Sotomayor confirmed

Judge Sonia Sotomayor has been confirmed to the U.S. Supreme Court by the U.S. Senate in a 68 to 31 vote. She will be the third woman and the first Latina to serve in this capacity.

Harkin’s statement:

“Mr. President, I am proud to support the confirmation of Judge Sonia Sotomayor as the next Associate Justice of the United States Supreme Court.

“Judge Sotomayor’s story is proof of the central American promise: That any person, by sheer force of their talent, can rise from the humblest background to one of the highest offices in this country. Born to a Puerto Rican family, Judge Sotomayor grew up in public housing in the South Bronx. Her father, a tool-and-die worker with a third grade education, died when she was nine years old. Due to her mother’s struggle and sacrifice, and Judge Sotomayor’s tremendous ability and perseverance, she graduated valedictorian of her high school in New York, then graduated summa cum laude from Princeton University.

“She went on to earn her law degree from Yale Law School, where she was editor of the Yale Law Journal. After law school, Judge Sotomayor served as an Assistant District Attorney in New York County for five years and then entered private practice as a corporate litigator. For the past 17 years, she has served as a Federal district and appellate court judge.

“Given her experiences and career, there is no doubt that Judge Sotomayor is immensely qualified to serve on our nation’s highest court. What is clear from her 17-year judicial career, from my meeting with her, and from her confirmation hearing is that she is an unbiased, mainstream judge with a deep commitment to the rule of law and constitutional values. She has an exemplary record during her tenure on the bench, and every independent analysis has made clear that she is a judge who faithfully applies the law.

“Given her record, I am saddened that many Republicans have chosen to grossly distort her record, and have spent so much time focusing on a few out-of-context quotes and less than a handful of decisions. Putting rhetoric aside, she has participated in nearly 3,000 decisions and authored approximately 400 opinions. Her 17-year record overwhelmingly demonstrates that she is anything but a “judicial activist.”

“Considering her outstanding intellect, credentials and judicial record, there simply is no doubt Judge Sotomayor should be confirmed. However, for me, there is another, equally important, consideration. I also firmly believe that Judge Sotomayor will be an important and needed voice on the Court to ensure proper effect is given to our most important statutes, such as the Americans with Disabilities Act (ADA), the Civil Rights Act, and the Age Discrimination Employment Act (ADEA), so all Americans receive the fullest protections of the law.

“This is illustrated in an area of the law that I care deeply about – disabilities rights. Unfortunately, as many in Congress know, the Rehnquist Court repeatedly misread the ADA, ignored the intent of Congress and narrowed the scope of individuals deemed eligible for protection under the ADA. The result of these decisions was to eliminate protection for countless thousands of Americans with disabilities. These flawed, harmful decisions were reversed last year when Congress unanimously enacted the ADA Amendments Act.

“The contrast between the Rehnquist Court and Judge Sotomoyer is stark. In Bartlett v. New York State Board of Bar Examiners, Marilyn Bartlett had a PhD in educational administration and a law degree from Vermont Law School. She was also diagnosed with a disability that affected her reading speed and fluency. After completing law school, Ms. Bartlett worked as an associate and received excellent reviews. However, when she took the bar exam, she was denied accommodation for her reading impairment, such as extra time and permission to record her essays on tape. She failed the exam. The bar claimed that she did not have a disability because the examiners did not believe she was limited in the major life activities of reading or working.

“Judge Sotomoyer, however, ruled for Ms. Bartlett, holding that a student with learning disabilities was entitled to an accommodation while taking the bar exam. Understanding the true purposes of the ADA, she noted:

“For those of us for whom words sing, sentences paint pictures, and paragraphs create panoramic views of the world, the inability to identify and process words with ease would be crippling. Plaintiff, an obviously intelligent, highly articulate individual reads slowly, haltingly, and laboriously. She simply does not read in the manner of an average person. I reject the basic premise of defendants’ experts that a learning disability in reading can be identified solely by a person’s inability to decode, i.e., identify words, as measured by standardized tests, and I accept instead the basic premise of plaintiff’s experts that a learning disability in reading has to be identified in the context of an individual’s total processing difficulties.”

