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Judge Sonia Sotomayor's Supreme Court Confirmation Hearing
Aired July 16, 2009 - 10:53 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 get right back to the confirmation hearings for Sonia Sotomayor. Republican Senator John Cornyn of Texas is asking the questions right now. She's answering.
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SEN. JOHN CORNYN (R), TEXAS: ... my question is, what, in your mind, is the difference between a political contribution and a bribe?
JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: The question is, is a contributor seeking to influence or to buy someone's vote? And there are situations in which elected officials have been convicted of taking a bribe because they have agreed in exchange for a sum of money to vote on a particular legislation in a particular way. That is -- violates the federal law.
The question that was discussed there was a much broader question as to, where do you draw that line as a society? What choices do you think about in terms of what -- what Congress will do, what politicians will do?
I've often spoken about the difference between what the law permits and what individuals should use to guide their conduct. The fact that the law says you can do this doesn't always mean that you as a person should choose to do this.
And, in fact, we operate within the law. You don't -- you should not be a lawbreaker. But you should act in situations according to that sense of what's right or wrong.
We had the recent case that the Supreme Court considered of the judge who was given an extraordinary amount of money by a campaign contributor, dwarfing everything else in his campaign in terms of contributions, funding a very expensive campaign.
CORNYN: In fact -- in fact -- in fact, that was not a direct contribution to the judge, was it?
SOTOMAYOR: Well, it wasn't a direct contribution, but it was a question there where the Supreme Court said, the appearance of impropriety in this case would have counseled the judge to get off, because...
CORNYN: Let's get back to my question, if I can, and let me ask you this. Last year, President Obama set a record in fundraising from private sources, raising an unprecedented amount of campaign contributions. Do you think, given your law review article, that President Obama can say with credibility that he's carrying out the mandate of a democratic society?
SOTOMAYOR: That wasn't what I was talking about in that speech. I don't know...
CORNYN: Well, I realize he wasn't elected in 1996, but what I'm -- what I'm getting at is, are you basically painting with such a broad brush when it comes to people's rights under the First Amendment to participate in the political process, either to volunteer their time, make in-kind contributions, make financial contributions? Do you consider that a form of bribery or in any way improper?
SOTOMAYOR: No, sir.
CORNYN: OK. Thank you.
SOTOMAYOR: No, sir.
CORNYN: Thank you for your answer.
In the short time we have remaining, let me return to -- to the New Haven firefighter case briefly. As you know, two witnesses, I believe, will testify after you're through, and I'm sure you will welcome being finished with this period of questioning.
A lot of attention has been given to the lead plaintiff, Frank Ricci, who is a dyslexic and the hardship he's endured in order to prepare for this competitive examination only to see the competitive examination results thrown out.
CORNYN: But I was struck on July the 3rd in the New York Times, when they featured another firefighter, who will testify here today, and that was Benjamin Vargas. Benjamin Vargas is the son of Puerto Rican parents, as you probably know, and he found himself in the odd position, to say the least, of being discriminated against based on his race, based on the decisions by the circuit court panel that you sat on.
The closing of the article, because Lieutenant Vargas -- who hopes to be Captain Vargas as a result of the Supreme Court decision because he scored sixth on the comprehensive examination -- at the very last paragraph in this article, he -- it says, "Gesturing toward his three sons, Lieutenant Vargas explained why he had no regrets. He said, 'I want to give them a fair shake. To get a job on the merits, not because they're Hispanic or to fill a quota.' He said, 'What a lousy way to live.'" That's his testimony.
So, I want to ask you, in conclusion, do you agree with Chief Justice John Roberts when he says, "The best way to stop discriminating based on race is to stop discriminating based on race"?
SOTOMAYOR: The best way to live in our society is to follow the command of the Constitution, provide equal opportunity for all. And I follow what the Constitution says, that is, how the law should be structured and how it should be applied to whatever individual circumstances come before the court.
CORNYN: With respect, Judge, my question was do you agree with Chief Justice John Roberts's statement, or do you disagree?
SOTOMAYOR: The question of agreeing or disagreeing suggests an opinion on what the ruling was in the case he used it in, and I accept the court's ruling in that case. And that was a very recent case.
There is no quarrel that I have, no disagreement. I don't accept that, in that situation, that statement the court found applied. I just said the issue is a constitutional one - equal opportunity for all under the law.
CORNYN: I understand that you might not want to comment on what Chief Justice John Roberts wrote in an opinion, even though I don't think he was speaking of a specific case but rather an approach to the law which would treat us all as individuals with equal dignity and equal rights.
But let me ask you whether you agree with Martin Luther King when he said he dreamed of a day when his children would be judged not by the color of their skin, but by the content of their character. Do you agree with that?
SOTOMAYOR: I think every American agrees with that (INAUDIBLE).
CORNYN: Amen.
Yield back, Mr. Chairman.
SEN. PATRICK LEAHY (D), VERMONT: Thank you, Senator Cornyn.
Just so we'll note for the schedule, we're going to go to Senator Specter, who is a long-time member of this committee and one of the most senior members here. And I would, once Senator Specter's questions are finished, we will take a very short break. And does that work for you, Judge? I...
SOTOMAYOR: It most certainly does.
LEAHY: OK. So...
SOTOMAYOR: Thank you.
LEAHY: Senator Specter is recognized for up to 20 minutes.
SEN. ARLEN SPECTER (D), PENNSYLVANIA: Thank you, Mr. Chairman.
