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Sotomayor's Supreme Court Conformation Hearing

Aired July 15, 2009 - 13:59   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

WOLF BLITZER, CNN ANCHOR: Let's talk about what has happened so far on this day and look ahead to Arlen Specter, who's going to be the next questioner followed by Al Franken, the final questioner in this the first round.

John King is here together with the Best Political Team on television.

We have Arlen Specter. You never know what he is going to ask, because he's a maverick, he's an independent kind of guy.

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: Well put. And he's a senator who is not quite happy with his lot on this committee at the moment. When he decided to make the dramatic move and leave the Republican Party and join the Democratic Party, he was hoping he would be in his view, treated better by the Democrats and that he would get some seniority on this committee in which he has so long served. And as you noted, was once the Republican chairman.

So, he's not happy being the second to the least, if you will, the second at the end of the Democrats, with only the new senator, Al Franken, behind. But, put that aside for a second. Even when he was the chairman, he is known for being a bit unpredictable, maverick, asking some arcane questions about the law. There are particular areas of interest to him.

He is an abortion rights supporter who, when he was on the Republican side, was often the odd man out on that issue. It will be interesting to see if he follows up on that.

But this is a new role for Senator Specter. He has been on the committee a long time. His seniority has been questioned. He is up for re-election next year for the first time as a Democrat, so he's in an interesting spot, and this will be quite interesting.

There you see him there.

BLITZER: This is not a live picture. This was earlier.

Those are the two remaining senators, Al Franken on the right, Arlen Specter on the left. Specter will be going first. Then Al Franken. It's his moment.

He delivered an opening statement, Gloria Borger, on Monday, very serious. And today's he's going to have a chance to ask questions.

By the way, Sonya Sotomayor has just walked into the room. She is sitting down right now. So she is going to get herself ready to face, I assume, an hour of questioning, a half-hour from Specter, then a half hour from Al Franken.

GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: Yes, he was very serious in his opening statement. I think it was Jon Stewart who said last night that he kept expecting him to say, "Live from New York, it's Saturday Night," when he heard him. But I think it's going to be the Senate's really first time to get sort of a look at the new senator from Minnesota and just -- he's going to play it straight.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: One point about Arlen Specter is that he is the leading supporter in the Senate of cameras in the courtroom, and has often pressed the Supreme Court justices to allow cameras in the Supreme Court. That's something he has asked nominees in the past. They tend to waffle on that issue, although the departure of David Souter from the Supreme Court may be a turning point, because Souter famously said there will be cameras over his dead body, which I think you can take as opposition.

BLITZER: It's a sensitive issue, indeed.

She's now talking to her top supporters, her family members. The man with the light suit, that's her brother, who's a physician. He lives in Syracuse, New York. He's an allergist. And the two of them were born in the Bronx, raised by the mother.

I don't see the mother in that picture, although she has been there throughout all of these hearings. And she credits, Sonia Sotomayor, she credits her mom for raising the two of them and achieving what they have achieved. Both of them very accomplished, obviously, in their own right.

What are you going to be looking for, Candy Crowley, as we get ready for Specter and Franklin?

CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT: Well, listen, I think we can pretty much assume these will be friendly questions. Usually what happens is when the Democrat comes along, and it's a Democratic nominee, they bat cleanup. If there is anything that bothered them in the questions right before, they will come back to it. If it's something that a Republican said, even during the break, they will come back and sort of clarify and move on.

BLITZER: All right. I was just going to say -- because the chairman is convening this session.

So let's listen in.

(JOINED IN PROGRESS)

SEN. PATRICK LEAHY (D-VT), CHAIRMAN, JUDICIARY COMMITTEE: ... when she first became a nurse, and comparing notes with my wife, both agreed that that's when nurses truly had to be nurses. Now, they are nurses plus with advances in medicine.

LEAHY: I just discussed this again with Senator Sessions. We will go first to Senator Specter then to Senator Franken. And then we will recess and go into the other -- other room for the closed session.

Senator Specter, of course, is former chairman of this committee, one of the most senior members of the Senate and one of the most experienced.

Senator -- Senator Specter?

SPECTER: Thank you, Mr. Chairman.

Welcome back, Judge Sotomayor.

SPECTER: You have held up very well. Of all of the proceedings in the Senate, this is the most exacting on the -- on the witness. Years ago, as you know, in case of Ashcroft v. Tennessee, they said it was unconstitutional to subject a suspect to relay grilling, but that doesn't apply to nominees.

And your family has been here. My wife, Joan Specter, who's been an officeholder in her own right, says it's a lot harder to listen to me than it is to make a speech herself. And you are engaged.

