.
Isn't this a little heavy on one case?

MCDANIEL: Senator, not only do I agree with you about the other issues that should be given ample attention because of their enormous weight, I think that perhaps the wrong focus of attention even on this case has been applied.

Chief Justice Roberts has said that he would like to "narrow standing analyses" and he would like to be a conservative justice who want to look only at the disagreements between two parties and not go beyond the scope of that.

One of the important issues in the Ricci case was a standing issue, which was there standing to bring action if one had not been denied promotion?

Senator Hatch's attorney -- own attorney general joined with me in the brief because we thought that that was among the issues that were important and should have been followed under stare decisis. Instead the court expanded standing to someone who had not been harmed under the legal standard.

I think that that is important to consider. I think that it's important to note that, if they were going to change standing and standards, I think it's somewhat unfair to put emphasis on the footnote -- for instance, footnote 10 of Justice Ginsberg, which said that, if we are going to change the rules of the game, then we should remand the case back to be reviewed. But that wasn't critical of the second circuit, in and of itself.

SPECTER: I regret...(CROSSTALK)

MCDANIEL: So I agree with you about your -- your emphasis, or the...(CROSSTALK)

SPECTER: I regret that there's so little time. Having Mayor Bloomberg and D.A. Morgenthau and (inaudible) Henderson, we'd like to really have a chance to cross-examine...(LAUGHTER) ... except that I agreed with your testimony. Thank you, Mr. Chairman.

WHITEHOUSE (?): Thank you, Senator. Senator Cornyn?

CORNYN: Thank you, Mr. Chairman. I want to extend my appreciation to each of the witnesses for taking your time and -- to be here today. It's very important. These are -- as we need to remind ourselves, this is a historic time and appointment, and these are very important issues that should not be neglected or overlooked because of the press of other activities.

My own position is that I think, by virtue of her training, her experience and her high achievement, Judge Sotomayor is very well-qualified, all other things being equal.

Unfortunately, because of her speeches and other public statements where she said there's no such thing as objectivity in the law, which -- the opposite of objectivity is subjectivity. She said there's no neutrality. And if there's no neutrality, then I guess all that leaves is bias.

And it really strikes a body blow, I think, to -- to the concept of equal justice under the law. Judges are not policymakers and judges should leave that job to the elected representatives of the people, who reserve the time-honored right to throw the rascals out if they don't like what we're doing as elected members of the legislative branch.

So, you know, my -- my concern is what kind of judge would she be if confirmed to the United States Supreme Court, the kind of judge that follows her speeches or the kind that follows the law?

And -- but I just want to say to these firefighters what I told them earlier today when they were kind enough to come by my office. I think, you know, judges make mistakes. They used to say the only lawyer who hadn't lost a case is one that hadn't tried one.

And I don't necessarily hold it so much against Judge Sotomayor that she didn't rule your way in the case. Unfortunately, I think she did not give it the proper respect and -- and pay it the sort of attention that she should. Because there were real claims there that needed to be resolved by a court.

Every citizen's entitled to that, to have judges pay attention and not make mistakes by, you know, trying to sweep it under the rug.

And thank goodness that Judge Cabranes found the case, because it almost got slipped through the cracks, and then highlighted it so if you get to the Supreme Court of the United States and the Supreme Court could address this very important -- the important issues that you've presented here.

And one of the most important aspects, I think, of this hearing is this provides an opportunity, and it would not have been provided, I think, in large part unless these firefighters had had the courage to do what they've done, is for us to refocus our attention on some of these areas like, as Chief Justice Roberts said, he said, "It's sordid business, this divvying up by race, " and looking at people not as an individual human being, but as a member of a group or because of their sex or their ethnicity or their race.

.... it's time for this nation, I think, I hope we would all agree, to look at everyone as individuals, and to reward hard work, sacrifice and initiative, the kinds of things that I think, particularly you, Frank and Ben, you -- Frank is the lead (inaudible), but all of the firefighters have helped demonstrate the importance of not divvying up by race, not using de facto quotas.

And I think -- I would have felt a lot better if Judge Sotomayor had said, "You know what? This is really an important issue and we should have addressed it, but it slipped through our fingers, but thank goodness it was caught and it was ultimately reviewed." But she didn't.

And I think the idea that the city could throw out a test just because the outcome wasn't what they wanted is really pretext for racial discrimination. It's to deny people what they are entitled to because of the color of their skin.

So I just want to ask in the short time I have here, Mr. Vargas, you've -- I read earlier a statement that you made to the New York Times about the reason why you've gone through these five grueling years of litigation and the abuse that you've taken from people who -- who tried to shame you out of standing on your rights and seeing this thing through. Could you just tell the committee what sacrifices you have made, what your family's made? And why you felt like those sacrifices were so important to vindicate this important right?

VARGAS: Well, let alone the financial sacrifice, but you know, it starts from the moment you get out of the academy. I mean, this was something that I wanted to do. I wanted to advance my career as a firefighter right through the ranks. And you know, the books came with me to work every single day, you know, from the minute I graduated from the academy, right up to when I got promoted to lieutenant. And they kept coming with me right on until I took the captain's exam.

And once I get promoted to captain, they're going to continue to come with me as I go up through the ranks. You know, it's not something that, you know, you can lose sight of. You've got to continue to work hard, and I want to instill that in my kids. I want them to see that and I want them to know that this is what America is all about.

You work hard. This is how America was built -- the greatest country in the world because you -- you, as I said before, you rise and fall on your own merits.

(UNKNOWN): Do you hope for a day for your children what -- we mentioned Martin Luther King's statement previously, that a day when they will be judged by the content of their character and not the color of their skin?

VARGAS: I think our case goes a long way to help in the (inaudible) up for them, and they're going to benefit from this, and I think we're going in the right direction now.

(UNKNOWN): I couldn't agree more. Thank you, Mr. Chairman.

CARDIN (?): Senator Cornyn (?)

CORNYN (?): Thank you, Mr. Chairman. Welcome to all of you. One of the things that I think may have gotten lost in all of this is why tests are important. And I particularly wanted to ask the two firefighters here, Mr. Ricci and Mr. Vargas.

What difference does it make how well you perform on the test, whether you pass it or not? What's the big deal? What do you really have to show in those tests? And when you're out performing your duties, what difference does it make whether you pass the test or not? Mr. Ricci, maybe start with you.

RICCI: Thank you, Senator. It's important to realize that over 100 firefighters die in the line of duty each year and an additional 80,000 are injured. You need to have a command of the knowledge in order to make command decisions. You need to understand the rules and regulations.

Experience is the best teacher, but only a fool learns in that school alone. You have to have a basis to make the right decisions, because firefighters operate in all different types of environments.

I've had the proud privilege of training the United States Marine Corps sea berth team, and they responded to anthrax attacks in one of these buildings. I mean, firefighters have to be prepared for the regular house fire to the car accident to the hazardous material incident.

You go to work every day, and we're like an insurance policy for the American public that they hope they never have to use. But when someone calls 911, within four to five minutes, there's a fully staffed fire company at your door with no paperwork, and we're there to answer the call.

And when you show up, the officer has to be competent to lead his men and women of this fire service, career and volunteer across the country, to make the right decision.

KYL: Thank you. That's a great explanation. Lieutenant Vargas?

VARGAS: There's not much I can add to that.

KYL: That was pretty good. Well, I -- I appreciate it, and I know that everybody here, regardless of party or position on the nominee or anything else, appreciates what you do and what your colleagues do. And -- and I'm sure I speak for all of us in that regard. One of the things that I wanted to -- to just say briefly is that, I -- I am very proud of our -- I was a lawyer and I practiced law. And -- and I won some, and I lost some, but I always had confidence in our system.

And America is not unique, but there aren't very many countries in the world like us where we willingly volunteer to put our -- our fortunes, our freedom, in the event that we're accused of a crime, maybe even our life, if there could be a death penalty involved, our careers, in the case of the suits that you all were involved in. We willingly do that.

And the way we do it is interesting. You all may not know this, but the lawyers here certainly know it. When I filed a case in the U.S. District Court in Arizona, I didn't know which judge I was going to get. There were about 10. There was one I hoped I didn't get.

But I knew that the other nine, it didn't matter. They would all approach -- there were Democrats. There were Republicans. But I didn't know, because it's the next one in order, and the lawyers don't know the order, so it's almost by lot.

But we had confidence that we could put our client's issue before the court and that justice would be done, because that's the way our system works, and over 220 years, the rule of law has been established in this country by judges applying the law fairly and impartially. And over time, the precedents have been built up.

And what struck me about what you all had -- and I'm talking about the two of you -- had to go through is, first of all, you were confronted with a judge who, in a very thorough decision, said, "You lose." And then you appealed to the Second Circuit and in a per curiam opinion -- and you all know now what that is all too well -- the court didn't even write about it, said, "No, you lose again."

And then, the day that you got the results from the Supreme Court, just -- what's the difference between what you felt at the first situation and when you got the news about the Supreme Court, about your confidence in our system?

VARGAS: I -- I tried to say earlier that this is exactly how this country was built. This is why we're so great, because, you know, you can work hard, and you can go after the things that you want in this -- in this country, and -- and, you know, you're going to be successful, you know, but you have to apply yourself.

And those are the things that I try to instill in my kids, and I'll always put that forth, and I'll speak with my actions so that they can see that it's a great country, you know? And -- and that's why you need to work hard.

RICCI: The price of democracy is vigilance. And to be -- to be willing to participate -- and the original feeling was, you know, we always, through our attorneys, always went back to that process and said, "This is America. If we keep going forward, the process will work." And that, at the end, to be able to look at my son and say, "You know, I haven't been there for you," but to look at him and say, "This is -- this is an unbelievable civics lesson that, if you participate in democracy, that's how it all works." And I thank you, Senator.

KYL: Well, and I thank you. And I -- I hope that all of you will have confidence in our legal system in the future. And everybody here, again, regardless of position, will really stand in awe at a system which in our country year in, year out has proved to be a very, very good system for our people. Thank you.

CARDIN: Well, Senator Kyl, I want to thank you for your questions and the responses. I think it was the right way for the record to reflect the end of this panel, which has been, I think, very, very helpful to us in the record, on the confirmation process for Judge Sotomayor.

I want to thank Chairman Leahy for allowing me to chair this panel. We've had a very distinguished -- all eight of you, we thank you for being here.

I particularly want to thank Mayor Bloomberg for taking the time to come from New York. I mention him because not only he does a great job as mayor, but has had an important role at Johns Hopkins University. And we very much appreciate that.

And to Mr. Morgenthau, you are the model for the nation in the district attorney's office. And it's -- it's a real honor to have you before our committee. And we -- we thank you for your energy and continuation in public service.

And to firefighter Ricci and to Lieutenant Vargas, I personally want to thank you for being here. You put a face on the issues. We -- we look at cases, and we talk about the impact, but it affects real people and real lives and real families. And I think you really have added to today's hearing by your personal stories.

Each one of us thank you for your public service. And we thank you for your belief in our nation and for the testimony that you have given to this committee. It's been extremely helpful to each one of us on -- on the Judiciary Committee.

And with that, we are going to take a five-minute recess. When we return, Senator Klobuchar will be chairing the next panel.

(RECESS)

KLOBUCHAR: OK, I think we're going to start our third panel here, if everyone could be seated. I will warn those of you out there, anyone that has asked David Cone to sign a baseball, you must ask all seven of our other panelists, as well.  OK. We're going to start by getting sworn in.

Will you please stand and raise your right hand? Do you affirm that the testimony you are about to give before the committee will be the truth, the whole truth, and nothing but the truth, so help you God? Thank you.

We're going to start. I'll introduce each of you, and then you'll give your five minutes of testimony. And then we will have questions after that. And we are going to start here with Mr. Freeh. Louis Freeh is the former director of the Federal Bureau of Investigation, whose career in the Department of Justice began in 1975 when he became a special agent in the FBI.

Mr. Freeh has a long and distinguished career as a public servant under both Democratic and Republican presidents. He was appointed by President George H.W. Bush, as a federal district court judge on the Southern District of New York.

He was also a career federal prosecutor in the United States Attorney General's Office for the Southern District of New York, serving as chief of the organized crime unit, deputy United States attorney and associate United States attorney. He graduated from Rutgers Law School and has an LLM degree in criminal law from New York University Law School. I look forward to your testimony, Mr. Freeh.

FREEH: Thank you very much, Senator. Good afternoon, Senator Sessions. Good afternoon to you.
It's a great privilege to be before the committee, a committee where I've appeared over 100 times. And it's always a pleasure to be here, many friends on the committee who I've seen over the last few days.

So you have a prepared statement from me. And as Senator Sessions knows, I generally don't read my opening statements, which has gotten me in trouble with OMB over the years. But I thought it might be good just to talk and tell you why I'm here.

You know, I've had the privilege to work with great judges and appear before great judges. And let me just mention a couple.

I served on the district court with Constance Baker Motley, who, before she was a judge, you know, had those qualities of fairness and open-mindedness and commitment to the rule of law that I think we wish to see in our judges.

The last case I tried as a judge was in the district of Minnesota, before Judge Devitt. And it was a case which, by the way, Judge Sessions, Senator Sessions and I, worked on together. He was the attorney general of Alabama, a great attorney general, and I was an assistant U.S. attorney working on the case. And it was the murder of a federal judge. It was one of the few tragic times in our history where a federal judge was murdered.

And the case was tried before Judge Devitt. And Judge Devitt, who many of his peers said was the judge from central casting, was the model of judicial commitment. The instruction book, Devitt and Blackmar, is named after him. There's an award which is probably the most prestigious award that goes to judges named after him. And he was actually one of my mentors when I went on the Southern District bench.

I was sworn in as FBI director by Judge Frank Johnson, who, as someone has mentioned here before, was a legendary judicial hero from Winston County, Alabama, who, with a handful of other Republican (inaudible) by their commitment to the law, their fearlessness, and the honesty and integrity with which they took upon their office.

So it's my -- it's my pleasure to recommend to the committee the confirmation of this outstanding judge.
And I want to talk a little bit about her judicial experience. And I think -- and I've been here or listening to these proceedings for the last few days -- I think I may be the only lawyer who's actually been with her in the courtroom.

And since that, in my view and experience, is the best indicator of what someone will do in the future, is how they've behaved and conducted and written and decided matters as a justice, as been mentioned before, this candidate has an enormous and rich judicial record. Seventeen years. Thousands of opinions. All the things that you want to look for as you make your evaluation.

And the process by which you've come here is quite extensive. You have the president and his reviewers' own investigation. You have bar associations, this committee. You have the FBI that conducted now three background investigations. I was actually director when the second one was done.

You have any and all information that's come from the public, from the citizenry, from Americans. You have reputational evidence from other judges, from lawyers who have appeared before her.

My association with her began in 1992. She was a new judge on the Southern District, and we had this tradition where the second-newest judge would mentor the new judge.

Some of us didn't think it was the wisest rule to have, since I had about nine months on the bench when she was entrusted to my care, so to speak.

And I actually sat with her in court. I sat with her during trials. I helped review opinions that she asked me to look at. My law clerks were encamped with her law clerks.

And I guess what I want to communicate to you in a very short period remaining is, you know, the enormous judicial integrity and commitment to finding the facts, to being open-minded, to being fair. She struggled and deliberated in making sure she had the facts, making sure she had the right law, following the law, and being the kind of judge that I think we would all be proud of.

You know, speeches are important, and it's great the way you all have considered that so carefully. But, you know, when you enter the courtroom and you put the bench on, just as you assume the authority when you take your commitment, there's a whole different set of influences and immense power and influence that takes over.

And when she's been on the bench, when she's written, when she's argued, the way she's conducted herself, I think we can very safely predict this is going to be an outstanding judge, with all the qualities I know that you would want. So I urge you all to support her. Thank you very much.

KLOBUCHAR: Thank you very much. Thank you for your testimony. Next we have Chuck Canterbury, is the national president of the Fraternal Order of Police, one of the nation's largest and most prominent voices for law enforcement officers.

Mr. Canterbury has served in numerous capacities in the organization, including national vice president and national second vice president. He has 25 years of experience in law enforcement, where he worked as a police officer in Horry County, South Carolina.

Maybe you know Lindsey Graham, one of our members here. In only the best ways, I'm sure. We look very much forward to your testimony. Thank you, Mr. Canterbury. Thank you, Mr. Canterbury.

CANTERBURY: Thank you, Madam Chair, Ranking Member Sessions, Senator Hatch. It's a pleasure to be here today to offer the support of 327,000 rank-and-file police officers, my members in the Fraternal Order of Police. It's my pleasure to testify in support of the nomination of Judge Sonia M. Sotomayor to the Supreme Court.

You know, speaking as a law enforcement officer, I think it says a lot about the character of a young person who graduated from Yale and then accepted her first job as a poorly paid prosecutor in the district of Manhattan, yet that is exactly what Judge Sotomayor did, as my members do in every city in America.
She spent five years with that office, prosecuted many criminal cases, including a triple homicide.

And she forged an excellent working relationship with the men and women working the beat in Manhattan. She earned their respect and reputation as being tough, which in my profession is a compliment.

As an appellate judge, she has participated in over 3,000 panel decisions and authored roughly 400 opinions, handling difficult issues of constitutional law, complex procedural matters, and lawsuits involving complicated business organizations.

Some of her critics have pounced on a few of those decisions, as well as some of the comments made during speaking engagements, and have engaged in some pretty wild speculation as to what she would do as a Supreme Court justice. As a law enforcement officer, I prefer to rely on evidence and fact and not speculation to reach those conclusions.

One such area of speculation is on her feelings towards our right to bear arms as guaranteed by the Second Amendment. I want no mistake to be made: I take a back seat to no one in my reverence for the Second Amendment. In fact, if I thought that Judge Sotomayor's presence on the court posed a threat to my Second Amendment right, I would not be supporting here her today.

The facts, as some have already pointed out, reflect a brilliant and thoughtful jurist, respectful of the law, and committed to its appropriate enforcement. Over the course of her career, she has analyzed each case on its merits. To me, that's evidence of strong commitment to duty and to the law, two characteristics that we should expect from all of our judges.

I want to cite a few cases which I'm familiar with, because they deal with issues that every beat cop in the United States has dealt with. In the United States v. Falso, an offender indicted on 242 counts relating to child pornography sought to have evidence against him thrown out because the search warrant that was thrown out lacked probable cause. Judge Sotomayor's ruling held that the error was committed by the district court in issuing the warrant, not the officers who executed it. The conviction was upheld.

In the United States v. Santa, she ruled that law enforcement officers executing a search of a suspect based on an arrest warrant they believed to be active and valid should not result in the suppression of evidence, even if that warrant had expired.

In the United States v. Howard, she overturned the district court's decision to suppress evidence of drug trafficking by finding warrantless automobile searches to be constitutional.

In the United States v. Clarke, she held that the law enforcement officers did not violate the Fourth Amendment by asking to see the VIN pin under the hood of a vehicle after discovering that the VIN plate on the dashboard was missing.

All of these rulings show that Judge Sotomayor got at least as much of her legal education from her five years as a prosecutor as she did at Yale Law School. These five years, in my view, reflect the same kind of commitment to the law that I have seen in the officers that I represent.

She's clearly demonstrated that she understands the fine line that police officers must walk and, in her rulings, reflect a working knowledge, not a theoretical knowledge, of the everyday realities of law enforcement work.

After reviewing her record, I can say that Judge Sotomayor is a jurist in whom any beat cop could have confidence. And it's for that reason that the national executive board of the FOP voted unanimously to support her nomination, and we urge you to do so, as well. Thank you very much.

KLOBUCHAR: Thank you very much, Mr. Canterbury. Next is David Cone. David Cone is a former Major League Baseball pitcher who, over an 18-year career, played for five teams in both the American and National leagues. Mr. Cone won the American League Cy Young Award in 1994 and pitched a perfect game in 1999 as a member of the New York Yankees.

He was a member of the Major League Baseball Players Association throughout his Major League career and was an officer from 1994 through 2000. Thank you very much for being here, Mr. Cone.

CONE: Thank you, Senator Klobuchar. Senator Sessions, Senator Hatch, nice to see you again.
On behalf of all Major League players, both former and current, I greatly appreciate the opportunity to acknowledge the unique role that Judge Sonia Sotomayor played in preserving America's pastime.

As you know, I'm not a lawyer, much less a Supreme Court scholar. I was a professional baseball player from the time I was drafted out of high school in 1981 until the time I retired in 2003. I was also a union member and an officer of the Major League Baseball Players Association.

As is well known, Major League Baseball has a long history of acrimonious labor relations. It was not until the 1970s that players first gained the right to free agency and salary arbitration. This meant that, for the first time ever, players were able to earn what they were worth and have some choice about where they played.

The next 20 years were quite difficult. There was a lockout or strike at the end of every contract. To the players, every -- every dispute seemed to center upon the owners' desire to roll back free-agency rights the players had won.

But 1994 was the worst. The owners said that they wanted the salary cap and refused to promise that they would abide by the rules of the just-expired contract after the season ended. Believing we had no choice, the players went on strike in August of 1994. I should note that this was before Congress passed the Curt Flood Act, authored by Senators Hatch and Leahy, which made it clear that baseball's antitrust exemption could not be used to undermine federal law.

In response, the owners canceled the remainder of the season, which meant that there would be no World Series. Discussions continued through the fall and the early winter, but were fruitless. In December of 1994, the owners unilaterally implemented a salary cap and imposed new rules and conditions on employment which would have made free agency virtually meaningless. And they announced they would start the 1995 season with so-called replacement players instead of major leaguers.

We did not think the owners were negotiating in good faith, as they were required to do under federal law. We went to the National Labor Relations Board. The board agreed with us and went to federal court to seek an injunction against the owners' unilateral changes.

The United States district judge who drew the case was Judge Sotomayor. The rest is history, or at least baseball history. Judge Sotomayor found that the owners had engaged in bad-faith bargaining. She -- she issued an injunction. Her decision stopped the owners from imposing new work rules, ended our strike, and got us all back on the field.

The words she wrote cut right to the heart of the matter, and I quote: "This strike is about more than just whether the players and owners will resolve their differences. It's also about how the principles embodied by federal law operate. This strike has placed the entire concept of collective bargaining on trial. Issuing an injunction by opening day is important to ensure that the symbolic value of that day is not tainted by an unfair labor practice and the NLRB's inability to take effective steps against its perpetuation."

Judge Sotomayor grasped not only the complexity of the case but its importance to our sport. Her decision was upheld by a unanimous Court of Appeals panel comprised of judges appointed by different presidents from different parties with different juridical philosophies.

On the day he announced her nomination, President Obama observed that some have said Judge Sotomayor saved baseball. Others may think this is an overstatement, but look at it this way. A lot of people, both inside and outside of baseball, tried to settle the dispute.

Presidents, special mediators, secretaries of Labor, members of Congress all tried to help but were not successful. With one decision, Judge Sotomayor changed the entire dispute. Her ruling rescued the 1995 baseball season and forced the parties to real negotiations.

The negotiations were not easy but ultimately were successful, which in turn led to an improved relationship between the owners and the players. Today baseball is currently enjoying a run of more than 14 years without interruption, a record that would have been inconceivable in the 1990s.

I believe all of us who have loved the game, players, owners and fans, are in her debt. If Judge Sotomayor is confirmed, I hope the rest of the country will realize, as the players did in 1995, that it can be a good thing to have a judge or a justice on the Supreme Court who recognizes that the law cannot always be separated from the realities involved and the disputes being decided. Thank you again, and I would be glad to answer any questions you may have.

(UNKNOWN): Thank you very much, Mr. Cone. Our next witness is Kate Stitz. She is the Lafayette S. Foster professor of law at Yale Law School, where she teaches and writes in the areas of criminal law, criminal procedure and constitutional law.

Previously, Professor Stitz was an assistant U.S. attorney for the Southern District of New York, where she prosecuted white-collar and organized crime cases.

After graduating from Harvard Law School, she clerked for Judge Carl McGowan of the U.S. Court of Appeals for the District of Columbia and for Associate Justice Byron White on the Supreme Court. Thank you for being here, and we look forward to your testimony.

STITZ: I thank you, Senators, for the opportunity to comment on the nomination of Judge Sonia Sotomayor, whom I have known since she became a judge in 1992.

As you noted, before I joined the faculty at Yale Law School in 1985, I was a federal prosecutor in New York and I was also a special assistant at the Department of Justice in Washington.

While a federal prosecutor in New York, I had the pleasure of working of working with Louis Freeh.
It is my judgment that this is an exceptionally strong nomination. My judgment has nothing to do with Judge Sotomayor's sex, ethnicity or personal story. I'm judging her on the same criteria that I used when I was asked by the Yale Daily News, some years ago, whether Samuel Alito would be a strong nomination to the Supreme Court. I answered yes then, and I answer yes now.

Specifically, I am confident that Sonia Sotomayor would serve this nation with powerful intelligence, vigor, rectitude and an abiding commitment to the Constitution.

Moreover, her service as a state prosecutor and as district judge will make her unique on the court to which she will ascend.

My views on her are informed by many sources. First, I have been unusually involved, at least for a professor, with members of the bar and bench within the Second Circuit. Among these lawyers and judges who know her best, she is held in the highest repute across the board. My views are also based on my many conversations with her.

Among the most telling are those in which she has described the attributes she is looking for in prospective law clerks. Through these discussions, over more than 15 years, I believe I've gained insight into her view of the role of a judge.

And the bottom line is this: What she wants in her law clerks are the qualities we all want in a judge.
She wants to make sure, first, that they are serious about the law, not about politics or professional opportunities after the clerkship. And they must be serious about all areas of the law. For Judge Sotomayor, there are no favorite areas -- which brings me to a third quality she wants in her clerks.

The prospective clerk must be willing to work his or her fingers to the bone, if necessary, in order to ensure that the opinions Judge Sotomayor writes and those she joins do not miss a relevant precedent and do not get a fact wrong.

And there's an overriding fourth quality that the judge considers critical. Is the prospective clerk willing to take criticism, work harder, and, where appropriate, rethink her initial assessment, or his initial assessment of the issues?

Over the years, the judge's former clerks have told me, time and again, that they greatly appreciate her devoted commitment to the law, as a result of which they were held to higher standards and learned more than in any other time in their lives.

Her conception of the role of a judge is borne out by her judicial opinions that I have read in the area of criminal law and procedure.

On criminal procedure, let me just note that the usual categories of left and right do not easily apply. I would say that her decisions, on the whole, reflect more pragmatism and less formalism than those of, say, Justice Souter. Sometimes this cuts for the government; sometimes it cuts against it.

I want to focus, in particular, on one substantive criminal law case: United States v. George, decided in 2004. Judge Sotomayor's unanimous 16-page opinion in that case concerns the meaning of the mens reia term "willfully" in a federal statute that makes it a crime to "willfully falsify a passport application."
Her opinion makes clear that the role of the courts is not to determine what level of mens reia they think should apply but what Congress intended when it wrote the word "willfully."

The Iomega then embarks on an heroic effort to figure out what Congress meant in this particular statute. The opinion is so clarifying and insightful that my coauthors and I decided to include a long excerpt from it in our forthcoming federal criminal law casebook.

But the significance of the case isn't only that it's an excellent opinion. It also resulted from the willingness of Judge Sotomayor and her two colleagues to reconsider their initial decision when additional arguments were brought to their attention, even though this meant that a different party would prevail.

Their aim was neither to affirm the conviction nor to reverse the conviction but to find the best resolution of the complex and conflicting precedents on this mens reia issue.

In conclusion, I submit that Judge Sotomayor's opinion in the George case reveals four juridical qualities that she clearly possesses. First she cared deeply about the issue at hand. No matter how minor or word-parsing it may seem even to lawyers.

Second, she was willing to reassess her initial judgment and dig deeper.

Third, her legal analysis was exceptionally clear and astute.

And, fourth, she had no agenda other than trying to get the law right. And in a society committed to the rule of law, trying to get the law right is what it means to be fair and impartial. This is a great judge. I urge you to vote in favor of her confirmation. Thank you, Senators.

KLOBUCHAR: Thank you very much. We next have Dr. Charmaine Yoest, who is the president and CEO of Americans United for Life, the first national pro-life organization in the nation whose legal strategists have been involved in every pro-life case before the United States Supreme Court since Roe v. Wade.

Dr. Yoest began her career in the White House during the Reagan administration. She has also worked as the project director of the Family, Gender and Tenure Project at the University of Virginia and as a vice president at the Family Research Council. Welcome, Dr. Yoest. We look forward to your testimony.

YOEST: Thank you very much, Senator Klobuchar, ranking member Sessions, and members of the committee for inviting me to testify before you today.

As you said, I'm here on behalf of Americans United for Life. And we are the nation's oldest pro-life legal organization. Our vision at AUL is a nation where everyone is welcomed in life and protected in law. We've been committed to defending human life through vigorous judicial legislation -- legislative and educational efforts since 1971, and we have been involved in every abortion-related case before the United States Supreme Court, beginning with Roe v. Wade.

I'm here today because of AUL's deep concern about the nomination of Judge Sonia Sotomayor to the United States Supreme Court. A vote to confirm Judge Sotomayor to our highest court is a vote for unrestricted abortion on demand and a move towards elevating abortion as a fundamental right, equal to our freedom of religion and freedom of speech.

A nominee's judicial philosophy goes to the heart of his or her qualifications to serve on the United States Supreme Court. And based on Judge Sotomayor's record of prior statements, combined with her over a decade-long service on the board of the Puerto Rican Legal Defense and Education Fund, Judge Sotomayor's judicial philosophy makes her unqualified to serve on the Supreme Court.

When judges fail to respect their limited role under our Constitution by imposing their personal preferences regarding public policy through their decisions, our entire judicial system of equal justice under the law is corrupted. In a series of speeches, as we've heard chronicled here this week, Judge Sotomayor has indicated a troubling willingness to celebrate her own personal preferences and characteristics.

Several references have been made during this hearing to the judge's 2001 "wise Latina" speech. I would note that, in that very same speech, she stated that, quote, "Personal experiences affect the facts that judges choose to see," not just what they do see, but what they choose to see.

Of even greater concern, Judge Sotomayor stated in the same lecture that, "The aspiration to impartiality is just that: It's an aspiration," end quote.

However, impartiality is not merely an aspiration. Impartiality is a discipline, and its necessity is enshrined in the judicial oath. A judge who injects personal experiences into a decision corrupts the very foundations of our judicial system.

Perhaps the clearest example of Judge Sotomayor's problematic philosophy is her April 2009 speech in which she said, "Ideas have no boundaries. Ideas are what set our creative juices flowing. Ideas are ideas. And whatever their source, if it persuades you, then you're going to adopt its reasoning."

