Opinion: Sotomayor hearings: The complete transcript -- Day 3, Part 1

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As we often do here on The Ticket, in addition to our own take on politics and events, we are providing a complete transcript of the Senate Judiciary Committee confirmation hearings on Judge Sonia Sotomayor’s nomination to the Supreme Court for those interested in reading the political participants’ own words in full.

The goal, of course, is to provide Ticket readers the opportunity to make their own judgments on the back-and-forth between the nominee and other witnesses and the interrogating senators -- some setting her up with softballs, others pursuing tougher lines of questioning. And, if you choose, please feel invited to leave your own comments below and participate in the historic confirmation debate of the first Latina to the nation’s highest court.

Scroll up or down from here for the numerous items other Ticket writers are contributing minute-by-minute as the drama unfolds in Room 216 of the Hart Office Building on Capitol Hill in Washington.

A complete cast of committee characters is added to the bottom of this item.

Monday we published the opening statements of each senator and Judge Sonia Sotomayor. Tuesday we published the entire day’s transcript proceedings in five parts. The links to all those pieces are here:

Each committee senator’s opening statement. Sotomayor’s opening statement. Part 1 of Tuesday’s transcript is available by clicking here. Part 2 of today’s transcript is available here. Part 3 is available here. Part 4 of the July 14 Sotomayor transcript is here. And Part 5 is available here.

Keep checking back for new updates throughout the hearing and see the variety of items our Ticket writers are producing for you.

-- Andrew Malcolm

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SENATE COMMITTEE ON THE JUDICIARY HOLDS A HEARING ON THE NOMINATION OF JUDGE SONIA SOTOMAYOR TO BE AN ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT
JULY 15, 2009, SONIA SOTOMAYOR, NOMINATED TO BE AN ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT

CHAIRMAN PATRICK LEAHY: Good morning, everyone. Judge, it’s good to see you back and your -- and your family. Judge Sotomayor, yesterday you answered questions from 11 senators. Frankly, I freely demonstrated your commitment to the fair and impartial application of law. You certainly demonstrated your composure and patience and your extensive legal knowledge.

Today, we’ll have questioning from the remaining eight members of the committee, and then just to set the schedule, once we have finished that questioning, we will arrange a time to go into the traditional -- something we do every time for the street nominee -- traditional closed-door session, which is usually not very lengthy, and then go back to others.

I’ve talked about senator sessions. We will then go to a second round of questions of no more...

...than 20 minutes each. I’ve talked with a number of senators who have told me they will not use anywhere near that 20 minutes, although every senator has the right to do it. And I would hope we might be able to wrap it up.
But we’re going to go to Senator Cornyn, himself a former member of the Texas Supreme Court and former attorney general. And, Senator Cornyn, it’s yours.

JOHN CORNYN: Thank you, Mr. Chairman. Good morning, Judge.

SONIA SOTOMAYOR: Good morning, Senator. It’s good to see you again.

CORNYN: Good to see you. I recall, when we met in my office, you told me how much you enjoy the back-and-forth that lawyers and judges do. And I appreciate the good humor and attitude that you’ve brought to this. And I very much appreciate your -- your willingness to serve on the highest court in the land.

I’m afraid that sometimes in the past these hearings have gotten so downright nasty and contentious that some people are dissuaded from willingness to serve, which I think is a great -- is a great tragedy. And, of course, some have been filibustered. They have been denied the opportunity to have an up-or-down vote on the Senate floor.

I told you, when we visited my office, that’s not going to happen to you if I have anything to say about it. You will get that up-or-down vote on the Senate floor.

But I want to ask your assistance this morning to try to help us reconcile two pictures that I think have emerged during the course of this hearing. One is, of course, as Senator Schumer and others have talked about, your lengthy tenure on the federal bench as a trial judge and court of appeals judge.
And then there’s the other picture that has emerged that -- from your speeches and your other writings.

And I need your help trying to reconcile those two pictures, because I think a lot of people have -- have wondered about that.

And I guess the reason why it’s even more important that we understand how you reconcile some of your other writings with your judicial experience and tenure as a fact that, of course, now you will not be a lower court judge subject to the appeals to the Supreme Court. You will be free as a United States Supreme Court justice to basically do what you want with no court reviewing those decisions, harkening back to the quote we started with during my opening statement about the Supreme Court being infallible only because it’s final.

So I want to just start with the comments that you made about the ‘wise Latina’ speech that, by my count, you made at least five times between 1994 and 2003. You indicated that this was really -- and please correct me if I’m wrong, I’m trying to quote your words -- a, quote, ‘failed rhetorical flourish that fell flat.’
I believe at another time you said they were, quote, ‘words that don’t make sense,’ close quote. And another time, I believe you said it was, quote, ‘a bad idea,’ close quote.

Am I accurately characterizing your thoughts about the use of that -- of that phrase that has been talked about so much?

SOTOMAYOR: Yes, generally. But the point I was making was that Justice O’Connor’s words, the ones that I was using as a platform to make my point about the value of experience generally in the legal system, was that her words literally and mine literally made no sense, at least not in the context of what judges do or -- what judges do.

I didn’t and don’t believe that Justice O’Connor intended to suggest that, when two judges disagree, one of them has to be unwise. And if you read her literal words -- that wise old men and wise old women would come to the same decisions in cases -- that’s what the words would mean, but that’s clearly not what she meant. And if you listen to my words, it would have the same suggestion that only Latinos would come to wiser decisions.