I think, beyond doing very well on stamina, you have shown intellect, and humor, and charm, and pride, and also modesty, so it's been a very -- a good hearing. Notwithstanding all of those qualities, the Constitution says we have to decide whether to consent, and that requires the hearing process and -- and the questions.

Before going into a long list of issues which I have on the agenda -- separation of power, and wireless wiretaps, and secret CIA programs, and voting rights, and the Americans with Disabilities Act, and a woman's right to choose, and the Environmental Protection Agency, and Clean Water Act, and television, and the Second Amendment, I'd like to make an observation or two.

There has been a lot of talk about a wise Latina woman, and I think that this proceeding has tended to make a mountain out of a molehill. We have had a consistent line of people who are nominees who make references to their own backgrounds. We all have our perspective.

Justice O'Connor talked about her life experience. Justice Alito talked about his family suffering from ethnic slurs. Justice Thomas, Pin Point, Georgia, emphasized, talked about putting himself in the shoes of other people. And Justice Scalia talked about being in -- in a racial minority.

The expectation would be that a woman would want to say something to assert her confidence in a country which denied women the right to vote for decades, where the glass ceiling has limited people, where there is still disparagement of people on ethnic background.

Just this month in a suburb of Philadelphia, Hispanic children were denied access to a pool for whites only, as were African-American children. So I can see how someone would take pride in being a Latina woman and assert -- assert herself.

A lot has been made of the issue of empathy, but that characteristic is not exactly out of place in judicial determinations. We've come a long way on the expansion of constitutional rights.

SPECTER: Oliver Wendell Holmes's famous statement that the life of the law is experience, not logic.

Justice Cardozo in Palko and Connecticut talked about changing values.

And the Warren court changed the Constitution practically every day of which I saw, being in the district attorney's office, with changes in search and seizure, confessions, Miranda, right to counsel. Who could have thought that it would take until 1963 to have the right to counsel in Gideon v. Wainwright?

We've heard a lot of talk about the nomination proceeding of Judge Bork. And they tried to make "Bork" into a verb. Somebody being Borked. Well, anybody who looks at that record will see that it's very, very different. We had a situation where Judge Bork was an advocate of original intent from his days writing the law review article in the Indiana Law Review.

And how can you have original intent when the 18th Amendment was written by a Senate on equal protection with the Senate galleries which were segregated? Or where you have Judge Bork who believed that equal protection applied only to race and ethnicity. It didn't even apply to women.

But it was a very, very thorough hearing. I spent beyond the hearing days in three long sessions, five hours with Judge Bork. So it was his own approach to the law which resulted there. But you had an evolution of constitutional law which I think puts empathy in a -- in an OK status, in an OK category.

Now, onto the issues. I begin with an area of cases which the court has decided not to decide. And those cases can be even more important than many of the cases which the court decides. The docket of the court at the present time is very different from what it was a century ago. In 1886, the docket had 1396 cases, decided 451. A hundred years later, there were only 161 signed opinions in 1985. 2007, only 67 signed opinions.

During his confirmation hearings, Chief Justice Roberts said the court, quote, "could contribute more to the clarity and uniformity of the law by taking more cases."

Judge Sotomayor, do you agree with that statement by Chief Justice Roberts?

SOTOMAYOR: I know, Senator Specter, that there is questions by many people, including senators and yourself of Justice Roberts and other nominees about this issue. Can the court take on more? To the extent that there's concern about it, not that public opinion should drive the justices to take more cases just to take them, but I think what Judge -- Justice Roberts was saying is the court needs to think about its processes to ensure that it's fulfilling...

SPECTER: Judge Sotomayor, how about more cases?

SOTOMAYOR: Well, perhaps I need to explain to you that I don't like making statements about what I think the court can do until I've experienced the process.

SPECTER: Then let me move on to another question.

One case that the court did not (inaudible) involved a terrorist surveillance program which I think, arguably, posed the greatest conflict between congressional powers under Article I in enacting the Foreign Intelligence Surveillance Act, which provided for the exclusive way to get wiretaps.

The president disregarded that in a secret program called the Terrorist Surveillance Program, didn't even tell the chairman of the Judiciary Committee, which is the required practice, or accepted practice, didn't tell the Intelligence Committees, where the law mandates that they be told about such programs. It was only disclosed by the New York Times.

Those practices confront us this day, with reports about many other secret cases not disclosed. The Federal District Court in Detroit found the Terrorist Surveillance Program unconstitutional. Sixth Circuit, in a two-to-one opinion, said there was no standing. The dissent, I think, pretty conclusively had the much better of the -- on asserting standing (ph).