Judge Sotomayor, you have been characterized as running a hot courtroom, asking tough questions. What we see popping out of the Supreme Court opinions from time to time, statements about pretty tough ideological battles in their conference room. Justice Scalia was quoted as saying, "The court must be living in another world. Day by day, case by case it is busy designing a Constitution for a country I do not recognize."
Referring to a woman's right to choose in Roe v. Wade, he said this, quote, "Justice O'Connor's assertion that a fundamental rule of judicial restraint requires us to avoid reconsidering Roe to not be taken seriously." Do you think it possible that, if confirmed, you will be a litigator in that conference room, take on the ideological battles which pop out from time to time from what we read in their opinions?
SOTOMAYOR: I don't judge on the basis of ideology. I judge on the basis of the law and my reasoning. That's how I have comported myself in the circuit court. When my colleagues and I, in many cases, have initially come to disagreeing positions, we've discussed them and either persuaded each other, changed each other's minds and worked from the starting point of arguing, discussing, exchanging perspectives on what the law commands.
SPECTER: Well, perhaps you'll be tempted to be a tough litigator in the court. Time will tell, if you are confirmed, if you have some of those provocative statements.
Let me move on to a case which you have decided. You have been reluctant to make comments about what other people have said. But I want to ask you about your view as to what you have said. In the case of Entergy v. Riverkeeper, which involved the question which is very important to matters now being considered by Congress on climate control and global warming, you ruled in the 2nd Circuit that the best technology should be employed, not the cost-benefit.
The Supreme Court reversed five-to-four saying it was cost benefit. Could we expect you to stand by your interpretation of the Clean Water Act when, if confirmed, you get to the Supreme Court and could make that kind of a judgment because you're not bound by precedent?
SOTOMAYOR: Well, I am bound by precedent to the extent that all precedents is entitled to the respect it -- to respect under the doctrine of stare decisis. And to the extent that the Supreme Court has addressed this issue of cost benefit and its permissibility under the Clean Water Act, that's the holding I would apply to any new case that came. And the framework it established is the framework I would employ to new cases.
SPECTER: Let me return to a subject I raised yesterday but from a different perspective. And that is the issue of the Supreme Court taking on more cases. In 1886, there were 451 cases decided by the Supreme Court, in 1985, 161 signed opinion, in 2007, only 67 signed opinions. The court has not undertaken cases involving circuit splits.
In the letter I wrote to you, which will be made a part of the record, listing a great many circuit splits and the problems that that brings when one circuit decides one day, another circuit another, and the other circuits are undecided and the Supreme Court declines to take cases.
Do you agree with what Justice Scalia said, dissenting in (inaudible), where the court refers to take a key circuit split that when the court decides not to, quote, "it seems to me, quite irresponsible to let the current chaos prevail with other courts not knowing what to do"? Or stated differently, do you think the Supreme Court has time to and should take up more circuit splits?
SOTOMAYOR: It does appear that the Supreme Court's docket has lessened over time, its decisions that it's addressing. Because of that, is certainly does appear that it has the capacity to accept more cases. And the issue of circuit splits is one of the factors that the court's own local rules set out as a consideration for justices to think about in the cert process.
So, in answer to your question, the direct answer is, yes, it does appear that it has the capacity.
SPECTER: The current rule in the Supreme Court is that petition for certiorari are applied, and there is a so-called cert pool where the -- seven of the nine justices, excluding only Justice Stevens and Justice Alito, do not participate in the cert pool so that they -- people applying for cert don't have the independent judgments.
When Chief Justice Roberts was -- before he became chief justice, he said that the cert pool's powers of little disquieting. Would you join the cert pool? Or would you maintain an independent status as Justice Stevens and Justice Alito do in having their own clerks and their own individual review as to whether cert ought to be granted?
SOTOMAYOR: I would probably do what Justice Alito did, although, I haven't decided if I'm given the honor of becoming a member of the Supreme Court. I haven't decided anything. I'm not even sure where I would live in New York if this were to happen -- in Washington.
But putting that aside, Senator, my approach would probably be similar to Justice Alito, which is experience the process, take, for a period of time, consider its costs and benefits, and then decide whether to try the alternative or not and figure out what I think works best in terms of the functioning my chambers and the court.
I can't give a definitive answer because I generally try to keep an open mind until I experience something and can then speak from knowledge about whether to change it or not.
BLITZER: Senator Specter trying to pin her down, as other senators have done, most of them without much success.
Sonia Sotomayor answering questions, but not going into the kind of specific details, the specific answers so many of them would like to hear. She's following in the footsteps of other Supreme Court nominees who have dodged a lot of these more sensitive issues, including Samuel Alito and John Roberts during the Bush administration.
Let's take another quick break.
Remember, CNN.com is where we're streaming these hearings uninterrupted if you want to watch it on your laptop or your desktop -- CNN.com.
Our coverage continues after this.
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BLITZER: Let's get right back to the Senate confirmation hearings for Sonia Sotomayor. She's being questioned by Arlen Specter, the Democrat, formerly a Republican of Pennsylvania.
SOTOMAYOR: I suspect they do know, and will participate in discussions with them on this issue. And those things I would do, Senator.
SPECTER: Some of my colleagues have questioned whether, as you stated, your panel in the Maloney case was really bound by Supreme Court precedent. The 7th Circuit reached the same decision your panel did.
And in that opinion written by a highly respected Republican judge, Frank Easterbrook, the Seventh Circuit pointed out that Heller specifically declined to reconsider older Supreme Court cases which have held that the Second Amendment applies only to the federal government. Judge Easterbrook wrote, quote, "That does not license the inferior courts to go their own way. It just notes that the older precedent is open to reexamination by the justices themselves when the time comes."
That was your court's conclusion also, wasn't it?