But that wouldn’t make sense in the context much my speech either because I pointed out in the speech that eight, nine white men had decided Brown v. Board of Education.
And I know noted in a separate paragraph of the speech that -- that no one person speaks in the voice of any group. So my rhetorical flourish, just like hers, can’t be read literally. It had a different meaning in the context of the entire speech

CORNYN: But, Judge, she said a wise man and a wise woman would reach the same conclusion. You said that a wise Latina woman would reach a better conclusion than a male counterpart.
What I’m confused about, are you standing by that statement? Or are you saying that it was a bad idea and you -- are you disavowing that statement?

SOTOMAYOR: It is clear from the attention that my words have gotten and the manner in which it has been understood by some people that my words failed. They didn’t work. The message that the entire speech attempted to deliver, however, remains the message that I think Justice O’Connor meant, the message that higher nominees, including Justice Alito meant when he said that his Italian ancestry he considers when he’s deciding discrimination cases.

I don’t think he meant -- I don’t think Justice O’Connor meant that personal experiences compel results in any way. I think life experiences generally, whether it’s that I’m a Latina or was a state prosecutor or have been a commercial litigator or been a trial judge and an appellate judge, that the mixture of all of those things, the amalgam of them help me to listen and understand.

But all of us understand because that’s the kind of judges we have proven ourself to be; we rely on the law to command the results in the case. So when one talks about life experiences, and even in the context of my speech, my message was different than I understand my words have been understood by some.

CORNYN: So you -- do you stand by your words of yesterday when you said it was a failed rhetorical flourish that fell flat? That they are words that don’t make sense and that they’re a bad idea?

SOTOMAYOR: I stand by the words. It fell flat. And I understand that some people have understood them in a way that I never intended. And I would hope that, in the text of the speech, that they would be understood.

CORNYN: Well, you spoke about the law students to whom these comments from frequently directed and your desire to inspire them. If, in fact, the message that they heard was that the quality of justice depends on the sex, race, or ethnicity of the judge, is that an understanding that you would regret?

SOTOMAYOR: I would regret that because, for me, the work I do with students -- and it’s just not in the context of those six speeches. As you know, I give dozens more speeches to students all the time and to lawyers of all backgrounds, and I give -- and have spoken to community groups of all type.

And what I do in each of those situations is to encourage both students and, as I did when I spoke to new immigrants that was admitting as students, to try to encourage them to participate on all levels of our society. I tell people that that’s one of the great things about America, that we can do so many different things and participate so fully in all of the opportunities America presents.

And so the message that I deliver repeatedly and as the context of all of my speeches is, I’ve made it. So can you. Work hard at it. Pay attention to what you’re doing, and participate.

CORNYN: Let me ask about another speech you gave in 1996 that was published in the Suffolk University Law Review, where you wrote what appears to be an endorsement of the idea that judges should change the law. You wrote, quote, ‘Change, sometimes radical change, can and does occur in a legal system that serves a society whose social policy itself changes.’ You noted, with apparent approval, that, quote, ‘A given judge or judges may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction,’ close quote. Can you explain what you meant by those words?

SOTOMAYOR: The title of that speech was, ‘Returning Majesty to the Law.’ As I hope I communicated in my opening remarks, I’m passionate about the practice of law and judging, passionate in sense of respecting the rule of law so much. The speech was given in the context of talking to young lawyers and saying, ‘Don’t participate in the cynicism that people express about our legal system.’

CORNYN: What kind of ...

SOTOMAYOR: I ...

CORNYN: Excuse me. I’m sorry. I didn’t mean to interrupt you.

SOTOMAYOR: And I was encouraging them not to fall into the trap of calling decisions that the public disagrees with, as they sometimes do, activism or using other labels, but to try to be more engaged in explaining the law and the process of law to the public. And in the context of the words that you quoted to me, I pointed out to them explicitly about evolving social changes, that what I was referring to is Congress is passing new laws all the time. And so whatever was viewed as settled law previously will often get changed because Congress has changed something.

I also spoke about the fact that society evolves in terms of technology and other developments, and so the law is being applied to a new set of facts. In terms of talking about different approaches in law, I was talking about the fact that there are some cases that are viewed as radical, and I think I mentioned just one case, Brown v. Board of Education, and explaining and encouraging to -- them to explain that process, too.

SOTOMAYOR: And there are new directions in the law in terms of the court. The court -- Supreme Court is often looking at its precedents and considering whether, in certain circumstances whose precedent is owed deference for very important reasons, but the court takes a new direction. And those new directions rarely, if ever, come at the initiation of the court. They come because lawyers are encouraging the court to look at a situation in a new way, to consider it in a different way.

What I was telling those young lawyers is: Don’t play into people’s skepticism about the law. Look to explain to them the process.

I also, when I was talking about returning majesty to the law, I spoke to them about what judges can do. And I talked about, in the second half of that speech, that we had an obligation to ensure that we were monitoring the behavior of lawyers before us so that, when questionable, ethical, or other conduct could bring disrepute to the legal system, that we monitor our lawyers, because that would return a sense...

CORNYN: Judge, if you let me -- I think we’re straying away from the question I had been talking about oversight of lawyers. Would you explain how, when you say judges should -- or, I’m sorry, let me just ask. Do you believe that judges ever change the law? I take it from your statement that you do.

