Aug 04 2009
Washington, DC – U.S. Senator Dianne Feinstein (D-Calif.) today urged the full Senate to confirm the nomination of Judge Sonia Sotomayor to become an Associate Justice on the U.S. Supreme Court.
In remarks delivered on the Senate floor, Senator Feinstein praised Judge Sotomayor, noting that her 17-year judicial career shows her to be “a solid, tested, and mainstream federal judge.”
If confirmed by the Senate in a vote expected later this week, Judge Sotomayor would become the first Latina on the Supreme Court, and the high court’s third female justice.
Following are Senator Feinstein’s remarks:
“I’ve served on the Judiciary Committee for more than 16 years now. I have sat through the confirmation hearings of four Supreme Court justices. And I’m very proud to say that I believe the President made an excellent choice, and I enthusiastically support this nominee.
Judge Sotomayor is a warm and intelligent woman. More importantly, though, she is a solid, tested, and mainstream federal judge.
Her personal story is one of hard work. She has risen above all kinds of obstacles, and she has perseverance. She’s a role model for women in the law, and I cannot help but feel a sense of enormous pride in her achievements, her nomination, and hopefully before the end of the week her confirmation to be a Supreme Court Justice.
As I said at the confirmation hearings that a Supreme Court Justice should possess at least five qualities:
One, broad and relevant experience.
So how does she stand? You can’t find a nominee with better experience than Judge Sotomayor. She has 29 and a half years of relevant legal experience, and she’s seen the law from all sides.
For four and a half years, she was a prosecutor in New York City. She prosecuted murders, robberies, and child pornography cases as an Assistant District Attorney. She worked with law enforcement officers and victims of crime, and she sent criminals to jail.
We heard from the distinguished New York City district attorney, Mr. Morgenthau, who said he looked for bright young people. And he found her, and he heard her story.
She had been to Princeton. She graduated summa cum laude. She went to Yale Law School. She was editor of the Law Review. And she came to his attention, and he went to recruit her as a prosecutor in New York City.
For eight years then, after that, she practiced business law. As a litigator at a private firm, she worked on complex civil cases involving real estate law, banking law, contracts, and intellectual property law.
Then, she was appointed by President George Herbert Walker Bush, as a U.S. District Court Judge, and she served for six years. She heard roughly 450 cases in the district court -- up close and personal, where litigants come before the judge, where the judge gains a sense of what the federal court means to an individual.
I think that’s important to know on the Supreme Court. And she saw there first-hand the impact of the law on people before her.
And then she was appointed by President Clinton. For 11 years, she has been a federal appellate judge on the Second Court of Appeals. She has been on the panel for more than 3,000 federal appeals and authored opinions in more than 400 cases. These 11 years were rigorous and appropriate training grounds for the Supreme Court.
Judge Sotomayor will be the only sitting Justice with experience on both the trial and appellate courts. And she has more federal judicial experience than any Supreme Court nominee in the last 100 years. That’s a substantial qualification.
Secondly, a Supreme Court Justice should have deep knowledge of the law and the Constitution. And I believe her broad experience gives her first-hand knowledge of virtually every area of the law.
As I said, as a prosecutor, she tried criminal cases – homicides, assault, pornography cases – those crimes that destroy lives.
And as a business lawyer, she examined contracts, represented clients in complex civil litigation, and tried intellectual property disputes.
As a district court judge, she presided over criminal and civil jury trials, she sentenced defendants, she resolved complicated business disputes, and she reached decisions in discrimination and civil tort cases where people had been unfairly treated, injured, or harmed.
Finally, as an appellate judge, she has grappled with the difficult and critical questions that arise when people disagree about what our Constitution and our federal statutes mean today. So she certainly has ample experience.
Third, a Supreme Court Justice should have impeccable judicial temperament and integrity.
Anyone who watched Judge Sotomayor at her confirmation hearings has seen her temperament and demeanor first-hand. She is warm. She is patient. She is extremely intelligent.