“As the Congressional Research Service noted, “She anticipated the legislative discussions surrounding the ADA Amendments Act by finding the use of self accommodations did not mean that the plaintiff was not an individual with a disability.”

“The contrast between Judge Sotomayor’s approach to judging – with her respect for congressional intent and for long-standing precedent – and the current Court’s activism is likewise illustrated by their respective treatment of so called “mixed motive” discrimination cases.

“In June of this year, the Supreme Court decided Gross v. FBL Financial, Inc. In a case involving an Iowan, Jack Gross, the Court made it harder for those with legitimate age discrimination claims to prevail under the ADEA. In doing so, it reversed a well established, 20- year-old standard, consistent with that under Title VII of the Civil Rights Act, that a plaintiff need only show that membership in a protected class was a “motivating factor” in an employer’s action. Instead, the Court held that a plaintiff alleging age discrimination must prove that an employment action would not have been taken against him or her “but for” age. In other words, the plaintiff must now prove that age discrimination was not a cause or a motivating factor, but must prove that it was the exclusive cause of an adverse employment action. Proving “but for” cause is extremely difficult and will greatly limit potentially meritorious suits involving discrimination Congress sought to prevent.

“In doing so, the Court did not even address the question it granted certiorari on. As Justice Stevens noted in dissent, “I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. The Court is unconcerned that the question it chooses to answer has not been briefed by the parties or uninterested amici curie. Its failure to consider the views of the United States, which represents the agency charged with administering the [Age Discrimination Employment Act], is especially irresponsible.”

“The contrast with Judge Sotomayor is telling. In Parker v. Columbia Pictures, she addressed the very same question in the disabilities context – whether a plaintiff need show discrimination was a “motivating factor” or “but-for” cause under the ADA. In contrast to Justice Thomas’s opinion in Gross, she carefully analyzed the statutory language, intent of Congress and precedents and noted that “Congress intended the statute . . . to cover situations in which discrimination on the basis of disability is one factor, but not the only factor, motivating an adverse employment action.”

“Unfortunately, the Supreme Court has transformed the legal landscape regarding the ability of Congress to protect our most vulnerable citizens. In fact, since 1995, the Rehnquist and Roberts Courts have struck down 38 acts of Congress. Until then, the Court had struck down an average of one statute every two years.

“For example, in University of Alabama v. Garrett, a case I personally attended, the Court limited the rights of people with disabilities. In doing so, it ignored numerous congressional hearings and a task force which collected evidence through 63 public forums around the country attended by more than 7,000 persons. In United States v. Morrison and Kimel v. Flordia Board of Regents, the Court completely ignored extensive Congressional fact-finding and struck down parts of the Violence Against Women’s Act and Age Discrimination Employment Act, respectively. In June, in Northwest Austin Municipal Utility District v. Holder, the Court suggested it was poised to strike down the Voting Rights Act, disregarding expansive congressional fact-finding, including 21 hearings and 16,000 pages of testimony.

“Given the current Court’s repeated disregard for Congress and for our efforts to expansively protect American citizens from discrimination, I believe it is imperative that the next justice be someone who respects precedent, strives to apply congressional intent and purpose, and understands the importance of this nation’s landmark civil rights protections. Based on her long judicial record, I am confident Judge Sotomayor is precisely that type of jurist.

“Mr. President, confirmation of Judge Sotomayor will be historic. She clearly has the intellect, experience and judgment to be an outstanding Justice. I am proud to support her nomination.”

Grassley’s statement:

Mr. President, I wanted to voice my opposition to the nomination of Judge Sonia Sotomayor to be an Associate Justice. I cannot support her nomination because I’m not persuaded that she has the right judicial philosophy for the Supreme Court. I’ve already spoken at the Judiciary Committee and on the floor at some length about my reasons for opposing Judge Sotomayor, but I just wanted to reiterate some of those reasons before we vote on her nomination in a few hours. It is the Senate’s constitutional responsibility to thoroughly review the qualifications of the President’s judicial nominations. This “advise and consent” process is especially important when we consider nominees to the Supreme Court, the highest court of the land.