We see her here building a case for judicial activism, yet creativity is the approach Americans want least from a judge. A judge who approaches the bench seeking to, quote, unquote, "implement ideas" is an activist judge by definition. The laboratories of democracy in our system should remain firmly lodged in the state legislatures, not preempted from the court.

These troubling speeches did not occur in isolation. Looking at the totality of the judge's record must include her 12 years of service on the board of the Puerto Rican Legal Defense and Education Fund.

During that time, the organization filed not one but six amicus briefs in five abortion-related cases before the Supreme Court. Given her particular emphasis on personal viewpoint and jurisprudence, we believe these cases become uniquely relevant in providing insight into her judicial philosophy.

Judge Sotomayor served the fund as a member and vice president of the board of directors and also as chairperson at the education and litigation committees and has been described as an involved and ardent supporter of their various legal efforts.

What, then, does her tenure with the organization tell us about her judicial philosophy? The fund's briefs consistently argued the position that abortion is a fundamental right, expressing hostility to any regulation of abortion, including parental notification, informed consent, and bans on partial-birth abortion.

For example, in Planned Parenthood v. Casey, the fund compared abortion to the First Amendment right to free speech and argued that any burden on the right to abortion was unconstitutional.

In Ohio v. Akron and Casey, the fund asked the court to strike down parental involvement statutes, insisting that minors should be, quote, "protected against parental involvement that might prevent or obstruct the exercise of their right to choose."

In Williams v. Zbaraz, the fund argued that failure to publicly fund abortions was "discriminatory."
In Webster v. Reproductive Health Services, the fund argued against -- against -- a requirement that physicians personally counsel patients. They even argued in Webster that strict scrutiny is required because of the "preciousness of the fundamental right to abortion," end quote, underscoring not just a willingness to engage in creative jurisprudence, but an ideological commitment to advancing an extremist abortion agenda.

In conclusion, I would like to end on a personal note related to the fund briefs. We've heard quite a bit about settled versus unsettled this week. And the one thing that we do know is that, as we've seen this week, this country is still very unsettled about abortion doctrine.

However, among the American people, there are some elements of abortion-related policy that absolutely do provide common ground. Preeminent among these is a core American belief in the bonds between parent and child. I have five children, and the notion -- the notion that my daughters might be taken for a surgical procedure without my knowledge is horrific.

This common-sense commitment to protect our children is overwhelmingly shared among all of those who identify themselves as pro-life and pro-choice. And yet it is precisely these kinds of common-sense policies, like parental notification, that are threatened by this nomination.

In the fund's brief in Ohio v. Akron, they argued that, quote, "The court would also need to consider whether the state, through giving the parents' confidential information, has enhanced these parents' ability to indoctrinate, control or punish their minor daughters who choose abortion," end quote.

This is a viewpoint far outside the mainstream of American public opinion, and it points to another truth about the fund arguments and their worldview, which the evidence indicates Judge Sotomayor shares. While arguing to promote abortion to a fundamental right equivalent to the freedom of religion or speech, they actually wish to elevate it even further, placing it singularly alone among rights beyond the reach of the American public to regulate or even debate. Thank you very much.

KLOBUCHAR: Thank you very much. Next we have Sandy Froman. Sandy Froman is the past president of the National Rifle Association of America. Ms. Froman is also currently a member of the NRA board of directors, where she has served since 1992, and in 2007, was unanimously elected to a lifetime appointment on the NRA Council.

A graduate of Stanford University and Harvard Law School, Ms. Froman is a practicing attorney and speaks and writes regularly on the Second Amendment. Welcome to the committee. We look forward to your testimony.

FROMAN: Thank you, Madam Chair. Chairman Leahy, Ranking Member Sessions, Senator Hatch, thank you for the opportunity to appear before this committee today to comment on the nomination of Sonia Sotomayor as it relates to her views on the Second Amendment.

It's critical that a Supreme Court justice understand and appreciate the origin and meaning of the right of the people to keep and bear arms, a right exercised and valued by almost 90 million American gun owners.

Yet Judge Sotomayor's record on the Second Amendment and her unwillingness or inability to engage in any meaningful analysis of this enumerated right when twice given the opportunity to do so suggests either a lack of understanding of Second Amendment jurisprudence or hostility to the right.

In 2004, Judge Sotomayor and two colleagues in U.S. v. Sanchez-Villar discussed the Second Amendment claim in a one-sentence footnote, holding without any analysis that the right to possess a gun is clearly not a fundamental right. Judge Sotomayor reiterated her view earlier this year as part of a panel in Maloney v. Cuomo, holding that the Second Amendment is not a fundamental right, does not apply to the states, and that if an object is designed primarily as a weapon, that is a sufficient basis for total prohibition even in the home.

The Maloney court ignored directives and precedents from the Supreme Court in last year's landmark case, District of Columbia v. Heller, which held that the Second Amendment guarantees to all law- abiding responsible citizens the individual right to arms, particularly for self-defense.

Although the Supreme Court in Heller warned against applying Supreme Court incorporation cases from the late 1800s without conducting a proper 14th Amendment inquiry, Judge Sotomayor's panel in Maloney did just that. They cited the 1886 cases of Presser v. Illinois, decided under the privileges or immunities clause of the 14th Amendment, for the proposition that the Second Amendment does not limit the states, and they ignored the Supreme Court's 2008 directive to conduct a 14th Amendment analysis under the modern doctrine of the due process clause to determine if the right is fundamental and should be incorporated.

By contrast, the 9th Circuit in Norlight v. King, when faced with the same incorporation question earlier this year, did follow the Supreme Court's directive and correctly concluded that the Second Amendment is a fundamental right and does apply to the state through the due process clause.

Our Second Amendment rights are no less deserving of protection against states and local governments than the First, Fourth and Fifth Amendments, all of which have been incorporated. When faced with the most important question remaining after Heller, whether the right to keep and bear arms is fundamental and applies to the states, Judge Sotomayor dismissed the issue with no substantive analysis.

She and her colleagues also failed to follow Supreme Court precedent when they held that the New York statute could be upheld if the government had a rational basis for the law. They ignored that the Supreme Court in Heller rejected the rational basis test for Second Amendment claims.

By failing to conduct a proper 14th Amendment analysis, the Maloney court evaded its judicial responsibilities, offered no guidance to lower courts, and provided no assistance in framing the issue for resolution by the Supreme Court.

Whenever an appellate judge fails to provide supporting analysis for their conclusion or address serious constitutional issues presented by the case, it is legitimate to ask whether the judge reach that conclusion by application of the constitution and statutes, or based on a political or social agenda.

Judge Sotomayor's view robs the Second Amendment of any real meaning. Under her view the City of New Orleans' door-to-door confiscation of firearms from law-abiding, peaceable citizens in the aftermath of Hurricane Katrina was constitutional. Preventing an individual from exercising what the Heller court said was the Second Amendment's core lawful purpose of self-defense is no less dangerous when accomplished by a state law than by a federal law.

The Second Amendment survives today by a single vote in the Supreme Court. Both its application to the states and whether there will be a meaningfully strict standard of review remain to be decided. Judge Sotomayor has already revealed her views, and they are contrary to the text, history, and meaning of the Second and 14th Amendments.

As a circuit court judge she is constrained by precedent, but as a Supreme Court justice appointed for life she would be making precedent. A supermajority of Americans believe in an individual's personal right to arms. They deserve a justice who will interpret the Second Amendment in a fair and impartial manner, and write well-crafted opinions worthy of respect from those of us who must live by their decisions.

The president who nominated Judge Sotomayor has expressed support for the City of Chicago's gun ban, which is being challenged in NRA v. Chicago, a case headed to the Supreme Court. Seating a justice on the Supreme Court who does not treat the Second Amendment as a fundamental right deserving of protection against cities and states could do far more damage to the right to keep and bear arms than any legislation passed by Congress. Thank you.

ACTING CHAIR: Thank you very much for your testimony, Ms. Froman. Our next witness is David Kopel. He is currently the research director of the Independence Institute in Golden, Colorado, and an associate policy analyst at the Cato Institute. He is also a contributor to the National Review Magazine. He graduated from the University of Michigan Law School. Thank you very much for being here. We look forward to your testimony.

KOPEL: Thank you. The case of Sonia Sotomayor versus the Second Amendment is not yet found in the record of Supreme Court decisions. Yet if Judge Sotomayor is confirmed to the Supreme Court, the opinions of the newest justice may soon begin to tell the story of a justice with disregard for the exercise of constitutional rights by tens of millions of Americans.

New York state is the only state in the union which completely prohibits the peaceful possession of a nunchaku, a (inaudible) ban enacted after the opening to China in the early 1970s and the growth of interest in the martial arts. In the colloquy with Senator Hatch on July 14, Judge Sotomayor said that there was a rational basis for the ban because a nunchaku could injure or kill someone.

The same point could just as accurately be made about bows and arrows, swords or guns. All of them are weapons, and all of them can be used for sporting purposes or for legitimate self-defense.

Judge Sotomayor's approach would allow states to ban archery equipment with no more basis than to claim the obvious, that bows are weapons. Even if there were no issue of fundamental rights in this case, Judge Sotomayor's application of the rational-basis test was shallow and insufficiently reasoned, and it was contrary to Supreme Court testament showing that the rational-basis test is supposed to involve a genuine inquiry, not a mere repetition of a few statements made by prejudiced people who impose the law.

The plaintiff in Maloney had argued that even putting aside the Second Amendment the New York prohibition violated his rights under the 14th Amendment. There was no controlling precedent on whether Mr. Maloney's activity involved an unenumerated right protected by the 14th Amendment. Accordingly, Judge Sotomayor and her fellow Maloney panelists should have provided a -- a reasoned decision on the issue.

Yet Judge Sotomayor simply pd, with no legal reasoning, that Mr. Maloney's use of arms in his own home was not part of the exercise of a fundamental right.

Testifying before this committee on July 14, Judge Sotomayor provided further examples of her troubling attitude to the right to arms. She told Senator Hatch that the -- the Heller decision had authorized gun control laws which could pass the rational basis test. To the contrary, the Heller decision had explicitly rejected the weak standard of review, which Justice Breyer had argued for in his dissent.

Both Judge Sotomayor and some of her advocates have pointed to the Seventh Circuit's decision in NRA v. Chicago as retrospectively validating her actions in Maloney. The argument is unpersuasive. Both the Maloney and the NRA courts cited 19th century precedents which had said that the 14th Amendment's privileges or immunities clause did not make the Second Amendment enforceable against the states.
However, as the Heller decision itself had pointed out, those cases, quote, "did not engage in the sort of 14th Amendment inquiry required by our later cases." In particular, the later cases require an analysis under the separate provision of the 14th Amendment, the due process clause.

Notably, the Seventh Circuit addressed this very issue and provided a detailed argument for why the existence of modern incorporation under the due process clause would not change the result in the case at bar. In contrast, Judge Sotomayor's per curiam opinion in Maloney did not even acknowledge the existence of the issue.

Various advocates have made the argument that, since Maloney and NRA reached the same result, and since two of the judges in NRA v. Chicago were -- were Republican appointees who are often called conservatives, then the Maloney opinion must be all right.

This argument is valid only if one ps that conservatives and/or Republican appointees always meet the standard of strong protectiveness for constitutional rights which should be required for any Supreme Court nominee.

In the case of the NRA v. Chicago judges, that standard was plainly not met. The Seventh Circuit judges actually made the policy argument that the Second Amendment should not be incorporated because incorporation would prevent states from outlawing self-defense by people who are attacked in their own homes.

A wise judge demonstrates and builds respect for the rule of law by writing opinions which carefully examine the relevant legal issues and which provide careful written explanations for the judge's decisions on those issues.

Judge Sotomayor's record on arms right cases has been the opposite. Her glib and dismissive attitude toward the right is manifest in her decisions and has been further demonstrated by her testimony before this committee.

In Sonia Sotomayor's America, the peaceful citizens who possess firearms, bows, or martial arts instruments have no rights which a state is bound to respect and those citizens are not even worthy of a serious explanation as to why. Thank you.

KLOBUCHAR: Thank you very much. And did I say your name correctly?

KOPEL: (OFF-MIKE)

KLOBUCHAR: Oh, well, that was good. Thank you. Next we have Ilya Somin. And Professor Somin is an assistant professor at George Mason University School of Law. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy.

He currently serves as co-editor of the Supreme Court Economic Review, one of the country's top-rated law and economic journals. After receiving his M.A. in political science from Harvard University and his law degree from Yale Law School, Professor Somin clerked for Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. I look forward to your testimony, Mr. Somin. Thank you for being here.

SOMIN: Thank you very much. I'd like to thank the committee for the opportunity to testify, and even more importantly, for your interest in the issue of constitutional property rights that I will be speaking about.

For the Founding Fathers, the protection of private property was one of the most important reasons for the establishment of the Constitution in the first place.

As President Barack Obama has written, our Constitution places the ownership of private property at the very heart of our system of liberty. Unfortunately, the Supreme Court and other federal courts have often given private property rights short shrift and have denied them the sort of protection that is routinely extended to other constitutional rights, and I hope that the committee's interest in this issue will over time help begin to change that.

In my oral testimony today, I will consider Judge Sotomayor's most well-known property decision, Didden v. Village of Port Chester. In my written testimony, which I hope will be entered into the record, I also discuss her decision in Krimstock v. Kelly.

The important background to the Didden decision is the Supreme Court's 2005 decision in the case of Kelo v. City of New London, which addressed the Fifth Amendment's requirement that private property can only be taken by the government if it is for a public use.

Unfortunately, a closely divided 5-4 Supreme Court ruled in Kelo that it is permissible to take property from one private individual and give it to another solely for purposes of promoting economic development, even if there isn't even any evidence necessarily that the development will actually occur.

This licensed numerous abuse of takings in many parts of the country. Indeed, since World War II, economic development in other similar takings have displaced hundred of thousands of people, many of them poor or ethnic minorities.

But as broad as the Kelo decision was in upholding a wide range of abusive takings, Judge Sotomayor's decision in the Didden case went even further than Kelo in doing so.

The facts of the Didden case are as follows. In 1999, the Village of Port Chester in New York declared a redevelopment area in part of its territory where, therefore, property could be taken by eminent domain in order to promote development there. And they also appointed a person named Greg Wasser, a powerful developer, as the main developer for the area.

In (inaudible) 2003 Bart Didden and Dominic Bologna, two property owners in the area, approached the village for permission to build a CVS on their property, and they were directed by Mr. Wasser -- they were directed to Mr. Wasser, who told them that they must either pay him $800,000 or give him a 50 percent stake in their business, otherwise he threatened he would have the village condemn their property.

When they refused his demand, the property was condemned almost immediately after that.

Now, in her decision, with two other members of the 2nd Circuit, the panel that Judge Sotomayor was on upheld this condemnation in a very short, cursory summary order that included almost no analysis.
Now, it is true that they cited the Kelo decision. However, they made no mention of the fact that the Kelo decision actually stated that pretexual takings are still forbidden under the Constitution, pretexual takings being defined as takings where the official rationale for the condemnation was merely a pretext for a plan to benefit a powerful private party of some sort.

Now, there is some controversy over what counts as a pretexual taking and what doesn't. But if anything does count as a pretexual taking, it is surely a case like Didden where essentially the property would not have been condemned but for the owner's refusal to pay a private party $800,000.

Surely, if anything is a pretexual, it is a case where property is condemned as part of a scheme for leverage to enable a private individual to extort money from the property owner.

Now, in her oral testimony before this committee, Judge Sotomayor did say that her decision was based in part on a belief that the property owners had filed their case too late. I think the important thing to remember about this statement is that in her own decision, she actually specifically wrote that she would have ruled the same way, quote, "Even if the appellant's claims were not time-barred." So she claimed that even regardless of when they filed their case, she would have come out the same way.

Moreover, as I discuss in my written testimony, it is actually the case that her statute of limitations holding was entirely dependent on the substantive property rights holding as well, and I can discuss that further in questions if the senators are interested.

I think the bottom line about this case is its extreme nature. If one is not willing to strike down a condemnation in a situation like this, if one is not willing to say that this isn't a public use, it's not clear that there are any limits whatsoever on the government's ability to take private property for the benefit of politically powerful individuals.

And on that note, I'm happy to conclude and I thank you very much for the opportunity to testify.

KLOBUCHAR: Thank you very much for your testimony. We are now going to have each senator ask five minutes of questions, and I will start with Director Freeh. You're the only panelist who has had the opportunity to sit with Judge Sotomayor as a fellow judge. What did you learn about her and her approach to judging that led you to endorse her?

FREEH: You know, I think all the qualities that we've heard in this hearing as the optimal qualities -- mainstream, fair-mindedness, prepared, integrity, knowledge and intellect, patience. Part of being a good judge is listening and making sure that the parties are all heard, and really, her, you know, her sense of commitment to getting all the facts and then applying the law.

As you said, Senator, I not only served with her, but actually was with her in court, as I mentioned in my opening statement. I what we call "second sat" her in a number of her first trials, where I actually observed her entire conduct of the trial, preparation, motion practice, instruction to juries, how she treated witnesses. And I think of all the things I observed over a six-month period was really, you know, how -- how detailed she was in preparing her written opinions.

This was never a judge that had a predisposition or a pre-notion or a personal agenda, but struggled and committed a lot of time and effort to getting the facts and applying the law. And I think she did that as a brand new judge. She's done it for 17 years, and I think we can be assured she will do it as a justice.

KLOBUCHAR: As someone who was appointed by President H.W. Bush, do you have any reservations about her ability to be a Supreme Court justice without activism or an ideological agenda?  (More to come)

KLOBUCHAR: Thank you. Mr. Canterbury, you spent more than 25 years as an active-duty police officer in South Carolina. I know what a difficult job you had. From my previous job, I've been able to see it first-hand. Are you confident if confirmed, Judge Sotomayor has the background and judicial record to be a justice who will be mindful of the need for law enforcement to protect our nation and have a pragmatic view of law enforcement issues?

CANTERBURY: We're very confident of that, based on the over 450 criminal cases that we reviewed. We felt that her judgment was fair, tough and balanced throughout all of the cases that we reviewed.
And, looking at the totality of her career, we feel very comfortable that she'll make a fine judge.

KLOBUCHAR: Thank you very much. Just as I said, Mr. Freeh was the only one on the panel that served with Judge Sotomayor. Mr. Cone, you are the only one on the panel that has pitched a perfect game, as far as I know. (LAUGHTER) Did you believe her to be fair when she ended the baseball strike?

I have to tell you that I thought your testimony -- people have, for, now, four days now, talked about each specific case and questioned a lot on different cases, and were very thorough in their questioning and their understanding, but I thought you so -- so succinctly described the effect that her ruling had on many, many people across the country.

And what do you think that this decision says, a little more broadly, about her approach to law, in general, and the impact of her judicial philosophy on the lives of individual Americans?

CONE: Well, thank you, Senator. You know, from my perspective, as I said in my statement, a lot of people tried to end that dispute, including President Clinton -- we were called to the White House -- special mediators, members of Congress.

I spent weeks on end, here in Washington, lobbying Congress on trying to get -- or a partial repeal of the antitrust exemption, which did happen. And Sen. Hatch and Sen. Leahy certainly sponsored that bill, the Curt Flood Act, which I think had an enormous impact as well.

But Judge Sotomayor is the one who made the tough, courageous call that put the baseball players back on the field. And, you know, from my perspective as a union member, we felt that we were in trouble, that the game was in trouble. It was to the point of almost being irreparably damaged. And she made the courageous decision to put the game back on the field and get the two parties back to the bargaining table and negotiate it in good faith.

KLOBUCHAR: Thank you very much. Sen. Sessions?

SESSIONS: Thank you, Madam Chairman. It's good to be with you, and we're glad you're on this committee.

KLOBUCHAR: Thank you.

SESSIONS: Mr. Cone, I was reading a story about statistical stuff the other day. It came to me that, you know, you throw a coin, it can land five times in a row on heads, and -- and so I wonder about that, a little bit, in our effort to have racial harmony on test-taking. Because sometimes it's just statistically so, which makes me think there's the American League could have won, what, 12 out of the last 13 All-Star games.

CONE: It makes you wonder, yes.

SESSIONS: Two or three is about all they're worth, right? No, it is -- thank you for your testimony, and we've enjoyed it. Judge Freeh, nice to see you. I value your testimony, always do, and I appreciate it very much.

I would note, and I think you would agree with me, but President Bush -- former President Bush -- former, former President Bush nominated Judge Sotomayor as Sen. Moynihan's pick.

In other words, they had a little deal that President Bush would appoint three judges, I think, and Sen. Moynihan would get to pick one. And he nominated -- the recommendation of Sen. Moynihan. Is that the way you remember it?

FREEH: I think that's correct. But I also think he's supporting this nomination now.

SESSIONS: OK. Good comment. You did good. (LAUGHTER) Madam -- Ms. Stith, thank you for you very insightful comments. I appreciated that very much and it's valuable to us. Dr. Yoest, I was thinking about this organization Legal -- Puerto Rican Legal Defense Fund, PRLDF -- and do board members of your organization know what lawsuits you're -- you're pursuing and generally what the issues are? Push your button.

YOEST: I was asked that question actually right after Judge Sotomayor was nominated, and it was the day before my board came to town for one of our annual meetings. And as I listened to the discussion of her relationship with the fund as a board member I have found the connection between her association with the cases and her description to really strain credulity.

The fact of the matter is to -- you don't have to have read an individual case, reviewed a particular point as a board member to be intimately associated with it. The point of being a board member for all of us who've dedicated our lives to the nonprofit realm is to have oversight and to have accountability and responsibility for the organization. And so I think it's -- I think it's...(CROSSTALK)

SESSIONS: Well, I think that probably most boards should operate that way at least. Ms. Froman, is it correct to say that Judge Sotomayor's opinion in Maloney, which said the 2nd Amendment does not apply to this case, if it is not overruled and if it is followed by the United States Supreme Court, then basically the 2nd Amendment rights are eviscerated with regard to cities and states that can eliminate firearms?

FROMAN: That's correct, Senator. The problem is the Heller case did not have to deal with the incorporation issue because it took place in Washington, D.C., which is a federal enclave and federal law applies directly. But if the 2nd -- if the 2nd Circuit decision or the 7th Circuit decision remains law is approved by the Supreme Court, goes up to the Supreme Court and is affirmed, then, yes, cities and states can ban guns.

SESSIONS: Did it worry you that the judge has already ruled on the case one way and it was a 5-4 case before now could be deciding -- being deciding vote on how that might turn out?

FROMAN: It's of great concern to me, Senator, and that's why I'm here today to testify. And it's of particular concern to be today because she did not give any reason. She did not explain what the basis was for her holding.

It's kind of like when I was in math class it wasn't enough to get the right answer. You had to show your work so the professor knew that you actually worked the problem and you didn't cheat. So you know without any explanation of how she reached her conclusion we can't tell whether that was a legitimate application of the Constitution and the statute...

SESSIONS: I know your organization officially I see today they said they want to see how the hearings went and what the nominee said. After that what has -- has the National Rifle Association now made an announcement today? And what is it?

FROMAN: Well I -- I of course have been here today, and I'm not here to speak on behalf of the NRA. I'm here to speak on my own behalf, and of course on behalf of other American gun owners. The NRA is the oldest and largest civil rights organization in the history of this country. They are dedicated to preserving and protecting the 2nd Amendment, and I think they have been out every day talking about the concerns that the NRA has over...(CROSSTALK)

SESSIONS: Well, are you aware that I was just given a document here that said that "therefore the National Rifle Association opposes the confirmation of Judge Sotomayor." Were you aware that that had happened?

FROMAN: I was told about that while I was here, Senator. Yes, and so I'm -- I'm sure that they have given a full explanation of that position and I'm glad to see that.

SESSIONS: Mr. Somin, thank you for your testimony. Thank you, Mr. Kopel, for yours. And I'm going to -- I frankly feel now obligated to look more closely at the Didden case. You raised most serious concerns and I realize, in fact I guess I was thinking this is worse than I thought, after hearing your testimony. I do think that it does impact property rights of great importance, and thank you for sharing that. If you want a brief comment, my time is...

SOMIN: Yes, thank you, Senator. I agree with you. It raises very important concerns and that these sorts of takings affect thousands of people around the country, particularly to poor and minorities, as the NAACP actually pointed out in their amicus brief in the Kelo case, where they indicated that the poor and politically vulnerable and ethnic minorities tend to be targeted for these sorts of condemnations.

SESSIONS: Thank you.

KLOBUCHAR: Thank you very much. Sen. Kyl?

KYL: Thank you, Madam Chairman. First of all, let me acknowledge those on the panel who I know, but thank all of you for being here. Louie Freeh, it's great to see you again. I respect your opinions greatly, I want you to know that. I also respected the way David Cone played baseball very, very much, and I used to root for you, as a matter of a fact. I didn't say that as an Arizona Diamondbacks fan, but I had another team in the other league.

(UNKNOWN): Did you -- (inaudible) Senator (inaudible) did you (inaudible) -- was his perfect game the last one when you did it?

CONE: No. His was done back in the '60s, but there's only I think 17 perfect games in the history of the game. I'm lucky enough to be one of them.

KYL: And of course, Dr. Yoest. And Sandy Froman is a person with whom I have consulted over many, many years, during -- long before she was the national president of the NRA, but also on legal matters. And I appreciate her because of her distinguished law career, the judgment that she gives on this.
I wish I could ask all of you a question, but let me just ask a couple here.

First of all, Sandy, the question that Sen. Sessions asked I think gets right to the heart of the matter, and I wonder if you could just put a little bit of a legal spin to it. The question is: What would it mean to the gun owners of America if Judge Sotomayor's opinion were to be the controlling law in this country from now on?

She acknowledged under my questioning that it would be more difficult -- I don't have her exact quotation here -- but it would be more difficult for gun owners to challenge the regulations of states or cities, but it was unclear exactly how much more. Could you describe the test that would be used in such a situation? And in your opinion, how much more difficult it would be for gun owners to sustain their rights as against states and localities?

FROMAN: Yes, thank you, Sen. Kyl. Well, I believe if I heard you questioning one of the panels earlier, you raised that issue yourself, which is she said the rational basis test would be sufficient to sustain any gun ban that the government wanted to impose, whether it was a city or a state. And the rational basis test is the lowest threshold that the government has to meet to sustain a ban. They can articulate any reason, pretty much, and it will be sufficient to get past that view.

Now, the Supreme Court in Heller made it clear that the rational basis test is not allowed when you're interpreting an enumerated right like the 2nd Amendment. So -- but she ignored that in the Maloney case and talked about rational basis, anyway.

So that is of great concern to me, and I think to the almost 90 million American gun owners, that, yes, it's fine to say in Heller that we have a right that's protected against infringement by the federal government, but that doesn't mean -- the Heller case doesn't mean that cities and states can't ban guns, can't issue whatever regulations they want, as long as they can articulate what will meet this rational basis test. It's a very, very low threshold.

And as a matter of fact, that's why the District of Columbia had their gun ban. That's why the city of Chicago basically has a gun ban that prevents people from having firearms, even in their home for self-defense.

So that is what we're concerned about as gun owners in America.

KYL: Thank you very much. Dr. Yoest, in the questioning by Sen. Coburn of the nominee, he asked about advances in technology. And as I recall Judge Sotomayor's testimony, she did not want to acknowledge the impact of advances in technology as it relates to the Supreme Court's evaluation of restrictions on abortion.

Do you believe that advances in technology are important to the viability trimester framework that the court articulated in Roe, and why?

YOEST: Well, I would reference back to the confirmation hearings of the chief justice in which he went through one of the -- one of the elements that we look at when we reconsider factual -- how things relate to a case, and there has definitely been tremendous advances on the scientific realm as it relates to human life.

So I think it's important to see her, whether or not she's willing to consider that kind of thing.

And it also goes to Americans United for Life works very focused on pro-life legislation at the state level, and what part of the challenge that we face is this question of how much the American people are going to be allowed to interact with their duly elected representatives at the state level in restricting abortion in a common-sense way that they'd like to see.

KYL: Thank you.  Just to be clear, I have recalled her testimony slightly incorrect. She actually didn't say or wouldn't say how she viewed it. She said it would depend upon the case that came before her. So I don't want to mischaracterize her testimony. But your point is that it would be very important for a court in evaluating a restriction imposed by a state.

YOEST: Yes, sir.

KYL: OK. Thank you. Again, I wish I had more time to -- but we have, I think, one or two panels left here, so we should probably move on.

KLOBUCHAR: Senator, we have two panels left.

KYL: Yes. But we thank you very much. This is an important event in our country's history. You've contributed to it. And we thank you, all of you for it.

SESSIONS: Thank you, Mr. Canterbury. Appreciate FOPs.

KLOBUCHAR: Yes, I wanted to thank all of you. And you just did a marvelous job in stating your opinions. I think it was helpful for everyone.

And thank you -- thank you very much. Have a very good afternoon. It was one of our shortest panels. You're lucky. You can go home and have dinner. We're going to take a five-minute break, and then we will have the next panel join us. Thank you very much.

(RECESS)

ACTING CHAIR: OK. We're going to get started with our next panel. If you could stand to be sworn in. Raise your right hand. Do you affirm that the testimony you are about to give before the committee will be the truth, the whole truth, and nothing but the truth, so help you God?

ROMERO: Yes, I do.

ACTING CHAIR: We're joined here by Sen. Sessions. I know Sen. Kyl may be joining us and has been with us today, and whoever else stops by. But we want to thank you for coming. We have had a good afternoon, and what I'm going to do is introduce each of you individually and then you will give your -- your five minutes of testimony. And I know one of our witnesses is a little late so we're going to start here with you, Ms. Romero.

Ramona Romero is the current national president of the Hispanic National Bar Association and the corporate council for logistics and energy at DuPont. She is also a co-founder and former board member of the Dominican-American National Roundtable. She is a graduate of Harvard Law School.

Ms. Romero, we're honored to have you here. Thank you. We look forward to your testimony. Well, you can give your testimony because our other witness got a little delayed coming over from the House. So thank you.

ROMERO: Good afternoon. As Madam Chair said, my name is Ramona Romero and I am the national president of the Hispanic National Bar Association, which is known as the HMBA. We're grateful to Chairman Leahy, to you, Sen. Sessions, and to all of the members of the committee for affording the HMBA the opportunity and honor of testifying at this hearing.

This is the fifth time that we have appeared before this committee in support of the confirmation of a Supreme Court justice. We take great pleasure in endorsing Judge Sotomayor, our support of this first and foremost on the merit of her stellar credentials.

