Return to Transcripts main page
CNN Newsroom
Coverage of Judge Sonia Sotomayor's Supreme Court Confirmation Hearing
Aired July 14, 2009 - 11:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
TONY HARRIS, CNN ANCHOR: And let's get to some of the other stories making news today.
House Democrats today plan to release a bill to overhaul the nation's health care system. Speaker Nancy Pelosi says she expects a vote by the August recess, but she says more changes in the bill are likely due to differences over how to pay for it. The plan could cost about $1 trillion over 10 years, with much of the money spent on people who cannot afford care.
New signals on the economy. Retail sales are up. So are wholesale prices. The Commerce Department says last month's sales rose .6 of a percent, better than economists expected.
A surge in gasoline prices and a slight rebound in auto sales credited for the gains. And the government says prices at the wholesale level before goods reached store shelves jumped 1.8 percent in June. Wholesale prices rose just .2 percent in May.
A fourth suspect is in custody in the shooting deaths of a Florida couple known for adopting special-needs children. Authorities say Gary Lamont Sumner was arrested after he was pulled over during a traffic stop. He faces a murder charge.
Authorities have also released surveillance video from outside the home where Byrd and Melanie Billings were shot to death. It shows suspects wearing masks and dressed in black entering the home. Officials are looking for more suspects and answers.
(BEGIN VIDEO CLIP)
SHERIFF DAVID MORGAN, ESCAMBIA COUNTY, FLORIDA: We have identified a motive. A motive is robbery. But there are other motives we believe that will develop.
(END VIDEO CLIP)
HARRIS: The couple had 16 children, 12 of them adopted. Nine were in the home when their parents were killed.
Frightening moments for passengers on a Southwest Airlines jet. A football-sized hole in the passenger cabin forced the plane to make an emergency landing in Charleston, West Virginia, yesterday. Flight 2294 was headed from Nashville to Baltimore when the hole opened up. That caused the cabin to depressurize and the oxygen masks to deploy.
(BEGIN VIDEO CLIP)
SHERYL BRYANT, PASSENGER: We were seated about two rows back from the wing, and about four rows back we heard this loud rush, and your ears popped. And then we looked back and you could tell that part of the inside was trying to pull out, and it was really -- it was crazy.
(END VIDEO CLIP)
HARRIS: One hundred twenty-six passengers and five crew members were on board. No one was injured. Southwest inspected nearly 200 of its planes overnight as a precaution.
And those are some of the other stories making news right now.
Let's get you back to Wolf in Washington.
WOLF BLITZER, CNN ANCHOR: Tony, thanks very much. Pretty scary moment for those passengers on that Southwest flight.
The confirmation hearings are continuing, and only a few moments ago an important statement from Sonia Sotomayor in response to a question from Democratic Senator Herb Kohl of Wisconsin.
(BEGIN VIDEO CLIP)
JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: The court's decision in Planned Parenthood versus Casey reaffirmed the court holding of Rowe. That is the precedent of the court and settled in terms of the holding of the court.
(END VIDEO CLIP)
BLITZER: Settled law, basically, Rowe versus Wade, the 1973 landmark decision giving women the right to have an abortion. She says it is now the settled law of the United States.
Jeff Toobin, a significant statement, although certainly not surprising.
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Not surprising. That is the formulation that John Roberts used. Samuel Alito also said they were settled law. But between the lines with Roberts and Alito, you could see that that was a decision they were uncomfortable with.
I didn't sense any similar discomfort with Judge Sotomayor here. And frankly, she was nominated by a president who is pro-choice, pro- abortion rights. President Bush, who was anti-abortion rights, appointed Alito and Roberts, and I think that will be reflected in their tenure on the court.
BLITZER: But Candy, in terms of all of her decisions as a federal judge, there weren't a whole lot, if any, that directly addressed the issue of abortion rights.
CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT: No. There was one on Mexico City policy, but that's the only one that even mentioned the word "abortion" that I could find. So, frankly, when you do look at her record, all of these hot-button issues, we really know very little, and it would have been surprising had she not said that Rowe v. Wade was settled law.
ALEX CASTELLANOS, CNN CONTRIBUTOR: But when she was part of the Puerto Rican Legal Defense Fund, she chaired the litigation committee, which she supported strongly. It's been reported she took a great interest in it, and they did want taxpayer funding of abortion, they did want to get rid of parental notification, they did try to get no 24-hour notice, things like that.
MARIA ECHAVESTE, SENIOR FELLOW, CENTER FOR AMERICAN PROGRESS: They wanted poor women in this country to be able to have the same rights that women of means have in order to exercise their constitutional right to have an abortion.
JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: One of interesting questions here, though, Wolf, will be whether this comes up later. Senator Kohl asked a very basic question. A lot of the abortion- rights groups have been pressuring the Democrats because she does not have, as Candy noted, an established record on this question to mine into that issue, to try to get her to say she supports Rowe v. Wade, not just that it is the settled law of the land.