Both Chairman Leahy and Ranking Member Sessions did an admirable job in conducting a fair, but rigorous, examination of Judge Sotomayor’s record. The nominee was asked tough questions, but she was also treated fairly and with respect, as is appropriate of all judicial nominees.

We want to make sure that judicial nominees have a number of qualities. But superior intelligence, academic excellence, distinguished legal background, personal integrity, and proper judicial demeanor and temperament are not the only qualities we must consider in a judicial nominee. Judges, and in particular Supreme Court nominees, must have a true understanding of the proper role of a Justice as envisioned by the Constitution, as well as an ability to faithfully interpret the law and Constitution without personal bias or prejudice. Since becoming a member of the Senate Judiciary Committee in 1981, I’ve used this standard to vote to confirm both Republican and Democrat Presidents’ picks for the Supreme Court.

Because Supreme Court Justices have the last say with respect to the law and have the ability to make precedent, they don’t have the same kind of constraints that lower court judges have. So we need to be convinced that these nominees will have judicial restraint – the self restraint to resist interpreting the Constitution to satisfy their personal beliefs and preferences. We need to be persuaded that these nominees will be impartial in their judging, and bound by the words of the Constitution and legal precedent. We need to be certain that these nominees won’t overstep their bounds and encroach upon the duties of the legislative and executive branches. Our American legal tradition demands that judges not take on the role of policy makers, but that they check their biases, personal preferences and politics at the door of the courthouse. The preservation of our individual freedoms depends on limiting policy-making to legislatures, rather than unelected judges who have life-time appointments.

When then-Senator Obama voted against now-Chief Justice Roberts, he talked about how a judge needed to have “empathy” to decide the hard cases. He said, “That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy. . . . in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.” In another speech, President Obama further elaborated on this “empathy” standard for judges: “in those five percent of cases, what you’ve got to look at is – what is in the Justice’s heart. What’s their broader vision of what America should be. . . . We need somebody who’s got the heart – the empathy – to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old – and that’s the criteria by which I’ll be selecting my judges.” And when the President nominated Judge Sotomayor to the Supreme Court, he did that with the belief that she meets his “empathy” standard.

President Obama’s “empathy” standard has been widely criticized as contrary to the proper role of a judge. That’s because an “empathy” standard necessarily connotes a standard of impartiality. This is a radical departure from our American tradition of blind, impartial justice. In fact, even Judge Sotomayor repudiated President Obama’s “empathy” standard at her confirmation hearing.

A judge’s impartiality is so critical to his or her duty as an officer in an independent judiciary that it is mentioned three times in the oath of office for federal judges. Every judge swears to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all [his] duties…” Therefore, empathetic judges who choose to embrace their personal biases cannot uphold their sworn oaths. If we are to have a government of laws and not of men and women, then our judges must not favor any party or class over another, whether they be historically privileged or disadvantaged. Our judges must decide the cases before them as the law requires, even if the law compels a result that is at odds with the judge’s personal, deeply held feelings.

The fact that we have an independent judiciary means that it is not a political body. In exchange for remaining unchecked by the will of the people, the judicial branch is required to maintain its impartiality. This country was founded on the principle that justice is the same for everyone. No one is entitled to special treatment, whether by fate or by fortune, because no man or woman is above the law.

No matter what you call it – empathy, compassion, personal bias, or favoritism – it can have no place in the decision-making process of a judge, and especially not a Supreme Court Justice. While justice is not an automated or mechanical process, it also isn’t a process that permits a patchwork of cases where the outcome is determined not by the law, but by a judge’s personal predilections. Judges may differ on what the law says, but they should never reach a conclusion because of a difference in ideology or because of their empathy for one of the parties. An empathy standard for judging would betray the very cause of equality that it purports to champion by creating classes among our citizens in the eyes of the law. That’s what is so dangerous about President Obama’s standard, and why we should be cautious in deferring to his choices for the judicial bench. That’s why we should continue to assess judicial nominees based on their fidelity to the rule of law, and not on some well-intentioned hope or belief that the personal biases they will rely on in their judging will be the “right” ones.