The HMBA was founded in 1972. One of its primary goals is to promote equal justice for all Americans by advancing the participation of Hispanics in the legal profession. It is a nonprofit, voluntary bar association. We have 37 affiliates in 22 states. The HNBA is nonpartisan. And it does not represent a particular ideology.

Today, I am accompanied by nine former HNBA national presidents and vice president-elect. Like many Americans, we were proud when President Obama announced the nomination of Judge Sotomayor. As many members of this committee know, for decades, the HNBA has worked to promote a fair, independent, and, yes, diverse judiciary, one that reflects the rich mosaic of the American people.

There are over 45 million Hispanics in the United States. We represent over 15% of the population. We are the largest, fastest-growing, and youngest segment of the population. Yet Hispanics are underrepresented among lawyers and judges.

The appointment of the first Hispanic to the Supreme Court is an important, important symbolic milestone for our country, just like Justice Marshall was with respect to African Americans and Justice O'Connor was with respect to women.

The HNBA often reviews the qualifications of judicial candidates regardless of background or politics. We consider a number of factors -- exceptional professional competence, intellect, character, integrity, temperament, commitment to equal justice, and service the American people and also to Hispanics, the community we serve. Judge Sotomayor more, more than satisfies all of these criteria.

Before her nomination, we were already familiar with Judge Sotomayor's impressive background. We had endorsed her for both of her prior judicial appointments. In 2005, the HNBA also named the judge on a bipartisan short list of eight potential Supreme Court nominees prepared by a Supreme Court committee after substantial due diligence.

The HNBA Supreme Court Committee again performed due diligence on her record after this nomination.

As a result, we're confident that Judge Sotomayor is extraordinarily well qualified to serve as a justice of the Supreme Court.

Some have suggested that this confirms the judge would render decisions based on her personal bias. They could not be more wrong. Her extensive judicial record shows that her background and her experiences will not detract from her ability to adhere to the rule of law.

On the contrary, they are a positive. Her story resonates with all Americans. She is proof that in our country, in our country, there is no limit, even for those of us from the most humble of backgrounds. Her confirmation will mark another key step in our journey as one nation indivisible. We are grateful to President Obama for making a wise decision in nominating Judge Sotomayor. Our thanks to all Americans for their interest in one of our country's shining stars. The HNBA thanks this committee and urges the Senate to confirm Judge Sotomayor. Thank you for listening.

(UNKNOWN): Thank you very much, Ms. Romero. And also, welcome to all the many past presidents that are here -- that's quite a number -- as well as vice presidents. We've now been joined by the Honorable Nydia Velazquez, who is the congresswoman here. And I know she is incredibly busy and has joined us in Sen. Sessions and I both agreed that you wouldn't have to stay for questions.

She is currently serving her ninth term as representative for New York's 12th Congressional District. She was the first Puerto Rican woman elected to the U.S. House of Representatives and currently serves as the Chairwoman of the Congressional Hispanic Caucus, Chair of the House Small Business Committee, and a senior member of the Financial Services Committee. And because you missed the swearing in, we will do that now.

This is the Senate Judiciary Committee. So welcome. Could you raise your right hand? Do you affirm that the testimony that you are about to give before the committee is the truth, the whole truth, and nothing but the truth, so help you God?

VELAZQUEZ: I do.

(UNKNOWN): Thank you. You have five minutes, congresswoman. And we're honored to have you here. Thank you.

VELAZQUEZ: Thank you. Madam Chairman, ranking members, and the members of the committee, I have known Sonia Sotomayor for over 20 years. In fact, when I was first elected to Congress in 1993, I asked her to administer my oath of office.

I can tell you personally that she is a grounded and professional individual. And over the last 3 1/2 days, all of us have been able to see her considerable legal ability impressively displayed.

Hispanics everywhere are proud that such a distinguished legal talent hails from our community. We have all been energized by her nomination. But of course, that is not the reason why she should be confirmed. The case for Judge Sotomayor's confirmation is built on her vast experience, keen intellect, and tremendous qualifications.

It is not that Judge Sotomayor does not have a compelling life history. She does. As so many have already pointed out, hers is a uniquely American story, one that begins in the Bronx projects and ultimately reaches the highest echelons of our legal system.

This background instilled within her the belief that hard work is rewarded and the knowledge that with the right combination of talent and effort, anything is possible in America. These core values propel Sonia Sotomayor to remarkable heights. As her career progressed, she managed to reach nearly every level of the legal system. With each new step, she excelled, not only as a prosecutor and a litigator, but also as an appellate judge.

And yet throughout that process of achievement, she never once lost touch with her roots or her Bronx neighborhood. Instead, she augmented her vast legal experience with common-sense understanding of working-class America. That appreciation will add a valuable perspective to the Supreme Court.
Make no mistake. The stakes are high for Hispanic Americans. The Supreme Court will rule on many matters that are critical to our community, from housing policy to voting rights. These are delicate issues. With many of these matters passion runs deep on both sides. Resolving them fairly will require objectivity, impartiality, and an unwavering commitment to the rule of law.

Judge Sotomayor's record demonstrates this quality. She has the reputation as a nonideological jurist. Someone who chooses not to spar with those who think differently, but to instead find common ground.

When working with Republican appointees, colleagues, Sotomayor's record will show that 95 percent of the time she managed to forge consensus. She was able to do this because she commands a sophisticated grasp of legal argument and have a keen awareness of the law's affect on every American.

When the Congressional Hispanic Caucus reviewed, it brought range of qualified Supreme candidates these were the traits we were looking for. We were looking for individuals who upheld constitutional value, exhibited a record of integrity, and had a profound, profound respect for our Constitution. It is our overwhelming belief that Judge Sotomayor meets these criteria. That is why we enthusiastically and unanimously endorse her nomination.

Senators, the decision before the committee today is one of your greatest responsibilities. I know this is something none of you on either side of the aisle take lightly. But I believe Judge Sotomayor's records of judicial integrity, impartiality, and as she puts it, fidelity to the law, is one we can all admire, regardless of party or ideology.

If confirmed, Judge Sotomayor's service on the court will bring great pride on the Hispanic community. That goes without saying. But more importantly, it will add another objective, disciplined legal talent to that of the body.

Thank you again for the opportunity to testify. I look forward to answering any question. Either you can send it to my office, but we are going right now, and I really, really appreciate the opportunity you have given me on behalf of the Congressional Hispanic Caucus.

(UNKNOWN): Thank you so much, Congresswoman Vasquez, and that was an eloquent and personal statement. It means a lot to us, and you've contributed much to the hearing.

VASQUEZ: Thank you. I know her well. I know her heart, her soul, her intellect, but most importantly her temperament and integrity. Thank you.

(UNKNOWN): Thank you.

ACTING CHAIR: And thank you so much, Congresswoman Vasquez. We know you have to vote and there's many things going on over in the House. So we appreciate and understand that. Thank you very much.

Next we have Theodore M. Shaw. Mr. Shaw is a professor at Columbia Law School, and former director council and president of the NAACP Legal Defense Fund. He began his legal career in the Civil Rights Division of the United States Department of Justice. He's a graduate of Wesleyan University and the Columbia University School of Law. Thank you very much, Mr. Shaw. We look forward to your testimony.

SHAW: Thank you, Madam Chair. Thank you, Sen. Sessions, and in his absence, of course, Chairman Leahy. I have known Sonia Sotomayor for over four years. We first met in 1968 as freshmen at Cardinal Spellman High School in the Bronx. We were among a modest number of black and Latino students. Perhaps 10 percent of that school's population in what was one of the most academically challenging high schools in New York City.

It was a time of great change, great challenge. 1968 was a year that Dr. King was assassinated and also Robert Kennedy, the year of the Chicago Democratic National Convention. And there was much unrest.
Many of the minority students at Spellman, including Sonia and I, came from the public housing projects of Harlem or the Bronx, or the tenement houses that surrounded them. We were shaped by these extraordinary times and by the communities in which we came for better or worse.

During that time the light of opportunity began to shine into corners of society that were long neglected for reasons of race and poverty. Many of us were beneficiaries of what has come to be known as affirmative action. That is the conscious effort to open opportunities to individuals and groups that had been historically discriminated against and excluded from mainstream America.

Some people will immediately seize upon that description to talk about "unqualified" individual. Affirmative action properly structured and implemented lifts qualified individuals from obscurity rooted in unearned inequality. In spite of her brilliance there was a time when someone like Judge Sotomayor would've been routinely left out of the mainstream opportunity we have come to associate with somebody of her capabilities and accomplishments.

Sonia was at the top of our class at Cardinal Spellman High School. Everyone, white, black, Latino, Asian ranked behind her. She was studious, independent minded, mature beyond her years, thoughtful. She wasn't easily influenced by what was going on around her. She walked her own path.

To be sure Sonia was comfortable in her own skin and proud of her community and her heritage. She did not run from who or what she was and is. Still Sonia was not one to be easily swayed by peer pressure, fad, or the politics of others around her. She approached any issue from the standpoint of fierce intellectual curiosity and integrity. In fact she was an intellectual powerhouse. Sonia was a leader among students at Cardinal Spellman High School. She set the pace at which others wanted to run.

Sonia did not live a life of privilege. She lost her father at a very young age. She had been diagnosed with diabetes even before she came to high school. It was not something I remember her talking about. She simply carried herself with an air of dignity, seriousness, of purpose, and a sense that she was going somewhere.

In my four years of high school I never saw Sonia interact with anyone in a disrespectful or pretentious, antagonistic manner. Her temperament was, well even then judicious. In short, although I never told her then, and although she did not know it, I envied her intellectual capacity, her discipline, her unquestionable integrity. I admired her.

After graduating from the -- from Cardinal Spellman at the top of our class and as valedictorian she was off to Princeton and somewhere further down in the rankings I was off to Wesleyan. I did not stay in touch with her over many of the ensuing years, but we -- we did meet up again some years later. I followed her as one does a star from one's high school orbit.

Eventually of course she went onto Yale Law School after Princeton. She excelled in everything she did. Her qualification for the Supreme Court would ordinarily be a no-brainer, but for the politics of judicial nominations. I have faith that the Senate and this committee will not let those politics get in the way.

My career has been as a civil rights lawyer. I have been in the midst of ideological warfare on contentious issues. I have been unabashed about my points of view. I'm conscious of the fact that as I testify about Sonia there may be some who project my thoughts and beliefs onto her. Some have already tried to label her as an activist outside of the political mainstream.

To be sure I consider those who work for racial justice and other civil rights to be a vital part of mainstream America. But Sonia's life has not been lived on the battlefield of ideology or partisanship where many of us who are labeled or who label ourselves as liberal or conservative have locked horns. Indeed her record defies a simplistic label.

She began her legal career as a prosecutor, not ordinarily a job thought of as the bastion of liberal activism. Her service on the Board of the Puerto Rican Legal Defense Fund both speaks to the strength of that organization and the range of her interests from prosecution to civil rights. Her service was commendable.

In fact this range of experience and commitment places Judge Sotomayor in a mainstream of middle America for surely Americans are both interested in the prosecution and punishment of those who engage in criminal activities as well as the protection of civil rights and the elimination of invidious discrimination.

I have much more to say, but it's in my written testimony and I see my time is expiring. I would like to refer you to my comments on this whole notion of experience and what that brings to the bench.

But to conclude I want to say that she's served our nation for 17 years as a federal district court judge with -- and then as an appellate judge with great distinction. Now she's being considered for an appointment as associate justice to the United States Supreme Court.

Kind of compels me to admit that I swell with pride when I contemplate the possibility that my high school classmate may ascend to the highest court in the land. But quite aside from this petty and undeserved pride on the part of one who was merely a high school classmate, there are millions of Americans who see for the first time the possibility that someone who looks like them or who comes from a background like theirs may serve on the United States Supreme Court, someone who is supremely qualified by any measure.

It is a great honor for Judge Sotomayor that President Obama has nominated her to the United States Supreme Court. It would be even a greater honor for our nation if she were to be confirmed and were to serve. Thank you.

ACTING CHAIR: Thank you very much. Our next witness -- appreciate it, Mr. Shaw. Our next witness is Tim Jeffries. Tim Jeffries is the founder of P7 Enterprises, a management consulting practice located in Scottsdale, Ariz. Mr. Jeffries serves on the board of directors of several corporations and nonprofit organizations, including the National Organization for Victim Assistance and the Arizona Voice for Crime Victims. I don't know if you want to add anything, Sen. Kyl.

KYL: Well, Madam Chairman thank you for that opportunity. I think you'll see when he testifies how the basis for his knowledge and passion about the protection of victims' rights, and I think that will speak for itself. And I'm anxious to follow-up with a question as well, but I thank you very much.

ACTING CHAIR: Thank you very much. Welcome to the committee, Mr. Jeffries. We look forward to your testimony.

JEFFRIES

: Thank you, Madam Chairman, Sen. Sessions, Sen. Kyl. I appreciate the humbling invitation to provide my personal testimony in opposition to the Honorable Judge Sotomayor's appointment to the U.S. Supreme Court. The views I express here today are my own and not the views of any organization I may reference.

As my bio shows I come from a blue-collar family. My father's grandfather served in the Union Army during the Civil War and rode for the Pony Express. My mother's grandparents immigrated from Portugal to America in the 1900s with no money in their pocket and no English in their vocabularies.

Similar to thousands of other simple, hard-working Americans, my involvement in the crime victims support movement was born from unimaginable tragedy. On Nov. 3rd, 1981, my beloved older brother Michael was kidnapped, beaten, tortured, and murdered by a transient gang of street criminals in Colorado Springs, Colo.

The two murderers stabbed my dear, defenseless brother 65 times and ultimately killed Michael by slashing his throat and crushing his skull with the heel of a remorseless, blood-soaked boot.

Based on federal crime statistics, 17,000 people are murdered in our country every year. On average, someone is murdered every 31 minutes. On average, every 10 weeks, more people are murdered in our country than passed on that brutal, horrible day of Sept. 11.

In fact, since Sept. 11, 115,000 people have been murdered in America. This gut-wrenching level of violence in our country exceeds the approximate population of Santa Clara, Calif., or Gresham, Ore., or Peoria, Ill., or Allentown, Pa.

Further compounding this epic national crisis, other violent crimes in our country are committed in an appalling rate. Based on the crime clock produced by the Office for Victims of Crime in the Department of Justice, someone is raped in our country every 1.9 minutes. Someone is assaulted in our country every 36.9 seconds. An instance of child abuse or neglect is reported every 34.9 seconds.

Making matters worse, this breathtaking spectrum of heinous violence in our country does not receive the consistent political action it warrants and the constant media focus it deserves. Prior to my testimony, my wife sent me a text. And she asked, "Where are all the senators?" And perhaps that is a metaphor for what vexes and undermines the crime victims support movement.

The true horror and verifiable existence of evil in our country are often minimized if not trivialized with well-intentioned yet sadly misguided equivocations about the troubled lives of guilty criminals in their various personal circumstances.

Unfortunately, based on public statements, Judge Sotomayor has repeatedly offered misplaced sympathy for criminals, despite the fact that justice exists to protect the innocent and to punish the guilty. Forgiveness and mercy are one thing. Punishment and accountability are another.

In four situations, four different events that are noted in my testimony, Judge Sotomayor displayed sympathy and perhaps empathy for criminals that may be well intentioned but I feel is tragically misplaced.

At a Columbia Law School Public Service Center, she stated, "It is all too easy as a prosecutor to feel the pain and suffering of victims and to forget that defendants, despite whatever illegal act they've committed, however despicable their acts may have been, the defendants are human beings."

In January 1995 in receiving the Hogan-Morganthau Award, Judge Sotomayor stated, "The end result of a legal process is to find a winner. However, for every winner, there is a loser. And the loser is himself or herself a victim," forgetting for the fact that when meeting justice, it's not to find a winner; it's to find justice.

On July 12, 1993, in a federal sentencing hearing that she provided over, over a cocaine dealer, Judge Sotomayor apologized to the cocaine dealer for having to send him to federal prison. She stated the mandatory five-year sentence was a "great tragedy for our country." She also stated she hoped the cocaine dealer "will appreciate that we all understand that you were a victim of the economic necessities of our society." And then she added, "But unfortunately, there are laws I must impose."

Having viewed the autopsy photos of my massacred brother and heard the heartbreaking stories of thousands of victims and survivors of violent crimes in America, I believe Judge Sotomayor's sympathy for criminals at the expense of the burdens carried by crime victims is unworthy of our nation's highest court, where public safety and protection of the innocent should be paramount.

Whereas Judge Sotomayor's biography is admirable and compelling, it is a great American story of which as an American I am proud. I am deeply troubled that she has regularly offered well-intentioned yet misguided sympathy to criminals without notable deference to the pain and suffering of victims. These are the very people who need government's protection.

Statistics show that the most egregious crime in our country disproportionately impacts the poor, the disadvantaged, the downtrodden, the defenseless. These are the very people that the justices in our highest court must have sympathy for, must have empathy for. Madam Chairman, I appreciate your patience with my testimony that has extended beyond its time. (CROSSTALK)

(UNKNOWN): And I'd be happy to answer any questions at the appropriate time.

(UNKNOWN): That's fine. And thank you for sharing that tragic story. It must've been very difficult.
Naomi Rowe is our next witness. And Naomi Rowe is a professor of law at George Mason University. Previously, she served as Associate Counsel and Special Assistant to President George W. Bush and served as a counsel to the Senate Judiciary Committee. She is a graduate of the University of Chicago Law School. That's something we have in common. Professor Rowe clerked for Supreme Court Justice Clarence Thomas and 4th Circuit Judge J. Harvie Wilkinson. I look forward to your testimony. Thank you for being here.

ROWE: T

hank you very much, Madam Chairman, Sen. Sessions, and other distinguished members of this committee. It is an honor to testify at these historic hearings, which provide -- which have provided the opportunity to have a respectful public dialogue about the important work of the Supreme Court and the judicial philosophy of an accomplished nominee.

I have submitted more detailed written testimony. And I should state at the outset that I take no position on the ultimate question of the confirmation of Judge Sotomayor. In my opening remarks, I would like to highlight some points about the judicial role.

During this hearing, Judge Sotomayor has expressed broad principles about fidelity to the law with which we can all agree. But fidelity to the law can mean very different things to different judges.

Although in her testimony she has distanced herself from some of her earlier remarks, her speeches and writings might still be helpful in understanding her view of the judicial process.

First, Judge Sotomayor has explicitly rejected the idea that there can be an objective stance in judging. She has explained that every case has a series of perspectives and thus requires an individual choice by the judge. This goes beyond recognizing the need to exercise judgment in hard cases or the idea that reasonable judges may at times disagree. If there is no objective view, one can question whether there is any law at all apart from a judge's personal choices.

Second, there is the related issue of the role of personal experiences in judicial decision making. It would be hard to deny that judges are human and made up of their unique life journeys. Many judges recognize this and explain how they strive to remain impartial by putting aside their personal preferences. Judge Sotomayor's position, however, has suggested that her personal background, her race, gender, and life experiences, should affect judicial decisions.

Throughout her testimony, Judge Sotomayor has reaffirmed that she decides cases by applying the law to facts and that she does not follow what is in her heart. Of course, all nominees to the Supreme Court honestly state their fidelity to the law. Nonetheless, this leaves open the question of how a judge chooses to be faithful to the law. And judges go about this task in different ways.

Following the law could mean, as formalists believe, that the judicial role and the privilege of political independence require judges to stick closely to the actual words of statutes and the Constitution. The basic idea is that by focusing on the written law, judges act as fair and impartial arbiters.

Other judges consider that they're following the law when they interpret it to conform to what is rational or coherent or just. They believe that following the law means trying to bring about what they consider to be the best outcome all things considered. These judges may be ruled by pragmatism or personal values, such as empathy.

Even with the sincere purpose of following the law, judges use very different methods for finding what the law requires. For example, some judges are far more likely to determine that the law is ambiguous and therefore requires the judge to fill in the gaps.

If the judge finds the law indeterminate, he or she may look to outside sources, such as international law, or to personal values about what is fair or rational.

Pragmatic, flexible interpretation of the law allows significant room for individual assessments of what the law requires, as each judge will have his or her own conceptions about what is best.

If the law is really a series of perspectives, this suggests a very thin conception of law. Fidelity to law as a series of perspectives is something very different from fidelity to law as binding, written command of the legislature and constitution. If law is simply one's own perspective, the fidelity to law is little more than fidelity to one's own views.

The Supreme Court gets the final word with regard to constitutional interpretation. A nominee's judicial philosophy is important because on the Supreme Court, the only real restraint is self-restraint.
Our constitutional structure does not give judges political power. It gives them the judicial power to decide particular cases through an even-handed application of the law to fairly interpret statutes and the Constitution for all that they contain, not more, not less.

In our courts, the rule of law should prevail over the rule of what the judge thinks is best.
Thank you for giving me the chance to testify today.

(UNKNOWN): Thank you very much, Ms. Rowe, for your testimony. Next, we have John McGinnis. John McGinnis is a professor of law at Northwestern University. Previously, he was a deputy assistant attorney general in the Department of Justice's Office of Legal Policy. A graduate of Harvard Law School where he was the editor of the Harvard Law Review, something he has in common with President Obama. That's not true?

MCGINNIS: He was president of the Harvard Law Review. I was just a...(CROSSTALK)

KLOBUCHAR: You were editor.

MCGINNIS: A humble servant.

KLOBUCHAR: Well, we can just pretend for today. Professor McGinnis also clerked on the U.S. Court of Appeals for the District of Columbia. Thank you for being here, Professor McGinnis. We look forward to your testimony.

MCGINNIS: Thank you so much, Chairman Klobuchar and Ranking Member Sessions for the opportunity to address you. At the outset I want to make clear that like my colleague I'm not taking any position on Judge Sotomayor's nomination, although I will say she has my respect and good wishes.

What this hearing affords is one of the rare opportunities for a constitutional conversation with the American people with the correct constitutional principles can be identified. Ultimately the Constitution rests on the people's confidence in the Constitution and their fidelity to the principles. Only once the correct constitutional principles are identified can the nation measure a nominee's adherence to those principles and so determine whether he or she should be confirmed.

My subject, the use of international and foreign law, is an issue of substantial importance, not least because the Supreme Court has come to rely on such materials. For instance, in Lawrence vs. Texas the Supreme Court relied on the European Court of Human Rights as part of its decision to strike down a statute of one of our states. In my view such reliance distorts the meaning of our Constitution. It undermines domestic democracy and it threatens to alienate Americans from a document that is their common bond.

So what are the correct principles? I think they can be simply stated. They are that judges should avoid giving any weight to contemporary, foreign or international law unless the language of the Constitution calls for it, and the language of the Constitution generally does not.

If the Constitution, as I believe, should be interpreted according to the meaning it had at the time it was ratified, it follows directly that the use of contemporary and foreign or international law is not proper. The problem with this use in fact is that it's contemporary, not simply the fact that it's foreign or international because the meaning of the Constitution was fixed at the time it was ratified.

But even for one of the self-styled pragmatists about constitutional theory, the use of contemporary, foreign or international law on constitutional jurisprudence is still objectionable. Pragmatists believe the Constitution should only invalidate our laws if they have bad consequences.

But a conflict between our law and foreign law is not appropriately used to create any doubt about the beneficence of our own law. Foreign law is formulated to be good for that foreign nation, not for ours. Indeed a proposition of foreign law is really only the tip of an iceberg of some complex set of social norms that in another nation. But since the United Nations doesn't share all those norms, importing that single legal proposition into our nation can have very bad consequences for us.

International law differs from foreign law because international law at least purports to have some kind of universality, which foreign law does not. But raw international law also lacks any democratic pedigree and can't cast out our democratically made law.

Indeed international law has multiple democratic feedback. Totalitarian nations have participated in its fabrication. Very unrepresentative groups like law professors still shape its norm. It's also hardly transparent. American citizens have enough trouble trying to figure out what's going on in hearings like this one let alone in diplomatic meetings in Geneva.

As I read Judge Sotomayor's speech on this issue, her position depends on propositions that seem to me in some tension. Judge Sotomayor stated that justices should not use foreign or international law, but they should consider the ideas they find in such materials in their decision-making.

I understand that at this hearing Judge Sotomayor disavowed that such materials have any influence on jurisprudence, and I welcome that disavow. But she left unexplained, to my satisfaction at least, however is her view in the speech that such materials can help us decide our issues.

Her praise for the use of such law in Lawrence vs. Texas, which expressly relies on that European Human Rights decision, and perhaps the most puzzling of all, her endorsement and her praise for Justice Ginsburg's view when it's well known that Justice Ginsburg in contrast with say Justice Scalia believes that such materials are relevant to decision-making. Indeed, Justice Ginsburg says that they're nothing less than the basic denominators of fairness between the governors and the governed.

Foreign and international law may well contain good ideas as Justice Sotomayor suggested, but so do many other sources that have no weight, and should not I think routinely be cited as authority. To put the question in perspective, undoubtedly the Bible and the Koran have many legal ideas that many people think are good, but we'd be rightly concerned if judges used them as guidance for interpreting the Constitution or even routinely cited them. Depending on what text the judge cited and what she omitted, we might think she was biased in favor of one tradition at the expense of others.

In my view the rule of law itself ultimately is founded on the proposition that only material that is formally relevant should have weight in a judge's decision. And a way a judge can demonstrate adherence to the rule of law in this context is extremely simple. Simply refrain from appealing to the authority of foreign or international law in her opinion. Thank you very much.

KLOBUCHAR: Thank you very much, Professor McGinnis. Last but not least we have Professor Rosenkranz. Nicholas Quinn Rosenkranz is an associate professor at Georgetown University Law Center. After graduating from Yale Law School he clerked for Judge Frank Easterbrook on the U.S. Court of Appeals for the 7th Circuit and for Justice Anthony Kennedy on the U.S. Supreme Court. He then served as an attorney advisor at the Office of Legal Council in the United States Department of Justice.

You should know, Mr. Rosenkranz, that Judge Easterbrook was my professor at law school and I know that must've been kind of a tough clerkship. I'm sure you had to work very hard. So we look forward -- we look forward to hearing your testimony. Thank you.

ROSENKRANZ: Madam Chair, thank you. Ranking Member Sessions, members of the committee, I thank you all for the opportunity to testify at this momentous hearing. I too have been asked to comment on the use of contemporary foreign legal materials in the interpretation of the U.S. Constitution.

I agree entirely with Professor McGinnis' analysis. In my remarks I'll try to explain why this sort of reliance on foreign law is in tension with fundamental notions of democratic self-governance. I should emphasize that I too take no position on the ultimate question of whether Judge Sotomayor should be confirmed, and I offer my comments with the greatest respect. But I am concerned that her recent speech on this issue may betray a misconception about how to interpret the United States Constitution.

In this room and at the Supreme Court, and in law schools and throughout the nation, we speak of our Constitution in almost metaphysical terms. In the United States we revere our Constitution, and while we should, it is the single greatest charter of government in history. But it worth remembering exactly what it is that we revere.

The Constitution is a text. It is comprised of words on parchment. A copy fits comfortably in an inside pocket, but copies don't quite do it justice. The original is just down the street at the National Archives, and it is something to see.

It is in a sealed titanium case, filled with argon gas, and at night it's kept in an underground vault, but during the day, anyone can go, and see it, and read it, and everyone should. The parchment's in remarkably good condition, and the words are still clearly visible.

The most important job of a Supreme Court justice is to discern what the words on that piece of parchment mean. The job is not to instill the text with meaning; the job is not to declare what the text should mean. It is to discern, using standard tools of legal interpretation, the meaning of the words on that piece of parchment.

Now, sometimes the meaning of the text is not obvious. One might need to turn to other sources to help understand the meaning of the words. One might, for example, turn to the Federalist Papers or to early Supreme Court cases to see what other wise lawyers thought that those words meant.

What the Supreme Court has done in two recent controversial cases is to rely on contemporary foreign law in determining the meaning of the United States Constitution, and this is the practice that Judge Sotomayor seems to endorse in her recent speech.

When one is trying to figure out the meaning of the document down the street at the Archives, it is mysterious why one would need to study other legal documents written in other languages for other purposes in other political circumstances hundreds of years later and thousands of miles away.

To put the point most simply, as a general matter, it is unfathomable how the law of, say, France in 2009 could help one discern the original public meaning of the United States Constitution.

Those who would rely on such sources must be engaged in a different project. They must be trying to update the Constitution, to bring it in line with world opinion.

To put the point most starkly, this sort of reliance on contemporary foreign law must be in essence a mechanism of constitutional change. Foreign law changes all the time, and it has changed continuously since the founding. If modern foreign law is relevant to constitutional interpretation, it follows that a change in foreign law can alter the meaning of the United States Constitution. And that is why this issue is so important.

The notion of the court updating the Constitution to reflect its own evolving view of good government is troubling enough, but the notion that this evolution may be brought about by changes in foreign law violates basic premises of democratic self-governance.

When the Supreme Court declares that the Constitution evolves and it declares further that foreign law may affect its evolution, it is declaring nothing less than the power of foreign governments to change the meaning of the United States Constitution.

And even if the court purports to seek a foreign consensus, a single foreign country might tip the scales. Indeed, foreign governments might attempt this deliberately.

France, for example, has declared that one of its priorities is the abolition of capital punishment in the United States, yet surely the American people would rebel at the thought of the French parliament deciding whether to abolish the death penalty, not just in France, but thereby in America.

After all, foreign control over American law was a primary grievance of the Declaration of Independence. It, too, may be found at the National Archives, and its most resonant protest was that King George III had subjected us to a jurisdiction foreign to our Constitution.

This is exactly what is at stake here: foreign government control over the meaning of our Constitution. Any such control, even at the margin, is inconsistent with our basic founding principles of democracy and self-governance.I hope that the committee will continue to explore Judge Sotomayor's views on this important issue. Thank you.

KLOBUCHAR: Thank you very much to all of you. And just -- just to clarify, Mr. Rosenkranz, the one case that Judge Sotomayor considered on the death penalty, she actually sustained it. She rejected a claim that it didn't apply. And I don't think she used foreign law at all to say that it didn't apply. She actually sustained the death penalty. Are you aware of that case, the Heatley case?

ROSENKRANZ: Yes, I am aware of it. I'm referring primarily to the speech that she gave on this topic.

KLOBUCHAR: OK. Well, I would say that her opinion probably rules if you look at how she actually ruled on this. She didn't say that you couldn't have the death penalty because of French law. Thank you.
Ms. Romero, I had some questions about your testimony. You -- you talked about the fact that Ms. Sotomayor's opinions are characterized by a diligent application of the law, reasoned judgment, and an unwavering commitment to upholding the Constitution and Supreme Court precedent. Do you want to talk to me about how you reached that conclusion?