SOTOMAYOR: They change -- they can’t change law. We’re not lawmakers. But we change our view of how to interpret certain laws based on new facts, new developments of doctrinal theory, considerations of whether -- what the reliance of society may be in an old rule.

We think about whether a rule of law has proven workable. We look at how often the court has affirmed a prior understanding of how to approach an issue. But in those senses, there’s changes by judges in the popular perception that we’re changing the law.

CORNYN: In another speech in 1996, you celebrated the uncertainty of the law. You wrote that the law is always in a, quote, ‘necessary state of flux,’ close quote.
You wrote that the law judges declare is not, quote, ‘a definitive -- capital L -- Law that would make -- that may -- many would like to think exists,’ close quote, and, quote, ‘that the public fails to appreciate the importance of indefiniteness in the law.’ Can you explain those statements? And why do you think indefiniteness is so important to the law?

SOTOMAYOR: It’s not that it’s important to the law as much as it is that it’s what legal cases are about. People bring cases to courts because they believe that precedents don’t clearly answer the fact situation that they’re presenting in their individual case. That creates uncertainty; that’s why people bring cases.

And they say, ‘Look, the law says this, but I’m entitled to that.’ ‘I have this set of facts that entitle me to relief under the law.’ It’s the entire process of law. If law was always clear, we wouldn’t have judges. It’s because there is indefiniteness not in what the law is, but its application to new facts that people sometimes feel it’s unpredictable.

That speech, as others I’ve given, is an attempt to encourage judges to explain to the public more of the process. The role of judges is to ensure that they are applying the law to those new facts, that they’re interpreting that law with Congress’ intent, being informed by what precedents say about the law and Congress’ intent and applying it to the new facts.

But that’s what the role of the courts is. And, obviously, the public is going to become impatient with that if they don’t that process. And I’m encouraging lawyers to do more work in explaining the system, in explaining what we are doing as courts.

CORNYN: In a 2001 speech at Berkeley, you wrote, quote, ‘whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague, Judge Sederbaum, our gender and national origins may and will make a difference in our judging,’ close quote.
The difference -- a difference is physiological if it relates to the mechanical, physical, or biochemical functions of the body, as I understand the word. What do you mean by that?

SOTOMAYOR: I was talking just about that. There are, in the law, there have been upheld, in certain situations, that certain job positions have a requirement for a certain amount of strength or other characteristics that may be the -- a person who fits that characteristic can have that job.
But there are differences that may affect a particular type of work. We do that all the time.

CORNYN: We’re talking about judging.

SOTOMAYOR: You need to be a pilot who has good eyesight.

CORNYN: We’re not talking about pilots. We’re talking about judging. Right?

SOTOMAYOR: No, no, no. But what I’m -- was talking about there because the context of that was talking about the difference in the process of judging. And the process of judging, for me, is what life experiences bring to the process. It helps you listen and understand. It doesn’t change what the law is or what the law commands.

My life experience, as a prosecutor, may help me listen and understand an argument in a criminal case. It may have no relevancy to what happens in a antitrust suit. It’s just a question of the process of judging. It improves both the public’s confidence that there are judges from a variety of different backgrounds on the bench because they feel that all issues will be more -- better at least addressed. Not that it’s better addressed, but that it helps that process of feeling confident that all of arguments are going to be listened to and understood.

CORNYN: So you stand by the comment or the statement that inherent physiological differences will make a difference in judging?

SOTOMAYOR: I’m not sure -- I’m not sure exactly where that would play out, but I was asking a hypothetical question in that paragraph. I was saying, look, we just don’t know. If you read the entire part of that speech, what I was saying is let’s ask the question. That’s what all of these studies are doing. Ask the question if there’s a difference.

Ignoring things and saying, you know, it doesn’t happen, isn’t an answer to a situation. It’s consider it. Consider it as a possibility and think about it. But I certainly wasn’t intending to suggest that there would be a difference that affected the outcome. I talked about there being a possibility that it could affect the process of judging.

CORNYN: As you can tell, I’m struggling a little bit to understand how your statement about physiological differences could affect the outcome or affect judging and your stated commitment to fidelity to the law as being your sole standard and how any litigant can -- can know where that will end.

But let me ask you on another topic. There was a Washington Post story on May the 29th, 2009, where — that starts out saying, ‘The White House scrambled yesterday to assuage worries from liberal groups about Judge Sonia Sotomayor’s scant record on abortion rights.’ And White House -- it goes on to say, ‘White House press secretary said the president did not ask Sotomayor specifically about abortion rights during their interview.’ Is that correct?

SOTOMAYOR: Yes, it’s absolutely correct. I was asked no questions by anyone, including the president, about my views on any specific legal issue.

CORNYN: Do you know then on what basis, if that’s the case -- and I accept your statement -- on what basis that White House officials would subsequently send a message that abortion rights groups do not need to worry about how you might rule in a challenge to Roe v. Wade?

SOTOMAYOR: No, sir, because you just have to look at my record to know that, in the cases that I addressed on all issues, I follow the law.

CORNYN: On what basis would George Pavia, who was apparently a senior partner in the law firm that hired you as a corporate litigator, on what basis would -- would he say that he thinks support of abortion rights would be in line with your generally liberal instincts?

He’s -- he’s quoted in his article saying, quote, ‘I can guarantee she’ll be for abortion rights,’ close quote. On what basis would Mr. Pavia say that, if you know?

SOTOMAYOR: I have no idea, since I know for a fact I never spoke to him about my views on abortion, frankly, on my views on any social issue. George was the -- was the head partner of my firm, but our contact was not on a daily basis.