The Supreme Court of the United States denied certiorari, didn't even take up the case to the extent of deciding whether it shouldn't take it because of lack of standing. I wrote you a letter about this, wrote a series of letters, and gave you advance notice that I would ask you about this case. So I'm not asking you how you would decide the case, but would you agree that the Supreme Court should have taken that kind of a major conflict on separation of powers?

SOTOMAYOR: I know it must be very frustrating to you to...

SPECTER: It sure is. I was the chairman who wasn't notified.

SOTOMAYOR: No. I'm sure...

SPECTER: And he (ph) was the ranking member who wasn't notified.

SOTOMAYOR: I can understand not only Congress's or your personal frustration, and sometimes the citizens when there are important issues that they would like the court to consider. The question becomes what do I do if you give me the honor to serve on the Court, if I say something today, is that going to make a statement about how I'm going to pre-judge someone else's...

SPECTER: I'm not asking you to pre-judge. I'd like to know your standards for taking the case. If you have that kind of a monumental historic conflict and the court is supposed to decide conflicts between the executive and legislative branches, how can it possibly be justified not to take that case?

SOTOMAYOR: There are often, from what I understand -- and that's from my review of Supreme Court actions and cases of situations in which they have or have not taken cases, and I've read some of their reasoning as to this. I know that with some important issues, they want to make sure that there isn't a procedural bar to the case of some type that would take away from whether they're, in fact, doing what they would want to do, which is to (inaudible)...

SPECTER: Well, was there a procedural bar? You've had weeks to mull that over, because I gave you notice.

SOTOMAYOR: Senator, I'm sorry. I did mull this over. My problem is that, without looking at a particular issue and considering the cert (ph) briefs file, the discussion of potential colleagues as to the reasons why a particular issue should or should not be considered, the question about...

SPECTER: Well, I can tell you're not going to answer. Let me move on.

BLITZER: All right. The questioning by Arlen Specter is continuing. Sonia Sotomayor answering those questions.

We'll continue to watch what's going on. Remember, we're standing by for Al Franken, the junior Senator from Minnesota. He's up next. We'll have his questioning as well, including more from Arlen Specter and Sonia Sotomayor.

CNN.com is streaming all of this live. You can see all of it uninterrupted.

We'll take a quick break and our coverage will continue after this.

(COMMERCIAL BREAK)

BLITZER: Arlen Specter is questioning Sonia Sotomayor. The issue right now is separation of powers between the executive and the legislative branches.

SPECTER: In 1997, in the case called Boerne, suddenly the Supreme Court of the United States found a new test called congruence and proportionality. Up until that time, Judge Harlan's judgment on a rational basis for what Congress would decide would be sufficient.

And here, for the benefit of our television audience, we're talking about a record that Congress maintains.

Take the Americans with Disabilities Act, for example, where there was a task force of field hearings in every state attended by more than 30,000 people, including thousands who had experienced discrimination, with roughly 300 examples of discrimination by state governments.

Notwithstanding that vast record, the Supreme Court of the United States in Alabama v. Garrett found Title II of the Americans with Disabilities Act unconstitutional.

Justice Scalia, in dissent, said that it was a, quote, "flabby test," that it was, quote, "an invitation to judicial arbitrariness and policy-driven decision-making."

The other, Title I of the Americans with Disabilities Act, in Lane v. Tennessee, the court found that constitutional on the same record. In the second round, if we have time, I will ask you -- give you some advance notice, although I wrote you about these cases -- if you can find a distinction on the Supreme Court's determination.

But my question to you is, looking at this brand-new standard of proportionality and congruence, for whatever those words mean -- and if we have time in the second round, I'll ask you to define them, but there are other questions I want to come to -- do you agree with Justice Scalia that it's a flabby test and that, with having such a vague standard, the court can do anything it wants and really engages in policy-driven decision-making, which means the court, in effect, legislates?

SOTOMAYOR: Senator, the question of whether I agree with a view of a particular justice or not is not something that I can -- I can say in terms of the next case. In the next case that the court will look at and a challenge to a particular congressional statute...

SPECTER: Well, not the next case. This case. You have these two cases. They have the same factual record. And the Supreme Court, in effect, legislates, tells us what is right and what is wrong on this standard that nobody can understand.

SOTOMAYOR: As I understand the congruence and proportionality test, it is the Supreme Court's holding on that test, as I understand it, that there is an obligation on the court to ensure that Congress is working -- working -- is legislating within its legislative powers.

The issue is not -- and these are Section 5 cases, essentially -- which are the clause of the Constitution under the 14th Amendment that permits Congress to legislate on issues involving violations of the 14th Amendment. The court in those cases has not said that Congress can't legislate. What it has looked at is the form of remedy Congress can order and what...