She sat at that table, with a broken leg up on a box, hour after hour, and day after day, in a hot room listening to members of the Judiciary Committee pepper her with questions. And not at any time did she lose her presence, lose her cool, show anger. But she showed determination and patience and perseverance and I think that means a great deal.
At times the hearings became quite heated. But she remained calm, even in the face of provocative questioning.
So I am not surprised that the American Bar Association and the New York City Bar Association gave her their highest ratings.
As one of her Republican-appointed colleagues on the Second Circuit said: ‘Sonia Sotomayor is a well-loved colleague on our court — everybody from every point of view knows that she is fair and decent in all her dealings. . . The fact is, she is truly a superior human being. . . .’
What greater compliment could there be for a prospective Supreme Court nominee?
After spending time with her during our one-on-one meeting and participating in her confirmation hearings, I really agree. She is a walking, talking example of the very best America can produce.
She’s overcome adversity. Here is a child, a product of a poor Puerto Rican family, living in a housing project in New York. She is eight years old, her father dies. She’s nine years old, she finds herself with juvenile diabetes. She goes to school, she struggles with the language. She overcomes it.
She graduates from high school. She goes to Princeton. She succeeds in every way shape or form – summa cum laude – and then on to Yale, and head of the Yale Law Review. She overcame adversity, and she kept going.
She’s given back to her community and her country. And she’s now on track to become the first Latina Justice of the United States Supreme Court -- and only the third woman ever appointed to that Court.
I not only will vote for her, I will do so with great pride.
Finally, a Supreme Court Justice should exhibit mainstream legal reasoning and a firm commitment to the law.
Now, I’ve heard people say they don’t believe she will follow the law. I sat through those four days of hearings. There was never an instance that I saw where she moved away from legal precedent and the law.
I’ve said before and I would say today that I am somewhat concerned about the current Supreme Court. As I see it, conservative activists have succeeded in moving our court to the right of mainstream American thought.
Let me give you an example. In the last two years, this has been abundantly clear. The Justices have disregarded precedent at an alarming rate, and they’ve rewritten the law in ways that make clear that they are not just ‘calling balls and strikes.’
In 2007 alone:
- The Court held that a school district can never consider race when it assigns students to schools – even to ensure racial diversity. (Parents Involved in Community Schools v. Seattle School District, 551 U.S. 701 (2007))
- It held that women who were paid less than men had to sue within 180 days – even when they had no way of knowing they were paid less or they lost their right to back pay. (Lily Ledbetter v. The Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007))
- The Court held for the first time since 1911 that manufacturers could fix minimum prices for their products. (Leegin Creative Leather Products, Inc., v. PSKS, Inc., 551 U.S. 877 (2007))
- It held that the Endangered Species Act did not apply to certain federal actions – even though the Court in 1978 said the Act has no exception. (National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007))
- And it held that Congress could pass a law restricting access to OB/GYN services without including an exception for when a woman’s health is at risk. (Gonzales v. Carhart, 550 U.S. 124 (2007))
Now that last decision is dangerous not only for a woman’s health. It was also contrary to the Court’s opinions in Roe in 1973; in Ashcroft in 1983; in Casey and Thornburgh, both in 1992; in Carhart I in 2000; and in Ayotte (A-yott) in 2006. So this court of conservative activists cast aside precedent and super-precedent, to do essentially what they believed. Not to follow precedent. Precedent that began in 1973 was just simply thrust aside.
So the Supreme Court’s shift to the right and discarding of precedent is not just an ivory tower issue. These decisions have real-life impact.
Last week, USA Today reported that older white men, 55 years or older, are losing jobs at the highest rate since the great depression. (Dennis Cauchon, In this Recession, Older White Males See Jobs Fade, USA TODAY (July 30, 2009).
This is troubling. We have a law -- the Age Discrimination in Employment Act -- that is supposed to protect workers from being laid off because of their age.