I have no idea why he’s drawing that conclusion, because if he looked at my record, I have ruled according to the law in all cases addressed to the issue of termination of abortion rights -- of women’s right to terminate their pregnancy. And I voted in cases in which I upheld the application of the Mexico City policy, which was a policy in which the government was not funding certain abortion-related activities.

CORNYN: Do you agree -- do you agree with his statement that you have generally liberal instincts?

SOTOMAYOR: If he was talking about the fact that I served on a particular board that promoted equal opportunity for people, the Puerto Rican Legal Defense and Education Fund, then you could talk about that being a liberal instinct in the sense that I promote equal opportunity in America and the attempts to assure that.

But he has not read my jurisprudence for 17 years, I can assure you. He’s a corporate litigator. And my experience with corporate litigators is that they only look at the law when it affects the case before them. (LAUGHTER)

CORNYN: Well, I hope, as you suggested, not only liberals endorse the idea of equal opportunity in this country -- that’s a -- that’s a, I think, bedrock doctrine that undergirds all of our -- all of our law.
But that brings me, in the short time I have left, to the New Haven firefighter case.

As you know, there are a number of the New Haven firefighters who are here today and will testify tomorrow. And I have to tell you, your Honor, as a former judge myself, I was shocked to see that the sort of treatment that the three-judge panel you served on gave to the claims of these firefighters by an unpublished summary order which has been pointed out in the press would not likely to be reviewed or even caught by other judges on the 2nd Circuit except for the fact that Judge Cabranes read about a comment made by the lawyer representing the firefighters in the press that the court gave short shrift to the claims of the firefighters.

Judge Cabranes said the core issue presented by this case, the scope of a municipal employer’s authority to disregard examination results based solely on the successful applicant is not addressed by any precedent of the Supreme Court or our circuit.

And looking at the -- looking at the unpublished summary order, this three-judge panel of the Second Circuit doesn’t cite any legal authority whatsoever to support its conclusion. Can you explain to me why — why you would deal with it in a way that appears to be so — well, dismissive may be too strong a word — but avoid the very important claims that the Supreme Court, ultimately, reversed you on that were raised by the firefighters appeal?

SOTOMAYOR: Senator, I can’t speak to what brought this case to Judge Cabranes’ attention. I can say the following, however. When parties are dissatisfied with a panel decision, they can file a petition for rehearing and bond. And, in fact, that’s what happened in the Ricci case.

Those briefs are routinely reviewed by judges. And so publishing by summary order or addressing an issue by summary order or by published opinion doesn’t hide the party’s claims from other judges. They get the petitions for rehearing.

Similarly, parties, when they’re dissatisfied with what a circuit has done, file petitions for certiorari, which is a request for the Supreme Court to review a case. And so the court looks at that as well. And so regardless of how a circuit decide a case, it’s not a question of hiding it from others.

With respect to the broader question that you’re raising, which is why do you do it by summary order or why do you do it in a published opinion or in a per curium, the question or the practice is that about 75% of circuit court decisions are decided by summary order, in part, because we can’t handle the volume of our work if we were writing long decisions in every case. But, more importantly, because not every case requires a long opinion if a district court opinion has been clear and thorough on an issue.

SOTOMAYOR: And in this case, there was a 78-page decision by the district court. It adequately explained the questions that the Supreme Court addressed and reviewed.

And so, to the extent that a particular panel considers that an issue has been decided by existing precedent, that’s a question that the court above can obviously revisit, as it did in Ricci, where it looked at it and said, well, we understand what the circuit did, we understand what existing law is, but we should be looking at this question in a new way. That’s the job of the Supreme Court.

CORNYN: But, Judge, even the district court admitted that a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations, because they knew that the exams -- they knew that, were the exams certified, the mayor would incur the wrath of Rev. Boise Kimber and other influential leaders of New Haven’s African American community.

So you decided that, based on their claim of potential disparate impact liability, that there’s no recourse — that the city was justified in disregarding the exams and thus denying these firefighters, many of whom suffered hardship in order to study and to prepare for these examinations and were successful, only to see that hard work and effort disregarded and not even acknowledged in the court’s opinion.

And, ultimately, as you know, the Supreme Court said that you just can’t claim potential disparate impact liability as a city and then deny someone a promotion based on the color of their skin. There has to be a strong basis in evidence.

But you didn’t look to see whether there was a basis in evidence to the city’s claim. Your summary opinion — unpublished summary order didn’t even discuss that. Don’t you think that these firefighters and other litigants deserve a more detailed analysis of their claims and an explanation for why you ultimately deny their claim?

SOTOMAYOR: As you know, the court’s opinion issued after discussions en banc recognize, as I do, the hardship that the firefighters experienced. That’s not been naysaid by anyone.

The issue before the court was a different one, and the one that the district court addressed was what decision the decision-makers made, not what people behind the scenes wanted the decision-makers to make, but what they were considering. And what they were considering was the state of the law at the time and in an attempt to comply with what they believe the law said and what the panel recognized as what the 2nd Circuit precedent said, that they made a choice under that existing law.

The Supreme Court in its decision set a new standard by which an employer and lower court should review what the employer is doing by the substantial evidence test. That test was not discussed with the -- with the panel. It wasn’t part of the arguments below. That was a decision by the court borrowing from other areas of the law and saying, ‘We think this would work better in this situation.’