SOTOMAYOR: It was. And I understand, having reviews Justice Easterbrook's opinion, that he agreed with the reasoning of Maloney on that point.
SPECTER: I want to return to the issue of basic authority, responsibility of the Supreme Court to decide the major cases on separation of power. There was a case which the Supreme Court denied certiorari just a couple of weeks ago involving claims for damages brought by survivors of victims of September 11th against certain individuals in Saudi Arabia. And this case posed a classical conflict between executive and legislative responsibilities.
Congress had legislated under sovereign immunity in 1976 that tort claims like flying an airplane into the World Trade Center were an exception of sovereign immunity, and the executive branch interposed objections to having that case decided because of the sensitivity of matters with Saudi Arabia. And the case involved circuit splits and very, very important matters in that tragedy which you've commented reached you, being very close to the incident.
Don't you think that that's the kind of a case the Supreme Court should have heard to decide that kind of a very basic conflict between Article I powers of the Congress and Article II powers of the executive?
SOTOMAYOR: Senator, obviously issues related to September 11th and national security are very important issues to the country as a whole. For the reasons I mentioned earlier, I lived through September 11th, so I understand its great tragedy and effect on America. The question you ask me, though, is one that asks me to make judgment about an act the Supreme Court has done. And I didn't participate in their discussions. I didn't review the cert petitions. I didn't talk about with them their reasons. It would seem, and is, inappropriate to me to comment on a question that I wasn't a party to in making the decision.
SPECTER: Well, wouldn't you at least agree with the proposition that conflicts between the Congress and the executive branch are of the highest duty for the Supreme Court to consider and to decide?
SOTOMAYOR: The -- all conflicts under the Constitution, all issues arising from the Constitution are important.
SPECTER: Well, I know that, but that's a pretty easy question to answer. I'm not asking you to agree with Justice Roberts that the court ought to take more cases, which seemed to me to be pretty easy, or a question about Justice Scalia saying that there's turmoil when the circuit split.
And you don't have the Supreme Court taking cert, but isn't that of the highest magnitude? Our discussions here have involved a great many issues, but I would suggest to you that, on separation of powers and when you undertake the role of the Congress contrasting with the role of the president, Congress is Article I. It was placed with primacy, because we're closest to the people.
And when you have a question which you wouldn't comment on yesterday, like the terrorist surveillance program, which flatly contradicts the congressional enactment on Foreign Intelligence Surveillance Act, that the only way you'd get a wiretap is with court approval, and the case is declared unconstitutional in the Detroit district court, and the Sixth Circuit dodges the case on standing with very questionable grounds, and the Supreme Court won't even hear it, and you have a case involving September 11th and a very blatant conflict between Congress powers expressed under Article I with the sovereign immunities act, and the president is stepping in under foreign powers, isn't that a category of the highest magnitude?
SOTOMAYOR: It is so difficult to answer that question in the abstract. For the reason I've just explained, the issue is much, much more complicated than an absolute that says, if a case presents this question, I'm always going to take it.
That's not how a judge looks at the issue of granting or not granting certiorari, I assume, because the fact is weighing so many different factors at the time that decision is made. I...
SPECTER: Judge, I don't want to interrupt you, but I've got a minute and a half left and a couple of comments I want to make in conclusion.
I would ask you to rethink that. And I would also ask you to rethink the issues you didn't want to answer yesterday about conflict between the Congress and the court. Even though the Constitution made Congress Article I and the president Article II, the Supreme Court has really reversed the order. The judiciary is now really in Article I, if the powers were to be redefined.
And I'd ask you to take a look -- you have said repeatedly that the job of the court is to apply the law, not to make the law. And take a look again at the standard of proportional and congruent and see if you don't agree with Justice Scalia that that's another way for the court to make law.
And take a look, too, at what Justice Roberts said here in the confirmation hearings, that there would be deference and respect for congressional fact-finding, how that is not done in the Garrett case and in the voting rights case.
And out of consideration for the people who are going to appear here later on, I'm not prepared yet to announce my own vote, but it is my hope that -- and the conventional wisdom is very strong for your confirmation -- that you'll use some of those characteristics of your litigation experience to battle out the ideas that you believe in, because I have a strong hunch that they're closer to the ones that I would like to see adopted to the court.
And don't let the issues of separation of powers skip by. The Congress is entitled to deference on these big issues, and at least they ought to be decided by the court.
Thank you very much, Judge Sotomayor. You've done quite an outstanding job as a witness.
Thank you, Mr. Chairman.
LEAHY: Thank you, Senator Specter.
And, Judge, we're going to take a -- we're going to take a short break. And thank you for all this. When we come back, we'll go to recognize Senator Coburn, who's next.
Thank you.
BLITZER: Senator Patrick Leahy, the chairman of the Judiciary Committee, ordering a recess right now, a break, 10 or 15 minutes, and then they'll resume the questioning with Senator Tom Coburn, Republican of Oklahoma.
As we watch Sonia Sotomayor greet her friends and her family members there, and leave the hearing room for a little while, let's get ready to assess what we just heard.
Arlen Specter is one of the most senior members of this committee, but he technically ranks as the second most junior member right now because he switched parties, from the Republican Party to the Democratic Party. Only Al Franken is more junior than him right now. But he's spending all of his time, every minute, 30 minutes in the first round, 20 minutes in the second round, asking those questions.
There may be a third round of 10 minutes each for these questions, although Patrick Leahy would very, very much like to eliminate that, if possible. They want to move on and get the outside witnesses to come in who have been asked to testify for and against her confirmation.