Unfortunately, Judge Sotomayor’s speeches and writings over the years reveal a judicial philosophy that highlights the importance of personal preferences and beliefs in her judicial method. Her speeches and writings reveal her views of a judge and judicial decision-making process that is contrary to what our American tradition demands of the judiciary and our system of justice.

Let me cite just a few troubling statements she has made over the years. Judge Sotomayor questioned “whether achieving the goal of impartiality is possible at all in even most cases,” and “whether by ignoring our differences as women, men, or people of color we do a disservice to both the law and society.” She promoted identity politics where she openly admitted that “[my experiences] will affect the facts I choose to see and that “I willingly accept that … judge[s] must not deny the differences resulting from experience and heritage.” She claimed that the court of appeals is where “policy is made.” She said that a “wise Latina would more often than not reach a better conclusion than a white male.” She disagreed with a statement by Justice O’Connor that “a wise old woman and a wise old man would eventually reach the same conclusion in a case.” She said that “unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases, that we are going to lose influence in the world.” She urged judges to look to foreign law so they can get their “creative juices” flowing.

At her confirmation hearing, Judge Sotomayor attempted to distance herself from these statements and explain them away, most likely recognizing that they were controversial and out of the mainstream. However, in my mind, she was not very successful. Even the Washington Post said that Judge Sotomayor’s testimony about some of her statements before the Judiciary Committee was “less than candid” and “uncomfortably close to disingenuous.” I wasn’t the only one who had problems reconciling what Judge Sotomayor said at the hearing with the statements she has repeated over and over again throughout the years. That’s because the statements made at the hearing and those made in speeches and law review articles outside the hearing are polar opposites of each other. Some of her explanations were contrived or far-fetched. In my opinion, these statements in her writings and speeches cannot be reconciled with her testimony.

I’m not sure which Judge Sotomayor I’m to believe. She appears to be Justice Ginsburg in her speeches and writings, but made statements like Chief Justice Roberts in her confirmation hearing. So I think the Washington Post’s conclusions are worth repeating: “Judge Sotomayor’s attempts to explain away and distance herself from that [wise Latina] statement were unconvincing and at times uncomfortably close to disingenuous, especially when she argued that her reason for raising questions about gender or race was to warn against injecting personal biases into the judicial process. Her repeated and lengthy speeches on the matter do not support that interpretation.”

I’m not only troubled with the speeches and writings Judge Sotomayor produced during her time as a sitting judge on the Second Circuit and her contradictory testimony before the Judiciary Committee. I also have concerns with cases that Judge Sotomayor decided when she sat on the Second Circuit. Some cases raise serious concerns about whether Judge Sotomayor will adequately protect the Second Amendment’s right to bear arms and Fifth Amendment property rights. Statements she made at the hearing raise concerns that she will inappropriately create or expand rights under the Constitution. Other cases raise concerns about whether she will impose her personal policy decisions instead of those of the legislative or executive branch. In addition, Judge Sotomayor’s track record on the Supreme Court is not a particularly good one – she has been reversed 8 out of 10 times, and was criticized in another of the 10 cases.

At the hearing, Judge Sotomayor was asked about her understanding of rights under the Constitution – including the Second and Fifth Amendments and the right to privacy. She was asked about her legal analysis in certain cases, like the Ricci, Maloney and Didden cases. She was also asked about how she views precedent and applies it in cases before her. Ultimately, I wasn’t satisfied with her responses, nor was I reassured that Judge Sotomayor would disregard her strong personal sympathies and prejudices when ruling on hard cases dealing with important Constitutional rights.

With respect to the Ricci case, I wasn’t persuaded by Judge Sotomayor’s claims that she followed precedent, nor her explanation as to why she could dismiss such a significant case in summary fashion. The only reason this case found its way to the Supreme Court was because her Second Circuit colleague read about it in the newspaper, recognized its importance, and asked to have it reconsidered. When the Supreme Court reversed Judge Sotomayor’s decision, it held that there was no “strong basis in evidence” to support her opinion. In fact, her legal reasoning in Ricci was so flawed, all nine Justices rejected it.