CORNYN: My time’s up. Thank you.

LEAHY: Thank you. Thank you very much. I note in the record -- we’ll put in the record a letter of support for Judge Sotomayor’s nomination from the United States Hispanic Chamber of Commerce on behalf of its 3 million Hispanic-owned business members, 60 undersigned organizations, including the El Paso Hispanic Chamber of Commerce, the Greater Dallas Hispanic Chamber of Commerce, the Houston Hispanic Chamber of Commerce, Odessa Hispanic Chamber of Commerce and a similar letter from the Arizona Hispanic Chamber of Commerce. I meant to put those in the record before. We’ll put them in the record now.

SESSIONS: Mr. Chairman?

LEAHY: Yes?

SESSIONS: I would offer a letter for the record from the National Rifle Association in which they express serious concern about the nomination of Judge Sonia Sotomayor. Also, I notice that the head of that organization, Mr. LaPierre, wrote an article this morning on raising increased concern after yesterday’s testimony.

Ask I would also offer for the record a letter from Mr. Richard Land, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, also raising concerns.

LEAHY: And without objection, those will be made part of the record. And we will -- I yield to Senator Cardin.

CARDIN: Thank you, Mr. Chairman. And, Judge Sotomayor, good morning. Welcome back to our committee. I just want you to know that the baseball fans of Baltimore knew there was a judge somewhere that changed in a very favorable way the reputation of Baltimore forever. You are a hero, and they now know it’s Judge Sotomayor. You’re a hero to the Baltimore baseball fans. Let me explain.

The Major League Baseball strike -- you allowed the season to continue so Cal Ripkin could become the iron man of baseball in September 1995. (LAUGHTER) So we just want to invite you, as a baseball fan, we want to invite you to an Oriole game, and we promise it will not be when the Yankees are playing so you can root for the Baltimore Orioles. (LAUGHTER)

SOTOMAYOR: That’s a great invitation. And good morning, Senator. You can assure your Baltimore fans that I have been to Camden Yards. It’s a beautiful stadium.

CARDIN: Well, we think it’s the best. Of course, it was the beginning of the new trends of the baseball stadiums. And you’re certainly welcome.

Before this hearing, the people of this country knew that the president had selected someone with incredible credentials to be the Supreme Court member. Now, they know the person is able and is capable and understands the law and has been able to understand what the appropriate role is for a judge in interpreting the law and has done very well in responding to the members of the United States Senate, which I think bodes well for your interaction with attorneys and your colleagues on the bench in having a thorough discussion of the very important issues that will affect the lives of all people in our nation.

I do want to first start with the judicial temperament issue and the reference to the almanac on the federal judiciary. I just really want to quote from other statements that were included in that almanac where they were commenting about you and saying that she is very good. She is bright. She’s a good judge. She is very smart. She is frighteningly smart. She is intellectually tough. She is very intelligent. She has a very good common-sense approach to the law. She looks at the practical issues. She is good. She’s an exceptional judge overall. She’s engaged in oral argument. She is well prepared. She participates actively in oral argument. She is extremely hard working and well prepared.

And I want to quote from one of the judges on your circuit, Judge Minor, who was appointed by President Reagan, when he said I don’t think I go as far as to classify her in one camp or another. I think she just deserves the classification of an outstanding judge. I say that because maybe you would like to comment to these more favorable comments about...(LAUGHTER) .... how the bar feels about your service on the bench.

SOTOMAYOR: I thank those who have commented in the way they did. I think that most lawyers who participate in arguments before me know how engaged I become in their arguments in trying to understand them. And as I indicated yesterday, that can appear tough to some people, because active engagement can sometimes feel that way. But my style is to engage as much as I can so I can ensure myself that I understand what a party is intending to tell me.

I am, in terms of what I do, always interested in understanding, and so that will make me an active participant in -- in argument. As I noted yesterday, I have colleagues who never ask questions. There are some judges on the Supreme Court who rarely ask questions and others ask a lot of questions. Judges approach issues in different ways with different styles, and mine happens to be on one end of the style, and others choose others.

CARDIN: Well, I thank you for that response. I agree with you that the Constitution and Bill of Rights are timeless documents and has served our nation well for over 200 years and envy of many other nations.

There are many protections in the Constitution, but I would like to talk a little bit about the civil rights and the -- the basic protections in our Constitution and how we’ve seen a progression from the Constitution, Bill of Rights to constitutional amendments, including the 13th, 14th, 15th and 19th, through congressional action, through the passage of such bills as the Civil Rights Act of 1964, the Voting Rights Act of 1965, Supreme Court decisions that we’ve talked about that have changed civil rights in America, made it possible for many people to have the opportunities of this country that otherwise would have been denied.

And we made a lot of progress since the days of segregated schools and restrictions on people’s opportunities to vote. But I think we would all do well to remember the advice given to us by our colleague, Senator Edward Kennedy, the former chairman of this committee, as he talks about the civil rights struggle, when he says, and I quote, ‘The work goes on, the cause endures, the hope still lives, and the dream shall never die.’

So I say that as -- as introduction to one area of civil rights, and that is the right to vote, fundamental right. My own experience, in 2006 -- that’s just a few years ago -- causes me to be -- have concerns. In my own election, I found that there were lines longer in the African-American precincts to vote than in other precincts. And it was curious as to why this took place. They didn’t have as many voting machines; there was a lot of irregularities. And it caused a lot of people who had to get back to work to be denied their right to participate.