The White House has urged them to back off, because if the Democrats open the door on abortion, then they open the door for the Republicans to ask on abortion and every other issue. The White House has pressured Democrats to back off, ask a very basic question like that and leave it there. It will be interesting to see if it stays there.
GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: In fact, in the city case that Candy was referring to, she sided with the Bush White House on this, saying they could deny funding for clinics that that would perform abortion. So, that's why liberals are so upset.
BLITZER: Beyond saying that this Rowe v. Wade decision of 1973 is settled law, I suspect we're not going to get a lot more specifics from Sonia Sotomayor, exactly how she feels about abortion rights.
We're going to continue our coverage, including Orrin Hatch, one of the top Republicans on the Judiciary Committee. He is getting ready for 30 minutes of uninterrupted questioning.
Our coverage will continue right after this.
(COMMERCIAL BREAK)
BLITZER: They've just gone into a short break, 10, perhaps 15 minutes, the Senate Judiciary Committee. Senator Patrick Leahy giving everyone a chance to get away from their chairs. Sonia Sotomayor, looking at these live pictures, she's going to have a little opportunity to take a break, as well.
The next senator who will be questioning her will be Orrin Hatch, the Republican senator from Utah, and he'll be followed by Democratic Senator Dianne Feinstein of California. Each senator has 30 minutes of an opportunity to ask specific questions. That's what they're doing.
This is going to go on throughout the day today, probably spill over into tomorrow, as well. We'll have extensive coverage here throughout the day on CNN.
Some of the most sensitive issues have already been raise with Sonia Sotomayor, and she's had an opportunity now for the first time publicly to explain where she stands.
CNN's senior congressional correspondent, Dana Bash, is over at the Hart Senate Office Building watching all of this.
Give us a little flavor of what's going on in that room, Dana.
DANA BASH, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Well, what's going on is you are seeing definitely the kind of script that I think we all knew that we were going to see ahead of this question-and- answer session, which is, as you said, for the most part, Democrats are trying to get out the concept and the idea that Sonia Sotomayor does have a pretty good record, and she has a pretty good experience, exemplary experience, when it comes to her ability to be a Supreme Court justice.
And Republicans, at least the first Republican and the only Republican we've heard so far, relentless -- relentless -- that is Senator Jeff Sessions -- in trying to get to the idea that he believes that no matter what she says now, she has suggested in the past that she necessarily will use her experience and will use it on the bench. And I think he said about a dozen times in a different form that concept, that he tried to press her on that concept over and over again.
What we are going to hear after the break is Senator Orrin Hatch. And I am told by some of his aides that he is going to really drill down on the concept and the idea of gun control and the Second Amendment, because that is an issue, again, where many of these Republicans who do not think that they are going to be able to defeat Sonia Sotomayor, that is one area where they think that they could put a question mark in some of the minds, potentially, of some conservative Democrats. So, we'll hear from him.
And one other Democrat to listen for and here her after the break is Senator Dianne Feinstein. Wolf, I spoke with her a few weeks ago in the hallway, and she was talking about the fact that she gets a bit frustrated that all nominees are put through these murder (ph) boards with the White House. These are Democrat and Republican nominees. And she said that she feels that some of their answers are too scripted. So, she said to me that she wants to try to crack the code a little bit.
This is a fellow Democrat, so it will be interesting to see how she tries to do that in her questioning coming up.
BLITZER: We'll see how far she gets on that front.
The gun issue is obviously very sensitive, because Sonia Sotomayor suggested that the Second Amendment to the Constitution applies to federal law, not necessarily to state or local law. And that's obviously a very, very sensitive issue for a lot of people out there. So, no doubt Senator Hatch will grill her on that.
Senator Sessions, the ranking Republican on the Judiciary Committee, had this exchange with Judge Sotomayor on the issue of prejudice and decisions.
(BEGIN VIDEO CLIP)
SEN. JEFF SESSIONS (R), RANKING MEMBER, JUDICIARY COMMITTEE: Do you think there is any circumstance in which a judge should allow their prejudices to impact their decision-making?
SOTOMAYOR: Never their prejudices. I was talking about the very important goal of the justice system is to make sure that the personal biases and prejudices of a judge do not influence the outcome of a case. What I was talking about was the obligation of judges to examine what they're feeling as they're adjudicating a case and to ensure that that's not influencing the outcome.
Life experiences have to influence you. We're not robots who listen to evidence and don't have feelings. We have to recognize those feelings and put them aside.
(END VIDEO CLIP)
BLITZER: All right.
Let's talk about this, Jeff Toobin.
It's a sensitive issue. The whole issue of empathy or bias or prejudice, whatever you want to call it, it's clearly at the forefront of these confirmation hearings.