We're standing by to speak live with Senator Jeff Sessions of Alabama. He's the top Republican on this committee. And we will when our coverage continues of these historic hearings right after this.
(COMMERCIAL BREAK)
BLITZER: Welcome back.
They're in a break right now, a short break. Members of the Senate Judiciary Committee questioning Sonia Sotomayor to become a Supreme Court justice.
We're standing by. We're going to be speaking shortly with Jeff Sessions. He's the top Republican on this committee, the Republican senator from Alabama.
Stand by for that live interview.
But in the meantime, let's digest what Arlen Specter just did with Sonia Sotomayor.
Our CNN contributor Bill Bennett is still with us.
Bill, Arlen Specter, arguably, one of the most intriguing members of this panel.
BILL BENNETT, CNN CONTRIBUTOR: "Intriguing" is a good adjective. Becoming a Democrat hasn't made him any funnier, I'd say.
Look, I know Arlen Specter very well. When I was drug czar, he got very much into the weeds, very technical. He made a great point at the end, though, in the end, to be serious, which is, you know, you look at the Constitution, which Sonia Sotomayor has invoked several times, Article 1, Article 2, what's more powerful, the president or Congress? Maybe it's the Supreme Court, maybe that's the Article 1 power now.
That's the big power, and perhaps we should think hard about that. that's the big power and we should think hard about that. Maybe that's one of the most important things.
But I think he's right about that. I think a lot of people think about and worry about the amount of power that the court has. And this is a bipartisan worry. People worry with a Democrat president whether all sorts of social policy will be made by a liberal, and liberals worry that with a conservative...
BLITZER: All right. It looks like we've got...
BENNETT: Do you remember months ago...
BLITZER: I was going to say we're getting a technical glitch there. But just wrap up your thought.
BENNETT: Oh, I'm sorry.
Well, it's this -- remember Eric Holder said a few months ago we're too cowardly to talk about race, we're a nation of cowards? We've had something of a conversation about race during these hearings. Not all aspects of it, but one aspect of it. You know, judging through race, judging through gender. And a conversation was carried on very well, I must say, by most of the parties to this conversation.
We can do this in America, and this was a pretty good example.
BLITZER: There was an exchange on race that John Cornyn had with Sonia Sotomayor. We're going to digest that in a few moments.
But joining us right now is the top Republican on the Judiciary Committee, Senator Jeff Sessions of Alabama.
Senator, have you made up your mind?
SEN. JEFF SESSIONS (R-AL), JUDICIARY COMMITTEE: Well, I haven't, but I want to agree with Bill Bennett on one thing, and I'm going to mention that in a minute, and that is we've had a more honest discussion of some of the complexities and sensitivities of the race question in this hearing than in the 12 years I have been in the Senate. So, I was proud that the attorney general's challenge that we be more honest about these issues was somewhat met in this hearing.
BLITZER: Is it still possible, Senator Sessions, you might vote to confirm her?
SESSIONS: Well, I'm going to try to do the right thing. I've got to tell you, I'm very worried. Throughout a long period of 15 years of speeches and judicial philosophy she expressed that's contrary to mine and very, very troubling in approach, and some of her cases reflect that. I do think she's on the -- so I'm worried about what it would be like for a lifetime appointment for her.
Also, her answers were...
BLITZER: How much deference do you give an elected president of the United States? In other words, elections, as John McCain and Lindsey Graham keep saying, elections do have consequences.
SESSIONS: I don't think there's any -- I think it's a good question, Wolf, first. And I think you give some deference, because a president will submit someone else, presumably, with a similar philosophy if they're elected, and that's their commitment. But then you have to ask yourself, do you think that the nominee once loosed on the American public and on that court for a lifetime, maybe 30 years, do they have the discipline, the character, the restraint that will be worthy of that office? Because once they're -- if they don't have it innately, if it's not their philosophy to have it, what we've seen is that judges do tend to follow the siren song to set a little policy when they get a chance.
BLITZER: Candy Crowley, our senior political correspondent, Senator, has a question she wants to ask you.
CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT: Senator, one of the things I'm curious about, just going back to the firefighters' case for a moment, because it's one of those that has been cited by Republicans as possibly a hint of when her background, ethnicity or gender came into play here. So, what I wanted to ask you is if you'd look at the Supreme Court decision overturning that, why could you not also look at the Supreme Court and say that their background, ethnicity and race also had something to do with that, even given that Clarence Thomas was one of those who was with the majority?
SESSIONS: Well, the problem was quite clearly that in her speeches, despite -- I'm glad she disavowed that at the hearings, but her speeches quite clearly suggested it's appropriate for a judge to take their background, prejudices and sympathies into account when they decide cases. She's quite clear about it.
We can argue over it, but, to me, it's not disputable. So, that was part of our concern on that question.
BLITZER: Gloria Borger has a question for you, as well, our senior political analyst, Senator.
GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: Senator, Lindsey Graham said today that he's hopeful that Judge Sotomayor is not an activist. Do you share that view?
SESSIONS: Well, we certainly all hope that. She renounced President Obama's empathy standard. I thought that was good news because I've really been troubled by his statement about what he looks for in a judge and how they should decide cases. So, that was interesting.
But it'll be a tough requirement for all of us. We're going to have to wrestle with that deference (ph) standard. I don't think it's -- the Republicans are going to adhere to the standard they adhered to 20 years ago when Ruth Bader Ginsburg came along. I think they won't go as low as President Obama went when he opposed Justice Roberts and Alito and actually filibustered Alito.