We also found on Election Day fraudulent sample ballots that were targeted to minority voters in an effort to diminish their importance in the election. I mention that because that happened not 50 years ago, but happened just a few years ago.

Congress renewed the Voting Rights Act by rather large votes, 93- 0 in the United States Senate, 390-33 in the House of Representatives. There’s clear intent of Congress to continue to protect voters in this country.

CARDIN: In the Northwest Austin Municipal Utility District No. 1 v. Holder, one justice on the court in dictum challenged Congress’s authority to extend this civil rights case. Now, I say that knowing your view about giving due deference to Congress, particularly as it relates to expanding and extending civil rights protections.

So my question to you is, tell me a little bit about your passion for protecting the right of vote, to make sure that the laws are enforced as Congress intended to guarantee to every American the right to participate at the voting place.

SOTOMAYOR: When we speak about my passion, I don’t think that the issue of guaranteeing each citizen the right to vote is unique to me or that it’s different among any senator or among any group of people who are Americans. It is a fundamental right. And it is one that you’ve recognized, Congress has addressed for decades and has done an amazing job in passing a wide variety of statutes in an effort to protect that right.

The question that a court would face in any individual situation is whether an act of Congress conflicts with some right of either the state or an individual with respect to the issue of voting. There could be other challenges raised on a wide variety of different bases, but each case would present its own unique circumstance.

There is one case involving the Voting Rights Act where I address the issue of the right to vote. And in that case, I issued a dissent on an en banc ruling by my court. For the public who may not understand what en banc ruling means, when the whole court is considering an issue. In that case, if it wasn’t 13, it may have been 12 members of the court, or a complement of 13 judges, but I right now can’t remember if we were a full complement at the time of considering an issue.

The majority upheld a state regulation barring a group of people from voting. I dissented on a very short opinion, one paragraph opinion, saying, ‘These are the words of Congress in the statute it passed, and the words are that no state may impose a’ -- and I’m paraphrasing it now. I’m not trying to read the statute, but no condition or restriction on voting that denies or abridges the right to vote on the basis of race.

I noted that, given the procedural posture of that case, that the plaintiff had alleged that that’s exactly what the state was doing. And I said, ‘That’s the allegation on the complaint.’ That’s what a judge has to accept on the face of the complaint. We’ve got to give him a chance to prove that, and that to me was the end of the story.

To the extent that the majority believed that -- and there was a lot of discussion among the variety of different opinions in the case as to whether this individual could or could not prove his allegation, and there was a suggestion by both sides that he might never be able to do it -- my point was a legal one. These are Congress’ words. We have to take them at their word.

And if there’s an end result of this process that we don’t like, then we have to leave that to Congress to address that issue. We can’t fix it by ruling against what I viewed as the expressed words of Congress.

CARDIN: Let me use your quote there because I thought it was particularly appropriate. You said, ‘I trust that Congress would prefer to make needed changes itself rather than to have the courts to do so for it.’ And I think the members of this committee would -- would agree with you. And as you responded to Senator Grassley in regards to the Riverkeeper case, you said you give deference to Congress. I think we all share that.

One of my concerns is that we are seeing judicial activism in restricting the clear intent of Congress in moving forward on fundamental protections. And let -- let me move, if I might, to the environment, which is an area that is of great concern to all of us.

In the past 50 years, Congress has passed important environmental laws, including the Clean Air Act, the Clean Water Act, the National Environmental Policy Act, the Endangered Species Act, the Safe Drinking Water Act and Superfund. Despite the progress we’ve made over the years, it’s important that we keep advancing the protections in our environment.

During your testimony yesterday, you made it clear that you understand that senators and members of Congress elected by the people are the ones making policy by passing laws. And you also made it clear that judges apply the laws enacted and that they should do so or at least they should do so with deference to the intent of Congress.

Yet we’ve seen in recent decisions of the Supreme Court like the Solid Waste Agency of Northern Cook County v. U.S. Corps of Engineers and Rapanos v. United States that they have forced the EPA to drop more than 500 cases against alleged polluters. These decisions have impact.

And it -- it -- it is clear to many of us that they reject longstanding legal interpretations in the federal Clean Water Act -- was done by the Supreme Court in ignoring the science that served as the foundations for the laws passed by Congress and the intent of Congress to protect American people by providing them with clean water, clean air and a healthy environment. As the senator from Maryland I’m particularly concerned about that as it relates to the efforts that we’re making on the Chesapeake Bay.

Now, I understand that these decisions are now precedent and they are binding and that it may very well require the Congress to pass laws further clarifying what we meant to say so that we can try to get us back on track. I understand that. But I would like you to comment and I hope reinforce the point that you have said that in reaching decisions that come to the bench, whether they’re environmental laws or other laws that protect our society, you will follow the intent of Congress and will not try to supplant individual judgment that would restrict the protections that Congress has passed for our community.

SOTOMAYOR: Believe my case -- my cases, my entire record shows that I look at the acts of Congress, as I think the Supreme Court does, with deference because that is the bedrock of our constitutional system, which is that each branch has different set of constitutional powers, that deference must be given to the rights of each branch in each situation that is exercising its powers. And to the extent that the court has a role -- because it does have a role -- to ensuring that the Constitution is followed, it attempts to do that. When I say attempt -- but it always attempts it with a recognition of the deference it owes to the elected branches in terms of setting policy and making law.