TOOBIN: And it's a -- there is some contradiction here that everybody is involved with, because on the one hand, everybody says you should just apply the law, that the law trumps everything. But everyone also says it's important to have people of diverse backgrounds on the court.
Well, if you're just applying the law, what difference does it make if you have people of diverse backgrounds? That's the tension in the question and answers.
I don't think it will be resolved. I think everybody kind of gets the gist of what she is trying to say, but it is also true that she is walking back several of her statements that she made in some of these speeches.
BORGER: You know, in this speech at Berkeley, she said, "Our gender and national origins may and will make a difference in our judging." And today she said, no, no, no, you have to set aside all of that and make sure that it doesn't make a difference in your judging.
ECHAVESTE: She also said in that same speech that Brown versus Board was decided by nine white men, meaning there is not a lock on wisdom. So I think she said both things.
CROWLEY: But she's clearly looking at -- she clearly knows she needs to walk this back, and it's a problem because she's also talking about Sandra Day O'Connor's remark that a wise man and a wise woman would come to the same thing. She then in the same speech said, "But I don't necessarily agree."
But today she said, look, this was a rhetorical method, I was trying to inspire young students. I was trying to play on her words. It was bad because it left the impression that life experience affects judgment. So, she knows this is -- those words out there aren't hurting.
BLITZER: If you assume all nine members of the United States Supreme Court are wise, why is it that there are 5-4 decisions all of the time? It's a question.
And I want to play another clip that highlights another important area from earlier in these confirmation hearings today.
(BEGIN VIDEO CLIP)
SOTOMAYOR: I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences.
(END VIDEO CLIP)
BLITZER: Alex Castellanos, you don't have a problem with what she just said there?
CASTELLANOS: Oh, no. I think it's wonderful. It's unfortunate she said just the opposite, though.
Maybe when she said she was a wise woman and a Latina, she meant there are two Judge Sotomayors out there. Maybe that's what we're learning in these hearings.
But also, Wolf, I think one thing we should look at is the political impact of today. The hearing, she is going to be confirmed, it looks like. She is certainly handling herself very well here.
But Democrats are going to end up voting for a judge that Republicans are going to be able to say, look, she doesn't respect your individual right to own a gun, she's pro-choice, she's, you know, out there on a lot of issues. And those are going to have political -- she voted to deny firemen who passed a test their right to a job because of their race.
Those are going to be issues in the 2010 election. And so Democrats may not feel the political heat of those today, but they will soon.
ECHAVESTE: You know, it's unfortunate that this becomes yet another battle of the culture wars, because that's not -- the majority of Americans are pro-choice. Rowe is well settled.
The issue on the gun is whether state -- whether the Second Amendment applies to the states. It seems to be unsettled. That doesn't mean that she's anti-gun. And they may try to get her views on it, but if she's wise, she will, in fact, say that issue may come before me in the Supreme Court and I'm not going to decide.
BLITZER: All right, guys. Hold on, because they're getting ready to wrap up this break and go back to the hearings. Orrin Hatch, the Republican senator from Utah, himself a former chairman of this Judiciary Committee, he's getting ready to ask some questions.
Our coverage will continue right after this.
(COMMERCIAL BREAK)
BLITZER: Welcome back to our coverage of the Sonia Sotomayor confirmation hearings before the Senate Judiciary Committee. The committee is now in recess, a brief little recess, everyone taking a little break.
And as we get ready for Orrin Hatch, the Republican senator from Utah, to start asking his questions, Jeff Toobin, you brought up a good point while we were just talking. Some of these breaks are important because this is a woman, Sonia Sotomayor, as a little girl she was diagnosed with juvenile diabetes and she's had to deal with this issue of diabetes for a long, long time.
TOOBIN: She has to test herself regularly, she has to adjust her insulin, she has to eat. And she's dealing with a broken ankle, which she has to keep elevated, which gets painful at the end of the day.
So, this is not the easiest physical task for her, and that's why I think the day will not be as long as it might otherwise have been. They might end it a little earlier than we think.
BLITZER: And resume the questioning tomorrow, which would probably be smart for all concerned. But we'll see what they decide to do.
You're right. This is an important issue, although we have to point out that all of the medical doctors -- all of the doctors, when she was first nominated by the president, pointed out she is in very good physical shape, despite the fact that she has diabetes. She learned to manage that and deal with it throughout her life. Indeed, she is an inspiration to a lot of young people out there who have juvenile diabetes.
You know what? You have juvenile diabetes, but you still can reach for the stars and become a United States Supreme Court justice. Just work really hard and do well at Princeton and Yale Law School, all sorts of other places like that. (LAUGHTER)
BLITZER: There you see Patrick Leahy, the chairman of the Senate Judiciary Committee. Al Franken, the newest member of the Judiciary Committee, is there from Minnesota, as well.