So, I think somewhere in there we'll all wrestle with it. I intend to look at the record to see how many contradictions there are in her testimony. There are some, there's no doubt about it. I don't like the way she handled the firefighters case. They will be here in a little bit. That was a summary order, not even a per curiam opinion. They tried to render that order where it quite clearly appears that there would be no public notice of it, and maybe even the circuit wouldn't know about it. And by chance someone found out about it, caused an uproar within the 2nd Circuit, and then it came within her vote a rehearing that case. BLITZER: And we're going to be hearing from some of those firefighters later today. John King has a question for you, Senator, as well.
JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: Senator, you have, as promised, had a polite, pointed at times, but a polite policy conversation with Judge Sotomayor. I spoke to a conservative activist this morning who said, look, there's no doubt she is going to be confirmed. But we're asking our guys, and by "our guys" he meant the Republicans on the committee, to feel her out a little bit more, ask her more questions about taxpayer funding of abortion, racial preferences, same-sex marriage and the death penalty.
This activist said the goal was to try to get more statements from her on the record that could potentially be used against blue- state, purple-state, red-state, vulnerable Democrats in the 2010 presidential elections. Have outside groups approached you or your staff saying, help us here for political purposes?
SESSIONS: There's all kinds of ideas and philosophies about how to approach this and how to make political hay out of it. My view is that we should just do the right thing. We have a constitutional responsibility to conduct a thorough hearing. She had a number of things in her background that were very troubling. Most of those have been pretty, you know, inquired into. We'll all have to decide how well those answers hold up to scrutiny, and we can't do this on politics.
She is a good person, I don't think there's any doubt about it, a good background and a wonderful person. So, I think that's where we'll be. Each senator will have to make up their mind, and maybe discussing these issues are important because a lot of Americans would feel that we failed if we didn't at least ask about some of these troubling statements to make sure that we get a public commitment to the people of the United States to be faithful to the law.
BLITZER: Is there going to be a third round of questioning now, ten minutes each maximum for the senators, Senator Sessions?
SESSIONS: There will be. That's what we did on Roberts and Alito, and Senator Leahy committed to that. I'm -- we'll all try to probably keep our time down now. Most people have had most of their questions answered. But there will be a third round.
BLITZER: You promised the American people they would be courteous and substantive, important sessions, if you forgive the pun, with the Supreme Court nominee. And I want to thank you because these sessions have been very useful, very good. We've learned a great deal about the law and the Supreme Court, and I think it's a useful service for the American public who are watching right now across the country.
Senator Sessions, thanks very much for doing that.
SESSIONS: Thank you, I appreciate your affirmation of that. That's one of my highest goals, and I hope people will feel that way when it's all over. BLITZER: When the dust settles, I think we will have all at least learned something about the law, which is critically important to all of us.
Thank you, Senator Jeff Sessions. He's the ranking Republican on the judiciary committee.
We're going to continue our coverage of these historic hearings. We're waiting for Al Franken, the newest member of this committee. He's going to have some time to ask some questions. Tom Coburn, the Republican senator from Oklahoma, himself a physician, he's going to be asking more questions. And our coverage will continue right after this.
(COMMERCIAL BREAK)
BLITZER: Welcome back to our coverage of the Sonia Sotomayor Supreme Court justice confirmation hearings here in Washington. Jeff Toobin, our senior legal analyst, has been watching and listening very carefully to everything that's been going on. We're getting into a lot of the so-called weeds (ph), substantive issues, important issues, technical details, trying to better understand what kind of Supreme Court justice she might be. And she's giving us a little bit of flavor, but she's trying to avoid as much detail as possible.
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: She's really doing a good job of avoiding detail. But I was struck by something in your interview with Senator Sessions. Because I think we're really seeing two conceptions of what the Senate's role is.
One is the Lindsey Graham-Orrin Hatch view, which is elections have consequences and the president, by and large, gets the benefit of the doubt. The other view is actually shared by two unlikely bedfellows, Senator Obama and Senator Sessions, both of whom say ideology matters. That I am going to vote against someone whose ideology I don't share.
And I think that's really what the Republicans, who are the votes in play here, are going to have to decide. Is it the "deferential to the president" standard embraced by McCain, John McCain and Lindsey Graham, or is it the Lindsey -- the Jeff Sessions standard, which is, we just don't approve of your ideology. You won't get our vote.
BLITZER: It's an important, important issue as you take a look at what's going on, Jeff. Are there going to be any more surprises, or basically what we've seen so far is what we're going to get?
TOOBIN: No, I think this is it. You know, when Senator Specter was asking questions, he raised an issue that I don't think a lot of people know about outside of Supreme Court nerds, which is that the United States Supreme Court has gone through an extraordinary reduction in its workload.
In the 1980s, the justices were deciding about 150 cases a year. Last year, they decided 67 cases. This year, a handful more. The justices simply do less work than they used to, and some of the old timers are not happy about that, including Specter.
And it's interesting, Chief Justice Roberts said, well, I want to take more cases when he testified during his hearings. Hasn't really happened. Judge Sotomayor kind of danced around that issue. But it is interesting to note just how much less work the Supreme Court does than it used to.
BLITZER: Does a whole lot less work, but they have an excellent staff, everyone on the Supreme Court, and they can be well-prepared.
TOOBIN: Well, do the math. Sixty-seven cases divided by nine justices, each of whom has four law clerks. It's a pretty cushy deal being on the Supreme Court. It's not a lot of work every year. I mean, it really isn't. And I think some of the senators are upset about that.
BLITZER: And as we all know, Jeff Toobin is the author of the best-selling book on the United States Supreme Court, "The Nine." You know a great deal. I do know this, and I've always admired the members of the Supreme Court for their summer recess. They have a nice little summer vacation, don't they?