But just two months ago, the Supreme Court changed the burden of proof under that law, making it harder for older workers to get the protection when they are fired, demoted, or not given a job because of their age. (Jack Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009))
So let me be clear. In my view, after 16 years on this Committee, the Justices on the Supreme Court are not umpires, they do not just call balls and strikes, they are not computers.
It matters who sits on our Supreme Court, and it matters whether they will respect precedent and follow the law.
Judge Sotomayor is a nominee with a 17-year record of following the law. She has faithfully applied the law to the facts in case after case.
Now we have a research service, called the Congressional Research Service, and it’s a neutral respected adjunct to what we do in the Senate and the House. And it carries out significant research.
Well, they took a look at her record. They examined it. And this is what they said: Her decisions do not fall ‘along any ideological spectrum.’ ‘The most consistent characteristic of [her] approach as an appellate judge has been an adherence to the doctrine of stare decisis – the upholding of past judicial precedents.’
So when her record is objectively researched by the number-one objective research service that we have, she has in fact been found to abide by Court precedent. They have essentially said she’s not an activist, she follows legal precedent.
And when her confirmation hearing ended, even one Senator who is now voting against Judge Sotomayor said: ‘I actually agree that your judicial record strikes me as pretty much in the mainstream of judicial decision-making.’ (Senator John Cornyn, Confirmation Hearings for Judge Sonia Sotomayor, July 16, 2009)
Judge Sotomayor’s mainstream record, her respect for precedent, and her commitment to the law have earned her support from groups that cut across party lines.
From law enforcement groups like the International Association of Chiefs of Police, to civil rights groups like the Leadership Conference for Civil Rights, to business groups like the U.S. Chamber of Commerce, to former officials from both parties, including conservative lawyer Ken Starr, and legal groups like the American Bar Association.
This is a nominee with a solid record, with more federal judicial experience than any nominee in a century, and with widespread support.
Now, there are those who oppose her because of one speech she made. One speech out of 29 and a half years of legal experience. Secondly, there are those who oppose her because of one case – the Ricci case, the New Haven case involving firefighters.
Yet, I’ve repeatedly heard the same three grounds for objecting to this nominee. But Judge Sotomayor was squarely in the mainstream in this case. She followed established precedent. That’s what the District Court said in a 50-page opinion. That’s what her Second Circuit panel joined with her unanimously to agree.
And about the same time, in the U.S. District Court in Tennessee, a judge held that in a nearly identical situation, the Memphis Police Department could replace a promotional exam that it feared was discriminatory. (Oakley v. City of Memphis)
And last year, three judges on the Sixth Circuit – including one appointed by President George W. Bush – agreed. (Oakley v. City of Memphis)
Now, it is true that five Justices on the Supreme Court disagreed, and their decision is now the law of the land. But I was a mayor for nine years of a difficult city going through a number of affirmative action cases. And I can tell you that this ruling has placed cities in what Justice Souter called a ‘damned if you do, damned if you don’t situation.’
And I would agree with that. If a city has to prove that it would lose in court before replacing a civil service exam it believes is discriminatory, this jeopardizes virtually any exam they might choose.
And finally, and most importantly, there is the third point of opposition – the National Rifle Association.
The NRA actively opposes Judge Sotomayor. They say they’re ‘scoring’ her confirmation vote. They will tell their members that any Senator who votes to confirm Judge Sotomayor has voted against the NRA’s priorities.
So let’s look at that for a minute. The NRA says Judge Sotomayor erred in the case of United States v. Sanchez-Villar. (United States v. Sanchez-Villar, 99 Fed. Appx. 256 (2d Cir. 2004))
In the case, an illegal immigrant named Jose Sanchez-Villar was caught dealing crack cocaine and carrying a handgun in New York City.
A jury convicted. On appeal, the defendant argued among other things that to prohibit him from carrying a gun in New York City violated the Second Amendment.