I want to play a little clip of how she is seen -- Candy Crowley referred to this -- to walk back a little bit from that comment she made about a wise Latina woman.
(BEGIN VIDEO CLIP)
SOTOMAYOR: I also, as I explained, was using a rhetorical flourish that fell flat. I knew that Justice O'Connor couldn't have meant that if judges reached different conclusions, legal conclusions, that one of them wasn't wise. That couldn't have been her meaning, because reasonable judges disagree.
(END VIDEO CLIP)
BLITZER: All right.
John King, you know, it's a really sensitive issue, and she's dealing with it.
KING: She's trying to deal with it. She's trying to step back, saying I was in an academic environment, I was trying to inspire young people, and so I took a little liberty, I tried some rhetorical arguments. And, you know, maybe I could have said it better, but no, no, no. I didn't mean because I'm a woman or because I'm Latina, I could make a better decision than someone else.
That is what she is saying there. As Alex has said, and if you look on the conservative blogs, they are saying, wait a minute, what you're saying now is not what you said then. But if you are the White House, you're extremely happy right now.
I've been e-mailing with two members of her confirmation team who say that, A, Senator Leahy first pre-emptively raised these issues to give her a chance. They say Senator Sessions repeatedly tried to get her to say of course being a woman, of course being a Hispanic helps me in some judicial rulings, and she flatly said, no, I rule it out as much as I can. I'm aware of it, I try to put my biases aside.
They are extraordinarily happy at the White House right now after round one. And they think this next round with Senator Hatch is critical, because as you've noted, he's a former chairman of the committee. He is not as reflexively partisan as some of the other conservative Republicans on the committee.
And Senator Hatch, the White House believes, could vote for her in committee. They think they might get three votes in committee -- Hatch, Grassley and Lindsey Graham. Maybe more, but they think those three. And if Senator Hatch talks to his other colleagues, moderate Republicans, and says, "I wouldn't pick her, but she's qualified," they believe she can get a decent number of Republican votes in the end.
BORGER: The interesting thing about Senator Sessions was that he asked the question, "Is there any instance in which you would let your prejudice impact your decisions?" And what she said in the statement is that her experience as a woman and a person of color will affect how you judge. So, he may have used the wrong word there in asking the question to get the direct answer, because that allowed her to not directly contradict herself, although she clearly did walk back what she said.
(CROSSTALK)
CROWLEY: She wanted to use the word, actually, "prejudice." Sorry, Sessions wanted to use the word "prejudice."
BORGER: Right. But it allowed her to out of it very easily.
TOOBIN: What's worth noting about what Jeff Sessions -- the line of questioning was that being a white man, that's normal. Everybody else has biases and prejudices, but the white man, they don't have any ethnicity, they don't have any gender. They're just like the normal folks. And I thought that was a little jarring to me.
BLITZER: I just want to point out to our viewers, the pictures that you've been seeing, the informal pictures, there he is, Al Franken, the newest member of the Judiciary Committee. He's only been a United States senator for less than a week. He's been chatting with Lindsey Graham, among others there, as we await Sonia Sotomayor.
She's now walking back in the room. John Cornyn, the senator from Texas, there to greet her as well.
She's still hobbling a little bit from that fractured ankle. It was really sad that only a week after she was nominated by the president to become a United States Supreme Court justice, she had that incident. She's still got a cast on.
She has to keep that foot elevated. They have got a special -- a little device there underneath the table. You can't see it with the drapery around the table, but she keeps it elevated.
They say the pain is still there and it becomes more aggravated as the day goes on. Earlier in the morning, not so bad. As the afternoon goes on, it seems to get a little bit worse. And that could obviously have an impact on how long this hearing will go today.
She's sitting down right now, and I think the hearing is about to resume.
(JOINED IN PROGRESS)
SEN. PATRICK LEAHY (D-VT), CHAIRMAN, JUDICIARY COMMITTEE: ... Schedule B. And I fully understand that they have to work out their own schedules. But what I would suggest, just Senator Kohl ask questions, we'll go to -- next is Senator Hatch, a former chairman of this committee. Following Senator Hatch, we'll go to Senator Feinstein, and that will bring us to roughly 12:30.
Because of the caucuses, we'll break at 12:30, but then resume right at 2:00, which would mean I've talked to Republicans and Democrats. It means everybody will want to come back and leave their caucus a few minutes early. But I think everybody will understand that.
So, Senator Hatch is a former chairman of this committee and a friend of many years. And I recognize Senator Hatch.
SEN. ORRIN HATCH (R), UTAH: Well, thank you, Mr. Chairman.
Welcome, again, and to your lovely family. We're grateful to have you all here.