TOOBIN: You know, it's -- when Chief Justice Roberts was working in the White House under President Reagan, he wrote a memo about an idea to give a new -- to create a new Court of Appeals. And he was about 26 years old at the time, and he pointed out that only schoolchildren and Supreme Court justices are expected to and do take the entire summer off.
BLITZER: Yes, I mean, they're basically off all of June, July, August and September. They don't come back until October. They have a better summer vacation than schoolkids.
TOOBIN: Did I tell you? It's a good job. No wonder people fight so hard to get on.
BLITZER: All right, guys, we're going to continue our coverage. I want to hear what's going on. Tom Coburn is asking some questions. Al Franken getting ready to ask some questions. We'll continue our coverage right after this.
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BLITZER: Let's get right back to the Senate Judiciary Committee hearing, the confirmation hearings for Sonia Sotomayor. Tom Coburn, the Republican senator from Oklahoma, is asking questions about precedent to Sonia Sotomayor.
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SOTOMAYOR: ... the 7th Circuit decision to say it's not what we should be doing, it's what the Supreme Court should do is to re- examine a precedent that's directly on point. I can assure your constituents that I have a completely open mind on this question. I do not close my mind to the fact and the understanding that there were developments after the Supreme Court's rulings on incorporation that will apply to this question or be considered. I have a completely open mind.
SEN. TOM COBURN (R), OKLAHOMA: Do you not consider it ironic that the majority of the debate about the 14th Amendment in this country was about the taking of guns from freed slaves? Is that not ironic that we now have some kind of conflict that we're going to say that the whole reason and the debate about the 14th Amendment originated from states taking away the rights of people's fundamental right to defend themselves? Is that not an irony to you?
SOTOMAYOR: Senator, would you want a judge or a nominee who came in here and said, I agree with you, this is unconstitutional, before I had a case before me, before I had both sides discussing the issue with me, before I spent the time that the Supreme Court spent on the Heller decision? That decision was mighty long, went through two years of history, did a very thorough analysis and discussion back and forth on the prior opinions of the court. I don't know that that's a justice that I can be. I can only come to this...
COBURN: I agree with you, Your Honor. I don't want you to tell us how you're going to rule. But I ask you, isn't it ironic that in this country, where our law comes from Blackstone forward, comes from English law, which our founding was perpetrated and carried out under this fundamental right, and that we have a 14th Amendment right, and that we have through legal, what I would consider as a physician, schizophrenia, have decided that we can't decide whether this is a fundamental right. I'll finish with that point, other than to note the Presser reference was to privilege in immunity, not due process.
SOTOMAYOR: I understand the importance of the right was recognized in Heller, and all I can continue to say, Senator, is I keep an open mind on the incorporation doctrine.
COBURN: I appreciate that, Your Honor. Thank you very much. Let me go back to an area that I know is -- not everybody wants to hear about, but I think it's important. I asked you about where we were in terms of settled law on Roe and Doe. And today I want -- I only want to focus on Roe and Doe, not Casey. What was the state of the law, say, in 1974, one year after Roe? Where did we stand in that issue?
SOTOMAYOR: That women have the right to terminate their pregnancy in some situations without government regulation, and in others there would be permissible government regulation.
COBURN: Let me -- did any of the law...
SOTOMAYOR: That's generally, because the court did look at other questions in terms of government regulation.
COBURN: Then let me ask you this. Did any of the laws of the 50 states regulating abortion survive the decision in Roe?
SOTOMAYOR: I don't know that I could answer that question, because I don't...
COBURN: OK. That's fair. They didn't. Was there any limit to the right to abortion either in the age of the child in the womb or the reasons for electing that surgery? And if so, what are those limits, according to Roe and Doe?
SOTOMAYOR: Senator, I don't actually remember the court addressing that, because my studies have been on the undue burden test established in Casey. So, my experience in this area or my knowledge, really, has been most particularly concentrated on the Casey standard, which is...
COBURN: I understand that.
SOTOMAYOR: ... what Casey did was change the Roe standard.
COBURN: Which goes back to why I asked you those two hypothetical -- not abstract, but hypothetical cases yesterday, the 28-week and a 38-week infant, for the -- the truth is, ever since January 22, 1973, you can have an abortion for any reason you want in this country. And even though Carhart II has now been ruled, that's a procedure that will eliminate that pregnancy is still legal and viable everywhere in this country.
COBURN: And so what I was trying to draw out to you is, where do we stand in this country, when 80 percent of the rest of the world allows abortion only before 12 weeks, only before 12 weeks? And yet we allow it for any reason at any time for any inconvenience under the "health of the woman" aspect.
And that's the other reason why I raised the viability because technology and the state's interest under the Supreme Court ruling starts with viability. That's when a state can have interest. It's guaranteed, and there's limited ability states can have to control that after that.
Is the Casey ruling, the undue burden ruling test, is that a policy choice? I know it's the supreme law of the land today, but in your mind, would that represent a policy choice?
SOTOMAYOR: I understood that that was the court's framework for addressing both the woman's right to terminate her pregnancy under the Constitution and the states' rights to legislate and regulate in areas within its jurisdiction. So, it was the court's way of attempting to address those two interests.
COBURN: And Justice Ginsburg's not real happy with those tests, and neither was -- neither are several other members on the court.
I want to end up. Our conversation, when we had a private conversation, I approached you about the importance of the cases that you decide to take if you're on the court. Let me ask you a few questions, and I just want your opinion. And I'm not trying -- this is not to put you in any box, and if you think it is, please say so -- you're trying to put me in a box.