CARDIN: Thank you for that -- for that response. Let me turn, if I might, to our personal backgrounds. There’s been a lot of discussion here about what each of us bring to our position in public life.
CARDIN: Progress for women in this country has not come easily or quickly. At one time, women could not vote, could not serve on juries, could not hold property.

I sit here today wanting to feel confident that the Supreme Court and its justices who make key decisions on women’s rights in society will act to ensure continued progress for equality with men and women.

Now, we all agree that, in rendering an individual decision, a gender or ethnic background should not affect your judgment. There is an importance to diversity which I think we’ve all talked about. Each of us bring our life experiences to our job.

Your life experience at Princeton, I think, serves as an example. You attended the school that F. Scott Fitzgerald, 90 years, called the ‘pleasantest country club in America,’ with very restrictive policies as to who could attend Princeton University. By 1972, your freshman class, it was a different place, but still far from where it should be.

And I admire your efforts to change that at Princeton. And you were actively involved in improving diversity of that school. And Princeton is a better place today because of your efforts. I think of my own experiences at law school, University of Maryland Law School, which denied admission to Thurgood Marshall and, in my class, had very few women. Times have changed.

Justice Ginsburg said, referring to the importance of women on the bench, says, ‘I think presence of women on the bench made it possible for the courts to appreciate earlier than they might otherwise that sexual harassment belongs under Title VII.’

So on behalf of myself, on behalf of my daughter and two granddaughters, I want to hear from you the importance of different voices in our schools, in our Congress, and then on the Supreme Court of the United States as to how having diversity, the importance of diversity, your views as to what steps are appropriate for government to take in helping to improve diversity.

SOTOMAYOR: Your comment about your daughter and granddaughter makes me remember a letter I received when I was being nominated to the circuit court. It was from a woman who said she had 19 daughters and grandchildren and how much pride she took in knowing that a woman could serve on a court like the 2nd Circuit. And I realized then how important the diversity of the bench is to making people feel and understand the great opportunity America provides to all its citizens. And that has value; that’s clear.
With respect to the issue of the question of what role diversity serves in the society, it hearkens back almost directly to your previous question. I’ve been overusing that word, ‘hearken,’ sorry.

It almost comes around to your earlier question, which is that issue is one that starts with the legislative branches and the government, the executive body, and employers who look at their workforce, that look at the opportunities in society, and make policy decisions about what promotes that equal opportunity in the first instance.

The court then looks at what they have done and determines whether that action is constitutional or not. And with respect, that leads to the education field, in a very recent set of cases, the Supreme Court looked at the role of diversity in educational decisions as to which students they would admit, and the Court upheld the University of Michigan’s Law School admissions policy, which -- because the school believed that it needed to promote as wide as body of and diverse a body of students to ensure that life perspectives, that the experience of students would be as fulsome as they wished.

And they used race there as one of many factors but not one that compelled individual choices of students. The Court upheld that. And Justice O’Connor, in the opinion she wrote -- authored — expressed the hope that, in 25 years, race wouldn’t even need to be considered.

In a separate case, the University of Michigan’s undergraduate admissions policy, the Court struck that down. And it struck it down because it viewed the use of race as a form of impermissible quota because it wasn’t based on an individual assessment of the people applying but as an impermissible violation of the equal protection clause and of the law.

These situations are always looked at individually and, as I said, in the context of the choices that Congress, the executive branch, an employer is making and the interest that it’s asserting and the remedy that it’s creating to address the interest it’s trying to protect. All of that is an individual question for the courts.

CARDIN: Well, and you need to look at all the facts in reaching those decisions, which you have stressed over and over again. I want to a justice who will continue to most of the court forward in protecting those important civil rights. I thought a justice who will fight for people like Lawrence King who, at the age of 15, was shot in a school because he was openly gay.

I want a justice who will fight for women like a 28-year-old Californian who was gang raped by four people because she was a lesbian. And I want a justice who will fight for people like James Byrd, who was beaten and dragged by a truck for two miles because he was black.

So we need to continue that -- that focus. And you talked about race. And I think about the Gann case that you ruled in, a 6-year-old back child who was removed from school and was treated rather harshly with racial harassment. And in your dissent, you stated that the treatment this lone black child encountered during his pre-time in Cooks Hills first grade to have been not merely arguable, unusual, indisputable discretion but unprecedented and contrary to the school’s established policy.

Justice Blackmun spoke in order to get beyond race, we first must take race and account of race. And if you ignore race completely, aren’t you ignoring facts that are important in a particular case?

SOTOMAYOR: Well, it depends on the context of the case that you’re looking at. In the Gann, for example, there were a variety of different challenges brought by the plaintiff to the conduct that was alleged the school had engaged in. I joined the majority in dismissing some of the claims as not consistent with law.

But in that case, there was a disparate treatment element, and I pointed out to the set of facts that showed or presented evidence of that disparate treatment. That’s the quote that you were reading from, that this was a sole child who was treated completely different than other children of -- of a different race in the services that he was provided with and in the opportunities he was given to remedy or to receive remedial help.

That is obviously different, because what you’re looking at is the law as it exists and the promise that the law makes to every citizen of equal treatment in that situation.

CARDIN: Well, and I agree. I think you need to take a look at all the facts and the circumstances. And if you ignore race, you’re ignoring an important point of the facts.

Let me talk a little bit about privacy, if I might. Justice Brandeis described privacy as the right to be left alone. In other words, if we must restrict this right, it must be minimal and protections must occur before any such action occurs.