ROMERO: We have a Supreme Court committee, as I mentioned. And the committee conducted a thorough review of her background. In addition to reviewing about 100 of her cases, we commissioned a review by a group of law professors who reviewed about 100 of her cases.

We reviewed many of her speeches and articles and also spoke to dozens of colleagues and people who know her. So we conducted a fair -- fairly extensive due diligence. In terms of -- so our conclusion is based primarily on a review of her cases, which I think is what really should prevail here.

KLOBUCHAR: You also noted in your remarks that the judge's opinions can't be readily associated with a particular political persuasion or judicial philosophy. And I think that may be reflected in the fact that she's been endorsed, in our last panel, Louis Freeh, who had been appointed by George H.W. Bush and also served as the FBI director.

We had the Fraternal Order of Police, the largest police organization in the country. We had -- we've had the National District Attorneys Association that supports her. In fact, a review of her sentences shows that she is right in the mainstream. I questioned her yesterday about some of her white-collar sentences were actually quite lengthier than some of her colleagues'.

Do you want to talk about what you mean by that her opinions can't be readily associated with a particular political persuasion or judicial philosophy?

 ROMERO: Well, she doesn't -- there's no pattern that emerges of an activist judge here. It is quite apparent that her opinions are highly fact-driven and that she relies extensively on the application of the law through the facts that face her.

KLOBUCHAR: OK. Thank you. Mr. Shaw, do you want to comment a bit about what she was like in high school? You said she was judicious, and I was trying to imagine if I was judicious in high school. But you did know her from Cardinal Spelling High School, is that correct?

SHAW: Cardinal Spellman High School in the Bronx. And she -- her temperament was even-keeled, calm. She was very thoughtful, fair- minded. She treated all individuals equally. She exhibited many of the qualities that she exhibits now.

Some of the testimony I've heard here is delivered by people who don't know her and, frankly, who won't let the facts get in the way. It has nothing to do with who she is. But I understand part of what goes on at these hearings.

Her -- her career is one that has been very centrist as a judge. And I cannot tell you that she would rule in the way that I would want her to rule in every case if she were confirmed to the Supreme Court. She hasn't done that in her career so far.

But I don't think that's a standard. I think that all any of us can expect and hope for and want is that she is fair, open-minded, and that she applies the law to the facts. And, clearly, her record has done that. Her speeches are not how she should be judged. It's her 17-year record on the bench.

KLOBUCHAR: Thank you. In fact, I -- I imagine you might not have agreed with some of the decisions. I think we found out that of the discrimination claims that are brought before her, she'd rejected 81 percent of them and, of course, had found for some of them.

So I think it's a tribute, Mr. Shaw, that you would still be here, knowing that you may not have agreed with her on every single decision that she made. Thank you very much.

SHAW: Thank you.

KLOBUCHAR: Sen. Sessions?

SESSIONS: I'll recognize Sen. Kyl and let him have my time now, but I would just note, Sen. Kyl is a superb lawyer, senior member of this committee, involved in the leadership of the Senate. So I know that's where he's had -- get back over right now, because a lot of things are happening. He also has argued three cases before the U.S. Supreme Court, which very few lawyers in this country can have the honor of ever arguing one.

KYL:

Thank you, Madam Chairman. Thank you, Sen. Sessions. Just to give you one idea about what it's like to be in leadership, we're trying to figure out right now -- and the reason I've been consulting my BlackBerry while listening out of both ears to your testimony -- and I thank all of you for being here -- is we're trying to figure out if we're going to come back here and vote at 1 a.m. tomorrow morning or we're going to try to vote on probably three -- have three different votes here yet this evening and not come back at 1 a.m., the kinds of things senators consider all the time. Again, let me thank all of you.

First, with regard to the last two panelists, I very much appreciate your discussion of foreign law. It is a subject that I think this committee needs to pay a lot more attention to.

Judge Sotomayor has said two contradictory things, and it will be up for us to try to square which will, in fact, govern her decisions on the Supreme Court, should she be confirmed.

She said, on the one hand, on numerous occasions, that she thinks that -- that foreign law should be considered and that she agreed with Justice Ginsburg and disagreed with Thomas and Scalia.
And I think, Mr. Rosenkranz, you pointed out what that means in terms of the use of foreign law.

And yet she has said here that -- even, I think, this morning -- that she doesn't think foreign law should be used in interpreting the Constitution or statutes. So we're left to wonder, and I guess we'll just have to try to figure that out.

I -- I also wanted to specifically ask Tim Jeffries a question. I know Tim Jeffries, and I know of his considerable work on behalf of victims of crime. And that's why I think I'm fairly -- why I think you're a good person to answer this question, Tim.

To me, there is one place where empathy does play a role in a judge's decisions, and I can think of only this one situation, and it's at the time of sentencing, when at least some states and the federal government now allows persons who are not parties before the court to make statements before the court at the time of sentencing.

And that is a time where, to the extent there is discretion with respect to sentencing a judge can take into account what people tell him about the victim, about the defendant, about other matters, and empathy cannot help but play a role in that.

Could you just remind us from your perspective of having worked for victims' rights now why it is important for judges to consider the point of view of victims in this particular situation in -- in sentencing statements or in the other situations in which it's appropriate for a victim or a victim's advocate to make an appearance in a given case?

(UNKNOWN): Thank you, Madam Chairman, Sen. Kyl. As you know, in the U.S. Constitution there are over 20 references to defendants' rights. There are no references to victims' rights.

Currently under the Crime Victims Right Act, which is federal law, there is statutory protections for victims of federal crimes in which those protections provide the right to be informed, to be present, to be heard. But that is just for federal crimes. If you look at the states in our great union it is a patchwork quilt of victims' protections and in upwards to 15 states there are no victims' protections whatsoever.

It is challenging enough that incomprehensible crime is committed in our country. Fifty people will be murdered today. Seven hundred and sixty people will be raped today. Over 3,000 people will be assaulted. And over 4,000 children will be abused. It's incomprehensible, and as if that is not tough enough, when people enter the justice system, which should exist to do just things, re-victimization takes place.

Judge Sotomayor is a great American story: valedictorian of her grade school, valedictorian of her high school, the Pyne Prize at Princeton, summa cum laude, Phi Beta Kappa, editor of the Yale Law Journal. She's written over 380 opinions. She's given over 180 speeches. Even today she said, "It's important to use simple words," and I quote.

So I can assure everyone here that when a victim, a victim's family is in a courtroom, above and beyond the fact that they're looking for justice that the system should meet, they're looking for the kindness that a just system should provide.

And whereas I continue to be very impressed with the Honorable Judge Sotomayor's story and her record of accomplishment and all the incredible witnesses that have come to support her, I'm extremely concerned that a jurist who understands how important words are through several decades of speeches could be so cavalier as it pertains to victims' feelings. And as I stated in my prepared remarks, forgiveness and mercy are one thing. Justice and accountability are another thing.

And so I am just hopeful. I am prayerful that if Judge Sotomayor is confirmed -- confirmed to our nation's highest court -- that she will never lose sight of what I'm sure were some very hard days she spent as a prosecutor. And that all due respect to the troubled lives of guilty criminals, we should be focused on victims.

KYLE: Thank you. And thank you all panelists.

KLOBUCHAR: Thank you very much. Sen. Kaufman?

KAUFMAN: Yes. I just have a few questions. Ms. Romero, can you tell us what Judge Sotomayor's confirmation would mean to your organization in your long struggle for greater diversity in the federal bench?

ROMERO: It's not only about our organization. I think it's about all Americans. It's about all Americans seeing themselves reflected at the highest levels of our profession. It's about public trust in the integrity of the judicial system. It's about public faith of -- and public understanding about the law.

It's not -- when I -- you know on the day that Justice Souter announced his retirement, I was in New Mexico speaking to a group of high school students, about 600 high school students primarily Hispanic in an underserved area of New Mexico -- of Albuquerque. And I told them I'm going to speak with you for about five minutes, give me five minutes, and if you want to afterwards I will answer any questions you want. I spoke to them for five minutes and they asked me questions for 40 minutes.

So I was very proud of the fact that they were enormously interested in the law. But some of the questions were a little bit more than troubling in the sense that they reflected some distrust in their interactions with the judicial system and in how the community interacts with the judicial system. So one of our missions at the Bar Association is to try to educate youngsters about you know the fact that the law really is fair and is just and that it reflects them and that it is accessible to them. It's about that. It's about access.

KAUFMAN: Professor Shaw, can you tell us just from your vast background just a little bit about the function of legal defense funds and how they serve society?

SHAW: Sure. I worked for almost 26 years for the NAACP Legal Defense Fund, ending up being director council and president. The Legal Defense Fund is the organization that was born out of the NAACP, which I consider to be and I think most historians would consider to be the oldest civil rights organization in this country, even though another claim has been made here today. But the Legal Defense Fund litigated Brown vs. Board of Education and many of the major civil rights cases on behalf of African Americans but also others.

PRLDF was modeled after the [NAACP] Legal Defense Fund as were many other legal defense funds, including some of the conservative legal defense funds that now exist in other institutions in other parts of the world. One of the things I would underscore because I listened with great interest with some of the things that some of the witnesses said about Judge Sotomayor's role as a board member.

I know that as deputy director of the Legal Defense Fund and then director council we made sure that the board understood its role and the staff understood its role. The board was not responsible for the selection of cases or responsible for legal strategy. And in fact I worked very hard to make sure that those lines remain drawn. That's not to say that the board didn't get engaged in policy, but the staff and the lawyers and the leadership of the organization have responsibility for legal strategy and also for deciding what cases would be filed. And I think that's pretty much the way most legal defense funds, including PRLDF, operated.

(UNKNOWN): Thank you very much. And I want to thank the entire panel for being here today.
KLOBUCHAR: Sen. Sessions?

SESSIONS: Thank you. Thank all of you. It's another good panel. And I think it's enriching our discussion. These all will be part of the record and is reflective of a commitment that the Senate should make, must make onto make sure this process is handled correctly. So thank you all.

I think that foreign law matters a big deal to me. Some people make out like it's nothing to this, this is just talk, but it's baffling to me how a person of discipline would think that foreign opinions or foreign statutes or U.N. resolutions could influence the interpretation of an American statute which may be 1970 or 1776.

And I -- I -- I think you mentioned, Mr. Rosenkranz, that Americans revere the Constitution. I remember the Judicial Conference of the 11th Circuit. Professor Van Osteen said that, if you respect the Constitution, if you truly respect it, you will enforce it as its written, whether you like it or not.

And that -- if you don't do that, then you disrespect and you weaken it. And the next judge someday further down the line will be even more likely to weaken it further. And just because you may like the direction somebody dents the Constitution this year in this case doesn't mean you're going to like it in the future. And liberties then become greater at risk. Would you agree with that?

ROSENKRANZ: (OFF-MIKE)

SESSIONS: Ms. Rao, you've discussed some of these philosophies. How do you feel about that?

RAO: (OFF-MIKE)

SESSIONS: (inaudible) your microphone. Ms. Rao, now, I'm not a legal philosopher, and one of the little thoughts I've had in the back of mind, I think Judge Sotomayor would have been better served to stay away from legal philosophers (inaudible) and remembered how her mama raised her and so forth. But these legal philosophies are another thing.

But she expressed some affirmation of legal realism. Isn't that a more cynical approach to the law in which you -- the theory somewhat to the effect that, well, it's not realistic to be idealistic about words having definite meanings and we all know the judges do differently? Would -- is that a fairly decent summary of that and the danger of that philosophy?

RAO: I think that is one of the dangers of legal realism. I think that there are two parts of legal realism, right? There's one -- one part of it that's largely descriptive, which is that legal realism means that often a judge's viewpoint is going to influence their judging. And I think that everyone recognizes that that's a possibility. But I think many -- many people go a step beyond that to say, well, a judge's -- you know, a judge's individual views should shape their judging. And I think there's a big step.

SESSIONS: So -- all right, now, so in this law review article -- have you read that? Did you read the law -- the articles she wrote? I'm not sure it's an explicit endorsement, but it's certainly an affirmation of -- of that philosophy in many ways in her references to it. Would you agree?

RAO: It seemed that way to me, as well. And -- and I think it's also supported by her other statements in which she has said that there is no objective stance in judging. I think that that is all part of the same general idea.

SESSIONS: And there was no -- only perspectives? Was that one of the language? Do you remember those words?

RAO: Only -- only a series of perspectives.

SESSIONS: Well, that doesn't mean much to me. I'm not sure I'm comfortable with a judge who thinks things are just a series of perspectives.

The -- have any of you been familiar with the French judicial philosophy that involves single decisions? I'm told it's a technique that the French courts utilize to have -- my time has...

KLOBUCHAR: Keep going. Just speak in French from now on. (LAUGHTER)

SESSIONS: I studied it for two years, but I -- well, I -- my understanding is that the French courts frequently use very short, unsigned opinions without dissents and without discussion and that -- so it's very difficult to understand the principle behind their approach to law.

And so I'd just wonder about that. Are you familiar? I don't see any there. And -- thank you all for your comments and thoughts. We appreciate it very much. This is an important issue, and we value your insight.

KLOBUCHAR: Thank you very much, Sen. Sessions. And I wanted to thank all of you, as well.
And, actually, Mr. Rosenkranz, I did appreciate your testimony. I think it is a valued issue to discuss. But I -- I just wanted to make it clear, when I asked you that question about the case that, in fact, Judge Sotomayor has written or joined more than 3,000 opinions in her 17 years as a judge and she has never used foreign law to interpret the Constitution or statutes, and including the case I mentioned. And that does mean that it's not a valid point to discuss.

ROSENKRANZ: She's never -- she's never used it to interpret the Constitution. I think she has to interpret the statutes.

KLOBUCHAR: The point of the -- the issue is that, when you brought up the death penalty and the French system, is that she hadn't used foreign law. In fact, she sustained the death penalty in that case.
Thank you. And then...

SESSIONS: On that subject...

KLOBUCHAR: Go ahead, please.

SESSIONS: ... there is a national debate. Justice Ginsburg favors that. In her speech, she endorsed the Ginsburg model and criticized the Scalia model.

KLOBUCHAR: And then one last thing that I wanted to put on the record, a July 9 New York Times article entitled, "Sotomayor Meted Out Stiff Prison Terms, Report Indicates," in which it states that, "Most striking was the finding that across the board Judge Sotomayor was more likely to send a person to prison than her colleagues. This was true whether the offender was a drug dealer or had been convicted of a white-collar crime."

SESSIONS: Well, on that subject, I would point out that the Washington Post study found that her criminal justice decisions were on the left side of the Democratic judges, which were on the...

KLOBUCHAR: Well, you know what, Sen. Sessions? ... We'll put both articles in...

SESSIONS: Good deal.

KLOBUCHAR: ... in the record. (CROSSTALK)

SESSIONS: I think that one's already in the record.

KLOBUCHAR: OK, great. And I just wanted to thank all of you. I know all of your thoughts were heartfelt and well researched.  Especially thank you, Mr. Jeffries, for coming with a difficult situation. I'm so sorry about what happened to your brother.

We are going to break for five minutes. And then Sen. Kaufman is going to be taking over this next panel, our last panel. Thank you very much.

SESSIONS: I would note for the record, it's highly unlikely that I would be a ranking member and that Sen. Kaufman would be chairing this committee. What a remarkable development that is.

KLOBUCHAR: Exactly. Just for the -- for everyone's knowledge, Sen. Kaufman was Sen. Biden's chief of staff for many, many years and took over his seat, and so now he is going to be chairing this committee hearing.

ROMERO: Madam Chair, if I may?

KLOBUCHAR: This is just a free-for-all. Go ahead. Ms. Romero, please comment.

ROMERO: No, I'm not commenting. I was just going to ask to ensure that the longer statement the HNBA submitted is inserted into the record.

KLOBUCHAR: Certainly. And everyone's longer statements will be included in this record for all of the panels. So thank you very much. We will recess for five minutes, and we will return.

(RECESS)

KAUFMAN: We'll now call our final panel, saving the best for last, of consisting Patricia Hynes, Dean Joanne Epps, Mr. David Rivkin, and Dr. Steven Hallberg. Before we start, Michael J. Garcia was supposed to be here today but -- to be here for the hearing. But he thought it was going to be tomorrow. We all thought it was going to be tomorrow. Welcome to the Senate. You never known when things are going to happen. (inaudible) what I'd like to do is put his statement in the record.

And also, Congressman Serrano is going to try to make it. But why don't we do first, you know, with -- as within all the prior panels, all witnesses, as you know, are limited to five minutes for their opening statements. Your full written statement will be put in the record. Senators will then have five minutes to ask questions each panel. I now like to ask the witnesses to stand and by sworn.

Do you swear the testimony you're about to give before the committee will be the truth, the whole truth, and nothing but the truth, so help you God?

(UNKNOWN): I do.

KAUFMAN: Thank you. Our first witness is Ms. Patricia Hynes. Patricia Hynes is President of the New York City Bar Association, a former chair of the American Bar Association Standing Committee on the Federal Judiciary. She's also senior counsel of Allen & Overy, LLP. She was Assistant U.S. Attorney in the Southern District of New York and clerked for Judge Joseph Zavatt in the U.S. District Court for the Eastern District of New York. She's a graduate of Fordham Law School. Ms. Hynes, I look forward to your testimony.

HYNES: Thank you. Thank you, Chairman Kaufman, Ranking Member Sessions, and Sen. Whitehouse. I am the president -- the current president of the Association of the Bar of the City of New York. And I appreciate the opportunity to speak to you this evening regarding the nomination of Judge Sonia Sotomayor to be the associate -- an associate justice of the U.S. Supreme Court.

I am joined this evening by Lyn Nooner, who is sitting right behind me, who chaired the subcommittee of our executive committee that conducted the evaluation of Judge Sonia Sotomayor.

As this committee is aware, the Association of the Bar of the City of New York is one of the oldest bar associations in the country and since its founding in 1870 has given priority to the evaluations of candidates for judicial office. As far back as 1874, the association has reviewed and commented on the qualifications of candidates for the U.S. Supreme Court. It is a particular honor for me to participate in this confirmation process for this particular nominee.

In May of 1987, our association adopted a policy that directs the executive committee, our governing body, to evaluate all candidates for appointment to the U.S. Supreme Court. The executive committee has developed an extensive procedure for evaluating Supreme Court nominees, including a process for conducting research, seeking views of persons with knowledge of the candidate and of our membership of more than 23,000 members of the New York Bar and other bars. We evaluate the information we receive and express a judgment on the qualification of a person nominated to the U.S. Supreme Court.

In 2007, the executive committee of the association moved to a three-tier evaluation system by including a rating of highly qualified. This is the first time the association has used the three-tier rating for a nominee to the Supreme Court.

In evaluating Judge Sotomayor's qualifications, the association reviewed and analyzed information from a variety of sources. We reviewed more than 700 opinions written by Judge Sotomayor over her 17 years on both the Circuit Court and the District Court. We reviewed her speeches, articles, her prior confirmation testimony, comments received from members of the association and its committees, press reports, blogs, commentaries. And we conducted more than 50 interviews with judicial colleagues, former law clerks, numerous practitioners, as well as an interview with Judge Sotomayor herself.

The executive committee on evaluating the qualifications of Judge Sotomayor passed a resolution at its meeting on June 30th finding Judge Sotomayor highly qualified to be a justice of the Supreme Court. Based upon the committee's affirmative finding that Judge Sotomayor possesses to an exceptionally high degree all of these qualifications enumerated in the association's guidelines for evaluations of nominees to the Supreme Court.

And those guidelines are -- exceptional legal ability, extensive experience and knowledge of the law, outstanding intellectual and analytical talent, maturity of judgment, unquestionable integrity and independence, a temperament reflecting a willingness to search for a fair resolution of each case before the court, a sympathetic understanding of the court's role under the Constitution in the protection of personal rights of individuals, and an appreciation of the meaning of the United States Constitution, including a sensitivity to the respective powers and reciprocal responsibility of Congress and the Executive Branch.

These guidelines establish a very high standard which, in our opinion, Judge Sotomayor clearly meets. Specifically, the association found that Judge Sotomayor demonstrates a formidable intellect, a diligent and careful approach to legal decision-making, exhibiting a firm respect for the doctrine of judicial restraint, separation of powers, and stare decisis, a commitment to unbiased, thoughtful administration of justice, a deep commitment to our judicial system and the counsel and litigants who appear before the court, and an abiding respect for the powers of the legislative and executive branches of our government.

We believe Judge Sotomayor will be an outstanding justice of the United States Supreme Court. And I am very grateful to this committee to give us the opportunity to express the views of the association of the bar.

KAUFMAN: Thank you, Ms. Hynes. Our next witness is Dean JoAnne A. Epps. JoAnne Epps is the dean of the Beasley School of Law at Temple University, and she's taught at the International Criminal Tribunal for Rwanda. She is here today to speak on behalf of the National Association of Women Lawyers, where she serves as a co-chair of the Supreme Court.

Dean Epps, I attended Temple for one course. I'm sorry I didn't graduate, but I have enjoyed Temple basketball for over 50 years. So I'm looking forward to your testimony.

EPPS: Thank you very much, Mr. Senator. Sen. Kaufman, Sen. Sessions, Sen. Whitehouse, I'm really honored to be here this evening on behalf of the National Association for Women Lawyers, whose president, Lisa Horowitz, is seated behind me as I speak. And we are here today to urge your vote in support of the confirmation of Judge Sotomayor to be an associate justice of the Supreme Court.

After careful evaluation of Judge Sotomayor's background and qualifications, the National Association of Women Lawyers, NAWL, has concluded that Judge Sotomayor is highly qualified for this position. She has the intellectual capacity, the appropriate judicial temperament, and respect for established law and process needed to be an effective justice of the Supreme Court.

She's mindful of a range of perspectives that appropriately should be considered in rendering judicial decisions and, if confirmed, will clearly demonstrate that highly qualified women have a rightful place at the highest levels of our profession. We therefore encourage your vote in favor of her confirmation.

Founded over 100 years ago and with thousands of members from all 50 states, NAWL is committed to supporting and advancing the interests of women lawyers and women's legal rights. We campaigned in the 1900s for women's voting rights and the right of women to serve on juries, and we supported most recently this year the Lilly Ledbetter Fair Pay Act.

In all of the intervening years, NAWL has been a supporter of the interests of women. As such, NAWL cares deeply about the composition of the Supreme Court and ensuring that it includes the perspectives of all Americans, especially those of women, not just because most of our members are women, but because all of our members care about issues that affect women.

NAWL's recommendation today is based on the work of NAWL's committee for the evaluation of Supreme Court nominees. In evaluating the qualifications of Judge Sotomayor to serve as an associate justice, special emphasis was placed on matters regarding women's rights or that have a special impact on women.
Eighteen committee members were appointed by the president of NAWL and include law professors and a law dean, appellate practitioners and lawyers concentrating in litigation.

I co-chaired this committee, together with Trish Refo, a partner at Snell & Wilmer in Phoenix, Ariz. We divided our committee work into two categories. Like others who testified here today, we read a large selection of Judge Sotomayor's opinions, and we interviewed more than 50 people who know her in a variety of capacities.

Those who were interviewed described Judge Sotomayor as open-minded, but respectful of precedent, which is consistent with what we found in her judicial opinions. She is courteous and respectful to those with whom she has professional interaction, including those who do not occupy positions of status or influence.

She has treated litigants, attorneys, and court personnel, and, in particular for our committee's review, women in the court with the utmost respect and professionalism both in and out of the court room. Those who had interacted with Judge Sotomayor in other capacities, both before and after she was appointed, described her as a good colleague, a team player, and supportive of institutional goals.

Our review of Judge Sotomayor's writing included her majority opinions, concurrences, dissents, and opinions that she wrote or joined in that were reviewed by the Supreme Court. And from that review, we have concluded that Judge Sotomayor has consistently displayed a superior intellectual capacity, a comprehensive understanding of issues with which she was presented, and a thorough and firm grasp of the legal issues that have come before her.

Looking at the clock, I'd like to move to the final point that we would like to say.

NAWL supports the confirmation of Judge Sotomayor for the important message that it conveys. NAWL does not believe that Judge Sotomayor should be confirmed solely because she is a woman or a Latina, but the fact is that Judge Sotomayor is, as ultimately we all are, a product of her experiences. And for her, those experiences include life as a woman and as a Latina.

Both perspectives will be welcome additions to this court's deliberations. As a nation, we have come a long way, but we still have much to do. Women are nearly half of this nation, but a mere one-ninth of the Supreme Court. The disparity in representation is not trivial in effect. In the legal profession, although women have comprised 50 percent or more of graduating law school classes for more than two decades, they continue to be markedly under-represented in leadership roles in the profession.

As of last year, women were only 16 percent of equity partners in the country's largest law firms; 99 percent of the law firms in this country reported that their highest paid lawyer was a man.

Just 23 percent of federal, district and circuit court judges were women. Just 1.9 percent of all law firm partners were women of color. And 19 percent of the nation's law firms have not one lawyer of color.
Your confirmation of Judge Sotomayor will, therefore, send a strong message to law firms, corporations, government, and academia that we must and can eliminate the persistent barriers to the advancement of women attorneys. It will reinforce what should be a standard expectation that women of diverse ethnic backgrounds should of course occupy positions of parity with men.

As others have said this week, I long for the day when it wouldn't even occur to anyone to mention Judge Sotomayor's gender or ethnicity, those matters having become non-noteworthy, but that time is not yet here. With this vote, you will send a message most especially to the wonderful women and girls in your life, telling them not just that they matter, but that issues of concern to them matter.

In summary, NAWL, the National Association of Women Lawyers, found Judge Sotomayor eminently qualified for this position, but not simply because she's a woman. She has the intellectual capacity, the appropriate judicial temperament, and respect for established law and process to be an outstanding Supreme Court justice.

She's mindful of the human component of law and symbolizes the triumph of intelligence, hard work, and compassion. Accordingly, NAWL strongly supports her confirmation and urges you to vote in favor of her.
Thank you very much for the opportunity to be here today.

KAUFMAN: Thank you, Dean Epps. Our next witness is the honorable Jose E. Serrano. Congressman Serrano, will you please stand and be sworn?

Do you swear the testimony you're about to give before the committee will be the truth, the whole truth, and nothing but the truth, so help you God? Thank you. Representative Jose Serrano represents the 16th Congressional District in New York and the Bronx. He's an active member of the Congressional Hispanic Caucus and now the most senior member of the Congress of Puerto Rican descent.

Previously, Representative Serrano served in the 172nd Support Battalion of the U.S. Army Medical Corps and was a member of the New York State Assembly.
Congressman Serrano, I look forward to your testimony.

SERRANO: Thank you. And before you start the clock running, sorry I'm late. I'm chairman of the Financial Services of the Appropriations Committee. My counterpart is Sen. Durbin. And we just passed our bill for 17 amendments, a motion to recommit, and a lot of issues that had nothing to do with my bill being discussed.

KAUFMAN: No one starts a clock on a member of the Appropriations Committee prematurely.(LAUGHTER)

SERRANO: You're well taken care of, Senator. (LAUGHTER)

KAUFMAN: Thank you.

SERRANO: Sen. Kaufman, thank you. Sen. Whitehouse, Ranking Member Sessions, thank you so much for the honor you have given me by inviting me to testify on behalf to Judge Sonia Sotomayor.
Today, I represent the proudest neighborhood in the nation, the Bronx, New York. I cannot begin to describe the pride and excitement that my community feels to know that one of our own stands on the verge of a historic confirmation to the Supreme Court.

Like you, I'm often greeted by constituents on the street, at diners, after church services, where I cut my hair, at the local bodega, or my favorite cuchifrito stand.

Usually, we talk about a personal or congressional issue or simply a friendly greeting. Now they just talk about Sonia. They speak about her as if she was a member of their own personal family, about their pride in her accomplishments. They show a profound understanding of just how significant this nomination is and how it proves that, in our country, everything is possible.

One of the best examples of the significance of this nomination is the number of people who are watching these hearings. In the Bronx and in many communities around the nation, folks have come together to share this moment. That is the clearest sign of the pride and joy that they feel. Back home, believe me, it's a celebration. Like the nominee, my family moved from Puerto Rico to New York. Like her, I grew up in a public housing project in the Bronx. Like her family, we also struggled in our new surroundings. It was tough in the Bronx, but we had dignity and our eye on a better future.

One of the proudest moments of my life came when I was first elected to the New York State Assembly with my classmate, Sen. Chuck Schumer. As we were being sworn in, a friend said to my father, "Don Pepe, you're a lucky man. You have two children, one is a -- one son as a schoolteacher, and the other's an assemblyman." My pop, with that wonderful accented English, looked at him and replied, "I busted my back to get lucky."

I am sure that Judge Sotomayor and her mother have had many similar moments. We are living our parents' dreams, enabled by their sacrifices and years of hard work.

But our story is not unique to the community we come from. All around our great nation, there are people working day and night, saving, doing without, all in order that their children could live the life that they want for them.

Sonia represents the best of American culture. She comes directly from the strand of our national character that says: You can be anything you want. It says, through hard work, you can reach the top in this country.

She is living proof that our dreams for our children are never impossible.

When you invited me to speak, I wondered if my role here today was to tell you about her legal qualifications. Coming before you are many people who will speak to her work in the legal profession. We know that she is highly regarded and she has a deep understanding of the law and profound respect for the Constitution.

She comes before you with more federal court experience than any other nominee in the last 100 years. You know, I quickly came to the conclusion that my role is to tell you about where she comes from, how she got to this point, and what this means for our country.

We come from rough neighborhoods. We were surrounded by people making due on little. Sometimes there was desperation and despair. Around us were many distractions that could've taken us down a totally different road, but there was also ambition and people determined to make something of themselves.

We came from a place where family comes first. Where the core values were hard work and looking out for one another. As I moved out into the wider world, first through the Army and then in my political career, I learned that these were not liberal or New York or Puerto Rican or Latino values. They were American values. Rough neighborhoods may not seem as similar to middle America the values that we hold dear, family, freedom, looking out for the neighbors, all the same.

Everyone watching this nomination this week should know that based upon her background and ideals they're in good hands with Judge Sotomayor. When I walk into the Capitol to work every day I often stop and think how fortunate I am as a kid from a Bronx project to make it here. It's an incredible story that I have lived. But since she was nominated by President Obama I've had to remember that my story pales in comparison to hers.

In conclusion, this proud woman from the Bronx is perhaps the best and the brightest we have. She has risen to the top through her incredible intellect and hard, hard work. I know that her values are your values and those of the people around this country. Her story is my story, but her story is your story or that of your parents or your grandparents. She will be a brilliant member of the Court, and I urge you to vote for her nomination. And I thank you for allowing me to show up late and for giving me this honor, which is one of the greatest I've ever had, to testify on behalf of this great woman.