Do you believe that the court's abortion rulings have ended the national controversy over this issue?
SOTOMAYOR: No.
COBURN: OK. You don't have to name them, but do you think there are other similarly divisive issues that could be decided by the court in the future?
SOTOMAYOR: That, I can't answer.
COBURN: I don't want you to name any. I'm just saying, as you think through your mind, do you think there are other similarly divisive issues that are -- that we could have that would divide the country so remarkably?
You know, assisted suicide, euthanasia...
SOTOMAYOR: I can only answer what exists. People are very passionate about the issues they believe in. And so, almost any issue could find an audience or a part of our population that's fervent about it.
COBURN: Which is a great answer because, on these divisive issues, is it better that the court decides them or elected representatives? If you had a preference, if you were king tomorrow and you said we're going to decide this either in the Supreme Court or make -- force Congress to make the decision, which would you think would be better for us?
SOTOMAYOR: In the first instance, it's always Congress or a state passing regulation that the court is reviewing and determining whether it complies with constitutional limits. So, it's not a choice of either or.
It's always Congress's first interest or the state legislators' first interest with the non-veto of a...
COBURN: I've got 30 seconds left. I want to ask you another question. One of the -- you said just a minute ago people are passionate about what they believe in. And I've read your speeches and your publications and your -- and I believe you're passionate. And I believe your speeches reflect your passions.
I look at myself. And when I give a speech, you know, I let it all go, what I really believe. I'm more measured -- some people wouldn't believe that up here, but I am more measured when I'm here, but when I give a speech.
And the problem I'm having is, I really see a dissonance about what you said outside of your jurisprudence. And the only thing -- the only ability we have to judge is what that passion has relayed in the past and your statements here, in combination with your judicial practice.
And so, you are an admirable judge, an admirable woman. You have very high esteem in my eyes for both your accomplishments and your intellect. I have yet to decide where I'm going on this because I am still deeply troubled because of the answers that I couldn't get in the 50 minutes that I've been able to ask, and also deeply troubled because I believe what you've spoken to the law students, what you've spoken in your writings truly reflect your real passions, which I sometimes find run in conflict with what I think the Constitution has to say.
But I thank you for giving us such a cordial response, and I am mightily impressed.
Thank you, Mr. Chairman.
LEAHY: Thank you, Senator.
SOTOMAYOR: Thank you, Senator.
LEAHY: Senator Coburn, the Republican side has asked for a third round of those who want to have another 10 minutes, and so you will have a chance for more questions if you wish, because I'm trying to be fair to both sides, and I'll allow that.
Before we go to Senator Franken, though, and -- and while you're still here, Senator Coburn, I had reserved about 10 minutes of my time, just use a minute or so of it.
You spoke about the Second Amendment, which is a significant issue. And it is one people care about. You spoke about gun owners out west and your life in both Wyoming and then Oklahoma.
I look at that, of course, because both Wyoming and Oklahoma have more restrictive gun laws than my own state of Vermont. I could say that virtually every state has more restrictive gun laws than we do in Vermont.
I've been a gun owner since my early teens. I have -- I target shoot at my home in Vermont as a way of relaxation all the time, own numerous weapons, handguns and long guns.
I have not heard anything or read anything in the judge's writings or speeches that would indicate to me that in any way I have to worry that Vermont gun owners -- and many Vermonters are gun owners, it's just a way of life -- that that's going to change.
It's not going to change for me. It's not going to change for the weapons my two sons, one a former Marine, own. And I will still be -- if Judge Sotomayor is on the Supreme Court, I expect I'll still be back at my home, and you're welcome any time you'd like to come, and go target shooting with me there.
SESSIONS: Mr. Chairman, I would just say briefly that -- but it is a real pivotal time we are in, because if the decision by Judge Sotomayor becomes law, any city -- maybe not Vermont -- but any city or state in America could virtually, I believe, fully ban all firearms, and that's just where we are, and you may -- we can discuss how much precedent had to bound you to reach that conclusion.
But this is not a little bitty issue. It's very important right now. LEAHY: But states made laws as they've gone along. Vermont has decided not to have the restrictive laws that you have in Alabama, and -- but states have made up their mind.
Senator Franken?
SEN. AL FRANKEN (D), MINNESOTA: Thank you, Mr. Chairman.
I have a letter here from several former U.S. attorneys from the Southern District of New York, some of them Republican-appointed, and supporting the judge's confirmation, and I'll read a little bit from it.
She -- says that each had personal experience, including appearing before Judge Sotomayor. "She came to our cases without any apparent bias, probed counsel actively with insightful and, at times, tough questions, and demonstrated time and again that she not only listens but is often persuaded by counsel. In our matters, Judge Sotomayor's opinions reflect clear discipline and" -- you know, it's great. It's a great letter. And I would ask that it be entered into the record.
Sir, can I enter into the record?
LEAHY: (OFF-MIKE)
FRANKEN: OK. Thank you.
Thank you, Judge Sotomayor, for your patience and your terrific answers. We've heard a lot about your thoughts on specific cases and on principles of jurisprudence. I'd like to ask a much more general question, and one that I think is a really good question in job interviews. And that is, "Why do you want to be a Supreme Court justice?"
SOTOMAYOR: You're going to hate me for taking a few minutes, but can I tell you a story?
FRANKEN: I would love it.
SOTOMAYOR: Because it will explain who I am and why.
When Senator Moynihan first told me that he would consider sending my name to Senator D'Amato for consideration as a district court judge, he asked me to keep it quiet for a little bit of time, and I asked permission to tell my mom and Omar. He said, "Sure."