The Supreme Court has advanced rights of privacy in the Meyer case, the Loving case, which established the fundamental rights of persons to raise families and to marry whom they please, regardless of race, the Lawrence case, that states could not criminalize homosexual conduct, Griswold, that allowed for family planning as a fundamental right, and, of course, Roe v. Wade, which gave women the right to control their own bodies.

I just would like to get your assessment of the role the court faces on privacy issues in the 21st century, recognizing that our Constitution was written in the 18th century and the challenges today are far different than they were when the Constitution was written as it relates to privacy. The technologies are different today, and the circumstances of life are different. How do you see privacy challenges being confronted in the 21st century in our Constitution and in the courts?

SOTOMAYOR: The right to privacy has been recognized, as you know, in a wide variety of circumstances for more than probably 90 years now, close to 100. That is a part of the court’s precedents.

In applying the immutable principles of the Constitution, the liberty provision of the due process clause and recognizing that that provides a right to privacy in a variety of different settings, you’ve mentioned that line of cases, and there are many others in which the court has recognized that as a right.

In terms of the coming century, it’s guided by those cases, because those cases provide the court’s precedents and framework -- and with other cases -- to look at how we will consider a new challenge to a new law or to a new situation.

That’s what precedents do. They provide a framework. The Constitution remains the same; society changes. The situations that brings before courts change, but the principles are in -- are the words of the Constitution, guided by how precedent gives or has applied those principles to each situation, and then you take that and you look at the new situation.

CARDIN: In the time that I have remaining, I’d like to talk about pro bono. I enjoyed our conversation when we -- when you were in my office talking about your commitment to pro bono. I think, as attorneys, we all have a special responsibility for equal justice, and that requires equal access.

It’s not just those who can afford a lawyer. The legal aid lawyers per capita are about 61 per 6,800. For private attorneys, it’s one per 525. This is not equal justice under the law as promised by the etching on the entrance to the United States Supreme Court.

Now, it makes a difference if you have a lawyer. If you have a lawyer, you’re more likely to be able to save your home, to get the health care that you need, to be able to deal with consumer problems.

And I had the honor of chairing the Maryland Legal Services Corporation. I chaired a commission that looked at legal services in Maryland. I’m proud of the fact that we helped establish that University of Maryland Law School and University of Baltimore Law School, required clinical experiences for our law students so they not only get the experience of handling a case but understand the need to deal with people who otherwise could not afford an attorney.

Congress needs to do more in this area. There is no question about that. And I’m hopeful that we will re-authorize the Legal Service Act and provide additional resources.

But I would like to get your view as to what is the individual responsibility of a lawyer for equal justice under the law, including pro bono, and how you see the role of the courts in helping to establish the efforts among the legal community to carry out our responsibility.

SOTOMAYOR: I know that there’s been a lot of attention paid to one speech and its variants that I’ve given. If you look at the body of my speeches, public service and pro bono work is probably the main topic I speak at -- I speak about.

Virtually every graduation speech I give to law students, speeches I’ve given to new immigrants being sworn in as citizens, to community groups of all type is the importance of participation in bettering the conditions of our society, active involvement in our communities.

And it doesn’t have to be active involvement in politics. I tell people that. Just get involved in your community. Work on your school boards. Work in your churches. Work in your community to improve it.
The issue of public service is a requirement under the code of the American Bar Association. Virtually every state has a requirement that lawyers participate in public service in some way. I’ve given multiple speeches in which I’ve talked to law school bodies and said, ‘Make sure your students don’t leave your school without understanding the critical importance of public service in what they do as lawyers.’

In that we are in full agreement, Senator. To me, that’s a core responsibility of lawyering.

Our Founding Fathers, they became what they became, our Founding Fathers, because of their fundamental belief of involvement in their society and public service, and it’s a -- to me a spirit that is the charge of the legal profession, because that’s what we do. We help people, in a different way than doctors do, but helping people receive justice under the law is a critical importance of our work.

CARDIN: Well, very, very well said. I look forward to working between Congress and the courts and advancing a strategy. Thank you, Mr. Chairman.

LEAHY: Thank you very much, Senator Cardin. And Senator Coburn? (More to come)

SPEAKERS: SEN. PATRICK J. LEAHY (D-VT.), CHAIRMAN; SEN. HERB KOHL (D-WIS.), SEN. DIANNE FEINSTEIN (D-CALIF.), SEN. RUSS FEINGOLD (D-WIS.), SEN. CHARLES E. SCHUMER (D-N.Y.), SEN. RICHARD J. DURBIN (D-ILL.), SEN. SHELDON WHITEHOUSE (D-R.I.), SEN. BENJAMIN L. CARDIN (D-MD.), SEN. RON WYDEN (D-ORE.), SEN. AMY KLOBUCHAR (D-MINN.), SEN. EDWARD E. ‘TED’ KAUFMAN (D-DEL.), SEN. ARLEN SPECTER (D-PA.), SEN. AL FRANKEN (D-MINN.),
SEN. JEFF SESSIONS (R-ALA.), RANKING MEMBER SEN. ORRIN G. HATCH (R-UTAH), SEN. CHARLES E. GRASSLEY (R-IOWA), SEN. JON KYL (R-ARIZ.), SEN. LINDSEY GRAHAM (R-S.C.), SEN. JOHN CORNYN (R-TEXAS), SEN. TOM COBURN (R-OKLA.)