SPECTER: But it doesn't tell us how to legislate. Let -- let -- let me move on to the Voting Rights Act case and just pose (ph) the case. And I'll ask you about it in the next round.

When Chief Justice Roberts testified at his confirmation hearings, he was very differential to the Congress, not so, I might add, when he decided the voting rights case. But when he appeared here three years ago, he said this. And it's worth -- worth reading.

"I appreciate very much the differences in institutional competence between the judiciary and the Congress when it comes to basic questions of fact finding, development of a record and also the authority to make the policy decisions about how to act on the basis of a particular record." "It's not just disagreement over a record. It's a question of whose job it is to make a determination based on their record. As a judge, you may have a beginning to transgress into the area of making a law is when you are in a position of reevaluating legislative findings because that doesn't look like a judicial function." Well, that's about as differential as you can be when you're a nominee.

But when Chief Justice Roberts presided over the voting rights case, he sounded very, very different. My question to you is do you agree with what Chief Justice Roberts said when he was just Judge Roberts, that it's an area of making laws to transgress into what Congress has done by way of finding the facts.

SOTOMAYOR: I would find it difficult to agree with someone else's words. I can tell you how much I understand the deference that Congress is owed. And I can point you at least to two cases -- and there are many, many more -- that shows how much I value the fact that we are courts that must give deference to Congress in the fields that are within its constitutional power.

SPECTER: Well, do you agree with Chief Justice Roberts? I sent you that quotation a long time ago and told you I'd ask you about it. Do you agree with him or not?

SOTOMAYOR: I agree to the extent that one's talking about the deference that Congress is owed. I can't speak for what he intended to say by that. I can speak to what I understand...

SPECTER: Well, not what he intended to say, what he did say.

SOTOMAYOR: I heard what he said, sir, but I don't know what he intended in that description. I do know what I -- what I can say, which is that I do understand the importance to Congress' factual findings, that my cases and my approach in my cases reflect that. I've had any number of cases where the question was deference to congressional findings. And I have upheld statutes because of that deference.

BLITZER: All right. They're continuing questioning, Arlen Specter and Sonia Sotomayor.

We'll take a quick break, continue our coverage on the other side. We're watching these historic Senate confirmation hearings for Sonia Sotomayor.

Up next, by the way, after Arlen Specter, is Al Franken, the new senator from Minnesota.

(COMMERCIAL BREAK)

BLITZER: Arlen Specter delivering a lecture now on why it's critically important to have cameras, television cameras, in the Supreme Court. Listen to this.

SPECTER: ... all over the place. You had to be the chairman of a committee to get a seat inside the chamber. The Supreme Court decides all the cutting-edge questions of the day: the right of a woman to choose, abortion, the death penalty, organized crime, every cutting-edge question.

And Bush v. Gore was probably the biggest -- was one of the biggest cases, arguably the biggest case. More than 100 million people voted in that election, and the presidency was decided by one vote. And Justice Scalia had this to say about irreparable harm: "The counting of votes that are of questionable legality does in my view threaten irreparable harm to," referring to President Bush, or candidate Bush, "and to the country by casting a cloud upon what he claims to be the legitimacy of the election. Permitting the court to proceed on that erroneous basis will prevent an account -- an accurate recount from being conducted on a proper basis later."

Hard to understand what recount there was going to be later. I wrote about it at the time saying that I thought it was an atrocious accounting of irreparable harm, hard to calculate, hard to calculate that. And my question, Judge Sotomayor, shouldn't the American people have access to what is happening in the Supreme Court to try to understand it, to have access to what the judges do by way of their workload, by way of their activities when they adjourn in June and reconvene in October, this year in September?

Wouldn't it be more appropriate in a democracy to let the people take a look inside the court through television? The Supreme Court said in the Richmond Newspapers case decades ago that it wasn't just the accused that had a right to a public trial, it was the press and the public as well. And now, it's more than newspapers. Television is really paramount. Why not televise the court?

SOTOMAYOR: As you know, when there have been options for me to participate in cameras in the courtroom, I have. And as I said to you when we met, Senator, I will certainly relay those positive experiences, if I become fortunate enough to be there to discuss it with my colleagues.

And that question is an important one, obviously. There's legislation being considered both by Congress -- or has been considered by Congress at various times. And there's much discussion between the branches on that issue. It is an ongoing dialogue. It is important to remember that the court, because of this issue, has over time made public the transcripts of its hearings quicker and quicker. If I'm accurate now, it used to take a long time for them to make those transcripts available. Now, they do it before the end of the day. It's an ongoing process of discussion.