Now, let me ask you a question about settled law. If the holding in the Supreme Court means that it's settled, do you believe that Gonzales versus Carhart, upholding the partial-birth abortion ban, is settled law?
SOTOMAYOR: All precedents of the Supreme Court I consider settled law subject to the deference the doctrine stare decisis would counsel.
HATCH: Now, I want to begin here today by looking at your cases in an area that is very important to many of us, and that's the Second Amendment, the right to keep and bear arms, and your conclusion that the right is not fundamental.
Now, in the 2004 case entitled United States v. Sanchez Villar, you handled the Second Amendment issue in a short footnote. You cited the 2nd Circuit's decision in the United States v. Toner for the proposition that the right to possess a gun is not a fundamental right.
Toner, in turn, relied on the Supreme Court decision in the United states v. Miller. Last year, in the District of Columbia versus Heller, the Supreme Court examined Miller and concluded that, "The case did not even purport to be a thorough examination of the Second Amendment," and that Miller provided "no explanation of the content of the right."
Are you familiar with that?
SOTOMAYOR: I am, sir.
HATCH: OK. So, let me ask you, doesn't the Supreme Court's treatment of Miller at least cast doubts on whether relying on Miller, as the Second Circuit has done, for this proposition as proper?
SOTOMAYOR: The issue...
HATCH: Remember, I'm saying at least cast doubts.
SOTOMAYOR: Well, that is what I believe Justice Scalia implied in his Footnotes 23, but he acknowledged that the issue of whether the right, as understood in Supreme Court jurisprudence, was fundamental. It's not that I considered unfundamental, but that the Supreme Court didn't consider it fundamental so as to be incorporated against the states.
HATCH: Well, it didn't decide that point.
SOTOMAYOR: Well, it not only didn't decide it, but I understood Justice Scalia to be recognizing that the court's precedent had held it was not.
His opinion with respect to the application of the Second Amendment to government regulation was a different inquiry and a different inquiry as to the meaning of U.S. v. Miller with respect to that issue.
HATCH: Well, if Heller had already been decided, would you have addressed that issue differently than Heller or would you take the position that it -- that the doctrine of incorporation is inapplicable with regard to state issues?
SOTOMAYOR: That's the very question that the Supreme Court is more than likely to be...
HATCH: To decide.
SOTOMAYOR: ... considering. There are three cases addressing this issue. At least, I should say, three cases...
HATCH: Right.
SOTOMAYOR: ... addressing this issue in the circuit courts. And so, it's not a question that I can address. As I said, I bring an open mind to every case.
HATCH: I accept that. In Sanchez Villar, you identified the premise that a right to possess a gun is not fundamental and the conclusion that New York's ban on gun possession was permissible under the Second Amendment, but there's not a word actually connecting the premise to the conclusion.
Without any analysis at all, that footnote that you wrote leaves the impression that unless the right to bear arms is considered fundamental, any gun restriction is necessarily permissible under the Second Amendment.
Is that what you believe?
SOTOMAYOR: No, sir, because that's not -- I'm not taking an opinion on that issue because it's an open question.
Sanchez was...
HATCH: So, you admit it's an open question.
SOTOMAYOR: Well, I admit that Justice -- admit. I -- the courts have been addressing that question. The Supreme Court, in the opinion authored by Justice Scalia, suggested that it was a question that the court should consider.
I'm just attempting to explain that U.S. versus Sanchez was using "fundamental" in its legal sense, that -- whether or not it had been incorporated against the states.
With respect to that question, moreover, even if it's not incorporated against the states, the question would be, would the states have a rational basis for the regulation it has in place? And I believe that the question there was whether or not a prohibition against felons possessing firearms was at question, if my memory serves me correctly, if it doesn't. But even Justice Scalia, in the majority opinion in Heller, recognized that that was a rational basis regulation for a state under all circumstances, whether or not there was a Second Amendment right.
HATCH: Well, in the District of Columbia versus Heller, the Supreme Court observed that, quote, "It has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right," unquote. And the court also observed this, quote, "By the time of the founding, the right to have arms had become fundamental for English subjects," unquote.
Now, the court also described the right to bear arms as a natural right. Do you recall that from that decision?
SOTOMAYOR: I do remember that discussion.
HATCH: OK. All right.
In what way does the court's observation that the Second Amendment codified a pre-existing fundamental right to bear arms affect your conclusion that the Second Amendment does not protect a fundamental right?
SOTOMAYOR: My conclusion in the Maloney case or in the U.S. Sanchez-Villar was based on precedence and the holding of precedence that the Second Circuit did not apply to the states.
HATCH: Well, what's ... excuse me, I'm sorry. I didn't mean to interrupt you.