(UNKNOWN): Thank you, Congressman (Inaudible). It's an honor to have you here.

KAUFMAN: Congressman, thank you. That was a beautiful statement. We appreciate it very much.

(UNKNOWN): And with your permission, I don't know if it's allowed, I have some statements I made about her in the past in 1998 and '99 that I'd like to submit for the record.

KAUFMAN: Without objection.

(UNKNOWN): Thank you.

KAUFMAN: Our next witness is Mr. David Rivkin. David Rivkin is a partner in a law firm of Baker Hostetler. Previously he was associate executive director and counsel to the President's Council on Competitiveness at the White House. He also worked in both the Department of Justice and the Department of Energy.
Mr. Rivkin, I look forward to your testimony.

RIVKIN: Chairman Kaufman, Ranking Member Sessions, I want to thank you for the opportunity to testify here today. Indeed I'm honored to be here. Let me begin, though, by noting briefly that I'm appearing here on my own account and do not represent the views of my law firm, its clients, or any other organization which I'm affiliated. And I'm also not expressing a view as to how you should discharge ultimately your advice and consent function.

Without a doubt Justice Sotomayor is both an accomplished jurist and an experienced lawyer. It is nevertheless critical that the Senate weigh her understanding of the judiciary's proper role in our constitutional system before consenting her appointment.

In my view it is particularly essential that the Senate probe her views on the proper judicial handling of national security cases. This is the case for two reasons.
First the United States remains engaged in a protracted global war against Al Qaeda and Taliban. Winning this war is essential to our country and its conduct presented noble legal challenges rarely seen in previous conflicts.

Second, despite Judge Sotomayor's long and distinguished service on the federal bench, she has not had an occasion to consider many cases in the national security area. Therefore the central topic of the committee's inquiries should be Judge Sotomayor's understanding of the proper role of Article 3 ... vis-a-vis the executive and legislative branches air of national defense. To the extent these hearings and your judgment have not produced sufficient information regarding her views in this area I would urge the committee to pose written questions to her.

As you know, Congress and the president have traditionally been accorded neoplenary authority in the national defense and foreign policy arenas, particularly in the conduct of conflict is involved. In recent years, however, the Supreme Court has dramatically expanded its role in these areas.

In my view it is significant and negative implications for our government's ability to prevent another devastating attack to the United States and able to win this war. Indeed there can be little doubt that the principle the Supreme Court has developed since Sundy vs. Rosgold  was decided in 2004 make it more difficult for the United States to defeat any enemy if it resorts on international warfare. For example the Supreme Court has imposed what's proven to be an unworkable habeas corpus regime in regard to detainees now held in Guantanamo Bay, Cuba.

Meanwhile the lower courts have begun the process of extending this habeas regime individual captured and held in the United States and other parts of the world, particularly the Bagram air force base in Afghanistan. It was developed in my view threatens ability to wage war in Afghan and fear in general, and presents problems of operations of our special forces in particular.

I want to emphasize that this judicial activism was not prompted by, but was exclusively directed at the previous administration's alleged exaggerated view of executive power. To begin with the Bush administration's use of presidential powers in my view was far more modest than that of a previous wartime American president.

Second, in striking the key parts of the Military Commissions Act of 2006 and 2008 ... the Supreme Court invaded the constitution prerogatives of both political branches. The court majority did not seem to be particularly troubled by the fact that Congress and the president worked in concert at the very height of their respective Article 1 and Article 2 constitutional perogatives as identified in Justice Jackson's seminal (inaudible) analysis.

The substance of these cases aside I'm also troubled by some of the stated assumptions that seem to undergird this ongoing wave of judicial activism in the national security area. The assumptions basically are that the courts are the best guardians of civil liberties, and that the extension of judicial jurisdiction over all national security issues would produce a superior overall policy formation. In my view this view is both historical and profoundly at odds with our constitutional fabric.

In Article 3 courts extend jurisdiction over matters that are not properly subject to judicial jurisdiction extraconstitutionally. Such an action by the courts intercloaked in a high-minded language of individual liberty is no better than any extra-constitutional absorption authority by congressional or executive branch.

As we address those issues today I notice that these concerns are now shared by both sides of the aisle. Despite criticizing President Bush's wartime policy during last year's campaign, President Obama has continued virtually all of them. His administration's litigation strategy on all the pending key national security issues is identical to that of his predecessor.

This is especially true in regard to detention of captured enemy from battalions on trial outside the United States.

His policies continue to be challenged in the courts, and the Supreme Court is certain to play a central role in determining what these policies should be. If Judge Sotomayor is confirmed her rulings would have immense consequences about country's safety and security.

I believe the Senate owes it to the American people to engage from those issues fully and openly. I thank you for the opportunity to share my views with the committee. I look forward to your questions.

KAUFMAN: Thank you, Mr. Rivkin. Our final witness in this panel is Dr. Stephen Halbrook. Dr. Stephen Halbrook has practiced law for over 30 years, has authored and edited seven books and numerous articles on the 2nd Amendment. Most recently he drafted the amicus brief for the Supreme Court case District of Columbia vs. Heller, which was signed by Vice President Cheney, 55 Senators, and 250 members of the House of Representatives. He's a graduate of Georgetown University Law Center. Mr. Halbrook, I look forward to your testimony.

HALBROOK: Thank you, Chairman Kaufman, Ranking Member Sessions, Sen. Whitehouse. We've learned that Judge Sotomayor ended the great baseball strike. And we've learned that she was -- she is a fan of the New York Yankees. However, in her decision in Maloney vs. Cuomo, had the state of New York decided to ban baseball bats it would be upheld under the rational basis test.

Al Capone proved that you can bash out the brains of two colleagues with a baseball bat. Instead of banning one big piece of wood called a baseball bat, New York state banned two little pieces of wood connected by cord called a nunchaku, and that's what the court upheld in the Maloney case. But for our purposes the issue is the decision in Maloney that the 2nd Amendment does not apply against the states to the 14th Amendment.

The court relied -- the only Supreme Court case relied on my Maloney was Presser vs. Illinois, which simply held that the 1st and 2nd Amendments do not apply directly to state action. It was never raised whether the 14th Amendment incorporated the 2nd Amendment through the due process laws. Presser relied on Cruikshank. Cruikshank relied on three 14th Amendment cases deciding that the Bill of Rights did not apply directly against the states.

HALBROOK: But we -- we find out in Heller, the Heller decision, footnote 23, that Cruikshank does not apply because it did not engage in the kind of modern 14th Amendment analysis that's required by the Supreme Court cases decided primarily in the 20th century that Bill of Rights guarantees, especially substantive guarantees apply to the states to the due process laws of the 14th Amendment. Despite that admonition in the Heller case decided a year ago, the panel in the Maloney case did not say anything about the modern incorporation analysis.

Now Judge Sotomayor did say yesterday that under Supreme Court precedent the 2nd Amendment does not apply against the states to the 14th Amendment. That's an inaccurate statement. The Supreme Court has never decided that issue.

Now there are pending before the Supreme Court two cert petitions on that issue, NRA vs. Chicago, which arose out of the 7th Circuit upholding the Chicago handgun ban held that incorporation had to be decided by the Supreme Court, that that Court was not able to do it. And Mr. Maloney has filed his own cert petition, and in fact he's asked that his case, if cert is granted in NRA vs. Chicago, he's asked that his case be consolidated with the NRA case.

Now in her questionnaire in response to this committee's questions Judge Sotomayor stated that conflict of interest would arise from any appeal arising from a decision issued by a panel of the 2nd Circuit that included me as a member. And she stated that she would recuse herself in that case. She has decided the issue now pending before the Supreme Court, and therefore we would expect and we would hope that she would recuse herself if she is in fact confirmed.

Now a case that -- another procurium case that she participated in deciding, Sanchez vs. (inaudible) has disturbing concerns involving both 2nd and 4th Amendment rights. That case held that the mere possession of a firearm gave rise to probable cause to search, seize, and arrest the person in possession thereof. Apparently under New York law the crime to possess a firearm, and it's only an affirmative defense that you have a license for it.

In that case the court stated that the right to possess a gun is clearly not a fundamental right. That was -- totally unnecessary to the decision. (inaudible) a conviction of an illegal alien for possession of a firearm. And the correct decision would be to say that illegal aliens don't have 2nd Amendment rights.
And in fact, the court disregarded a Supreme Court decision Verdugo-Urquidez decided in 1990, which explicitly stated that the people -- that term the people in the 1st, 2nd and 4th Amendments refers to the members of our national community and not to aliens and not to illegal aliens.

A third case I want to mention briefly, United States vs. Cavera, an inbound decision by the 2nd Circuit upholding a gun control act prosecution and the sentencing under it, Judge Sotomayor wrote a dissenting opinion that I think is commendable. She made a statement that "arbitrary and subjective considerations, such as the judge's feelings about a particular type of crime, should not form the basis of the sentence." And she explained in great detail the reason for that. And that's exactly the way the law should be interpreted and constitutional rights should be interpreted as well. I think she made the correct decision in that case.

And the question now is whether she will also take 2nd Amendment right seriously. And that's the big unanswered question. Thank you.

KAUFMAN: Thank you, Mr. Hallberg. Congressman Serrano, you talked about your district and how people feel. How do young people growing up -- are going to be affected by Judge Sotomayor being on the Supreme Court?

SERRANO: It's amazing that you ask that question. And I assure the rest of the panel I did not give him that question. But I was talking to my chief of staff this morning, who was telling me how many watching parties were taking place in my district this week. Watching parties, people come together, you know, covered plates. They bring food. And they watch.

And that the question that seems to be rising out of the young people is what do I do to go to law school?

Now I don't know if this country needs more lawyers. You know the jokes about that. And I better stop because I'm not a lawyer. But I believe that what it has done more than anything else -- and it's not just her being on the Supreme Court but the exchanges between the panel and the judge -- is that people are becoming more aware of law cases, of law issues. And so, number one, I think it will invite young people to consider a legal profession.

Secondly, the issue of pride is so important in your own life. When I was a young man, there weren't many Puerto Ricans for me to look in New York as successes. So I always led myself of Roberto Clemente, the baseball player, who was such a dignified man and who insisted on being called Roberto and not Bob and then later on said Bob was okay, you know. And I saw that growth. And then his death was part of that dignity of that man.

But now, it's a different story. Now there are some people who look to me. There are people who look to others. There are people who look to other people. But one -- in closing, let me just say this. Nothing that you can accomplish in this country looks bigger than the presidency or the Supreme Court. And so obviously, it's going to inspire people to say I can do it. And in fact, she told you here while she was answering some tough questions that in many cases she was telling people you can make it. You can make it. And there's nothing more pro-American than to say to somebody you can make it.

KAUFMAN: Thank you. Ms. Hynes, how did just an amazing experience as a prosecutor and commercial litigator affect your ruling on the qualifications?

HYNES: Well, it just shows how well rounded she is. I was a prosecutor. Indeed, Bob Morgenthau appointed me in 1967. And in those days, I was the one woman in that office of 100. I have a great picture of a sea of 100 men. And I sit behind Bob, who was the boss, right? And he started my career as he did Judge Sotomayor's. I've had a wonderful career. But I had -- he gave me that opportunity.

And I spent 15 years in the prosecutor's office. And I went up through the ranks and became executive assistant. But when I left the prosecutor's office and went out to practice on the defense side, you really get the appreciation of that there are two sides to an issue you really have to measure and judge.

And so I think it makes her more well rounded that she's seen the prosecution side, those issues, the tensions. You heard the representative of the police association. You have Louie Freeh who we all worked with in that same office.

So she has the appreciation of those tensions. But she also understands the defense side. And she combines that with the, you know, a commercial litigator, a prosecutor, a trial judge, and an appellate judge. I mean, she is the total package. She is the total package. And she has done it, you know, in the best possible way.

And when I listen, as I've tried to do through all of the testimony, I think you just have to look at what her background is and her record. And after that, your questions should be answered because she has been a terrific example of someone who has very, very carefully applied the law and done what she thought was right.

I mean, she -- we are all proud of her. When I say I'm particularly proud to be here tonight for this candidate, it's because in New York, we know the quality of the judging that we have gotten from Judge Sotomayor.

KAUFMAN: Thank you very much. Dean Epps, based on your analysis of your organization of her record, how would you speak about Judge Sotomayor's judicial temperament?

EPPS: Thank you very much, Senator. We asked a lot of people who had the opportunity to appear before Judge Sotomayor, to appear as opposing counsel, to work with her as co-counsel, to be litigants before her.

And we found universally that people thought she had an extraordinarily appropriate judicial temperament.
That doesn't mean that she's not passionate, which we believe that she is. But in all responses, people described her as respectful, considerate, and kind. And so on that particular issue, we were thoroughly satisfied that she has the temperament to be an appropriate associate justice of the Supreme Court.

KAUFMAN: Thank you. Ranking Member Sessions?

SESSIONS: Thank you. Congressman, thank you for your eloquence. I just appreciate that very much. And, Ms. Hynes, your professionalism and approach is worthy of the New York Bar Association. And I agree with you from the beginning that her experience is really the rich kind of experience, almost an ideal experience for any federal appellate judge.

And we wrestle with a lot of issues that are controversial in the legal system today. And a lot of people -- lot of us care deeply about those things. We're worried about some of the things we see in the courts. And so that, you know, affects how you approach a nominee. But her background and her integrity is exceptional. And I appreciate that.

Ms. Epps, thank you for your testimony. Mr. Rivkin, I just want take a minute because certain -- I guess Lindsey Graham asked some questions about national security issues. You note that Congress and the President have traditionally been accorded near plenary authority in national offense areas. That's I think consistent with the heritage of our country up until very recent years, post 9/11 years.

And I call your attention to a case before the 2nd Circuit, Gold v. Mukasey last year -- and that's Atty. Gen. Mukasey, former judge from New York Mukasey -- in which a three-judge panel held -- that included Judge Sotomayor -- ruled in part that certain provisions of the Patriot Act were unconstitutional under the 1st Amendment. Specifically, the panel found unconstitutional the provisions of the Patriot Act allowing senior government officials to certify that the release of certain documents would endanger national security.

The panel stated, "The fiat of a government official, though senior in rank and doubtless honorable, cannot displace a judicial obligation to enforce constitutional requirements." So does that give insight into Judge Sotomayor's approach to law? And the opinion went on to state, "Under no circumstances should the judiciary become the handmaiden of the executive."

RIVKIN: Yes, I think it's a troubling opinion, Sen. Sessions. It may strike some people as a technical case. The panel was concerned with the fact that the certifications by senior government officials, quite senior about, had to be treated as conclusive absent a showing of bad faith. And the view was that it unduly displaces judicial power. But it made judiciary a rubber stamp.

And I find it surprising in a couple ways. First of all, I don't see how you can read the language as establishing a rubber stamp on the context of a bad-faith inquiry, let's say by director of FBI in making the certification as to the disclosure of this information. You can ask the director how did you make the decision? What facts did you look at? Was that something you did generically? Did you drill down on it?

How often have you injected such a question in the past?

So it is a meaningful -- it's a deferential inquiry. But it's a meaningful inquiry. So I don't understand, especially in the face of a challenge why would you dismiss it in a sentence?

Point number two, there's nothing unique about treating governments -- government certifications by government officials as conclusive. There are numerous other criminal justice contexts, including, for example, requests (inaudible) orders arising in the context of grand jury proceedings, requests, for example, for pen register information. They've been treated with enormous deference by the court.
And what's interesting from my perspective, Senator, is that, ironically enough, more deference has been shown over the years to these types of certifications in pure criminal justice cases, drug cases, health fraud cases, than in national security cases, even though to me the (inaudible) public safety is far more palpable in the terrorism.

SESSIONS: I've seen some of that in our committee. Could you briefly give me this answer and see if I'm correct? We've had a lot of people contend that captured enemy combatants are entitled to habeas corpus.

And even in our committee, senators have continually denied habeas corpus. We've repealed habeas corpus. It's in the Constitution. Why would you deny it to these captives?
But isn't it true that, when the Constitution was written, made provision for the habeas corpus that it was never thought and never interpreted as applying to enemy combatants that were captured on the battlefield?

RIVKIN: And held overseas, that is absolutely right. That was the teaching of Eisentrager. That was something that happened throughout 200-plus years of American history. And the Supreme Court in the space of four short years has changed that view...

SESSIONS: So when President Bush actually relied on the historic interpretation, he was criticized because the Supreme Court basically changed the law later. Is that correct?

RIVKIN: That is correct. And then -- then the Bush administration established its legal architecture, Sen. Sessions. Anybody who seriously looked at the case law, he positions were entirely reasonable. It's Supreme Court that went away from it.

And very briefly, what's even more difficult from my perspective is that lower courts are now extending it further. The biggest problem now is, forget about Guantanamo. It's extending constitutional habeas to Bagram.

SESSIONS: And in reading Miranda warnings.

RIVKIN: Miranda warnings.

SESSIONS: Mr. Halbrook, you wrote the brief on behalf of 55 senators in favor of the -- in the Heller case. And your view, I guess, was accepted. And is it true that the decision -- the Maloney decision that Judge Sotomayor was a member of the panel that ruled on it -- and you've expressed concerns about it -- isn't it true that that case will need to be reversed or the Second Amendment does not apply to the states and any city in the country and state government could completely deny people the right to keep and bear arms?

HALBROOK: Sen. Sessions...

SESSIONS: If that law became -- go ahead.

HALBROOK: The basic issue is, first of all, the meaning of the 2nd Amendment. In Heller, the court said it protected an individual right to keep and bear arms, including a possession of a handgun in your home.

And Judge Sotomayor's answers to questions about that decision, by the way, this week have been very noncommittal as to whether she agrees with the decision. She does recognize it as precedent, of course.
And then the next step, though, the next issue is whether the 2nd Amendment applies to the states through the 14th Amendment's due process clause, like virtually every other Bill of Rights freedom: assembly, petition, free speech, press, unreasonable search and seizure, right to counsel, the whole works.

And it's only logical once it's conceded, it's held that it's an individual right, that it would be considered an explicitly guaranteed right in the Constitution. Being explicitly guaranteed normally means it's a fundamental right in the -- the test of, instead of rational relations, the compelling state interest tests would apply, like other fundamental rights. And so that's the issue that's before the Supreme Court right now.

SESSIONS: Regardless of whether or not the precedent justified the decision in Maloney -- and I think we can argue about that -- just -- but the point is, that decision would eviscerate effectively the protection -- the constitutional protection to keep and bear arms if it became the Supreme Court opinion.

The Supreme Court affirmed that approach. It's going to need to reverse that approach or the 2nd Amendment is -- is severely weakened and really eviscerated.

HALBROOK: Well, most of the...

SESSIONS: Is that right, fundamentally...(CROSSTALK)

HALBROOK: That's correct. There's 20,000 firearm laws on the books, and most of them are at the state and local level, not federal law. The federal Gun Control Act has expanded greatly in the past years, but most firearms possession issues involve state and local law.

And the -- the ruling in the Seventh Circuit case in NRA vs. Chicago, the ruling in Maloney is that the 2nd Amendment has no application to states and localities, so you could ban firearms, you could ban anything you wanted to ban, anything that would be an arm. The 2nd Amendment just doesn't apply.

And it would be a curious doctrine that here you have a fundamental right protected in the Bill of Rights to say that it only applies to the federal government the 14th Amendment's framers desire and intended that the Bill of Rights guarantees apply to the states through the -- through the 14th Amendment. And one of the big issues of protection was the right of freed slaves to keep and bear arms, because they were violated by the black codes that were enacted by the Southern states after the Civil War.

And to get rid of -- of that kind of discrimination, to allow freed freemen to keep and bear arms, to have free speech, and to have all the other rights that are set forth in the Bill of Rights, that was the intent of the 14th Amendment, and that's the issue before the Supreme Court now, and that's the issue that Maloney decided adversely.

SESSIONS: Thank you, Mr. Chairman. You're very kind.

KAUFMAN: Sen. Whitehouse?

WHITEHOUSE: Thank you, Chairman. Here we are with the last panel, last witness, last question, or last questioner, anyway, and I do not want to cause undue trouble, but I would like to react to Dr. Halbrook's testimony, which, first of all, I think was fine.

You are very learned. You are outside counsel for the National Rifle Association. You're knowledgeable about their issues. You've won these cases in court before. Your advocacy was ardent, but also very polite and cordial, so I have no problem with what your testimony said.

My concern is this -- and I mentioned this in front of the ranking member, because he's been energetic on this -- on this point. There have been an array of witnesses who've made similar points. And there has been an array of questioning -- really, almost non-stop questioning -- on Heller and Maloney.

And as I understand the history of this, for 220 years, the United States Supreme Court never recognized any individual right to bear arms. And just last year, a new conservative majority, by the barest of majorities, discerned for the first time a new constitutional right, individual right to bear arms, which is fine. That's now the law of the land.

But it applied only in D.C., which is -- so it applied only to federal law, so the case itself never reached the question of the application of the individual right that Heller announced in its application to the states or, for that matter, to municipalities.

And that's against the background tradition of fairly extensive regulation of firearms by states and municipalities, restrictions on felons in possession, regulation of permits to carry concealed weapons, sentencing enhancement for armed crimes, prohibitions against unauthorized discharge of firearms in city limits and so forth, all of which are well, well, well established.

Now, it could well be that, when the Supreme Court is presented with an opportunity to discuss Heller and to evaluate whether it should be extended to apply against states and municipalities, that it may choose to do that, but it strikes me that that is presently an undecided question by the Supreme Court.

And as you yourself said a moment ago, the question of the application of precedent in Maloney is one we can argue about. And what I would hate to have happen here would be to create an atmosphere in which a Supreme Court candidate feels that he or she is going to walk into a volley of fire if he or she will not announce in advance or signal in advance an intention to expand Heller beyond where it now is, where the law has never gone before.

Maybe it should go there; maybe it will go there. But the point of fact is that, at this point in time, it has not gone there. And I believe there is a point at which it verges on unseemly lobbying of the nominee to send signals as to where she will vote when the inevitable petition to expand Heller gets brought before the court.
I don't think it's appropriate for her to decide that now.

I don't think her decision in Maloney is outside of the bounds of normal judicial precedent, particularly in light of the unique circumstances of this, the Heller decision, the 220 years of having never discovered the right before, the limitation to federal law by virtue of it being a D.C. case, and the long history of state and municipal regulation of firearms without constitutional objection.

So it seems to me that a cautious judge -- small-c conservative judge -- would be inclined not to expand Heller at that point, but to make her decision within what she perceived the law to be at the time, and then if the court wanted to further expand this new constitutional right, that would be the job of the court.

But I hope that we have not in the course of this hearing begun to trespass into a point in which the message is being sent to Justice Sotomayor or to subsequent nominees that they need to signal how they will rule on a case that the Supreme Court has not yet decided in order to achieve confirmation, because I think, again, that crosses the boundary between testing the credentials of a candidate in a proper advise and consent and what is, I think unseemly and improper for the advice and consent process, which is to seek commitments in future cases or to lobby as to outcomes in future cases.

And I know that the ranking member feels very strongly about -- that this right should be extended. And we will all have the opportunity in due course to make our views known.

But I just want to point out that I think, in this advice and consent process, there is a point at which making one's point about something does trespass on unseemly lobbying. I'm not sure we've reached that point yet, but I think we're in that neighborhood, anyway.

And I would hope that my colleagues, as they evaluate Judge Sotomayor, would take that into consideration and evaluate her based on her talents, her abilities, and not on her failure to give what I think would be an improper advance signal as to how she might rule as a Supreme Court justice in Heller II, whatever the case will be named.

SESSIONS: Well, that's a good -- you're a good lawyer. And you make a -- a good point. I would say two things. First, it's...

WHITEHOUSE: We're both U.S. attorneys. We argue with each other all the time.

SESSIONS: It's -- he's my chairman of the Court Subcommittee. But the -- two things I would say about it. Number one, it's been appropriate to ask nominees about cases they decided. And she has decided this case.

And I think Sen. Kyl made a good point. If her case were the one that goes up to the Supreme Court, certainly she would recuse herself or would have to, I think, under the rules. And maybe even if another one with the very same issue comes up, maybe she should consider it.

Number two, let me tell you what the average American thinks. Just reading the words in the Constitution, it says, "Congress shall make no law respecting the establishment of a religion or free speech." It says Congress. That means the United States Congress. But that applies to the states. That's been incorporated.

The 2nd Amendment says, "A well-regulated militia, the right of the people to keep and bear arms shall not be infringed." And so that one -- I don't know how the -- it just seems to apply to the people.

WHITEHOUSE: I think the ranking member is a very good lawyer. And he makes a very good argument. My only point is...

SESSIONS: Maybe we ought to have the expert comment.

WHITEHOUSE: ... the Supreme Court hasn't accepted that argument yet. And until it does, it is an unanswered question. And, again, I don't want to say that we've trespassed that point at this stage, but I do think that it's worth demarcating, as we go through this advice and consent process, that there does come a point where it begins to look like we're pressuring candidates to reach a particular outcome and to make pledges about a particular outcome, rather than simply evaluating the merit of their decisions.

But your argument is -- is very well made. And it may very well prevail when that case comes before the Supreme Court. I thank the panel. I have no further questions. (LAUGHTER) (CROSSTALK)

SESSIONS: Mr. Chairman, it's been great to serve under your leadership.

KAUFMAN: This is a great -- this is a great panel.

SESSIONS: Who needs Pat Leahy? (LAUGHTER) Don't you tell him I said that. (LAUGHTER)

KAUFMAN: I need Pat Leahy. All I need is Pat Leahy and a member of the Appropriations Committee, and I could really -- I want to thank the panel. And, frankly, I want to thank all the panels.

I mean, it is -- it is -- this is -- this is an incredible process. The ranking member said, when we first started, that this is an educational experience for the American people. And I've been dealing with this process for a long time, and I really think that's true. People get to stop for a minute, look at our Constitution, look at the way our process works, and this is just a wonderful week in which people came, they argued, they fought. I mean, just this last exchange, everyone could say what they think. We had not just the members of the Congress -- not just the members of the Senate, but members of Congress from the public.

I just think it's a wonderful -- wonderful example of what a great country this is and how our Constitution works.

I'd also like to thank Chairman Leahy and Ranking Member Sessions for doing a very thorough hearing, being very open to letting people go where they go, and yet still getting this -- this whole thing done in record time.

This is an incredibly important process. I -- I believe, as a student of the Congress, outside of the decision to go to war, the decision of who's going to be on the Supreme Court is the single most important decision that you make as a United States senator.

Because when you pick a member for the Supreme Court, you're picking someone who serves for life. And if Judge Sotomayor is confirmed and serves on the court, she'll probably be here long after this panel of senators is gone.

WHITEHOUSE: Speak for yourself.

KAUFMAN: Except for Sen. Whitehouse. (LAUGHTER) But I just want to thank everybody for doing that. The chairman's left the record open until 5 p.m.  Senator Sessions, anything you'd like to say?

SESSIONS: Thank you.

