Sotomayor Nomination

Floor Speech

SOTOMAYOR NOMINATION -- (Senate - June 09, 2009)

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Mr. SCHUMER. Mr. President, I wish to confirm and agree with most of what the majority leader and our chairman have said. The bottom line is, this is a nomination that should be easy to study up on. The record is public. The record has been available from the day she was nominated. There are not thousands and thousands of pages given to us at the end of the days, as I know my colleague, the chairman, has said.

I would like to make one other point. I know my colleague, our ranking minority member, Mr. Sessions, said Alito took some 90 days. That is true. But that included both the Thanksgiving and Christmas breaks. If you look at the actual working days, it was much shorter, as it has been for every other Justice. Let me repeat. If we were to do what the minority leader asks, and not vote on this nomination until well after the September break, it would be the longest nomination proceeding we have had for the most publicly available and most concise record.

This is not somebody whom we have to dig and find out things about, because she has had 17 years--17 years--of Federal decisions at the district and at the court of appeals level, more than any other nominee to the Supreme Court in 100 years--in 70 years, excuse me. No, in 100 years for Federal and in 70 years for Federal and State because Justice Cardozo had 29 years on the State bench. The record is ample and the record is public. Given the staff that I know the Judiciary minority has, as chairman of the Rules Committee, any lawyer worth their salt could more easily research the whole record in less than a month. So, actually, Chairman Leahy has been kind of generous by delaying a week or two beyond that month.

Every day, as we speak now, there are, I daresay, tens of thousands of lawyers who have larger research dockets to do and are doing them in less
time. So the bottom line is very simple. One can only come to the conclusion that the reason for delay is delay alone, not needing time to study a public, ample record. So I would urge my colleagues on the other side to reconsider.

I have been told, at least on my subcommittee, that no one is going to participate in any meetings on anything. I don't know if that is true--I hope it isn't--that there is going to be an attempt to close down the Judiciary Committee on all the important issues we face.

Mr. KERRY. Mr. President, will the Senator yield for a question?

Mr. SCHUMER. I will yield to the Senator.

Mr. KERRY. Mr. President, I ask my colleague, in terms of the public record, is it true not only that this is the longest period of time, but if we were to delay it until September, that would be the longest period of time for consideration of any Justice for the Supreme Court in history?

Mr. SCHUMER. I believe my colleague from Massachusetts is correct.

Mr. KERRY. Certainly much longer than Justice Alito, Justice Roberts or any of the others whom we considered very rapidly?

Mr. SCHUMER. Clearly, longer than Roberts--much longer than Roberts--and somewhat longer than Alito. But Alito had both the Thanksgiving and Christmas breaks that were counted in that time, and we all know people are busy celebrating the holidays.

Mr. KERRY. I would also ask my colleague whether there is any rationale here whatsoever, that we have seen, for why this Justice's entire record, which is public, and has been poured over already, requires having the longest period in history, in terms of Justices of the Supreme Court, particularly given the issues that are at stake and the convening of a new Court in October?

Mr. SCHUMER. Well, I thank my colleague, and I think his points are well taken. As I mentioned before, the bottom line is, any lawyer worth his salt--and there are many very qualified lawyers in the minority on the Judiciary Committee--could research this record within a month, easily--easily. Right now, in the buildings here in Washington and in the buildings in New York and in the buildings in Birmingham, AL, are lawyers who have far more extensive research to do in less time and they do it well.

Mrs. BOXER. Would my friend yield for a question?

Mr. SCHUMER. I would be happy to yield.

Mrs. BOXER. I know we have to vote, but I wish to speak for a minute. As a woman, and being from California, we have such excitement about this nomination. I know we all agree this is a historic first, this nomination, and I think, given that and the fact that the women of this country comprise a majority and there is only one woman on the Court--and we certainly have never had a Latino on the bench--I am asking my friend, does he not believe this nominee should be accorded equal treatment--equal treatment as it relates to the others who have been nominated to the same post?

That is all I am asking for. I am not on the committee, but I am supporting our Chairman Leahy and the rest of the committee--at least those who are moving toward this in a schedule similar to Justice Roberts. I would ask, once again: Shouldn't we, who are very excited about this nomination and want to see it move forward, expect to have Judge Sotomayor treated in an equal fashion?

Mr. SCHUMER. I think my colleague from California makes an excellent point, and I would answer in the affirmative. We are not asking for more time. We are actually asking for less time, if you include vacation time.

It is not a situation like with Justice Roberts and even Judge Alito, where there were weeks and weeks before we were able to get private records that were available. No one has requested--Judge Sotomayor has not worked with the executive, so you don't have all those issues that have to be discussed and negotiated about executive privilege. She has a 17-year career on the bench. She has 3,000 opinions. If that is not an adequate record?

My office just in 2 days looked at every one, for instance, of the immigration asylum cases that were brought before her. There were 83--a pretty good sample, 83 percent. I don't recall the number, but there were a large number of cases, and 83 percent of the time we found she denied asylum to the immigrant applicant, which we concluded made it pretty clear that her fidelity to rule of law trumped her natural sympathy for the immigrant experience.

We just did that in a day or two. I don't have the kind of staff that my good friend, the Senator from Alabama, has. He should have it. He is the ranking minority Member. So it is very easy, given the number of staff, given the public record, given that there is no litigation or discussion about executive privilege--as there was with both nominee Alito and nominee Roberts--that a month seems to me to be ample time. The chairman, in his wisdom, to which I will defer, gave more than a month to the day of the nomination.

Mr. SESSIONS. Will the Senator yield for just one question?

Mr. SCHUMER. I am happy to yield to my colleague.

Mr. SESSIONS. I know the Senator from California raised the question of doing for this nominee as the others. If this goes forward as planned, it would be 48 days from nomination announcement to the first hearing. I wonder if the Senator from New York would acknowledge that for Justice Breyer it was 60 days; for John Roberts it was 55, the shortest; and Sam Alito was 70. This would be much shorter a period of time than the period we are being given for this nominee, who has 3,500 cases.

I would ask if the Senator remembers saying with regard to the Alito nomination, when our Democratic colleagues asked that it be held over past Christmas, and at their request it was done so, he said:

It is more important to do it right than to do it quickly. And now we have a bipartisan agreement to do that.

So we just ask for a bipartisan agreement to do it right and not too fast. I don't know how we can work it out, but I think this is an arbitrary date, designed to move this process forward by a certain end game, faster than we need to. The vacancy, as the Senator knows, does not occur until October when Justice Souter steps down. So we do need to complete it by then. I have told the President I will work to make sure that occurs.

Mr. SCHUMER. I thank my colleague.

The PRESIDING OFFICER. The Senator from New York is recognized.

Mr. SCHUMER. If I might respond, with nominee Alito, now Justice Alito, there was a Christmas break. As I understand it, according to Chairman Leahy it was the majority, Republicans, who asked we go to that Christmas break, not the Democrats. In Justice Roberts' case, I believe Katrina intervened and everybody had to drop everything and work on the emergency of Katrina.

If you look at days where the record is available, and it has been available right from the get-go here, and no vacation, no intervening long recesses and things like that, the minority here, any Senator here, will have had more time to scrutinize this record than we have had for most other Judges. Again, underscored by the fact that the record is public, is open and ample.

No one has to go look for needles in a haystack to try to figure out the record of Judge Sotomayor. It is very extensive and ample. With Justice Roberts, we only had a few years where he was on the bench and all the rest of his record was in the executive and it took us weeks, I think--the chairman probably remembers this better than me--or months to get the record.

With that, I yield the floor. I know we want to get on with the vote.

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