What's your understanding of the test or standard the Supreme Court has used to determine whether a right should be considered fundamental? I'm not asking a hypothetical here. I'm only asking about what the Supreme Court has said in the past on this question. I recall for instance, the court emphasizing that a right must be deeply rooted in our nation's history and tradition, that it is necessary to an Anglo-American regime of ordered liberty, or that it is an enduring American tradition.
I think I've cited that pretty accurately on what the court has held with regard to what is a fundamental right. Now, those are different formulations from the Supreme Court's decisions, but I think the common thread there is obvious. Now, is that your understanding of how the Supreme Court has evaluated whether a right should be deemed fundamental? SOTOMAYOR: The Supreme Court's decision with respect to the Second Circuit incorporation -- Second Amendment incorporation doctrine is reliant on old precedent of the court, and I don't mean to use that as precedent that doesn't bind when I call it old. I'm talking about precedent that was passed in the 19th century.
Since that time, there is no question that different cases addressing different amendments of the Constitution have applied a different framework. And whether that framework and the language you quoted are precise or not -- I haven't examined that framework in a while to know if that language is precise or not. I'm not suggesting it's not, Senator. I just can't affirm that description.
SOTOMAYOR: My point is, however, that once there's Supreme Court precedent directly on point, and Second Circuit precedent directly on point on a question, which there is on this incorporation doctrine and how it uses the word "fundamental," then my panel, which was unanimous on this point -- there were two other judges -- and at least one other -- or one other panel on the Seventh Circuit by Justice -- by Justice -- by Judge Easterbrook has agreed that, once you have settled precedent in an area, then, on a precise question, then the Supreme Court has to look at that.
And under the deference one gives to stare decisis and the factors one considers in deciding whether that older precedent should be changed or not, that's what the Supreme Court will do.
HATCH: OK. As I noted, the Supreme Court puts the Second Amendment in the same category as the First and the Fourth Amendments as pre-existing rights that the Constitution merely codified. Now, do you believe that the First Amendment rights, such as the right to freely exercise religion, the freedom of speech, or the freedom of the press, are fundamental rights?
SOTOMAYOR: Those rights have been incorporated against the states. The states must comply with them. So, in -- to the extent that the court has held that...
HATCH: Right.
SOTOMAYOR: ... then they are -- they have been deemed fundamental, as that term is understood legally.
HATCH: What about the Fourth Amendment, about unreasonable searches and seizures?
SOTOMAYOR: As well.
HATCH: Same...
SOTOMAYOR: But with respect to the holding as it relates to that particular amendment.
HATCH: I understand.
Let me turn to your decision in Maloney v. Cuomo. This was the first post-Heller decision about the Second Amendment to reach any federal court, or federal appeals court. I think I should be more specific.
In this case, you held that the Second Amendment applies only to the federal government, not to the states, and this was after Heller. Now, am I right that your authority for that proposition was the Supreme Court's 1886 decision in Presser v. Illinois?
SOTOMAYOR: That, plus some Second Circuit precedent that had held...
HATCH: OK.
SOTOMAYOR: ... that it had not been -- that the amendment had not...
HATCH: But Presser was definitely one of the...
SOTOMAYOR: It was, but...
HATCH: ... cases you relied on? OK. In that case -- or, I should say, that case involved the 14th Amendment's privileges and immunities clause. Now, is that correct? You're aware of that?
SOTOMAYOR: It may have. I haven't read it recently enough to remember exactly.
HATCH: You can take my word on it.
SOTOMAYOR: OK. I'll accept...
HATCH: Thank you. Last year's decision in Heller involved the District of Columbia, so it did not decide the issue of whether the Second Amendment applies to the states or is incorporated, but the court did say that its 19th century cases about applying the Bill of Rights to the states, quote, "did not engage the sort of 14th Amendment inquiry required by our later cases," unquote.
Now, here's my question: Am I right that those later cases to which the court referred involved the 14th Amendment's due process clause rather than its privileges and immunities clause?
SOTOMAYOR: As I said, I haven't examined those cases recently enough to be able to answer your question, Senator. But what I can say is that, regardless of what those cases addressed or didn't address, the Second Circuit had very directly addressed the question of whether the Second -- whether it viewed the Second Amendment as applying against the states.
To that extent, if that precedent got the Supreme Court's teachings wrong, it still would bind my court...
HATCH: I understand that.
SOTOMAYOR: ... to the extent that justice... HATCH: I'm talking about something beyond that. I'm talking about what should be done here. Isn't the Presser case that you relied on in Maloney to say that the Second Amendment does not apply to the states one of those 19th century cases where they've used the privileges and immunities clause, not the 14th Amendment due process clause, to incorporate?
See, the later cases have all used 14th Amendment, as far as I can recall.
SOTOMAYOR: As I said, Senator, I just haven't looked at those cases to analyze it. I know what Heller said about them. In Maloney, we were addressing a very, very narrow question.
HATCH: Right.