KAUFMAN: This hearing is hereby adjourned.   ###

Sotomayor Confirmation Hearing, Day 4, Minority Issues Panel

 

Time	Speaker	Text
00:04:40	SEN. WHITEHOUSE	(Strikes gavel.) The hearing of the Judiciary Committee will come back to order. We are awaiting the arrival of Mayor Bloomberg and District Attorney Morgenthau, who are coming down from New York. I am told that they are five minutes away, but the five minutes that people are away can be a longer five minutes than a regular five minutes. So in the interest of the time of proceeding and of the other witnesses, we will proceed and come to them when they arrive and have a chance to take their seats.
00:05:09	SENATOR JEFF SESSIONS (R-AL)	Well, in the mayor's defense, he probably thought we would be operating under Senate time, and we would certainly be late, and he could have a little extra time.
00:05:18	SEN. WHITEHOUSE	That is our custom.
00:05:20	SEN. SESSIONS	But we're moving along well. Thank you, Mr. Chairman.
00:05:24	SEN. WHITEHOUSE	Our first witness, then, will be Dustin McDaniel. He is the attorney general for the state of Arkansas, and the southern chair of the National Association of Attorneys General. Previous to his election as attorney general, he worked in private practice in Jonesboro, Arkansas. Prior to taking office, Mr. McDaniel also served as a uniformed patrol officer in his hometown of Jonesboro, Arkansas. He is a graduate of the University of Arkansas- Little Rock Law School. Attorney General McDaniel, will you please stand to be sworn? Do you affirm that the testimony you're about to give before the committee will be the truth, the whole truth and nothing but the truth, so help you God?
00:06:07	ATTY GEN. MCDANIEL	I do.
00:06:08	SEN. LEAHY	Please be seated. Attorney Morgenthau, please be seated. Attorney General McDaniel, please proceed with your statement.
00:06:19	ATTY GEN. MCDANIEL	Thank you, Mr. Chairman and Ranking Member Sessions. My name is Dustin McDaniel, and I'm the attorney general of the state of Arkansas. I am here today to speak in support of the nomination of Judge Sonia Sotomayor to the Supreme Court of the United States. We've all heard all week about her compelling life story and impressive accomplishments. I have the highest respect and admiration for her, and I'm proud to testify on behalf of this person who was first appointed by President George H.W. Bush and then by my most famous predecessor in the Arkansas attorney general's office, President Bill Clinton. More specifically, I am here to rebut any assertion that her participation in the matter of Ricci versus DeStefano in any way reflects upon her qualifications or abilities to serve as a justice on the United States Supreme Court. When the Supreme Court granted certiorari in the Ricci case I, on behalf of the state of Arkansas, joined with five other attorneys general in support of the 2nd Circuit. Before I address the case and the brief, let me address the parties and their issues. I entered the world of public service long before I became an elected official. After college, I turned down my admission into law school and took a civil service exam in my hometown of Jonesboro, Arkansas. I became a police officer, and I saw firsthand the heroism and dedication of the men and women who protect and serve our communities every day. Firefighters like Frank Ricci and his colleagues run into homes and buildings when everyone else is running out. I have the highest respect and gratitude for all who serve our communities, states and nation. They are heroes among us, and they deserve to be treated fairly by our system. My personal experience with the civil service exam was a favorable one, but not all are so lucky. I understand the frustration that the firefighters felt with this process. I also understand the city's fear of litigation and unfair results. I am for a process that is fair. No one should be given an unfair advantage, but no one should be subject to an unfair disadvantage either. As attorney general, I represent hundreds of state agencies, boards and commissions in matters of employment law. My job is to allow my clients to do their job without fear of unreasonable litigation. The law had, until recently, allowed for flexibility necessary for public employers. The Supreme Court's ruling in this case will likely increase costly litigation, and the taxpayers will ultimately pay the bill. All who have commented on the nomination process in recent years have been critical of those who have been labeled an "activist judge." It's important to note that the 2nd Circuit's ruling in this case was not judicial activism at work. To the contrary, they followed existing law. In Ricci, the panel adopted the lengthy analysis of the district court, which they called thorough, thoughtful and well- reasoned. The district court cited cases dating back some 28 years. The ruling was consistent with the law and the doctrine of stare decisis. Granted, the Supreme Court, in a closely divided opinion, ruled differently, but in doing so it set new precedent. It's also important to note that the 2nd Circuit's ruling was supported by many prestigious groups, including the EEOC, the Department of Justice, the National League of Cities, the National Association of Counties, the International Municipal Lawyers Association and the Republican and Democratic attorneys general of Alaska, Iowa, Arkansas, Maryland, Nevada and Utah. There's a large body of research available on Judge Sotomayor's record. No allegation that she rules based on anything other than the law can stand when cast in the light of her actual record. The Congressional Research Service concluded, quote, "Perhaps the most consistent characteristic of her approach as an appellate judge could be described as an adherence to the doctrine of stare decisis, that is, upholding of past judicial precedents." One only has to look so far as to her own words. In Hayden versus Pataki she wrote in a dissent, quote, "It is the duty of a judge to follow the law, not question its plain terms." She concluded by saying, quote, "Congress would prefer to make any needed changes itself, rather than have courts do so for it." In my opinion, Judge Sotomayor is abundantly qualified and is an -- is an excellent nominee. I believe that the people of the United States would be well-served by her presence on the court. It is my great honor and privilege to be here at this committee. And I thank you ever so much for the opportunity to appear here today.
00:10:53	SEN. WHITEHOUSE	Thank you very much, Attorney General McDaniel. We will do a round of questions for the attorney general. And then once -- since the panel is completely assembled, I will have all the witnesses sworn and then we will proceed to Mayor Bloomberg, to District Attorney Morgenthau and on across the panel, with one brief interruption to allow the distinguished senator from the state of New York, Senator Schumer, to introduce Mayor Bloomberg. Attorney General McDaniel, as an experienced lawyer, is -- let me ask you, is it not the case that it's the Supreme Court's task very frequently to resolve conflicts between the circuit courts of appeal?
00:11:39	ATTY GEN. MCDANIEL	Yes, of course it is, Senator.
00:11:41	SEN. WHITEHOUSE	And if a circuit court is bound by its own prior precedent, and therefore the doctrine of stare decisis controls a particular decision, that does not in any way inhibit the Supreme Court from reviewing that second decision against conflicting decisions from other circuits in its task in resolving those conflicts, correct?
00:12:07	ATTY GEN. MCDANIEL	That's -- that is correct.
00:12:08	SEN. WHITEHOUSE	Is it your sense that that is what occurred in this case, that the 2nd Circuit in Ricci felt itself bound by stare decisis as a result of its prior precedent, but that the Supreme Court took the case to resolve issues of conflict with other circuits?
00:12:23	ATTY GEN. MCDANIEL	Well, it certainly seems clear that the binding law from the Supreme Court, which dated back up to 28 years, made it clear that remedial actions, although race-conscious but race- neutral, were permissible. I think that that is precisely what the case demonstrated, and how the court ruled and why the states that participated, Arkansas included, thought that it was important to preserve for our clients the ability to try to avoid litigation if they think they cannot defend an existing practice. If they cannot defend it, no lawyer would tell their client, oh, go do it anyway. But clearly the Supreme Court thought that it was ripe for review. And they also thought that it was ripe to change the law, which is their purview. And that's what they did.
00:13:14	SEN. WHITEHOUSE	That's an interesting point. And many observers, including permanent observers who have had their views expressed in the public media about this, have indicated that that decision changed the landscape of civil rights law. If a judge is a cautious and small-c conservative jurist on a circuit court, do you believe it's appropriate for the circuit court to change the landscape of civil rights law?
00:13:43	ATTY GEN. MCDANIEL	Absolutely not. I don't think that the 2nd Circuit did anything short of what it had to do, which was to apply the existing law. The fact that the majority -- a bare majority in the United States Supreme Court decided to change existing law -- frankly, that would have been inappropriate for the 2nd Circuit to take that responsibility on itself.
00:14:07	SEN. WHITEHOUSE	Thank you, Attorney General.
00:14:11	SEN. SESSIONS	Thank you, Mr. McDaniel. I was a two-year attorney general. And it's -- was a great honor. With regard to the Ricci case, are you aware that the panel attempted to decide this case on a summary order, writing no opinion, not even a per curiam opinion?
00:14:35	ATTY GEN. MCDANIEL	I am aware of that, sir.
00:14:36	SEN. SESSIONS	And are you aware that by chance one of the other members of the circuit found out about that and an uproar of sorts occurred, because the people -- the other members -- other members of the circuit were very concerned about the opinion and thought it was an important opinion? Are you aware of that?
00:15:04	ATTY GEN. MCDANIEL	I know that the -- I know that the panel -- or at least the body of judges chose to review the matter. And they voted not to meet en banc, and that there was a per curiam that was issued --
00:15:14	SEN. SESSIONS	That's correct. That's correct.
00:15:16	ATTY GEN. MCDANIEL	(Off mike) -- conversations --
00:15:16	SEN. SESSIONS	Now, but -- are you -- now, you say that there was 2nd Circuit opinion and authority to uphold this case. But on rehearing, the slate is wiped clean and the panel can develop or formulate new authority or determine clearly whether or not that previous case may have applied. And are you aware that when they voted, the vote was six to six, and Judge Sotomayor was the key vote in deciding not to rehear the case, and therefore we can conclude that not only did she decide this case, but it's really not accurate to say she was just following authority, since it was her vote that didn't allow that authority to be reevaluated?
00:16:15	ATTY GEN. MCDANIEL	Well, Senator, she was in the majority. So it's fair to say that any one of those judges could be the deciding vote that kept it from being --
00:16:21	SEN. SESSIONS	That is correct. But it's not fair, I think, to say that she didn't have an opportunity to reevaluate it, she was simply applying law that she was bound to follow, when she could have -- if she felt differently, she could have -- she could allowed to have been rediscussed.
00:16:40	ATTY GEN. MCDANIEL	Well, I also think that there were Supreme Court cases, not just 2nd Circuit cases --
00:16:45	SEN. SESSIONS	Well, are you aware the Supreme Court says there were not? Are you aware the Supreme Court, in their opinion, said there was no Supreme Court authority on this matter?
00:16:54	ATTY GEN. MCDANIEL	I have read their opinion, and I tend to agree with the minority, that this was, in fact, squarely within the
00:17:00	SEN. SESSIONS	Okay. Now, you filed -- which I give you credit for -- and I did some of these things when I was attorney general. You joined with 32 other state attorneys general in submitting an amicus brief to U.S. Supreme Court on the Heller case. And you took the provision -- the brief argues that "the right to keep and bear arms is among the most fundamental of rights because it essential to securing all other liberties," close quote. I see the mayor nod happily, listening to that. Do you -- but -- so you believe the 2nd Amendment is a fundamental right. Are you aware that Sandy Froman, the former president of the NRA -- you're probably not familiar with this letter, but she's a lawyer, and pointed out that Heller was just a 5 to 4 opinion, with some justices arguing that the 2nd Amendment does not apply to private citizens, or that, if it does, even a total gun ban would be upheld if a legitimate government interest could be found. The dissenting justices also found that D.C.'s absolute gun ban on handguns within the home a reasonable restriction. That wouldn't play too well in Alabama, probably not Arkansas or Oklahoma or Texas, but -- most places. So I guess I'm saying, are you concerned that -- and are you aware, of course, the Maloney case, in which Judge Sotomayor -- and I think she can contend there was authority in that case that justified her concluding the 2nd Amendment does not apply to the states. But I was disappointed in the breadth, and the way she wrote it gave me concern. So are you aware that one vote on the Supreme Court could make the difference on the question of whether or not the right to keep and bear arms is protected against mayors or legislatures of states who disagree?
00:19:09	ATTY GEN. MCDANIEL	Well, I was proud to join Arkansas into the brief on Heller vs. the District of Columbia. I intend to join again in the NRA vs. Chicago in the attempt to have the Supreme Court review and take up the question which I believe is ripe, as to whether or not the 2nd Amendment is applied to the states, as incorporated by the 14th Amendment. I do believe that the 2nd Amendment is a fundamental right, and I do believe that it is an individual right, not one tied to participation in a militia. The attorney general -- the current attorney general in Texas, Senator Cornyn's successor, and I have spent some time on that issue even recently. And I am not, nonetheless, concerned with Judge Sotomayor's position. I am confident that her answers that she's provided to this committee and her record are consistent with one another. And I do not believe that the right to keep and bear arms is at risk with this nominee or, frankly, I wouldn't testify for her.
00:20:13	SEN. SESSIONS	Well, thank you. And I think it is.
00:20:18	SEN. WHITEHOUSE	Now that the panel is assembled, I will swear the entire panel in. We will return to regular order. You can all give your opening statements and then questioning will begin at the conclusion of those opening statements. Would you please stand to be sworn? You may sit. You affirm that the testimony you're about to give before the committee will be the truth, the whole truth and nothing but the truth, so help you God? (The witnesses affirm.) Please be seated. I will recognize Senator Schumer for a moment to welcome his constituent and the mayor of New York City --
00:20:51	SENATOR CHARLES SCHUMER (D-NY)	Two constituents.
00:20:53	SEN. WHITEHOUSE	-- yes -- Michael Bloomberg.
00:20:54	SEN. SCHUMER	Well, it's my honor to welcome two very distinguished constituents here. I want to thank every witness for coming, but particularly extend a welcome to two of New York's greatest public servants, Mayor Bloomberg and District Attorney Morgenthau. As you know, this nomination is a source of enormous pride to all New Yorkers. And your support for Judge Sotomayor has been extremely helpful to this committee, to the Senate as a whole and to the nation in understanding what kind of justice she will be. And very much appreciate your being here. Thank you, Mr. Chairman. Welcome.
00:21:37	SEN. CARDIN	Mayor Bloomberg's the mayor of New York City. He is currently serving in his third term as mayor. He founded Bloomberg LP, a New York City company that now has employees in more than 100 cities. Mayor Bloomberg's a graduate of Johns Hopkins University, located in Baltimore, Maryland, and Harvard Business School. We look forward to your testimony.
00:21:59	MAYOR BLOOMBERG	Mr. Chairman, thank you. Ranking Member Sessions, thank you very much. Senator, Senator, Senator. Senator Sessions, I must say, as a former gun owner, a former member of the NRA and also a staunch defender of the 2nd Amendment, we probably don't disagree very much, if we really had a chance to talk. In any case, I wanted to thank everyone for the opportunity to testify before you today. I'm Mike Bloomberg and I'm here not only as the mayor of New York City, the city where Judge Sonia Sotomayor has spent her entire career, but also as someone who has appointed or reappointed more than 140 judges to New York City's criminal and family courts. So I do appreciate the job before you. About three months ago, when President Obama invited Governor Schwarzenegger, Ed Rendell and me to the White House to discuss infrastructure policy, I did find an opportunity to tell him what many of the best legal minds in New York were telling me: Judge Sonia Sotomayor would be a superb Supreme Court justice. I strongly believe that she should be supported by Republicans, Democrats and independents. And I should know, because I've been all three. (Laughter.) Judge Sotomayor has all of the key qualities that I look for when I appoint a judge. First, she is someone with a sharp and agile mind, as her distinguished record and her testimony, I think, made clear. And as a former prosecutor, commercial litigator, district court judge and appellate judge, she certainly brings a wealth of unique experience. Second, she is an independent jurist who does not fit squarely into an ideological box. A review of her rulings by New York University's Brennan Center found that judges on the 2nd Circuit Court who were appointed by Republicans agree with her more than 90 percent of the time when overruling a lower court decision, and when ruling a governmental action unconstitutional. So this is clearly someone whose decisions have cut across party lines, which is something I think the Supreme Court could use more of. And third, whether you agree or disagree with her on particular cases, she has a record of sound reasoning. In interviewing judicial candidates, I like to ask questions that have no easy answers and then listen to how they develop their responses. I want to know that they are open-minded enough to change their views if they hear compelling evidence, and to see if they can provide a strong rationale for their legal conclusions, even if I disagree with it. The fact is, you are never going to agree with a judicial candidate on every issue. I've appointed plenty of judges whose answers I don't agree with at all. And I should point out that includes times when Judge Sotomayor has ruled against New York City, as she -- as she has done on a number of cases. So I'm not here as someone who agrees with the outcome of her decisions 100 percent of the time. And I don't think that that should be the standard. Now, I'm not a lawyer or a constitutional scholar, but I think the standard should be: Does she apply the law based on rational legal reasoning, and is she within the bounds of mainstream thinking on issues of basic civil rights? And on both questions, I think the answer is unequivocally yes. It's impossible to know how she will rule on cases in the future, or even what those cases might be. Given that a Supreme Court judge is likely to serve for decades, focusing on the issues de jure rather than intellectual capacity, analytical ability and just plain common sense would miss what this country clearly needs -- someone who has the ability to provide us with the legal reasoning and guidance that will be necessary to navigate the uncharted waters of tomorrow's great debates. And I'm very confident that Judge Sotomayor has that ability. Finally, as the mayor of her hometown, I would just like to make two brief points. First, on the issue of diversity, the Supreme Court currently includes one member who grew up in Brooklyn and one who grew up in Queens. And so there's no doubt that adding someone who comes the Bronx would improve the diversity of this court. (Laughter.) And if you disagree with me, you haven't been to Brooklyn, Queens and the Bronx. (Laughter.) But seriously, Sonia Sotomayor is the quintessential New York success story. She's beat -- has beaten all the odds and rose to the top. If that's not the American dream, I don't know what is. And however, I don't believe she should be confirmed on the strength of her biography, but I do think that her life story tells you an awful lot about her character and ability. And second, I just want to add a caution against those who would suggest that Judge Sotomayor's service to the Puerto Rican Legal Defense and Education Fund is somehow a negative. That's an organization that is well respected for its civil rights work in New York City. And although I certainly have not always seen eye to eye on every issue with them, there's no question that they have made countless contributions to our city. And Judge Sotomayor should be based solely on her record, and not on the record of others in the group. So thank you very much for the opportunity to testify. And I urge you to confirm Sonia Sotomayor as a justice of the United States Supreme Court.
00:27:13	SEN. CARDIN	Mayor Bloomberg, thank you very much for your testimony. We'll now hear from Robert Morgenthau. Mr. Morgenthau has been the district attorney of New York County since 1975 and is the longest serving incumbent of that position. During his nine terms in office, his staff has conducted about 3.5 million criminal prosecutions on homicides in Manhattan and has been -- and has a rate of 90 percent success. A graduate of Yale Law School, District Attorney Morgenthau served aboard a naval destroyer through World War II. It's a real pleasure to have you before our committee.
00:27:54	MR. MORGENTHAU	Thank you, Mr. Chairman. I appreciate the opportunity of testifying today. And I'm pleased to join those who endorse the nomination of Judge Sotomayor to the United States Supreme Court. I first came to know Judge Sotomayor when I was on a recruiting trip to the Yale Law School. At that time, Jose Cabranes was Yale's general counsel, and he also taught at the law school. I asked him if he knew anyone special I should speak with and he said yes. He said that a remarkable student named Sonia Sotomayor was deciding where to work and, while he did not know whether she'd given any thought to being a prosecutor, it would be well worth my while to meet her. He was decidedly correct. I'm happy to be able to say that the judge joined my office and remained with us for five years. In my conversations with her, I learned about the compelling story of her life, with which you are now familiar. In a nutshell, she was raised by a mother in a working- class home in South Bronx, and as a teenager worked the evening shift at a garment factory to help make ends meet. She went on through hard work, force of will, to overcome her initial difficulties with English composition to win Princeton University's highest undergraduate honor, the Pyne Prize, and to graduate with honors from Yale Law School. In the district attorney's office, the judge was immediately recognized by trial division supervisors as someone a step ahead of her colleagues, one of the brightest and most mature, a hard-working stand-out who was marked for rapid advancement. Ultimately, she took on every kind of criminal case that comes into an urban courthouse, from turnstile jumping to homicide. One of those cases, the Tarzan murder case, involved an addicted burglar named Richard Maddicks, who had terrorized the neighborhood during a crime spree that left three dead and involved him swinging into apartment windows from rooftops, shooting anyone in his way. He is now serving a 137 years to life sentence. Another case prosecuted by Assistant DA Sotomayor in 1983 involved a Times Square child pornography operation. That was the first child prosecution in New York after a landmark 1982 Supreme Court decision, People versus Ferber, upholding New York's new child pornography laws. Assistant DA Sotomayor left the jurors in tears over what the defendants had done to child victims. These cases happened to grab the public attention, but Judge Sotomayor -- Assistant DA Sotomayor understood that every case is important to the victim and appropriately gave undivided attention to the proper disposition of all of them. Assistant District Attorney Sotomayor soon developed a reputation. Unlike many prosecutors, she simply would not be pushed around by judges or by attorneys. Some judges were eager to dispose of cases cheaply to clear their calendars. ADA Sotomayor instead fought for the right conclusion in each case. Maybe that experience on the criminal court of New York City helped her prepare for these hearings. After leaving my office, Judge Sotomayor joined a prominent law firm and also accepted a part-time appointment as a member of the New York City campaign finance board. There, she continued to earn a reputation for being tough, fair, non-political, in an arena where those characteristics were sorely needed. And she has taken those characteristics with her to the federal bench, where they are equally important. Judge Sotomayor's career in the law has spanned three decades, and she has worked in almost every level of our judicial system -- prosecutor, private litigator, trial court judge and an appellate court judge in what I think is the second most important court in the world. She has been an able champion of the law, and her depth of experience will be invaluable on our highest court. Judge Sotomayor is highly qualified for any position in which a first-rate intellect, common sense, collegiality and good character would be assets. I might add that the judge will be the only member of the Supreme Court with experience drawing criminal cases in the state courts. The overwhelming majority of American prosecutions occur in state courts. I might add that the judge will be the only member of the Supreme Court with experience trying criminal cases in the state courts. The overwhelming majority of American prosecutions occur in state courts. Judge Sotomayor will bring to the court a full understanding of problems faced by prosecutors in those cases, as well as a firsthand knowledge of the trauma faced by victims and of the legitimate needs of police officials that work in the state law enforcement system. She will also understand the impact of federal judicial decisions on state prosecutions. In short, the judge is uniquely qualified by intellect, experience and commitment to the rule of law to be an outstanding -- and I repeat, outstanding -- member of the court. President Obama, and for that matter the United States, should be proud to see once more the realization of that central American credo that in this country, a hardworking person with talent can rise from humble beginnings to one of the highest positions in the land. Thank you, Mr. Chairman, for the opportunity to testify today.
00:34:01	SEN. CARDIN	And thank you very much for your testimony. We'll now hear from Wade Henderson, a familiar person to this committee. Wade Henderson is the president and CEO of the Leadership Conference on Civil Rights and counselor to the Leadership Conference Education Fund. He is a professor of public interest law at the University of the District of Columbia. Prior to his role with the Leadership Conference, Mr. Henderson was the Washington bureau director of the NAACP. Mr. Henderson is a graduate from Rutgers University School of Law. Mr. Henderson.
00:34:32	MR. HENDERSON	Thank you, Mr. Chairman, Ranking Member Sessions, members of the committee. I have the privilege of representing the views of the Leadership Conference, the nation's leading civil and human rights coalition, consisting of more than 200 organizations working to build an America that's as good as its ideals. This afternoon I will briefly address four of the points that have figured in the debate about Judge Sotomayor's nomination: first, her qualifications for serving on the nation's highest court; second, her personal background and her empathy for others who have had to work hard to succeed; third, her role in the unanimous ruling by a three-judge panel in the case of Ricci versus DeStefano; and fourth, her past membership on the board of one of the Leadership Conference's member organizations, the Puerto Rican Legal Defense and Education Fund. First, let me rejoice in what is self-evident: The nomination of Jodge -- Judge Sotomayor to be an associate justice on our nation's highest court is a milestone by many standards. The nation's first African-American president has nominated the first Hispanic-American, only the third woman, and only the third person of color to serve on the Supreme Court. While great challenges remain on our nation's quest for equal opportunity, we have truly reached an historic marker on the journey toward our goal of "equal justice for all," the phrase inscribed not far from here on the front of the Supreme Court building. But hopeful and historic as her nomination has been, Judge Sotomayor should herself be judged not by who she is but by what she has done. Now, let me be as clear as I can. There is no question that she is qualified. Judge Sotomayor's eloquent and thoughtful testimony before this committee speaks for itself. Her distinguished career at Princeton and Yale Law School have been much stated. She then spent five years as a prosecutor, as we've heard, in Manhattan, working for the legendary district attorney Robert Morgenthau -- pleased to have him here today -- and eight years as a corporate litigator. Seventeen years as a federal district-court judge and appellate-court judge add up to an individual who is one of the most qualified to have ever come before this committee. Second, as with other nominees across the philosophical spectrum, including Justices Thomas and Alito, Judge Sotomayor has spoken of her family history and her personal struggles. These experiences help her to understand others and to do justice. They further qualify her for the highest court, and she has said and done nothing that could reasonably be understood otherwise. Third, Judge Sotomayor has participated in thousands of cases and authored hundreds of opinions, but much of the debate about her nomination has concentrated on the difficult case of Ricci versus DeStefano. Whatever one may feel about the facts in this case, we all agree that the Supreme Court in its Ricci decision set a new standard for interpreting Title VII of the '64 Civil Rights Act. Using this one decision to negate Judge Sotomayor's 17 years on the bench does a disservice to her record and to this country. Fourth, I must speak to the attacks on Judge Sotomayor because of her service on the board of one of our nation's leading civil-rights organizations. These attacks do an injustice not only to Judge Sotomayor and to the Puerto Rican Legal Defense and Education Fund, but also to the entire civil-rights community and to all those who look to us for a measure of justice. Make no mistake, legal defense funds play an indispensable role in American life. They are private attorneys general that assist individuals, often those with few resources and no other representation, to become full shareholders in the American dream. When Justice Thurgood Marshall was nominated, there were those who questioned his role with the NAACP Legal Defense Fund, but history does not remember their quibbles kindly. Judge Sotomayor has lived the American dream, and she understands all who aspire to it. Her qualifications are unquestioned, and the lessons that she has learned in her life as well as in libraries will serve her and our country well in the years ahead. All those who walk through the entrance to the Supreme Court seeking what is inscribed above its door, "Equal Justice Under Law," can be confident that a Justice Sotomayor will continue to do her part to keep the promise of our courts and our country. Thank you very much.
00:39:48	SEN. CARDIN	Well, thank you very much for your testimony. We'll now hear from Frank Ricci, a name that's been mentioned second only to "Sotomayor" during this hearing. Frank Ricci has over a decade of experience as a firefighter with the New Haven Fire Department, and was the plaintiff in the case of Ricci versus DeStefano. He's a contributing author of two books on firefighting. It's a pleasure to have you before the committee.
00:40:10	FRANK RICCI	Thank you, Senator. Thank you for the opportunity to appear before this distinguished committee. I accepted, with honor, the invitation to tell my story. Many others have a similar story, and I feel I'm speaking for them, as well. The New Haven firefighters were not alone in their struggle. Firefighters across the country have had to resort to the federal courts to vindicate their civil rights. Technology and modern threats have challenged our profession. We have become more effective and efficient, but not safer. The structures we respond to today are more dangerous, constructed with lightweight components that are prone to early collapse. And we face fires that can double in size every 30 to 60 seconds. Too many think that firefighters just fight fires. Officers are also responsible for mitigating vehicle accidents, hazardous material incidents, and handling complicated rescues. Rescue work can be very technical. All of these things require a great deal of knowledge and skill. Lieutenants and captains must understand the dynamic fire environment and the critical boundaries we operate in. They are forced to make stressful decisions based on imperfect information and coordinate tactics that support our operational objectives. Almost all our tasks are time sensitive. When your house is on fire or your life is in jeopardy, there are no time for do-overs. The lieutenants test that I took was without a doubt job-related exam that was based on skills, knowledge and ability needed to ensure public and the firefighter safety. We all had an equal opportunity to succeed as individuals, and we were all provided a road map to prepare for the exam. Achievement is neither limited nor determined by one's race, but by one's skills, dedication, commitment and character. Ours is not a job that can be handed out without regard to merit and qualifications. For this reason, I and many others prepared for these positions throughout our careers. I studied harder than I ever had before -- reading, making flash cards, highlighting, reading again, all my listening to prepared tapes. I went before numerous panels to prepare for the oral assessment. I was a virtual absentee father and husband for months because of it. In 2004, the City of New Haven felt not enough minorities would be promoted and that the political price for complying with Title VII, the city civil service rules and the charter would be too high. Therefore, they chose not to fill the vacancies. Such action deprived all of us of the process set forth by the rule of law. Firefighters who earned promotions were denied them. Despite the important civil rights and constitutional claims we raised, the Court of Appeals panel disposed of our case in an unsigned, unpublished summary order that consisted of a single paragraph that made mention of my dyslexia and thus led many to think that this was a case about me and a disability. This case had nothing to do with that. It had everything to do with ensuring our command officers were competent to answer the call, and our right to advance in our profession based on merit, regardless of race. Americans have the right to go into our federal courts and have their cases judged based on the Constitution and our laws, not on politics or personal feeling. The lower court's belief that citizens should be reduced to racial statistics is flawed. It only divides people who don't wish to be divided along racial lines. The very reason we have civil service rules is to root politics, discrimination and nepotism. Our case demonstrates that these ills will exist if the rules of merit and the law are not followed. Our courts are the last resorts for Americans whose rights are violated. Making decisions on who should have command positions solely based on statistics and politics, where the outcome of the decision could result in injury or death, is contrary to sound public policy. The more attention our case got, the more some people tried to distort it. It bothered us greatly that some perceived this case as involving a testing process that resulted in minorities being completely excluded from promotion. That was entirely false, as minority firefighters were victimized by the city's decision as well. As a result of our case, they should now enjoy the career advancement that they've earned and deserve. Enduring over five years of court proceedings took its toll on us and our families. The case was longer -- was no longer just about us but about so many Americans who had lost faith in the court system. When we finally won our case and saw the messages we received from every corner of the country, we understood that we did something important, together. We sought basic fairness and even-handed enforcement of the laws, something all Americans believe in. Again, thank you for the honor and privilege of speaking to you today.
00:45:59	SEN. CARDIN	Mr. Ricci, thank you very much for your testimony. We'll now hear from Lieutenant Ben Vargas. Ben -- Benjamin Vargas is a lieutenant in the New Haven Fire Department and was a plaintiff of Ricci versus DeStefano. He also worked part-time as a consultant for a company that sells equipment to firefighters. Mr. Vargas.