SPECTER: Thank you, Judge Sotomayor. Thank you, Mr. Chairman.

LEAHY: Senator Specter. And the last of this round of questions will be Senator Franken, the newest member of the committee. Senator, I didn't officially welcome you the other day as I should have when we have new members. But welcome to the committee. I offer you congratulations and condolences at the same time.

(LAUGHTER)

SEN. AL FRANKEN (D), MINNESOTA: I'll take the congratulations.

LEAHY: OK, well, then that was most heartfelt. I'm glad you're here. Please go ahead.

FRANKEN: Thank you, Mr. Chairman. And thank you, Judge Sotomayor, for sitting here so patiently and for all your thoughtful answers throughout the hearing.

Before lunch, our senior senator from Minnesota, Amy Klobuchar, asked you why you became a prosecutor, and you mentioned "Perry Mason." I was a big fan of "Perry Mason." I watched "Perry Mason" every week with my dad and my mom and my brother. And we'd watch the clock. And when -- we knew when it was two minutes to the half-hour that the real murderer would stand up and confess. It was a great show.

And it amazes me that you wanted to become a prosecutor based on that show because, in "Perry Mason," the prosecutor, Berger, lost every week...

SOTOMAYOR: One case.

FRANKEN: ... with one exception which we'll get to later.

But I think that says something about your determination to defy the odds. And while you were watching "Perry Mason" in the South Bronx with your mom and your brother, and I was watching "Perry Mason" in suburban Minneapolis with my folks and my brother, and here we are today. And I'm asking you questions because you have been nominated to be a justice of the United States Supreme Court. I think that's pretty cool.

As I said in my opening statement, I see these proceedings both as a way to take a judgment of you and of any nominee's suitability for the high court, but also as a way for Americans to learn about the court and its impact on their lives.

Right now, people are getting more and more of their information on the Internet. We're getting newspapers and television, blogs, radio. Americans are getting all of it online.

It plays a central role in our democracy by allowing anyone with a computer connected to the Internet to publish their ideas, their thoughts, their opinions, and reach a worldwide audience of hundreds of millions of people in seconds. This is free speech, and this is essential to our democracy and to democracy. We saw this in Iran not long ago.

Now, Judge, you're familiar with the Supreme Court's 2005 Brand X decision, are you?

SOTOMAYOR: I am.

FRANKEN: OK.

Well, then you know that Brand X deregulated Internet access services, allowing service providers to act as gatekeepers to the Internet, even though the Internet was originally government-funded and built on the notion of common carriage and openness. In fact, we've already seen examples of these companies blocking access to the Web and discriminating on certain uses of the Internet. This trend threatens to undermine the greatest engine of free speech and commerce since the printing press.

Let's say you're living in Duluth, Minnesota, and you only have one Internet service provider. It's a big megacorporation, and not only are they the only Internet service provider, but they're also a content provider. They provide -- they own newspapers. They own TV networks. They -- or network. They have a movie studio.

They decide to speed up their own content and slow down other content. The Brand X decision by the Supreme Court allows them to do this. And this isn't just Duluth. It's Moorhead, Minnesota, it's Rochester, Minnesota, it's Youngstown, Ohio. It's Denver. It's San Francisco. And, yes, it's New York.

This frightening. It's frightening to me and to millions of my constituents or lots of my constituents.

Internet connections use public resources; the public airwaves, the public rights of way. Doesn't the American public have a compelling First Amendment interest in ensuring that this can't happen and that the Internet stays open and accessible? In other words, that the Internet stays the Internet?

SOTOMAYOR: Many describe the telephone as a revolutionary invention, and it did change our country dramatically. So did television. And its regulation of television and the rules that would apply to it were considered by Congress, and those regulations have -- because Congress is the policy chooser on how items related to interstate commerce and communications operate.

And that issue was reviewed by the courts in the context of the policy choices Congress made. There is no question in my mind as a citizen that the Internet has revolutionized communications in the United States. And there's no question that access to that is a question that society is -- that our citizens as well as yourself are concerned about.

But the role of the court is never to make the policy. It's to wait until Congress acts and then determine what Congress has done in its constitutionality in light of that ruling. Brand X, as I understood it, was a question of which government agency would regulate those providers.

And the court, looking at Congress' legislation in these two areas, determined that it thought it fit in one box not the other, one agency instead of another.

FRANKEN: Is this Title 1 and Title 2? Or as I understand it, Title 2 is very -- is subject to a lot of regulation and Title 1 isn't. SOTOMAYOR: Exactly. But the question was not so much stronger regulation or not stronger regulation. It was which set of regulations, given Congress' choice, controlled. Obviously, Congress may think that the regulations the court has, in its holding interpreting Congress' intent and that Congress thinks the court got to wrong, we're talking about statutory interpretation and Congress' ability to alter the court's understanding by amending the statute if it chooses.