SOTOMAYOR: And in the end, the issue of whether that precedent should be followed or not, it's a question the Supreme Court's going to address if it accepts certiorari in one of the three cases in which courts have looked at this question, the Court of Appeals has.
HATCH: Well, the reason I'm going over this is because I believe you've applied the wrong line of cases in Maloney, because you were applying cases that used the privileges and immunities clause and not cases that used the 14th Amendment due process clause.
Let me just clarify your decision in Maloney. As I read it, you held that the Second Amendment does not apply to state or local governments. You also held that, since the right to bear arms is not fundamental, all that is required to justify a weapons restriction is some reasonably conceivable state effects that could provide a rational basis for it.
Now, am I right that this is a very permissive standard that could be easily met, the rational basis standard?
SOTOMAYOR: Well, all standards of the court are attempting to ensure that government action has a basis.
HATCH: Right.
SOTOMAYOR: In some situations, the court looks at the action and applies a stricter scrutiny to the government's action. In others, if it's not a fundamental right in the way the law defines that, but it hasn't been incorporated against the states, then the standard of review is of rational basis.
HATCH: And my point is that it's a permissive standard that can be easily met. Is that correct?
SOTOMAYOR: Well, the government can remedy a social problem that it is identifying or a difficulty it's identifying in conduct not in the most narrowly tailored way, but one that reasonably seeks to achieve that result. In the end, it can't be arbitrary and capricious.
HATCH: Well...
SOTOMAYOR: That's a word that is not in the definition of rational.
HATCH: Maybe I could use the words "more easily met." How's that? OK?
SOTOMAYOR: As I said, it -- the rational basis does look more broadly than strict scrutiny may.
HATCH: Right, that's my point. That's my point. As a result of this very permissive legal standard -- and it is permissive -- doesn't your decision in Maloney mean that virtually any state or local weapons ban would be permissible?
SOTOMAYOR: Sir, in Maloney, we were talking about nunchuk sticks.
HATCH: I understand.
SOTOMAYOR: Those are martial arts sticks.
HATCH: Two sticks bound together by rawhide or some sort of a...
SOTOMAYOR: Exactly. And when the sticks are swung, which is what you do with them, if there's anybody near you, you're going to be seriously injured, because that swinging mechanism can break arms, it can bust someone's skull...
HATCH: Sure.
SOTOMAYOR: ... it can cause not only serious, but fatal damage.
So, to the extent that a state government would choose to address this issue of the danger of that instrument by prohibiting its possession in the way New York did, the question before our court -- because the Second Amendment has not been incorporated against the state -- was, did the state have a rational basis for prohibiting the possession of this kind of instrument?
So, it was a very narrow question. Every kind of regulation would come to a court with a particular statute, with judicial -- judicial -- legislative findings as to why a remedy is needed, and that statute would then be subject to rational basis review.
HATCH: Well, the point that I'm really making is that the decision was based upon a 19th-century case that relied on the privileges and immunities clause, which is not the clause that we use to invoke the doctrine of incorporation today, and that's just an important consideration for you as you see these cases in the future.
Let me just change the subject. In the Ricci case -- and I'm very concerned about that, because of a variety of reasons -- the court split 5-4 on whether to grant summary judgment to the firefighters. And there was a summary judgment, meaning it didn't have to be distributed to the other judges on the court. The only reason that Judge Cabranes raised the issue is that he read it in the newspaper and then said, "I want to see that case." Then he got it and he realized, "My gosh, this is a case of first impression."
So, the court split 5-4 -- it was 5-4 -- on whether to grant summary judgment to the firefighters. Now, even the four dissenters said that the firefighters deserved their day in court to find more facts.
But all nine justices disagreed with your handling of that particular case. Now, thus, your decision in Ricci -- I mean, even though there was a 5-4 decision, all nine of them disagreed with your handling.
Now, OK, but as you noted, your decision in Ricci v. DeStefano has become very controversial. People all over the country are tired of courts imposing their will against one group or another without justification.
Now, the primary response or defense so far seems to be that you had no choice, because you were bound by clear and longstanding precedent. Most say you were bound by 2nd Circuit precedent. Some say it was Supreme Court precedent.
So, I need to ask you about this. To be clear, this case involved not only disparate-impact discrimination, but both disparate treatment and disparate impact. That's what made it a case of first impression.
The city says that they had to engage in disparate treatment or they would have been sued for disparate impact. So, it was how these two concepts of discrimination, disparate treatment and disparate impact, relate in the same case.
But back to the issue of whether you were bound by clear, longstanding precedent. As I recall your opinion in this case, whether it was the summary order or the pro curium opinion, did not cite any Supreme Court or 2nd Circuit Court precedent at all. Is that right?
SOTOMAYOR: I believe they cited the Bushey case.