00:46:20	LT. VARGAS	Thank you. Members of this committee, it is truly an honor to be invited here today. Notably, since our case was summarily dismissed by both the district court and the Court of Appeals panel, this is the first time I am being given the opportunity to sit and testify before a body and tell my story. I thank the -- thank you for this -- committee for the opportunity. Senators of both parties have noted the importance of this proceeding because decisions of the United States Supreme Court can greatly impact the everyday lives of ordinary Americans. I suppose that I and my fellow plaintiffs have shown how true that is. I never envisioned being a plaintiff in a Supreme Court case, much less one that generated so much media and public interest. I am Hispanic, and proud of the heritage and background that Judge Sotomayor and I share. And I congratulate Judge Sotomayor on her nomination. But the focus should not have been on me being Hispanic. The focus should have been on what I did to earn a promotion to captain, and how my own government and some courts responded to that. In short, they didn't care. I think it important for you to know what I did: that I played by the rules and then endured a long process of asking the courts to enforce those rules. I am the proud father of three young sons. For them, I sought to better my life. And so I spent three months in daily study preparing for an exam that was unquestionably job-related. My wife, a special- education teacher, took time off from work to see me and our children through this process. I knew we would see little of my sons during these months when I studied every day at a desk in our basement, so I placed photographs of my boys in front of me when I would get tired and went to stop -- wanted to stop. I would look at the pictures, realize that their own futures depended on mine, and I would keep going. At one point, I packed up and went to a hotel for days to avoid any distractions, and those pictures came with me. I was shocked when I was not rewarded for this hard work and sacrifice, but I actually was penalized for it. I became not Ben Vargas, the fire lieutenant who proved himself qualified to be captain, but a racial statistic. I had to make decisions whether to join those who wanted promotions to be based on race and ethnicity or join those who would insist on being judged solely on their qualifications and the content of their character. I am proud with the decision I made, and proud of the principle that our group vindicated together. In our profession, we do not have the luxury of being wrong or having long debates. We must be correct the first time and make quick decisions under the pressure of time and rapidly unfolding events. Those who make these decisions must have the knowledge necessary to get it right the first time. Unlike the judicial system, there are no continuances, motions or appeals. Errors and delays can cost people their lives. In our profession, the racial and ethnic makeup of my crew is the least important thing to us and to the public we serve. I believe the countless Americans who had something to say about our case understand that now. Firefighters and their leaders stand between their fellow citizens and catastrophe. Americans want those who are the most knowledgeable and qualified to the task. I am willing to risk and even lay down my life for fellow citizens, but I was not willing to go along with those who place racial identity over these more critical considerations. I am not a lawyer, but I quickly learned about the law as it applied to this case, studying it as much as I studied for my exam. I thought it clear that we were denied our fundamental civil rights. I expected Lady Justice with the blindfold on, and a reasoned opinion from a federal court of appeals, telling me, my fellow plaintiffs and the public that the court's view on the law -- what the court's view on the law was, and do it in an open and transparent way. Instead, we were devastated to see a one-paragraph unpublished order, summarily dismissing our case and indeed even the notion that we had presented important legal issues to that court of appeals. I expected the judges who heard my case along the way to make the right decisions, the ones required by the rule of law. Of all that has been written about our case, it was Justice Alito who best captured our own feelings. We did not ask for sympathy or empathy; we asked only for even-handed enforcement of the law. And prior to the majority justice opinion, in our case, we were denied just that. Thank you.
00:51:29	SEN. CARDIN	Thank you for your testimony. We'll now hear from Peter Kirsanow. Peter Kirsanow serves on the U.S. Commission on Civil Rights. He's a member of the National Labor Relations Board, where he received a recess appointment from President George W. Bush. Previously, he was a partner with the Cleveland law firm of Benesch, Friedlander, Coplan & Arnoff. Mr. Kirsanow received his law degree from Cleveland State University.
00:51:53	MR. KIRSANOW	Thank you, Mr. Chairman, Senator Sessions, members of the committee. I am Peter Kirsanow, a member of the U.S. Commission on Civil Rights. I am currently back at Benesch, Friedlander in the Labor/Employment Practice Group. I'm here in my personal capacity. The U.S. Commission on Civil Rights was established by the Civil Rights Act --
00:52:08	SEN. SESSIONS	Is that microphone on and -- okay.
00:52:09	MR. KIRSANOW	-- the U.S. Commission on Civil Rights was established by the 1957 Civil Rights Act to, among other things, act as a national clearinghouse for information related to denials of equal protection, and discrimination. And in furtherance of the clearinghouse process, my assistant and I reviewed the opinions and civil rights cases in which Judge Sotomayor participated while on the 2nd Circuit in the context of prevailing civil rights jurisprudence, and with particular attention to the case of Ricci versus DeStefano. Our review revealed at least three significant concerns with respect the manner in which the three-judge panel that included Judge Sotomayor handled the case. The first concern was, as you've heard, the summary disposition of this particular case. The Ricci case contained constitutional issues of extraordinary importance and impact -- for example, the issues of -- that are very controversial and volatile -- racial quotas and racial discrimination. This was a case of first impression, no 2nd Circuit or Supreme Court precedent on point. Indeed, to the extent there were any cases that could provide guidance, such as Wygant, Croson, Adarand, even private-sector cases, such as Johnson-Transportation, Frank versus Xerox, Weber versus Steelworkers, would dictate or suggest a result opposite of that reached by the Sotomayor panel. The case contained a host of critical issues for review, yet the three-judge panel summarily disposed of the case, as you've heard, in an unpublished one-paragraph per curiam opinion that's usually reserved for cases that are relatively simple, straightforward and inconsequential. The second concern is that the Sotomayor panel's order would inevitably result in the proliferation of de facto racial and ethnic quotas. The standard endorsed by the Sotomayor panel was lower than that adopted by the Supreme Court's test of strong basis in evidence. Essentially, any race-based employment decision invoked to avoid a disparate-impact lawsuit would provide immunity from Title VII review. Under this standard, employers who fear the prospect or expense of litigation, regardless of the merits of the case, would have a green light to resort to racial quotas. But even more invidious is the use of quotas due to racial politics. And as Judge Alito's concurrence showed, there was glaringly abundant evidence of racial politics in the Ricci case. Had the Sotomayor panel decision prevailed, employers would have license to use racial preferences and quotas on an expansive scale. Evidence adduced before the Civil Rights Commission shows that when courts open the door to preferences just a crack, preferences expand exponentially. For example, evidence adduced before hearings of the Civil Rights Commission in 2005 and 2006 show that, despite the fact that Adarand was passed more than -- or decided more than 10 years ago, federal agencies persist in using race-conscious programs in federal contracting -- governmental contracting, as opposed to race-neutral alternatives. Moreover, even though the Supreme Court had struck down the use of raw, numerical weighting in college admissions in Gratz versus Bollinger, thereby requiring that race be only a mere plus factor -- a thumb on the scale in the admissions process -- powerful preferences show no signs of abating. A study by the Center for Equal Opportunity showed that at a major university preferences were so great that the odds that a minority applicant would be admitted over a similarly situated white comparative were 250-to-one; at another major university, 1,115-to- one. That's not a thumb on the scale; that's an anvil. And had the reasoning of the Ricci case in the lower court prevailed, what happened to firefighter Ricci and Lieutenant Vargas would happen to innumerably more Americans of every race throughout the country. The third concern is that the lower court's decision that would permit racial engineering by employers would actually harm minorities who are the purported beneficiaries of that particular decision. Evidence adduced at a 2006 Civil Rights Commission hearing shows that there's increasing data that preferences create mismatch effects that actually increase the probabilities that minorities will fail if they receive beneficial treatment or preferential treatment. For example, black law students who are admitted in preferences are two-and-a-half times more likely not to graduate than their similarly situated white or Asian comparatives, four times as likely not to pass the bar exam on the first try and six times as likely never to pass the bar exam despite multiple attempts. Mr. Chairman, it's respectfully submitted that if a nominee's interpretive doctrine permits an employer to treat one group preferentially today, there's nothing that prevents them from treating another group -- or shifting their preferences to another group tomorrow. And that's contrary to the color-blind ideal contemplated by the 1964 Civil Rights Act, Title VII, which was the issue decided in the Ricci case. Thank you, Mr. Chairman.
00:57:39	SEN. CARDIN	And thank you for your testimony. We'll now hear from Linda Chavez, who's chairman of the Center for Equal Opportunity and a political analyst for FOX News Channel. She's held a number of appointed positions, among them White House director of Public Liaison and staff director of U. S. Commission on Civil Rights.
00:57:55	LINDA CHAVEZ	Thank you, Mr. Chairman and members of the committee. I testify today not as a wise Latina woman, but as an American who believes that skin color and national origin should not determine who gets a job, a promotion or a public contract, or who gets into college or receives a fellowship. My message today is straightforward: Mr. Chairman, do not vote to confirm this nominee. I say this with some regret, because I believe Judge Sotomayor's personal story is an inspiring one which proves that this is truly a land of opportunity where circumstances of birth and class do not determine whether you can succeed. Unfortunately, based on her statements both on and off the bench, I do not believe Judge Sotomayor shares that view. It is clear from her record that she has drunk deep from the well of identity politics. I know a lot about that well, and I can tell you that it is dark and poisonous. It is, in my view, impossible to be a fair judge and also believe that one's race, ethnicity and sex should determine how someone will rule as a judge. Despite her assurances to this committee over the last few days that her "wise Latina woman" statement was simply a, quote, "rhetorical flourish that fell flat," nothing could be further from the truth. All of us in public life have, at one time or another, misspoken. But Judge Sotomayor's words weren't uttered off the cuff. They were carefully crafted, repeated not just once or twice but at least seven times over several years. As others have pointed out, if Judge Sotomayor were a white man who suggested that whites or males made better judges, again, to use Judge Sotomayor's words, quote, "whether born from experience or inherent physiological or cultural differences," end quote, we would not be having this discussion, because the nominee would have been forced to withdraw once those words became public. But of course Judge Sotomayor's offensive words are just a reflection of her much greater body of work as an ethnic activist and judge. Identity politics is at the core of who this woman is. And let me be clear here: I'm not talking about the understandable pride in one's ancestry or ethnic roots which is both common and natural in a country as diverse and pluralistic as ours. Identity politics involves a sense of grievance against the majority, a feeling that racism permeates American society and its institutions, and the belief that members of one's own group are victims in a perpetual power struggle with the majority. From her earliest days at Princeton University and later Yale Law School to her 12-year involvement with the Puerto Rican Legal Defense and Education Fund to her speeches and writings, including her jurisprudence, Judge Sotomayor has consistently displayed an affinity for such views. I have outlined at much greater length in my prepared testimony, which I ask permission be included in the record in full, the way in which I believe identity politics has permeated Judge Sotomayor's life's work. But let me briefly outline a few examples. As an undergraduate, she actively pushed for race-based goals and timetables for faculty hiring. In her much-praised senior thesis, she refused to identify the United States Congress by its proper name, instead referring to it as the North American Congress or the Mainland Congress. During her tenure as chair of the Puerto Rican Legal Defense and Education Fund's director -- litigation committee, she urged quota-seeking lawsuits challenging civil-service exams, seeking race-conscious decision-making similar to that used by the city of New Haven in Ricci. She opposed the death penalty as racist. She supported race-based government contracting. She made dubious arguments in support of bilingual education and, more broadly, in trying to equate English language requirements as a form of national origin discrimination. As a judge, she dissented from an opinion that the Voting Rights Act does not give prison inmates the right to vote. And she has said that as a witness -- a witness's identification of an assailant may be unconstitutional racial profiling, in violation of the equal protection clause, if race is an element of that identification. Finally, she has shown a willingness to let her policy preferences guide her in the Ricci case. Although she has attempted this week to back away from some of her own intemperate words, and has accused her critics of taking them out of context, the record is clear. Identity politics is at the core of Judge Sotomayor's self-definition. It has guided her involvement in advocacy groups, been the topic of much of her public writing and speeches, and influenced her interpretation of law. There is no reason to believe that her elevation to the Supreme Court will temper this inclination and much reason to fear that it will play an important role in how she approaches the cases that will come before her if she is confirmed. I therefore respectfully urge you not to confirm Judge Sotomayor as an associate justice of the Supreme Court. Thank you.
01:03:39	SEN. CARDIN	Thank you for your testimony. Let me first recognize our chairman, Chairman Leahy, who I understand wants to reserve his place.
01:03:47	SEN. PATRICK LEAHY (D-VT)	Thank you, Senator Cardin. One, I thank you and the other senators who have filled in on this part. I was here throughout the -- throughout all the testimony by Judge Sotomayor and the questions asked by both Republicans and Democrats. I'll reserve my time. I do welcome all the witnesses, both for and against the nominee. The -- Senator Sessions and I joined together to make sure that everybody was invited, everybody's given a chance to testify. And if you wish to add to your testimony, the record would be open for 24 hours for you to do that. Thank you very much.
01:04:31	SEN. CARDIN	Thank you, Mr. Chairman. Mayor Bloomberg, let me start with you, if I might, and my questioning. There's been a lot of discussion about the Puerto Rican Legal Defense and Education Fund, including during this panel discussion. And Judge Sotomayor served on the board, had nothing to do with the selection of individual cases from the point of view of its content, but served in a voluntary capacity with that board. And first I'm going to quote from you and then give you a chance perhaps to expand upon it, where you have been quoted to saying, "Only in Washington could someone's many years of volunteer service to a highly regarded nonprofit organization that has done so much good for so many be twisted into a negative," and that that "group has made countless important contributions to New York City." I just want to give you a chance to respond to Judge Sotomayor's service on the Puerto Rican Legal Defense and Education Fund.
01:05:27	MAYOR BLOOMBERG	Well, this is an organization that has defended people who don't have the wherewithal to get private counsel or don't have traditions of understanding the law. And it happens to focus on people mainly who come from Puerto Rico and have language problems in addition to a lack of, perhaps, understanding how our court system works. And it provides the kind of representation that we all, I think, believe that everybody that appears before a judge and before the law deserves. They raise money privately to pay lawyers to defend, and I don't agree with some of their positions and I agree with other ones. But having more of these organizations is a lot better than having less. At least people do have the option of getting good representation.
01:06:24	SEN. CARDIN	Thank you. Mr. Henderson, during the hearing of Judge Sotomayor, we had a chance to talk a little bit about the voting rights and the recent case before the Supreme Court, and the fact that one justice questioned the constitutionality, in fact pretty well determined the constitutionality of the voting rights renewal act, saying it was no longer relevant. Judge Sotomayor during her testimony talked about deference to Congress, the fact that it was passed by a 93-to-0 vote in the United States Senate and by a lopsided vote in the House of Representative, the 25-year extension. I just want to get your comments as to where the Voting Rights Act is relevant today, and your confidence level of Judge Sotomayor as it relates to advancing civil rights for the people of our nation.
01:07:18	MR. HENDERSON	Thank you, Mr. Chairman, for your question. Let me back up for just a minute and say that these hearings have really been a testament to the wisdom of the Founding Fathers in setting up a three-part system of government, with the president making a nomination for an associate justice on the Supreme Court, and the Senate Judiciary Committee providing its advice and consent. Under our system of government, the Senate and the House have a particular responsibility to delve deeply into the constitutional rights of all Americans, particularly around the right to vote. Voting really is the language of democracy. If you can't vote, you don't count. And the truth is that notwithstanding the 15th Amendment to the Constitution, the 13th and 14th Amendments, African-Americans, Latinos, women, other people of color were often denied their right to vote well into the 20th century. It took not just those amendments, but actually a statute enacted by this Congress to ensure that the rights of Americans to vote indeed could be preserved. And it was only in the aftermath of the '65 Voting Rights Act that we have seen the expansion of the franchise and democratization -- small "d" -- of our, you know, our republic in a way that serves the interests of the Founders. Having said that, Congress reached a decision, in reauthorizing the Voting Rights Act in 2006, that this law was necessary. Sixteen thousand pages of a Congressional Record speak eloquently to that important interest. The fact that this issue was held both with congressional review and also a national commission set up by the Lawyers Committee for Civil Rights and others in the civil rights community, holding hearings around the country, added to the record that was created. The fact that this bill passed -- rather, the reauthorization of the Voting Rights Act, 390-to-33 in the House, and 98-to-nothing in the Senate, speaks eloquently about the important need of this act, and the continuing need for it. So the fact that some on the Supreme Court found otherwise doesn't disturb me at all. There is a need for it. That need continues, and notwithstanding evidence from --
01:09:29	SEN. CARDIN	Well, thank you for correcting my numbers on that, the number that had voted. I appreciate that. I just want to ask Mr. McDaniel a quick question. And that is, during these confirmation hearings, both Democratic and Republican senators have been urging from our nominee that you need to look at what the law is, and you can't judge based upon emotion, you have to do -- you have to follow the precedents of the court. And my simple question to you: In the Ricci case, do you believe that the Sotomayor decision with the three-judge panel was within the mainstream of judicial decision-making when that decision was reached?
01:10:07	MR. MCDANIEL	Senator, I do believe that. And to hear the stories of these firefighters in person, I -- I don't have any reason not to use the word "empathy." I have a great deal of empathy for the circumstances that they have described. And I don't know that I have a great deal for how the city fathers handled the matter. But by the time it made it to the 2nd Circuit, I believe that the panel did what the law required. And I don't think that there is a just legal criticism for the way that the panel handled the matter. And the fact that the Supreme Court chose to change the law in a bare majority also is their prerogative.
01:10:45	SEN. CARDIN	Thank you very much. Senator Sessions.
01:10:47	SEN. SESSIONS	Thank you. Thank all of you. It's a very important panel. And actually, much of your testimony was moving, and I appreciate it. And I think you're calling us to a higher level of discussion on these issues, because they go to the core of who we are as Americans. And I just want to -- I want to share that. We are worried about the Second Amendment. I will just ask the mayor that -- you signed a brief in favor of the D.C. gun ban, which would bar even a handgun in someone's home. So I would assume you would be agreeable with the opinion of Judge Sotomayor and her view. We've got different views about these things. Mayor, I want to tell you, I appreciate your leadership. It's a tough job to be mayor of New York. You're showing strength and integrity. Mr. Morgenthau, you're the dean of prosecutors, and I hear many people over the years that have worked for you, and they're very complimentary of you, and I know you're proud of this protege of yours who's moved forward.
01:12:04	MR. MORGENTHAU	Mr. Senator, can -- may I tell you that my grandmother was born in Montgomery, Alabama?
01:12:07	SEN. SESSIONS	I am impressed to hear that! (Laughter.) I feel better already. (Laughter.) Oh, that's good. Mr. Attorney General, thank you for your able comments. And Mr. Henderson, it's good to work with you. Senator Leahy and I are talking during these hearings. We're going to do that crack cocaine thing that you and I have talked about before. (Laughter.) We got to --
01:12:31	MR. HENDERSON	(Laughs.) Thank you, Senator. I appreciate (you doing that ?).
01:12:33	SEN. SESSIONS	Now I want to restate that.
01:12:34	SEN. KLOBUCHAR	You may want to --
01:12:34	SEN. SESSIONS	I didn't want the -- let me correct the record.
01:12:36	SEN. KLOBUCHAR	Please rephrase it, Senator. Please rephrase.
01:12:41	SEN. SESSIONS	I misspoke.
01:12:43	MR. HENDERSON	No, quite all right. (Laughs.)
01:12:46	SEN. SESSIONS	We're going to reduce the burden of penalties in some of the crack cocaine cases and make them fair.
01:12:53	MR. HENDERSON	(Laughs.)
01:12:54	SEN. CARDIN	You got quoted on that one. (Laughter.)
01:12:58	SEN. SESSIONS	(Chuckles.) So Mr. Ricci, thank you for your work. I would say, Mr. Henderson, that I said the PRLDEF legal defense fund is a good organization in my opening statement. And I think it has -- it has every right to advocate those positions that it does. But the nominee was on the board for a long time, and it did take some positions that she rightly was asked about, whether or not she agreed to it, especially during some of those times she was chairman of the litigation committee. But I value the -- these -- I value that groups can come together and file lawsuits and take their -- a matter to the court. Just briefly, Mr. Kirsanow, on -- slightly different subject than you started, I think you probably know this answer, but could you tell us for the purpose of this hearing, as briefly as you can, what the concern is in the Voting Rights Act? It's not that we're against -- anybody's against the Voting Racts (sic). I voted for it. But there are some constitutional concerns. Could you share precisely what that is?
01:14:07	MR. KIRSANOW	Sure. And specifically, with respect to the latest Supreme Court decision related to that, what was articulated is that the preclearance provisions of the Voting Rights Act pertain to a legacy of discrimination the occurred in many states where poll taxes and literacy tests were being imposed on black citizens. However, in this particular case, the Austin political subdivision came into existence after all of the -- the legacy of this discrimination had actually occurred, or even if after the Voting Rights Act itself had been passed. And the question is, how could it be that you've got a pre-existing law that is almost in -- for lack of a better term -- ex post facto applying to an organization that came into existence after the law was in effect? There was no history of discrimination or denials of equal protection or denial of voting rights by this particular political subdivision. So it was peculiar in that regard, and I think there were several justices who evinced some concern about the approach in that particular case.
01:15:12	SEN. SESSIONS	Thank you. It's just -- there are two sides to that story. And we passed a bill, and we extended it, and all of us had some angst and worry. I said I wanted to vote for it, and we did. We extended it for probably longer than we should have, not that it would ever end. Huge portions of it would -- may never end. But some portions of it may not be needed to continue. Mr. -- Lieutenant Vargas, it was a moving story you gave us. Let me just ask you this. Do you think that other members of the fire department, had they studied as hard as you and mastered the subject matter as well as you did, could have passed the -- more of them would have passed if they'd studied as hard as you?
01:16:01	LT. VARGAS	Absolutely.
01:16:02	SEN. SESSIONS	You think you --
01:16:03	LT. VARGAS	Absolutely. I studied with a group of them, and they all supported me and what I was doing, because they knew the effort that I put in. And they were right there. We really weren't all that far behind. And you know, minorities would have been promoted. That's something that continues to get left out. There would have been minorities promoted to captain, minorities promoted to lieutenant as well. And you know, when you take these exams, sometimes you have winners and sometimes -- you know, but you go into that situation knowing that that's going to be the case.
01:16:39	SEN. SESSIONS	Mr. Kirsanow, you indicated that all the judges -- I believe your phrase was "on the Supreme Court" -- rejected the standard of review that the panel -- Justice (sic) Sotomayor's panel set for the firefighter exam. Is that right?
01:17:01	MR. KIRSANOW	Senator, even the dissent had a different standard. It was a good cause standard, which would have given a little bit more definitiveness to the approach that defendants could take in defending. As you know, Title VII has a safe harbor of job related, consistent with business necessity. If you can establish that in fact the tests that the firefighters took were job related, consistent with business necessity, then only under those -- the only way you could show a disparate impact is if those tests weren't made. Even with the sense that it should have been sent back on remand.
01:17:43	SEN. SESSIONS	Thank you. And Ms. Chavez, I noticed one thing. According to the ABA statistics, only 3.5 percent of lawyers in America in 2000 were Hispanic, yet Hispanics make up 5 percent of the federal district court judges and 6 percent of circuit court judges. Would you comment on that?
01:18:04	MS. CHAVEZ	Well, first of all, I think it's important -- you know, there's been lot of attention focused on the phrase "a wise Latina woman." I used it myself, obviously, ironically, in testifying today. But I think it's important to read Judge Sotomayor's entire speech, because in fact it wasn't just that she was saying a wise Latina woman would make a better judge. What she was saying was that the race, ethnicity and gender of judges would and should make a difference in their judging. And she says in the speech itself -- she says she doesn't know, always, how that's going to happen, but she even cites some studies -- sociological studies -- that take a look at the way in which women judges have handed down decisions, and makes the case that women judges decide cases differently than men do, and she speaks of this approvingly. And she talks about statistics and how few Latinos there are on the bench. And the statistics that you just cited come from an article that I wrote in retort to the statistics that she used. I bring that up because inherent in that analysis of hers is the notion that there ought to be proportional representation on judicial panels, that we ought to be selecting judges based on race, ethnicity and gender, and that we ought to have more or less proportional representation. And I have to say that, you know, that really, I think, comes very close to arguing for quotas -- a position, by the way, that she has taken when she was with the Puerto Rican Legal Defense and Education Fund. By the way, she was not just on the board; she actually signed some memorandum. Those are in the record. And I've cited some instances of that in my written testimony. And the point is that, if there is so-called under-representation of some groups, it means there's over-representation of others. And I've said in my testimony that, if we are concerned about the number of Latino judges, the first thing you need to be a judge is a college degree and a law degree. And in fact, just using Judge Sotomayor's own statistics, if anything, if you look at the number of attorneys who are Latino at the time that she was writing, Hispanics were actually somewhat over-represented on the judicial bench. I reject all of that. That doesn't bother me in the least, that they are over-represented. I think we should not be making ethnicity and race or gender a qualification for sitting on the bench, or being a firefighter or being a captain or a lieutenant on a firefighting team. I think we ought to take race, ethnicity and gender out of the equation.
01:20:59	SEN. SESSIONS	Thank you.
01:21:00	SEN. CARDIN	Senator Durbin.
01:21:04	SEN. RICHARD DURBIN (D-IL)	Ms. Chavez, do you think that Judge Sotomayor's being awarded the Pyne Award at Princeton, for high academic achievement and good character, being summa cum laude and Phi Beta Kappa, was because it was a quota, that they wanted to make sure there was a Latina who received that?
01:21:26	MS. CHAVEZ	No, I don't. And in fact, what is interesting about about Judge Sotomayor's tenure at Princeton University is that she has said that she was admitted as an affirmative action admittee because her test scores were not comparable to that of her peers. But she also has talked about what happened to her when she got there, and that she recognized that in fact she was not particularly well prepared; that she did not write well, and that one of her professors pulled her aside and said she had to work on her writing skills.
01:21:58	SEN. DURBIN	So that would make it --
01:21:59	MS. CHAVEZ	I admire --
01:22:00	SEN. DURBIN	Excuse me. That would make it a pretty amazing story, then.
01:22:02	MS. CHAVEZ	That's right. And I wish that that was the story that she was telling Latinos, that she was --
01:22:05	SEN. DURBIN	I think that's the story of her life, that I'm describing.
01:22:08	MS. CHAVEZ	Well, it -- I wish that what she was telling Latinos is that if you do what Ben Vargas has done, if you do what Frank Ricci has done, if you take home the books and you study them and you memorize what you need to know so that you can pass the tests -- like I did, when I took home grammar books to learn how to write standard English --
01:22:25	SEN. DURBIN	Well, I understand --
01:22:28	MS. CHAVEZ	-- that that should be the story; not that she should be insisting on racial quotas or racial preferences.
01:22:32	SEN. DURBIN	Ms. Chavez, I -- I think the story of her life is one of achievement, overcoming some odds that many people have never faced, in her family life and personal life. Mr. Morgenthau, when you were alerted about her skills in law school, did they tell you that they had an opportunity here for you to hire a wise Latina lawyer? Is that what you were in the market for?
01:22:53	MR. MORGENTHAU	No, no. Absolutely not.
01:22:55	SEN. DURBIN	Would you -- I -- if you could speak into the microphone, I'd sure appreciate it.
01:22:57	MR. MORGENTHAU	I'm sorry. Absolutely not. I mean, I took one look at her , you know, summa cum laude at Princeton, Yale Law Journal, and I said -- and then I talked to her, and I thought she was common-sense in judgment and willingness to work. The fact that she was Latino or Latina had absolutely nothing to do with it. And may I just use this opportunity to say that I was one of the founding directors of the Puerto Rican Legal Defense Fund? And the reason I did that was that I thought it was important for a -- (Senator ?), a way-underrepresented minority -- you know, you're looking back 35, 40 years -- to have an organization which was dedicated to help people in housing court, discrimination cases. So I urged her to join the Puerto Rican Legal Defense Fund. And, I mean, I had become a life member of the NAACP in 1951. I'd been the -- on the national commission of the Anti-Defamation League. I think that -- I mean, one of the great strengths of the United States is its diversity. And -- but we got to help people from the various minority groups make their way and advance. And I must say, I'm very critical of some of my friends and relatives who want to forget where they came from. And it's to her credit that she remembers where she came from.
01:24:31	SEN. DURBIN	And Mayor Bloomberg, I believe you had a quote that I read about Washington being maybe the only place -- would you recall that quote on the Puerto Rican Legal Defense Fund?
01:24:41	MAYOR BLOOMBERG	Yes. I think that public service is something that certainly you, Senator, know the value of and the satisfaction when you do it. And in New York City we value those who are willing to give their time and help others. They walk away in many cases from lucrative careers to serve as public defenders or outside of the legal profession in myriad other ways. And the fact that the organizations that they work for sometimes do things that you or I disagree with doesn't take away from the value that they provide in other things that they do.
01:25:24	SEN. DURBIN	And I just made a note the other day -- this is my third nomination for the Supreme Court. I've been honored to serve on this committee and consider three nominees. The two previous nominees, Chief Justice Roberts, Justice Alito, both white males. And the questioning really came to this central point: "Do you as a white male" -- to each of these nominees we asked -- "have sensitivity to those unlike yourself, minorities, disadvantaged people?" Those questions were asked over and over again. In this case, where we have a minority woman seeking a position on the Supreme Court, it seems the question is, "Are you going to go too far on the side of minorities and not really use the law in a fair fashion?"
01:26:08	MAYOR BLOOMBERG	In fact, Senator, isn't the reason that the Founding Fathers -- at least, I assume the reason the Founding Fathers said nine justices is that they wanted a diverse group of people, with different life experiences, who could work collaboratively and collectively to understand what the Founding Fathers meant generations later on. And so the fact that I -- I said before in my testimony, I do not think that, no matter how compelling Justice (sic) Sotomayor's life experience and biography is, that's not the reason to appoint her. Certainly, we benefit from having a diverse group of people on the court, in the same way as my city benefits from a diverse group of citizens.
01:26:55	SEN. DURBIN	Mr. Chairman, if I could ask one last question -- I might say, Mr. Mayor, you're getting dangerously close to empathy -- (laughter) -- but I happen to agree with you. Mr. Morgenthau, when Judge Sotomayor worked in your office, did you notice whether or not she treated minorities any differently in --
01:27:13	MR. MORGENTHAU	She was right down the middle, Senator. She didn't treat minorities any differently than she treated everybody else. Right down the middle; looked to the law. She was tough, but fair.
01:27:26	SEN. DURBIN	Thank you very much. Thanks, Mr. Chairman.
01:27:28	SEN. CARDIN	Thank you. Senator Sessions indicated that Senator Graham will be the next inquirer.
01:27:32	SEN. LINDSEY GRAHAM (R-SC)	I'd like to thank my colleagues for the courtesy here. I've had to run back and do some things. This has been a very good panel, by the way. I think we're sort of grappling with issues right here in the Senate the country is grappling with, and I'll try to put it in perspective the best I can. Now, Ms. Chavez, identity politics -- I think I know what you're talking about. I asked the judge about it. It's a -- it's a practice of politics I don't agree with, and I think overall is not the right way to go. But having said that, I've tried to look at the judge in totality. The "well-qualified" rating from the ABA, when it was given to Judge Alito and Roberts, we all embraced it. And I used it a couple of times to say that if you thought this person had a rigid view of life or the law, it would have been very hard for the ABA to give them a "well-qualified" rating. Does that impress you at all, that the ABA had a different view, in terms of how she might use identity politics on the bench?
01:28:34	MS. CHAVEZ	Well, I'm not sure they dealt with that question. I think they did deal with her record as a judge and the decisions that she has made as a judge. The ABA and I often disagree on things that matter.
01:28:47	SEN. GRAHAM	Yeah, I totally understand.
01:28:48	MS. CHAVEZ	So It's not -- (chuckles) -- terribly unusual.
01:28:50	SEN. GRAHAM	Yeah, I totally understand. But I guess the point I'm making -- I -- I don't want to sit here and try to have it both ways; you know, say the ABA is a great thing one day and means nothing the next. Have you ever known a Republican political leader to actively try to seek putting a minority in a position of responsibility to help the party?
01:29:12	MS. CHAVEZ	I think that the idea of giving due deference to making sure that people are representative in diverse ways is a standard way of operating in political circles. I don't --
01:29:28	SEN. GRAHAM	Well, the only reason I mention that, the statement you made, the way we pick our judges should be based on merit; the way we pick our -- I totally agree with that. I mean, it's -- but politics is politics in the sense that I know that Republicans sit down and think, okay, we've got some power now; let's make sure that we let the whole country know the Republican Party is just not a party of short white guys.
01:29:53	MS. CHAVEZ	I think that's different though, Senator, than, as she suggested in her speech, that there ought to be some sort of proportional representation.
01:29:59	SEN. GRAHAM	Yeah, that's right. You can go -- that's right. I totally agree.
01:30:02	MS. CHAVEZ	I think that's farther. And I also think it matters that we're not just doing that because we want to see diverse opinions. But it seems to me that what she was saying in her speech was that we do that because blacks, Latinos and women are different, think differently and will behave differently. I mean, she said that explicitly.
