Sotomayor Nomination

Floor Speech

SOTOMAYOR NOMINATION -- (Senate - June 23, 2009)

Mr. SCHUMER. Mr. President, several of my colleagues across the aisle have come to the floor to attack Judge Sotomayor's nomination to the Supreme Court. I must say, I think these attacks are entirely misplaced. I have always had a consistent standard for evaluating judicial nominees. I use it when voting for them. I use it when joining in, in the nomination process. I did under President Bush and continue to under President Obama. Those three standards are excellence, moderation, and diversity.

I am confident Judge Sotomayor meets these criteria. Based on my review thus far of her lengthy and impressive record on both the district court and court of appeals, her impressive career in both public and private sectors, and her stellar academic credentials.

I have also been deeply impressed with her personal story, a true story of an American dream. She pulled herself up from the projects in the Bronx to stand before this body as a nominee to the highest Court in the land. Her history is truly inspirational, a history of which we should all be extremely proud. It is a great American story. It is what the greatness of America is all about, as my friend from New Jersey said earlier.

I think some of the comments I have heard from my Republican colleagues this morning have distorted Judge Sotomayor's distinguished record, so let's take a minute to consider what the real story is and how Judge Sotomayor's record reflects the highest ideals of judging.

Judge Sotomayor's record reveals her to be both modest and moderate, dedicated to the rule of law and not outcome oriented.

For example, Senator Sessions spent some of his time this morning criticizing one particular case, Hayden v. Pataki, about felon disenfranchisement--because Judge Sotomayor's dissent would have resulted in an outcome with which he did not agree. He neglected to mention that her opinion was based on the plain text of the statute before the court and he also left out some of the key, revealing comments she made in her dissent:

No one disputes that States have the rights to disenfranchise felons;

No. 2:

The duty of a judge is to follow the law, not question its plain terms;

And No. 3:

I trust that Congress would prefer to make any needed changes itself rather than have the courts do so for it.

These are the kind of statements, in the very case my good friend from Alabama uses to criticize the judge, that we have heard from people on the other side of the aisle over and over as to what a judge should do: Not replace his or her own judgment for that of a legislature or that of the law.

Judge Sotomayor was following text to a result, not the other way around. These quotes tell us a lot more about Judge Sotomayor's judicial philosophy and commitment to rule of law than simply looking at the outcome in any particular case. Even when we look at outcomes, the entirety of her record gives us a more accurate picture of her judicial philosophy than the outcome of any one case. She rejected discrimination claims in 81 percent of the cases she considered, and in those 78 cases rejecting discrimination claims she dissented from the panel she was on only twice.

When my office looked at her record on immigration cases she sided with the immigrant in asylum cases only 17 percent of the time. That is average for the entire Second Circuit. This should put to rest any notion she is swayed by outcomes rather than by law.

Obviously, she sympathizes with the immigrant experience, that has been clear. But she does not let those sympathies stand in the way of her judging what the law says and mandates. So she is clearly not a judicial activist, someone who reaches beyond the proper role of a judge to impose her personal preferences.

I think it is about time to debunk the notion of judicial activism, as some are using. I think that judicial activism is starting to become code for many of my friends on the other side of the aisle for ``decisions with outcomes with which I don't agree.'' When they say judicial activist, they are not looking at how close or far from the law. They are, rather, looking at: Well, I didn't agree with the ultimate decision.

That is why I prefer to use the term ``modest'' in describing my ideal judge. It was a term that was used by Justice Roberts when he was before us.

I will quote from the Federalist Papers as some of my colleagues have done. In Federalist No. 78, the primary source for justification for judicial review in the Constitution, Alexander Hamilton explains the role of a judge very simply: A judge must interpret the Constitution, interpret the laws, and when there is ``irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred.''

An ``irreconcilable variance''--that imposes a high bar on any judge who is tempted to strike down a law or a practice or any decision by a legislature or

executive as unconstitutional. This is, by the way, exactly the standard Judge Sotomayor lived up to in Ricci, when she deferred to the elected local official in New Haven and to Federal title VII law and to firm Second Circuit precedent.

It has always been my view that a commitment to modesty is key in a judge. A judge who is modest understands that any concept of doing justice must have as its touchstone the meaning that the authors of the text intended to give it.

I also believe it is consistent with judicial modesty to acknowledge that our Constitution is written to endure. It does not live and breathe like a flesh-and-blood child does, who evolves through adolescence and adulthood to become unrecognizable.

I don't believe in using those terms. Rather, the Constitution endures. It endures because the people whom it governs, the people who retain all of the many rights that are not listed in the document itself, believe that it continues to apply to them. The only reason it continues to apply to them is through guardianship of judges who are modest in reaching their conclusions. They understand that people have to live by the Court's interpretation and judgment. They understand that people want justice and that justice means predictability, adherence to text, and the willingness to avoid patently absurd results.

I am looking forward to the confirmation hearing of Judge Sotomayor. She is a gifted lawyer, she is a respected and serious jurist, and her life experiences will only serve to enrich the views of the eight other justices, each of whom brings with him or her individual lessons, lessons taught by a hard-working grandfather in Pinpoint, GA; by an independent, studious-minded mother who died the day before her daughter graduated high school; by a hotel owner in Chicago, IL; or by a single Spanish-speaking mother who told her daughter that she could do anything through hard work and a good education.

Let's be reasonable and realistic. These experiences do not turn a good judge into a bad one or who is not an impartial one or whatever my colleagues on the other side of the aisle are suggesting.

To recognize the role of personal experience is simply to acknowledge that in the art and science of interpreting the Constitution and laws of our country we have to ask ourselves the following questions: Do we trust more the decisions of judges who, as I have said before, have ice water in their veins, who view their role as stripping themselves of their pasts and ruling in a vacuum, free of human experience and common sense, or do we trust more the decisions of judges who acknowledge and address their own life experiences even while striving always to be fair and within the law--as Judge Sotomayor herself has said?

These are questions I look forward to discussing at Judge Sotomayor's upcoming hearing.

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