HATCH: OK. The only case citation in your opinion was to the District Court opinion, because you were simply adopting what the District Court had said rather than doing your own analysis of the issues, and I think that is right. But you can correct me if I'm wrong, but I'd be happy to be corrected.
HATCH: But didn't the District Court say that this was actually a very unusual case? This is how the Distinct Court put it. Quote, "This case presents the opposite scenario of the usual challenge to an employment or promotional examination as plaintiffs attack not the use of allegedly racially discriminatory exam results, but defendants' reason for their refusal to use those results," unquote. Now, this seems complicated, I know, but you know more about it than probably anybody here in this room. The District Court cited three 2nd Circuit precedents, but didn't two of them -- the Kirkland (ph) and the Bushey cases -- didn't they deal with race-norming of test scores, which did not occur in this case?
SOTOMAYOR: They dealt with when employees could prove a disparate impact of a case and whether there would be...
HATCH: But based upon race-norming.
SOTOMAYOR: But the principles underlying when employees could bring a case are the same when they establish a prima facie case, which is, can an employee be sued -- employer be sued by employees who can prove a disparate impact? And the basic principles of those cases were the same, regardless of what form the practice at issue took.
HATCH: OK. Well, the third case, the Hayden case, didn't it present a challenge to the design of the employment test rather than the results of the test?
SOTOMAYOR: I'm sorry. Say this again? I...
HATCH: The Hayden case, didn't it actually present a challenge to the design of the case, rather than the results of the design of the employment test rather than the results of the test?
SOTOMAYOR: Again, regardless of what the challenge is about, what test is at issue, the core holding of that precedent was that if an employee could show a disparate impact from a particular practice or test or activity by a employer, then that employee had a prima facie case of liability under Title VII.
So, the question is, was the city subject to potential liability because the employees -- the City of New Haven -- because the employees could bring a suit under established law challenging that the City of New Haven had violated Title VII?
HATCH: Which was one...
SOTOMAYOR: So that was the question.
HATCH: OK. It was one of the reasons why it's a very important case. When the circuit -- 2nd Circuit considered whether to review the decision en banc, didn't you join an opinion admitting that the case presents, quote, "difficult issues," unquote?
SOTOMAYOR: Well, the District Court noted that it was a different scenario, but it evaluated its decision -- it evaluated the case in a 78-page decision and gave a full explanation, one which the panel agreed with by adopting the opinion of the District Court.
Those questions, as I indicated, are always whether -- given the risk the city was facing, the fact that it could face a law school -- lawsuit and its conclusion that perhaps a better test could be devised that would not have a disparate impact, whether it was liable for discrimination -- disparate -- not disparate -- different treatment under the law, the Supreme Court came back and said "new standard."
As I understood the dissenters in that case, what they were saying is, to the majority, if you're going to apply a new standard, then give the 2nd Circuit a chance to look at the record and apply that standard. It wasn't disagreeing that the Circuit wasn't applying the law as it was understood at the time. If the Circuit -- the dissenters, as I read what they were doing, was saying send it back to the Circuit and let them look at this in the first instance.
HATCH: Well, as I understand it, Judge Cabranes basically didn't know the decision was done until he read it in the newspaper and then asked to look at it. And his opinion, joined by five other judges, supporting en banc review opens with these words. Quote, "This appeal raises important questions of first impression in our Circuit and, indeed, in the nation regarding the application of the 14th Amendment and Title VII's prohibition on discriminatory employment practices," unquote. Was he wrong?
SOTOMAYOR: That was his view. He expressed it in his opinion on his vote. I can't speak for him. I know that the -- I know what the panel...
HATCH: No, I'm just asking you to speak for you. Look, when the Supreme Court reversed you, Justice Kennedy wrote, quote, "This action presents two provisions of Title VII to be interpreted and reconciled with few, if any, precedents in the courts of appeals discussing the issue," unquote. He was referring to the lack of precedent anywhere in the country, not just the 2nd Circuit. Was he wrong?
SOTOMAYOR: He was talking about whether -- I understood him to be talking about not whether the precedent that existed would have determined the outcome as the panel did, but whether the courts should be looking at these two provisions in a different way to establish a choice, a different choice in considerations by the city.
As I indicated, that argument about what new standard or new approach to the questions that the city should consider before it denies certification of a test, yes, had not been addressed by other courts. But the ability of a city when presented with a prima facie case to determine whether or not it would attempt to reach a non- disparate impact had been recognized by the courts.
HATCH: OK. If even the district court...
BLITZER: All right, they're getting into a really detailed discussion of her decision on that New Haven, Connecticut firefighters case -- decision that was then overturned by the U.S. Supreme Court in a 5-4 decision. Senator Hatch continuing his questioning of Sonia Sotomayor.
Our coverage is going to continue right after this.
(COMMERCIAL BREAK)