This is not to say that I minimize the concerns you express. Access to Internet, given its importance in everything today -- most businesses depend on it. Most individuals find their information. The children in my life virtually live on it now.

And so its importance implicates a lot of different questions: freedom of speech, freedom with respect to property rights, government regulation. There's just so many issues that get implicated by the Internet that what the court can do is not choose the policy. It just has to go by interpreting each statute and trying to figure out what Congress intends.

FRANKEN: I understand that. But isn't there a compelling First Amendment right here for people? No matter what Congress does -- and I would urge my colleagues to take this up and write legislation that I would like -- but isn't there a compelling, overriding First Amendment right here for Americans to have access to the Internet?

SOTOMAYOR: Rights by a court are not looked at as overriding in the sense that I think a citizen and not -- or a citizen would think about it. Should this go first or should a competing right go second?

Rights are rights. And what the court looks at is how Congress balanced those rights in a particular situation and then judges whether that balance is within constitutional boundaries.

Calling one more compelling than the other suggests that there's sort of, you know, property interests are less important than First Amendment interests. That's not the comparison a court makes. The comparison a court makes starts with what balance did Congress choose first? And then we'll look at that and see if it's constitutional.

FRANKEN: OK, so we've got some work to do on this.

I want to get into judicial activism. I brought this up in my opening statement. As I see it, there's kind of an impoverishment of our political discourse when it comes to the judiciary. I'm talking in politics.

When candidates or officeholders talk about the -- what kind of judge they want, it's very often just reduced to, "I don't want an activist judge. I don't want a judge that's going to legislate." And that's sort of it. That's it. It's a 30-second sound bite.

As I and a couple of other senators mentioned during our opening statements, judicial activism has become a code word for judges that you just -- you don't agree with. Judge, what is your definition of judicial activism?

SOTOMAYOR: It's not a term I use. I don't use the term, because I don't describe the work that judges do in that way. I assume the good faith of judges in their approach to the law, which is that each one of us is attempting to interpret the law according to principles of statutory construction and other guiding legal principles, and to come in good faith to an outcome that we believe is directed by law.

When I say we believe, hopefully we all go through the process of reasoning it out and coming to a conclusion in accordance with the principles of law.

I think you're right that one of the problems with this process is that people think of activism as the wrong conclusion in light of policy. But hopefully judges -- and I know that I don't approach judging in this way at all -- are not imposing policy choices in -- or their views of the world or their views of how things should be done. That would be judicial activism, in my sense, if a judge was doing something improper like that.

But I don't use that word because that's something different than what I consider to be the process of judging, which is each judge coming to each situation trying to figure out what the law means, the applying it to the particular fact before that judge.

FRANKEN: OK, you don't use that -- that word or that phrase. But in political discourse about the role of the judiciary, that's almost the only phrase that's ever used. And I think that there has been an ominous increase in what I consider judicial activism of late. And I want to ask you about a few cases and see if you can shed some light on this for -- for us and for the people watching at home or in the office.

I want to talk about Northwest Austin utility district number one, the holder, the recent Voting Rights Act case. And Senator Cardin mentioned it, but he -- he didn't get out his pocket Constitution, as I -- I am. The 15th Amendment was passed after the Civil War. It specifically gave Congress the authority to pass laws to protect all citizens' right to vote.

And it said, Section 1, Amendment number 15, section one, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude." Section two -- this one's important. "The Congress shall have power to enforce this article by appropriate legislation," -- the Congress.

Well, Congress used that power to -- the power vested in them under Section two -- when it passed the Voting Rights Act of 1965. Now, the Voting Rights Act has an especially strong provision, section five, that requires states with a history of discrimination to get preapproval from the Justice Department on any changes that they make in their voting regulations.

Congress has reauthorized this four times as recently as -- the last time was 2006. And the Senate supported it by a vote of 98 to zero. Every single senator from the state covered by Section 5 voted to reauthorize it.

So now it's 2009, and we have this case, the Northwest Austin Utility district number one. And Justice Thomas votes to hold Section 5 unconstitutional. He said it went beyond the mandate of the 15th Amendment because it wasn't necessary any more. That's what he said.

Now, when I read the 15th Amendment, it doesn't say -- it doesn't contain any limits on Congress' power. It just says that we have it. It doesn't say if necessary the Congress shall have power to enforce this article. It just says that we have the power.