With respect to the Maloney case, I was concerned with Judge Sotomayor’s explanation of her decision holding that the Second Amendment right to bear arms is not “fundamental,” as well as her claims that she was simply following Supreme Court and Seventh Circuit precedent. I was also concerned with her refusal at the hearing to affirm that Americans have a right of self-defense. If Maloney is upheld by the Supreme Court, the Second Amendment will not apply against state and local governments, thus permitting potentially unrestricted limitations on this important Constitutional right.

With respect to the Didden case, I was troubled with Judge Sotomayor’s failure to understand that her decision dramatically and inappropriately expands the ability of state local and federal governments to seize private property under the Constitution. In fact, based on the Didden holding, it’s not clear whether there are any limits to the ability of state local and federal governments to take private property. I also was concerned with Judge Sotomayor’s mischaracterization of the Supreme Court’s holding in Kelo. And I wasn’t satisfied with her explanation about why she summarily dismissed the property owner’s claims based on the statute of limitations. I don’t think these concerns are off the mark – the Didden case has been described as “probably the most extreme anti-property rights ruling by any federal court since Kelo.”

So Judge Sotomayor’s discussion of landmark Supreme Court cases and her own Second Circuit decisions raise questions in my mind about whether she understands the rights given to Americans under the Constitution. I question whether she will refrain from expanding or restricting those rights based on her personal preferences.

Almost two decades ago, then-Judge Souter during his confirmation hearing spoke about courts “filling vacuums” in the law. That discussion struck me as odd and troubled me, because clearly it is not the role of a court to fill voids in the law left by Congress. Although Judge Souter backtracked on his courts “filling vacuums” statement when I pressed him about it, I believe that his decisions on the Supreme Court actually reveal that he does believe courts can and do fill vacuums in the law. It’s no secret that I regret my vote to confirm him. And because of that, I’ve asked several Supreme Court nominees about the propriety of judges “filling vacuums” in the law at their confirmation hearings. So this question shouldn’t have come as a surprise to Judge Sotomayor when I asked her about it at her confirmation hearing. Unfortunately, I wasn’t satisfied with her lukewarm answers to my question. In fact, it just reinforced the concerns I had with her hearing testimony, cases, speeches and writings.

Judge Sotomayor has overcome many obstacles to get to where she is today. There’s no doubt that Judge Sotomayor is an engaging, talented, intelligent woman. She has tremendous legal experience and many other good qualities. I very much enjoyed meeting with her and getting to know her personally. But I can’t just base my decision on these things. I have to look at her judicial philosophy and determine whether I believe it is one that is appropriate for the Supreme Court. That’s my constitutional responsibility. And based on her answers at the hearing and her decisions, writings and speeches, I’m not comfortable with what I understand to be Judge Sotomayor’s judicial philosophy. I’m not persuaded that she’ll protect important Constitutional rights, and I’m not convinced that she’ll refrain from creating new rights under the Constitution. I’m not persuaded that she won’t allow her own personal biases and prejudices to seep into her decision-making process and dictate the outcome of cases before her. So it is with regret that I must oppose her nomination to the Supreme Court.

I said this in the Judiciary Committee, and I repeat it now on the floor. Only time will tell which Judge Sotomayor will sit on the Supreme Court. Is it the judge who proclaimed that the court of appeals is where “policy is made,” or is it the nominee who pledged “fidelity to the law?” Is it the judge who disagreed with Justice O’Connor’s statement that a wise woman and a wise man will ultimately reach the same decision, or is it the nominee who rejected President Obama’s empathy standard? Only time will tell.

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A Republican turned Democrat who is now registered with no party, Lynda is the founder of Essential Estrogen. She and her husband live in eastern Iowa with their two (mostly good) children and two (mostly good) dogs. Their oldest child was turned loose on the world in 2011 and is making her home in another state. A journalist, essayist and hobby fiction writer, Lynda's work has been seen in Salon, RH Reality Check, the Atlantic, The Iowa Independent, UK Guardian as well as other online and traditional publications. She has also appeared as a guest on various television and radio news shows.

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