Judge Sotomayor and her colleagues unanimously rejected his arguments and upheld the conviction. The NRA is apparently upset that Judge Sotomayor and her colleagues did not agree with his Second Amendment argument.
But in 2004 when this case was decided, the law had been clear for 65 years. The Supreme Court had said in 1939 that the Second Amendment only related to militia service and hundreds of judges all across the country had followed that decision for decades.
Would the NRA have preferred that Judge Sotomayor rule against 65 years of settled law and establish precedent that an undocumented drug dealer had a constitutional right to carry a gun in New York City?
Do I want that in my state? The answer is absolutely no.
The NRA also says Senators should oppose Judge Sotomayor’s nomination because of another case, Maloney v. Cuomo. There, Judge Sotomayor and her colleagues unanimously upheld a New York law banning the Japanese weapon called ‘nunchakus.’ (Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009))
The unanimous decision said the Second Amendment limits only the federal government, not the States.
Why would Judge Sotomayor and her colleagues say that? Because it was binding Supreme Court law. Look at the decisions:
- In 1876, the Supreme Court held that the Second Amendment only applies to the federal government. (United States v. Cruikshank, 92 U.S. 542 (1876))
- It said it again in 1886. (Presser v. Illinois, 116 U.S. 252 (1886))
- And again in 1894. (Miller v. Texas, 153 U.S. 535 (1894))
- The Fourth Circuit followed that law and said in 1995 that the Second Amendment only applies to the federal government. (Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995))
- The Sixth Circuit agreed in 1998. (People’s Rights Organization v. City of Columbus, 152 F.3d 522 (6th Cir. 1998))
- And Judge Sotomayor’s own court -- the Second Circuit -- agreed in 2005. (Bach v. Pataki, 408 F.3d 75 (2005)).
Then last year, Justice Scalia wrote in footnote 23 of the famous Heller opinion, “[Our] decisions in Presser v. Illinois and Miller v. Texas reaffirmed that the Second Amendment only applies to the Federal Government.” (District of Columbia v. Heller, 128 S. Ct. 2783 (2008))
OK. Justice Scalia’s not exactly a liberal Supreme Court Justice. And that’s his view. Presser v. Illinois, and Miller v. Texas, reaffirmed that the Second Amendment only applies to the federal government.
Finally, just two months ago, three Republican appointees on the Seventh Circuit agreed that the Second Amendment only applies to the federal government. They said anyone who doubts this need only read Justice Scalia’s opinion. (National Rifle Association v. City of Chicago, 567 F.3d 856 (7th Cir. 2009)).
So, once again, Judge Sotomayor’s decision was squarely in agreement with court after court after court.
Now, some of my colleagues have said that the Ninth Circuit disagreed. And it’s true that three of its judges did. But last week, the full Ninth Circuit voted to review those three judges’ decision and rehear it as a full court. (Nordyke v. King, No. 07-15763, En Banc Order (9th Cir. July 29, 2009))
But the NRA tried its case before the Seventh Circuit and lost. They lost in front of three Republican-appointed judges.
Now, let me just summarize. Judge Sonia Sotomayor has 29 and a half years of relevant legal experience. She has a 17-year record of following the law. She has the experience, the temperament, and the knowledge. She will be in my view a fine Supreme Court Justice.
Supreme Court Justices don’t merely call balls and strikes. They make decisions that determine whether acts of Congress will stand or fall.
They decide how far the law will go to protect the safety and rights of all of us. They have the power to limit or expand civil rights protections. They have great leeway to interpret the laws protecting or limiting a woman's right to choose.
And they can expand or limit child pornography laws, and campaign finance laws, and so many, many more.
I believe Judge Sotomayor is an exceptional person who brings a rich background as a prosecutor, a business lawyer, a trial judge, an appellate court judge. And her 17-year record shows she will faithfully apply the law.
I cannot tell you how proud I will be to vote to confirm her to be an Associate Justice on the Supreme Court. And I sincerely hope that a dominant majority of my colleagues will do the same.”