So it is my understanding that the 15th Amendment contains a very strong, very explicit and unambiguous grant of power to the Congress. And because of that, the courts should pay greater deference to it. And my question is is that your view?

SOTOMAYOR: As you know, some of the justices in that recent decision expressed the view that the court should take up the constitutionality of the Voting Rights Act and review of its continuing necessity. Justice Thomas expressed his view.

That very question, given the decision and the fact that it left that issue open is a very clear indication that that's a question that the courts are going to be addressing, if not immediately the Supreme Court, certainly the lower courts. And so expressing a view -- agreeing with one person in that decision or another, would suggest that I have made a prejudgment on this question.

FRANKEN: So that means you're not going to tell us?

(LAUGHTER)

I didn't mean to finish your sentence.

SOTOMAYOR: No, no, no, no. All I can say to you is I have one decision, among many, but one decision on the Voting Rights Act (inaudible) the recent reauthorization by Congress but a prior amendment where I suggested that these issues needed -- issues of changes in the Voting Rights Act should be left to Congress in the first instance.

My jurisprudence shows the degree to which I give deference to Congress' findings whether in a particular situation that compel or doesn't or leads to a particular result is not something that I can opine on because, particularly, the issue you're addressing right now is likely to be considered by the courts.

The ABA rule says no judge should make comments on the merits of any pending or impending case. And this clearly would be an impending case.

FRANKEN: OK. It's fair to say, though, in your own decision, you gave deference to Congress just like you answered by neutrality thing saying it's up to Congress. SOTOMAYOR: Well...

FRANKEN: It feels like this is very explicitly up to Congress.

SOTOMAYOR: I gave deference to the exact language that Congress had used in the Voting Rights Act and how it applied to a challenge in that case.

FRANKEN: OK. Now, voting to overturn federal legislation, to me at least, seems to be one definition of what people understand as judicial activism. But I want to talk about some cases that I've seen that I think showed judicial activism functioning on a more pernicious level. First, let's take a look at a case called Gross v. FBL Financial Services that the street issued last month. Are you familiar with that?

SOTOMAYOR: I am.

FRANKEN: OK. Now, Gross involved the age discrimination and employment act or ADEA. And now, before Gross, you could bring an age discrimination suit whenever you could show that age was one of the factors an employer considered in choosing to fire you.

When the Supreme Court agreed to hear the case, it said it would consider just one question: Whether you needed direct evidence of age discrimination to bring this kind of lawsuit or whether indirect evidence would suffice.

That's the issue that they said that they would consider when they took the case. But when the Supreme Court handed out its decision, it ruled on a much larger matter: Whether a worker could bring a suit under ADEA if age was only one of several reasons for being demoted or fired.

The Supreme Court barred these suits saying that only suits alleging that age was the determinative factor for the firing -- only those could be brought under the ADEA. This change has significantly eroded workers' rights by making it much harder for workers to defend themselves from age discrimination, including getting fired just before they would have seen a large increase in their pension. So, you weren't fired because you were too old, you're fired because your pension's going to increase soon.

So, this is a big deal. When you go to court to defend your rights, you have to know what rights you're defending. The parties in the Gross (ph) case thought they were talking about what kind of evidence was necessary in the discrimination suit. Then the court just said, no, we're banning that kind of suit all together. I think that's unfair to everyone involved. It's especially unfair to the man who's trying to bring the discrimination suit.

So, let me ask you a couple questions on this. First, as an appellate court judge, how often have you decided a case on an argument or a question that the parties have not briefed?

SOTOMAYOR: I don't think I have because to the extent that the parties have not raised an issue and the circuit court for some reason, the panel has thought that it was pertinent, most often that happens in questions on questions on jurisdiction. Can the court hear this case at all? Then you issue -- or we have issued a direction to the parties to brief that question so it is briefed in part of the argument that's raised.

There are issues that the parties brief that the briefing itself raises the issue for the court to consider. So it's generally the practice on the second circuit is to give the party an opportunity to be heard of a question. And we also have a procedure on the circuit that would give the party to be heard because they can also file the petitions for re-hearing, which is the panel enters a decision that the party disagrees with and thinks the court has not given it an adequate opportunity to present its arguments. Then it can file that at the circuit.

I don't have -- I am familiar with the Northwest case. I am familiar with the folding of that case. I am a little less familiar and haven't -- didn't pay as much attention --

FRANKEN: With Gross (ph)?

SOTOMAYOR: -- to the briefing issue. I do know there that like the Brand X case what the court says it was attempting to do is to discern what Congress' intent was under the ADA, whether it intended to consider mixed motive or not as a factor in applying the statute and the majority of folding, as I understood it was, look, Congress amended Title 7 to set forth the mixed motive framework and directed the courts to apply that framework in the future. But having amended that, it didn't supply that amendment to the age discrimination statute.