So, they were visiting, and I told them, and mom was very, very excited. And she then said, "How much more money are you going to earn?" And I stopped, and I said, "I'm going to take a big pay cut."
Then, she stopped and she stopped, and she said, "Are you going to do as much foreign travel as you do now," because I was flying all over the U.S. and abroad as part of my private practice work. And I said, "Probably not, because I'm going to live in a courthouse in Lower Manhattan near where I used to work as a Manhattan D.A." Now, the pause was a little longer, and she said, "OK." Then, she said, "Now, all the fascinating clients that you work with," and you may have heard yesterday I had some fairly well-known clients, "You're going to be able to go traveling with them and with the new people you meet, right?" And I said, "No. Most of them are going to come before me as litigants to the cases I'm hearing, and I can't become friends with them."
SOTOMAYOR: Now the pause was really long, and she finally looked up and she says, "Why do you want this job?" And Omar, who was sitting next to her, said, "Celina, you know your daughter" -- this is in Spanish -- "You know your daughter and her stuff with public service." That really has always been the answer.
Given who I am, my love of the law, my sense of importance about the rule of law, how central it is to the functioning of our society, how it sets us apart, as many senators have noted, from the rest of the world, have always created a passion in me, and that passion led me to want to be a judge -- a lawyer first and now to be a judge, because I can't think of any greater service that I can give to the country than to be permitted the privilege of being a justice of the Supreme Court.
FRANKEN: Thank you.
Well, I, for one, have been very impressed with you, Judge. And I certainly intend to support your confirmation for the court.
I guess there is another round. I thought I was going to be the only thing between you and the door, so I planned to just yield my -- all the rest of my time. But since I'm not, I'd like to ask you some -- no, I'm going to yield the rest of my time, if that's OK.
LEAHY: Thank you. Thank you very much, Senator Franken.
I will reserve my time. We'll have -- as Senator Sessions has asked us -- 10-minute rounds. I think they'll be primarily on the Republican side. I may speak again when they finish.
But we'll begin with you, Senator Sessions.
SESSIONS: Thank you. Thank you, Chairman Leahy.
I believe we've tried to meet our goal. I had a goal at the beginning that people would say this is one of the most fair and effective hearings we've ever had. I hope that has been the case.
It's a great issue, the choice of putting someone on the United States Supreme Court. And our nominee has a wonderful group of friends and a long and distinguished record, but a number of questions arose that are important.
The American people rightly are concerned that on important social issues that are not clearly stated in the Constitution, on important legal issues not clearly stated in our law, seem to be decided by unelected, lifetime-appointed courts. Those are big, big issues that we've discussed here today I hope in a way that's healthy and positive.
Judge, one thing I will ask you -- I asked Justice Roberts. I'm not sure how much good it did, because he came back asking for a pay raise the next week, I think. But can you live on that salary that you're paid? We're having the largest deficit in the history of the republic. A lot of people are going to have to tighten their belts. And are you prepared to do so, also?
SOTOMAYOR: I've been living on this salary for 17 years, so I -- I will suffer through more of it. It is difficult for many judges. The pay question is a significant one for judges who haven't received pay raises -- I think it's more than 20 years now, if I'm not mistaken.
SESSIONS: Well, you're saying pay raises based on -- they're getting pay raises almost every year, really, in the cost of living and that kind of thing. But there was a big pay raise about 20 years ago.
I think that it's about four times the average family income in America.
I hope that you can live on it. If not, you probably shouldn't take the job.
All judges, whether they're activists or not, if asked, are going to say they follow the law. They just have a different view of the law; they just have a little -- a more looser interpretation of the law. So,s that's why we've pressed some of these issues. We want to determine as best we can just how tightly you believe you're bound by the law and how much flexibility you might think that you have as a judge to expand the law to suit, perhaps, a predilection in some policy area or another.
Attorney General Holder recently said that he thought we lacked courage in discussing the race issue, and I think that's something that we should take seriously. That was a valid comment.
In my opinion, we've had a higher level of discussion of that issue than -- since I've been in this committee. And I hope we've done it in a way that's correct, because this is so sensitive, and it's so important, and we need to get it right, and we must be fair to everybody.
We know that there are cases when people have been discriminated against. They are entitled to a remedy. And the Supreme Court has been quite clear that, when you can show a history of discrimination -- and we've had that not just in the South, but in the South -- the jurisprudence has developed that it's appropriate for a judge to have a remedy that would encourage a move forward to a better opportunity those who've been held back. So, that's good.
But the Supreme Court has also said that this is a dangerous philosophy because, when you do that, you've identified one racial group, and you've given them a preference over another. So, it can be done in a legitimate way that's remedial. And we still have vestiges of discrimination still in our society, and there will still be needs for remedial remedies. But I do think, as Justice Roberts said, the best way to end discrimination is quit doing it, and a lot of our orders and court decisions are such that they benefit one race over another solely because of their race. And it has to be tied to a remedy.
And that's why the Supreme Court has made clear that when you do that, it must meet the highest scrutiny. The courts are supposed to review that very carefully, and the language they use is "strict scrutiny." You don't favor one group over another without meeting that high standard.
So, I'm glad we've begun to discuss that, and we'll have the firefighters, and they'll be able to express their view on it in a little bit.
And, Judge, let me just say, before I go forward, that you've done a good job. You've had a good humor. You've been direct in your answers, and we appreciate that.
I will not support and I don't think any member of this side will support a filibuster or any attempt to block a vote on your nomination. It's a very important vote. We all need to take our time and think it through and cast it honestly, as the occasion demands. But I look forward to you getting that vote before we recess in August.