01:30:24	SEN. GRAHAM	Yeah and -- right.
01:30:25	MS. CHAVEZ	I mean, she said it may be as a result of physiological differences. I think any white man that said such a thing about minorities or women would be laughed out of this room.
01:30:35	SEN. GRAHAM	Well, since I'm the white guy that said that, I agree with you. (Laughter.) But the point is that I'm trying to get the country in a spot where you're not judged by one thing; that we just can't look at her and say, that's it. You know, when I look at her, I see speeches that bug the hell out of me, as I said before. But I also see something that very much impresses me. And the ABA apparently sees something, and Louie Freeh sees something, and Ken Starr sees something. And you know, what I want to tell the country is that Republicans very much do sit down and think about political picks and appointments in a political sense to try to show that we're a party that looks at all Americans and wants to give an opportunity. And that's just life, and that's not a bad thing. Now, Mr. Ricci, I would want you to come to my house if it was on fire. And I appreciate how difficult this must have been for you, to bust your ass and to study so hard and to have it all stripped at the end. But I just want you to know, as a country, that we're probably one generation removed to where no matter how hard you studied, based on your last name or the color of your skin, you'd have no shot. And we're trying to find some balance. And in your case, I think you were poorly treated and you did not get the day in court you deserved, but all turned out well. It was a 5-4 decision. And maybe we can learn something through your experience. But please don't lose sight of the fact, not so very long ago the test was rigged a different way. Mr. Vargas, you're one generation removed from where your last name would have been it. Do you understand that?
01:32:23	LT. VARGAS	Yes, sir.
01:32:25	SEN. GRAHAM	What did you go through personally to stand with Mr. Ricci? What came your way? Did anybody criticize you?
01:32:34	LT. VARGAS	I received lots of criticism.
01:32:36	SEN. GRAHAM	Well, tell me the kind of criticisms you received.
01:32:36	LT. VARGAS	But I have thick skin. I believe that I'm a person with thick skin.
01:32:39	SEN. GRAHAM	Well, did people call you an Uncle Tom?
01:32:42	LT. VARGAS	Yes.
01:32:43	SEN. GRAHAM	People thought you were disloyal to the Hispanic community?
01:32:45	LT. VARGAS	Absolutely. Yes. (Inaudible.)
01:32:47	SEN. GRAHAM	Well, my friend, I think you've done a lot for America and the Hispanic community. My hat's off to you.
01:32:54	LT. VARGAS	Thank you, Senator.
01:32:55	SEN. GRAHAM	Finally, Mayor: Having to govern a city as diverse as New York must be very, very difficult. Is it also a pleasure?
01:33:08	MAYOR BLOOMBERG	It is a pleasure. And we -- I said before you came in that some of Judge Sotomayor's views I don't happen to agree with. Some of her decisions I think were wrong. We, for example -- I disagreed with what the City of New Haven did. And New York City -- you should know that our city is a defendant in a case, a class action suit from the Justice Department, where the challenge is two entry- level tests for our fire department, one given in 1999, before I became mayor, and one afterwards, in 2002. And we're defending it on the grounds -- the suit alleges that the written portions of the tests were not germane to the job and had a disparate impact. I've chosen to fight this. I think that in fact the tests were job related and were consistent with business necessity. This is a case that's going to go to trial sometime later this year. What we've tried to do is to approach it from a different point of view -- aggressive recruiting to try to get more minorities to apply to be firefighters, and we have revised our test. We've had a substantial increase in the number of minorities taking the test, passing the test and joining our fire department. And I really do believe that that's a better way to solve the diversity problem, which does affect an awful lot of fire departments around this country, rather than throwing out tests and thereby penalizing those who pass the test.
01:34:49	SEN. CARDIN	Senator Klobuchar.
01:34:51	SEN. AMY KLOBUCHAR (D-MN)	Thank you. I'm going to let Senator Specter, who is -- I guess I'm more senior to him only because of a technicality, but also, he's been here longer. So I'm going to let him go, and then I will go after.
01:35:01	SEN. CARDIN	Senator Specter.
01:35:04	SEN. ARLEN SPECTER (D-PA)	No, no, I'll defer to Senator Klobuchar. (Laughter.)
01:35:12	SEN. KLOBUCHAR	Okay, here we go. I first wanted to thank both firefighters for your service. As a prosecutor, we worked extensively on arson cases, and I just got a little sense of what you go through every day and how dangerous your job is. So thank you for that. I just wanted to follow up on one thing, Ms. Chavez. When you talked about -- you clearly know Ms. Sotomayor's history and her record, but when you talked about how she got into Princeton, you didn't point out the one thing that I think Mr. Morgenthau did, and that is that she ended up graduating from there summa cum laude. And that certainly is all about numbers and grades, I would think, and not affirmative action. Would that be correct?
01:35:51	MS. CHAVEZ	That's absolutely right. And I wish that was the message that she was giving to her Hispanic audiences, that she was able to do it, that she was able to overcome adversity, that she was able, because she applied herself and worked hard and put in the hours studying, to be able to succeed. And that is not the message that's
01:36:09	SEN. KLOBUCHAR	Okay. But she also was valedictorian of her high school class. And where I went to high school, that was all numbers and grades and nothing to do with anything else. Isn't that true?
01:36:17	MS. CHAVEZ	I'm only quoting what she has said herself. I don't have any idea what her test scores were. I don't think anyone but she does. But she has said that she got into Princeton, and also Yale, based on the affirmative action programs of those universities.
01:36:33	SEN. KLOBUCHAR	Okay. Mr. Morgenthau, it's just an honor to meet you. When I was district attorney, I hired a number of people that learned everything they knew from you and your office. So thank you for that. And in fact, when I did my opening statement, I talked about a quote you gave once about how you hired people. And you say: We want people with good judgment, because a lot of the job of a prosecutor is making decisions. You said: I also want to see some signs of humility in anybody that I hire. We're giving young lawyers a lot of power, and we want to make sure that they're going to use that power with good sense and without arrogance. Could you talk about those two qualities, the good judgment and the humility, and how you think those qualities may be or may not be reflected in our nominee?
01:37:20	MR. MORGENTHAU	Well, I mean, I think she met all those standards. I interviewed her and talked to her, thought she was a hard worker. I thought she would relate to victims and witnesses. I thought she had humility. I thought she was fair. I thought she'd apply the law. She met all of those standards that I thought -- I mean, I hired her entirely on the merits. Entirely on the merits. Nothing to do with her ethnic background or anything else. She was an outstanding candidate on the merits.
01:37:59	SEN. KLOBUCHAR	There is also a letter that we received from 40 of her colleagues. And one of the things I've learned is that while maybe sometimes someone does well in the workplace by their superiors, sometimes their colleagues think something else. And here you have her colleagues talking about the long hours she worked, how she was among the very first in her starting class to be selected to handle felonies. Could you describe how your process works in your office and how certain people get to handle felonies sooner than others?
01:38:29	MR. MORGENTHAU	Well, it's not only -- we have six trial bureaus, with about 50, 55 lawyers in each one. And it's up to the bureau chief, the deputies, to decide who should move along. And I know one of the people who wrote that letter had gone to Princeton and to Yale Law School and studied for the bar with Sonia. And I said, "Damn, I guess she was a little bit ahead of you." And he said, "She was a full step ahead of us." And she had the judgment, the common sense, the knowledge of people, the ability to persuade victims and witnesses to testify. So we thought she was a natural to move up to the Supreme Court.
01:39:17	SEN. KLOBUCHAR	Very good. Mayor Bloomberg, I noted today earlier that the -- that Judge Sotomayor has the support of so many law-enforcement organizations in New York, National District Attorneys Association. Could you talk about the -- what that support means and how -- I know you've had success, along with Mr. Morgenthau's amazing record of bringing crime down in New York, working with the police, working with the county attorneys as a team -- and while our nominee was a small part of that, one assistant district attorney I -- in -- as part of a big effort, what difference that has made to New York?
01:39:59	MAYOR BLOOMBERG	Well, I think, Senator, the reason that we've been able to bring crime down and improve the schools and the economy and all of these things is because I've never asked anybody or considered their ethnicity, their marital status, orientation, gender, religion or anything else. I just try to get the best that I possibly can to come to work for the city, and I think the results are there. When I interview for judges -- and I've appointed something like 140 so far in the last seven-and-a-half years -- I look for integrity and professional competence and judicial temperament and how well they write and their appellate records and their reputation for fairness and impartiality. But also, we extensively talk to members of the bar and the bench to see what professionals who have to work with a candidate day in and day out think. It's very easy to be on your best behavior when you come to Washington and have to testify before a group like this. But the truth of the matter is, your real character comes out when you do it day in and day out over a long period of time, and that's what your contemporaries see. And so the fact that a lot of people who have worked with this judge think that she is eminently qualified to move up carries an awful lot of weight with me. They can -- they know a lot more about her and her abilities than you or I could ever find out with the short period of time that we interact with her or read of -- read about her decisions, sort of out of context of what was going on at the time, and we don't have the ability to do all of the research that her contemporaries have been doing.
01:41:43	SEN. KLOBUCHAR	So you're saying that you give that a lot more weight than all the questions we've been asking for the last three days. (Laughs.)
01:41:48	MAYOR BLOOMBERG	No, I wouldn't go quite that far.
01:41:51	SEN. KLOBUCHAR	(Laughs.)
01:41:51	MAYOR BLOOMBERG	But I do think that people who work with somebody a for a long period of time really do get to know them. And most importantly people who are on the other side of the issues, on the other side of the bench, if they think that even though sometimes they win and sometimes they lose, their views, to me, matter an awful lot more.
01:42:13	SEN. KLOBUCHAR	I would agree. Thank you.
01:42:15	SEN. CARDIN	Senator Hatch.
01:42:16	SEN. ORRIN HATCH (R-UT)	Well, thank you, Mr. Chairman. Mayor, it's always good to see you. I appreciate the joy and the verve -- (chuckling) -- with which you run New York City. I know that it's a tough city to run, but you do a great job.
01:42:26	MAYOR BLOOMBERG	Thank you.
01:42:27	SEN. HATCH	Mr. Morgenthau, we all respect you. You know that. I know that. And you've given a long public service that is of great distinction. It's always good to have attorneys general from many states here, and we're grateful to have you and Mr. McDaniel. Mr. Henderson and I have been friends for a long time. We sometimes oppose each other, but it's always been with friendship and kindness. We're grateful to have you two, you two great people here who do such very important work in the city of New Haven. I know it takes guts to come here, and we appreciate your being here. Mr. Kirsanow, let me just -- and certainly, Mr. Kirsanow and Linda Chavez, we've -- we recognize your genius too and the things that you bring to the table. Let me just ask you this, Mr. Kirsanow, because I was the one who raised the Ricci case to begin with. I have two related questions about the Ricci case. Do you agree with Judge Cabranes and the other five judges who agreed with him that this was the case of first impression in the 2nd Circuit, which means that there was no precedent?
01:43:36	MR. KIRSANOW	That's correct, Senator. We took a very strong look as to whether or not there was anything on point. There may have been some peripheral cases that wouldn't provide any definitive guidance. But as I indicated in my statement, to the extent there were cases to provide guidance -- mainly EPC -- equal protection clause cases -- Wygant, so on and so forth -- those were the kind of cases you'd have to look to, but none under Title VII.
01:44:01	SEN. HATCH	Well, explain what was the issue of first impression that these six judges found?
01:44:06	MR. KIRSANOW	It was --
01:44:07	SEN. HATCH	They were in the minority, seven to six, but they -- they --
01:44:09	MR. KIRSANOW	Right.
01:44:10	SEN. HATCH	Judge Cabranes got very alarmed because this was a summary order that ordinarily they wouldn't have seen, but he caught it in the newspaper, asked to see it, and then said, my gosh, this is a case of first impression, we ought to do more than just a summary order on it -- which is something that I've been very critical of.
01:44:26	MR. KIRSANOW	Senator, it was the tension between two provisions of Title VII enacted --
01:44:30	SEN. HATCH	You're talking about disparate treatment and disparate impact.
01:44:33	MR. KIRSANOW	Precisely.
01:44:34	SEN. HATCH	And this was --
01:44:35	MR. KIRSANOW	Trying to balance the two. And keep in mind that the 1991 amendments were really a product of Griggs versus Duke Power and its progeny.
01:44:43	SEN. HATCH	Right.
01:44:43	MR. KIRSANOW	Remember that Griggs was really a response to the difficulty in demonstrating intentional discrimination, so that there was a result of disparate impact to try to help prove the case. So whether you give primacy to intentional discrimination or disparate impact was what was trying to be determined here; or not necessarily primacy, trying to evaluate both consistently with the purposes of Title VII.
01:45:13	SEN. HATCH	Well, please explain the difference between what the Supreme Court split five to four and what all nine of the justices on the Supreme Court, why they criticized Judge Sotomayor's decision.
01:45:25	MR. KIRSANOW	It had to do with the process by which the decision was reached. Even in the dissent, Justice Ginsburg noted in footnote 10 that this is something that ordinarily should have been sent back on remand because it was to determine whether or -- that is to determine whether or not there was good cause for taking the decision New Haven took. The majority, on the other hand, said the City of New Haven had to have a strong basis in evidence before it discarded the test results. So there are two separate standards by both the majority and the dissent, but neither agreed with the manner in which the Sotomayor panel disposed of the case.
01:46:03	SEN. HATCH	So all nine justices on the court agreed that the appropriate law wasn't followed.
01:46:07	MR. KIRSANOW	Correct.
01:46:08	SEN. HATCH	And five of them said the City of New Haven was wrong.
01:46:11	MR. KIRSANOW	Correct.
01:46:12	SEN. HATCH	So the firefighters won. Well, Mr. Vargas, I just wanted to make that clear because I don't think a lot of people realize that, and that's a very, very big thing to me. Mr. Vargas, your comments about your son were powerful. What difference does it make for them whether merit or race determines opportunity? What difference does this case mean for them?
01:46:37	MR. VARGAS	I believe this is going to be a greater opportunity for them in the future because they're not going to be stigmatized that way. They're not going to be looked at that ways, and they're going to rise and fall on their own merits. And that's --
01:46:49	SEN. HATCH	And that's one reason why you brought this case and participated.
01:46:52	MR. VARGAS	That's absolutely right.
01:46:54	SEN. HATCH	Mr. Ricci, I only have a few seconds, but let me say this. I want to thank you for your service for protecting your fellow citizens up there. As I understand it, the city of New Haven went to great lengths to devise this promotion test that was -- the lengths were fair, objective; the test was fair, objective and not tilted toward or against any demographic group. In fact, I understand the test was not a question. They worked on the kind and context of the question so that they were relevant to the job, but would not create a hurdle for anyone. They used both a written and an oral exam format, right? Is your understanding of how they worked to put together the test and did -- that that's the way they put it together? And did that make you believe that you would be judged on your merits?
01:47:36	MR. RICCI	Yes, Senator. The rules of the game were set up and we have a right to be judged fairly. And just by taking the test we knew that the test -- we didn't even need to go any further; just by taking the test we knew that the test was job-related and measured the skills, ability and knowledge need for a competent fire officer.
01:47:57	SEN. HATCH	Well, did that make you see this as a genuine opportunity that might, indeed, be open to you?
01:48:02	MR. RICCI	Yes, Senator.
01:48:03	SEN. HATCH	Now, tell me more about your expectations when you looked at this opportunity. You were no doubt familiar with the racial dynamics that existed in New Haven at the time. Anyone involved in their community anywhere would be aware of that. Do you think that, at all, that because the test was so rigorously and fairly designed, that any of those outside racial dynamics would become an obstacle to your future service in the fire department as long as you were qualified for the job?
01:48:30	MR. RICCI	No. Myself and all 20 plaintiffs, including other firefighters that didn't join the suit, including African-Americans and Hispanics, I think we all had the expectation when we took the test that the test would be fair and job-related, and that it was going to be dictated by one's merit on how well you did you did on the exam, not by the color of your skin.
01:48:53	SEN. HATCH	Okay. General, I just have one statement to make. You made the comment that the Supreme Court changed the law by a majority. They didn't change the law. They actually recognized there was a case of first impression here that had to be decided, and they decided it. They didn't change any laws. Now -- and it wasn't by a bare majority. I mean, nine of them said the case should be reexamined. Five of them said that New Haven was wrong. And I just wanted to make that clear so that everybody would understand it because this is not some itty-bitty case. This is one of the most important cases in the country's history, and that's why it's caused such a furore. And I want to compliment all of you firemen who have been willing to stand up in this issue because this is an important issue for people of whatever race or gender or ethnicity. And I -- you know, you've taken a lot of flack for it, and you shouldn't. Thank you, Mr. Chairman.
01:49:51	SEN. CARDIN	Thank you. Senator Specter.
01:49:53	SENATOR ARLEN SPECTER (D-PA)	Thank you, Mr. Chairman. Mr. Ricci, I agree with just about everything you said, that you had a right to go to federal court and get justice, that racial statistics are wrong. What we sought was evenhanded justice and, as the court finally decided, you had been deprived of your rights and made a change. The question that I have for you, do you have any reason to think that Judge Sotomayor acted in anything other than good faith in trying to reach a fair decision in the case?
01:50:37	MR. RICCI	That's beyond my legal expertise. I am not an attorney or a legal scholar. I simply welcomed an invitation by the United States Senate to come here today, and -- because this is our first time that we've gotten to testify about our story. So I can't comment on it.
01:50:54	SEN. SPECTER	Well I think that it's very good that you've been here and have had a chance to testify. I agree with that totally. And there is enormous appreciation for the work the firefighters do. I had a lot of association with the firefighters in my day as a city official in Philadelphia, and on the homeland security been in the forefront of funding for firefighters. And what the firefighters did on 9/11 was -- words are inadequate; the heroism and bravery and the loss of lives and the suffering. Lieutenant Vargas, again, agree with all of your testimony. In your work you have to get it right the first time. Well, when you have five-to-four decisions it's hard to say which way the ball bounces, especially when they get reversed from time to time. But I would ask you the same question I asked of Mr. Ricci, whether you have any reason to doubt the good faith of Judge Sotomayor in coming to the conclusion she did.
01:52:09	LT. VARGAS	I would have to defer to pretty much the same response. We were invited here to give our story and we wanted to focus on that. And I -- I really didn't took much to that, so --
01:52:22	SEN. SPECTER	Okay. Well, that's fair enough. And it's up to the Senate. We hope we get it right. But all anybody can use is their -- is their best judgment. Ms. Chavez, when you place so much reliance on Ricci v. DeStefano as a basis for opposing Judge Sotomayor, isn't that case just overloaded with subtlety and nuance, could've gone the other way? Can you really place much reliance on criticism of Judge Sotomayor as a disqualifier?
01:53:09	MS. CHAVEZ	Well, first of all, Senator Specter, I think I actually went back to criticize Judge Sotomayor's activities going all the way back to Princeton University, so I don't think I relied exclusively. I think what -- and I would answer the question that you asked Mr. Vargas and Mr. Ricci. I do think that Judge Sotomayor, based on her history -- her involvement with the Puerto Rican Legal Defense and Education Fund, her writings, her activism -- has indicated a preference to eliminate testing. She has fought to -- to get rid of civil-service testing. She has challenged tests as being inherently -- standardized tests -- as being inherently unequal and as always arriving arriving at a disparate impact. And I think that activism, that involvement, going back decades, did in fact influence the way she approached this case. So I think it is relevant and that is the reason I'm criticizing it. It's not just her one decision in one case; it is her whole body of work, her whole life experience and the views that she has expressed over several decades.
01:54:28	SEN. SPECTER	Well, we consistently have nominees for the Supreme Court come to this panel -- Justice Alito, Chief Justice Roberts, Justice Thomas -- on both sides of the ideological divide, and what they do in an advocacy position is customarily set aside to make an evaluation as to their -- their competency. When you talk about being a woman or being an Hispanic, it's my view that kind of diversity is enormously helpful. I go back to a question I asked Attorney General Meese more than 25 years ago: If you have -- the debate was raging on affirmative action even more than it is now -- if you have two people of equal competency and one is a minority, Attorney General Meese, not known for being a flaming liberal, took -- took the minority position. And my own view is that it's time we have more women and we had more diversity. And we have to have qualifications -- have to have qualifications. And I think that's what ultimately determines this nomination. Attorney General McDaniel, let me ask you a loaded question. You can handle a loaded question. Do you think, with all of the critical issues we have to face on separation of powers and what the Congress does by way of fact finding and what is done on the Americans With Disabilities Act and trying to find out about warrantless wiretaps and the Foreign Intelligence Surveillance Act and compensation for the survivors of the victims of 9/11 and the intricate relationship to the State Department influencing the way Congress interprets the foreign -- sovereign immunity, that there's a little too much attention paid to the Ricci case? Not that it's not very important, but there are lot of other matters that are important. Isn't this a little heavy on one case?
01:56:53	ATTY GEN. MCDANIEL	Senator, not only do I agree with you about the other issues that should be given ample attention because of their enormous weight, I think that perhaps the wrong focus of attention even on this case has been applied. Chief Justice Roberts has said that he would like to narrow standing analyses, and he would like to be a conservative justice who want to look only at the disagreements between two parties and not go beyond the scope of that. One of the important issues in the Ricci case was a standing issue, which -- was there standing to bring action if one had not been denied promotion? Senator Hatch's attorney -- own attorney general joined with me in the brief because we thought that that was among the issues that were important and should have been followed under stare decisis. Instead, the court expanded standing to someone who had not been harmed under the legal standard. I think that that is important to consider. I think that it's important to note that if they were going to change standing and standards, I think it's somewhat unfair to put emphasis on the footnote, for instance, footnote 10 of Justice Ginsburg, which said that if we are going to change the rules of the game, then we should remand the case back to be reviewed. But that wasn't critical of the 2nd Circuit in and of itself.
01:58:25	SEN. SPECTER	I --
01:58:26	ATTY GEN. MCDANIEL	So I agree with you about your emphasis --
01:58:29	SEN. SPECTER	I regret that there's so little time having Mayor Bloomberg and DA Morgenthau, Wade Henderson, we'd like to really have a chance to cross-examine them, except that I agreed with their testimony. Thank you, Mr. Chairman.
01:58:43	SEN. CARDIN	Thank you, Senator. Senator Cornyn.
01:58:45	SENATOR JOHN CORNYN (R-TX)	Thank you, Mr. Chairman. I want to extend my appreciation to each of the witnesses for taking your time to be here today. It's very important. These are, as we need to remind ourselves, this is a historic time and appointment and these are very important issues that should not be neglected or overlooked because of the press of other activities. My own position is that I think by virtue of her training, her experience and her high achievement, Judge Sotomayor is very well qualified, all other things being equal. Unfortunately, because of her speeches and other public statements where she said there's no such thing as objectivity in the law, which the opposite of objectivity is subjectivity; she said there's no neutrality. And if there's no neutrality, then I guess all that leaves is bias. And it really strikes a body blow, I think, to the concept of equal justice under the law. Judges are not policymakers. And judges should leave that job to the elected representatives of the people who reserve the time-honored right to throw the rascals out if they don't like what we're doing as elected members of the legislative branch. So, you know, my concern is what kind of judge would she be if confirmed to the United States Supreme Court, the kind of judge that follows her speeches or the kind that follows the law? And -- but I just want to say to these firefighters, what I told them earlier today when they were kind enough to come by my office. I think, you know, judges make mistakes. They used to say only a lawyer hadn't lost a case is one that hadn't tried one. And I don't necessarily hold it so much against Judge Sotomayor that she didn't rule your way in the case. Unfortunately, I think, she did not give it the proper respect and pay -- the sort of attention that she should because there were real claims there that needed to be resolved by a court. Every citizen is entitled to that, to have judges pay attention and not make mistakes by, you know, trying to sweep it under the rug. And thank goodness that Judge Cabranes found the case because it almost got slipped through the cracks and then highlighted it so it could get to the Supreme Court of the United States and the Supreme Court could address this very important, the important issues that you've presented here. And one of the most important aspects, I think, of this hearing is, this provides an opportunity and it would not have been provided, I think in large part unless these firefighters had had the courage to do what they've done is for us to refocus our attention on some of these areas like as Chief Justice Roberts said, he said, "It's sordid business, this divvying up by race." And looking at people not as an individual human being, but as a member of a group or because of their sex or their ethnicity or their race, you know, it's time for this nation, I think, we would all agree to look at everyone as individuals and to reward hard work, sacrifice and initiative. The kinds of things that I think could particularly, you, Frank, and Ben, you, Frank as the lead plaintiff, but all of the firefighters have helped demonstrate the importance of not divvying up by race, not using de facto quotas. And I think, I would have felt a lot better if Judge Sotomayor had said, you know what, this is really an important issue and we should have addressed it. But it slipped through our fingers, but thank goodness, it was caught and it was ultimately reviewed. But she didn't. And I think the idea that the city could throw out a test just because the outcome wasn't what they wanted is really pretext for racial discrimination. It's to deny people what they are entitled to because of the color of their skin. So I just want to ask in the short time I have here. Mr. Vargas, you -- I read earlier a statement that you had made to The New York Times about the reason why you've gone through this five grueling years of litigation and the abuse that you've taken from people who tried to shame you out of standing on your rights and seeing this thing through. Could you just tell the committee what sacrifices you have made? What your families made? And why you felt like those sacrifices were so important to vindicate this important right?
02:03:38	LT. VARGAS	Well, let alone, the financial sacrifice. But you know, it starts from the moment you get out of the academy, I mean, this was something that I wanted to do. I wanted to advance my career as a firefighter right through the ranks. And you know, the books came with me to work every single day, you know, from the minute I graduated from the academy right up to when I got promoted to lieutenant. And they kept coming with me right until I took the captain's exam. And once I get promoted to captain, they're going to continue to come with me until I go right up through the ranks, you know. It's not something that, you know, you can lose sight of. You've got to continue to work hard and I want to instill that in my kids. I want them to see that and I want them to know that this is what America is all about. You work hard. This is how America was built -- the greatest country in the world because you, you, as I said before, you rise and fall on your own merits.
02:04:36	SEN. CORNYN	Do you hope for a day for your children what -- we mentioned Martin Luther King's statement previously that "a day when they will be judged by the content of their character and not the color of their skin?"
02:04:49	LT. VARGAS	I think our case goes a long way to help in assuring that for them. And they're going to benefit from this and I think we're going in the right direction now.
02:05:00	SEN. CORNYN	I couldn't agree more. Thank you, Mr. Chairman.
02:05:03	SEN. CARDIN	Senator Kyl.
02:05:06	SENATOR JON KYL (R-AZ)	Thank you, Mr. Chairman. Welcome to all of you. One of the things that, I think, may have gotten lost in all of this is why tests are important? And I particularly wanted to ask the two firefighters here, Mr. Ricci and Mr. Vargas. What difference does it make how well you perform on the test, whether you pass it or not? What's the big deal? What do you really have to show in those tests? And when you're out performing your duties, what difference does it make whether you pass the test or not? Mr. Ricci, maybe start with you.
02:05:38	MR. RICCI	Thank you, Senator. It's important to realize that over 100 firefighters die in the line of duty each year, an additional 80,000 are injured. You need to have a command of the knowledge in order to make command decisions. You need to understand the rules and regulations. Experience is the best teacher, but only a fool learns in that school alone. You have to have a basis to make the right decisions because firefighters operate in all different types of environments. I've had the proud privilege of training the United States Marine Corps CBRT team and they respond to anthrax attacks in one of these buildings, I mean, firefighters have to be prepared for the regular house fire to the car accident, hazardous material incident. You go to work every day and we're like an insurance policy for the American public that they hope they never have to use, but when someone calls 911, within four to five minutes, there's a fully- staffed fire company at your door with no paperwork and we're there to answer the call. And when you show up, the officer has to be competent to lead his men and women of this fire service career and volunteer across the country, to make the right decisions.
02:06:57	SEN. KYL	Thank you. That's a great explanation. Lieutenant Vargas?
02:07:02	LT. VARGAS	There's not much I can add to that.
02:07:03	SEN. KYL	That was pretty good. (Laughter.) Well, I appreciate it and I know that everybody here, regardless of party or position on the nominee or anything else appreciates what you do and what your colleagues do. And I'm sure I speak for all of us in that regard. One of the things that I wanted to just say briefly is that I -- I'm very proud of -- I was a lawyer and I practiced law and I won some and I lost some. But I always had confidence in our system. And America is not unique, but there aren't very many countries in the world like us where we willingly volunteer to put our fortunes, our freedom in the event that we're accused of a crime, maybe even our life if there could be a death penalty involved, our careers in the case of the suit that you all were involved in. We willingly do that. And the way we do it is interesting. You all may not know this. The lawyers here certainly know it. When I filed a case in the U.S. District Court in Arizona, I didn't know which judge I was going to get. There were about 10. There was one I hoped I didn't get. But I knew that the other nine, it didn't matter. They would all approach -- they were Democrats, they were Republicans. But I didn't know because it's the next one in order and the lawyers don't know the orders. So it's almost by lot. But we had confidence that we could put our clients' issue before the court and that justice would be done because that's the way our system works, and over 220 years, the rule of law has been established in this country by judges applying the law fairly and impartially. And over time, the precedence have been built up. And what struck me about what you all had and I'm talking about the two of you had to go through is, first of all, you were confronted with a judge who in a very thorough decision said you lose. And then you appealed to the 2nd Circuit in a per curiam opinion and you all know now what that is all too well, the court didn't even write about it and said, no, you lose again. And then the day that you got the results from the Supreme Court -- just what's the difference between what you felt at the first situation and when you got the news about the Supreme Court? But you're confident in our system?
02:09:22	LT. VARGAS	I -- I -- tried to say earlier that this is exactly how this country was built. This is why we're so great because, you know, you can work hard and you can go after the things that you want in this country, and you know, you're going to be successful, you know, but you have to apply yourself. And those are the things that I try to instill in my kids and I'll always put that forth and I'll speak with my actions, so that they can see that it's a great country, you know. And that's why you need to work hard.
02:09:52	MR. RICCI	The price of democracy is vigilance.
02:09:54	LT. VARGAS	(Laughter.)
02:09:54	MR. RICCI	And to be willing to participate and the original feeling was, you know, we always through our attorneys, always went back to that process and said, this is America. If we keep going forward, the process will work. And that, at the end, to be able to look at my son and say, you know, I haven't been there for you and -- but to look at him and say, this is, this is an unbelievable civics lesson that if you participate in democracy, that's how it all works. And I thank you, Senator.
02:10:29	SEN. KYL	Well -- and I thank you and I hope that all of you will have confidence in our legal system in the future and everybody here, again, regardless of position will really stand in awe at a system, which, in our country, year in and year out has proved to be a very, very good system for our people. Thank you.
02:10:46	SEN. CARDIN	Well, Senator Kyl, I want to thank you for your questions and the responses. I think it was the right way for the record to reflect the end of this panel, which has been, I think, very, very helpful to us in the record on the confirmation process for Judge Sotomayor. I want to thank Chairman Leahy for allowing me to chair this panel. We've had very distinguished -- all eight of you. We thank you for being here. I particularly want to thank Mayor Bloomberg for taking the time to come from New York. I mentioned him because, not only does a great job as mayor, but has had an important role at Johns Hopkins University and we very much appreciate that. And to Mr. Morgenthau, you are the model for the nation in the district attorney's office. And it's a real honor to have you before our committee. And we thank you for your energy and continuation in public service. And to firefighter Ricci and to Lieutenant Vargas, I personally want to thank you for being here. You put a face on the issues. We look at cases and we talk about the impact, but it affects real people and real lives and real families. And I think you really have added to today's hearing by your personal stories. Each one of us thank you for your public service, and we thank you for -- your belief in our nation and for the testimony that you have given to this committee. Its been extremely helpful to each one of us on the Judiciary Committee. And with that, we are going to take a five minute recess. When we return, Senator Klobuchar will be chairing the next panel.
02:12:20	SEN. LEAHY	Well done.