And so that would end up in a similar situation to the Brand X Case, which is, to the extent that Congress determines that it does want mixed motive to be a part of that analysis, that it would have the opportunity, and does have the opportunity to do what it did in Title VII, which is to amend the act.

FRANKEN: Well, in Title VII, they amended the act because they had to. They were forced to, right? Congress was impelled to, in the sense, but not on -- not on ADEA?

SOTOMAYOR: I -- I don't like characterizing the reasons for why Congress acts or doesn't act.

FRANKEN: OK. I got you.

Let me jump ahead to something. Yesterday, a member of this committee asked you a few times whether the word "abortion" appears in the Constitution, and you agreed that, no, the word "abortion" is not in the Constitution. Are the words "birth control" in the Constitution?

SOTOMAYOR: No, sir.

FRANKEN: Are -- are you sure? SOTOMAYOR: Yes.

FRANKEN: OK.

(LAUGHTER)

Are the words "privacy" in the Constitution or the word?

SOTOMAYOR: The word "privacy" is not.

FRANKEN: Senators Kohl, Feinstein, and Cardin all raised the issue of privacy, but I want to hit this head on. Do you believe that the Constitution contains a fundamental right to privacy?

SOTOMAYOR: It contains, as has been recognized by the courts for over 90 years, certain rights under the liberty provision of the due process clause that extend to the right to privacy in certain situations.

This line of cases started with a recognition that parents have a right to direct the education of their children and that the state could not force parents to send their children to public schools or to bar their children from being educated in ways a state found objectionable.

Obviously, states do regulate the content of education, at least in terms of requiring certain things with respect to education that I don't think the Supreme Court has considered, but the basic -- that basic right to privacy has been recognized and was recognized. And there have been other decisions.

FRANKEN: So the issue of whether a word actually appears in the Constitution is not really relevant, is it?

SOTOMAYOR: Certainly, there are very specific words in the Constitution that have to be given direct application. There are some direct commands by the Constitution. You know, senators have to be a certain age to be senators. And so you've got to do what those words say.

But the Constitution is written in broad terms. And what a court does is then look at how those terms apply to a particular factual setting before it.

FRANKEN: OK. In Roe v. Wade, the Supreme Court found that the fundamental right to privacy included the right to decide whether or not to have an abortion. And as Senator Specter said, that's been upheld or ruled on many times. Do you believe that this right to privacy includes the right to have an abortion?

SOTOMAYOR: The court has said in many cases -- and as I think has been repeated in the court's jurisprudence in Casey -- that there is a right to privacy that women have with respect to the termination of their pregnancies in certain situations.

FRANKEN: OK. I -- we're going to have a round two, so I'll ask you some more questions there. What was the one case in "Perry Mason" that Berger won?

SOTOMAYOR: There -- I wish I remembered the name of the episode, but I don't. I just was always struck that there was only one case where his client was actually guilty.

FRANKEN: And you don't remember that case?

SOTOMAYOR: I know that I should remember the name of it, but I haven't looked at the episode. I...

FRANKEN: Didn't the White House prepare you for that?

SOTOMAYOR: You're right, but I was spending a lot of time on reviewing cases. No, sir. But I do have that stark memory because, like you, I watched it all of the time, every week as well. I just couldn't interest my mother, the nurse, and my brother, the doctor, to do it with me.

FRANKEN: Oh. Oh, OK. Well, I -- we -- our whole family watched it, and -- because there was no Internet at the time, you and I were watching at the same time. And I thank you, and I guess I'll talk to you in the follow-up.

SOTOMAYOR: Thank you.

LEAHY: Is the senator from Minnesota going to tell us which episode that was?

FRANKEN: I don't know. That's why I was asking. If I knew, I wouldn't have asked her.

LEAHY: All right. Well -- so, because of that, Judge, we will not hold your inability to answer the question against you.

Now, on one of the -- I just discussed this with Senator Sessions, but I'll make the formal request: is there any objection for the committee now proceeding to a closed session, which is a routine practice we've followed for every nominee since back when Senator Biden was chairman of this committee?

SESSIONS: Mr. Chairman, thank you. I think that's the right thing to do, and there'll be no objection that I know of.

LEAHY: Thank you very much. I appreciate the comments.

So, hearing none, the committee will proceed to a closed session, and we will resume public hearings later this afternoon. And for the sake of those who have to handle all the electronic kind of things, we'll try to give you enough of a heads-up.

We'll stand in recess

(END OF COVERAGE)