Executive Session

Floor Speech

EXECUTIVE SESSION -- (Senate - June 24, 2009)

BREAK IN TRANSCRIPT

Mr. THUNE. Mr. President, I rise today to follow up on some of the comments made by my colleagues who had come to the floor to talk about the nomination of Judge Sotomayor to the Supreme Court of the United States.

Any confirmation the Senate considers is important but none more so than a lifetime appointment to the most distinguished judicial office in our Nation.

Now that the President has nominated Judge Sotomayor, it is the Senate's job to give advice and consent. As Alexander Hamilton told the Constitutional Convention:

Senators cannot themselves choose--they can only ratify or reject the choice of the President.

I take this role very seriously, as do all of my Senate colleagues. In fact, just 3 1/2 years ago, on this very floor, one of our colleagues in the Senate at the time rose and gave the following views on a then-pending Supreme Court nomination. I will quote for you what he said:

There are some who believe that the President, having won the election, should have complete authority to appoint his nominee and the Senate should only examine whether the Justice is intellectually capable and an all-around good person; that once you get beyond intellect and personal character, there should be no further question as to whether the judge should be confirmed. I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe it calls for meaningful advice and consent and that includes an examination of the judge's philosophy, ideology, and record.

The Senator who made those remarks was then-Senator Obama. He spoke those words in January 2006 on this floor when the Senate was debating the confirmation of now-Supreme Court Justice Samuel Alito.

I, like the President, believe it is the Senate's constitutional duty to thoroughly review all nominees to the Federal bench, especially those who will have a lifetime appointment to the highest Court in our Nation. This review should be thorough and fair and cover a nominee's background, judicial record, and adherence to the Constitution. This is especially true with the voluminous judicial record Judge Sotomayor has compiled, with over 3,600 Federal district and appellate level decisions. The Senate must also work to ensure that the nominee will decide cases based upon the bedrock rule of law as opposed to their own personal feelings and political views.

As part of this confirmation process, I had the opportunity this morning to meet with Judge Sotomayor. Like many in this body, I agree that she has an impressive background, as well as a compelling personal story. But what we have to do is examine and look at her record when it comes to her understanding of the Constitution, especially as it relates to the second amendment right to bear arms, and that is an area where I have significant concerns.

While sitting on the Second Circuit Court of Appeals, Judge Sotomayor consistently advanced a narrow view of the second amendment and did so with little explanation or reasoning. For example, twice, Judge Sotomayor has ruled that the second amendment is not a ``fundamental right.'' The first time she did so with a one-sentence footnote, and most recently it was simply stated as fact without any explanation or reasoning being provided. Judge Sotomayor's views on whether the second amendment right to bear arms is a fundamental right are so important because the Supreme Court has made this determination a key element in deciding whether to apply parts of the Bill of Rights, such as the second amendment, to State and local governments.

This question, also known as incorporation, is likely to be the next second amendment issue the Supreme Court will consider because the circuit courts of appeal are split, and the Supreme Court specifically noted that they were not deciding this issue in the landmark District of Columbia v. Heller decision, which was decided last year.

What is most troubling to me, though, is that these second amendment cases point out a disturbing trend that legal experts have expressed about Judge Sotomayor: That she has a record of avoiding or casually dismissing difficult and important constitutional issues. It doesn't take an attorney to notice that Judge Sotomayor's discussion of incorporation, a challenging and constitutionally significant issue, consists of just a few paragraphs. In contrast, the opinions for both the Ninth Circuit and the Seventh Circuit discuss the issue at length and, in doing so, give this important issue the attention and analysis it deserves. While I understand that writing styles can and do vary, even in the writing of judicial opinions, I am still concerned about the apparent lack of thoughtfulness and thorough reasoning in her decisions.

Another example of a Judge Sotomayor opinion that appears to be unnecessarily short and inadequately reasoned is the Ricci v. DeStefano case, or more popularly known as the New Haven firefighter promotion case. In this case, a three-judge panel, which included Judge Sotomayor, published an unusually short and unsigned opinion that simply adopted the lower district court's ruling without adding any original analysis. Even one of Judge Sotomayor's own mentors, Judge Jose Cabranes, commented that the Ricci opinion ``contains no reference whatsoever to the constitutional claims at the core of this case'' and that the ``perfunctory disposition [of the case] rests uneasily with the weighty issues presented by this appeal.'' Without careful reasoning being provided, critics and supporters alike have been left to wonder on what basis these decisions have been made. I am left with concerns about these rulings and whether they are based upon personal views and feelings rather than the rule of law.

My short meeting with Judge Sotomayor this morning did not provide either of us with enough time to address these issues and these concerns at length, and that is why, like many colleagues, I will be monitoring closely the confirmation hearings that are set to occur next month. During those hearings, it is my hope that the members of the Judiciary Committee will take the necessary time to explore and thoroughly examine her positions and legal reasoning, especially on the second amendment, in greater detail.

I, like many of my colleagues, am anxious to see this process move forward. We also understand the weight that is attached to the constitutional role of the Senate when it comes to advice and consent. When you consider a lifetime appointment to the highest Court in the land, you better make sure that you do your homework and that you thoroughly and completely and fairly examine the record.

I hope the Judiciary Committee--and I know they will--will conduct this in a way which is consistent with the tone that ought to be a part of this. It ought to be a civil discussion. It also needs to be thorough because we are talking about a lifetime appointment to the Supreme Court. Whoever ends up on that Court will be faced with a great many issues, all of which have lasting consequences for this great Republic.

In my view, it is important that we have judges who are put on the Supreme Court who understand that the role of the judiciary in our democracy is not to play or take sides; it is to be the referee, the umpire, to be someone who applies the Constitution, the laws of the land, fairly to the facts in front of them in the cases they will hear. I certainly hope that, as we have an opportunity to more thoroughly review the record of this nominee, the members of the Judiciary Committee and all of the Members of the Senate will take that responsibility very seriously. That will be the criteria and the filter by which I look at this nominee--whether or not, in my view, she exercises an appropriate level of judicial restraint and doesn't view the role of a judge in our judiciary system in this country to be that of an activist, someone who expresses personal feelings or tries to advance a particular political agenda, but someone who, in terms of philosophy and temperament, is committed to that fundamental principle of judicial restraint, which is a hallmark of our democracy and has been for well over 200 years.

I yield the floor and suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The bill clerk proceeded to call the roll.

Mr. THUNE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. THUNE. Mr. President, I didn't have an opportunity to address the Koh nomination this morning. We had a cloture vote on the nomination of Harold Koh to be the next State Department Legal Adviser. I wish to express some of the views and concerns I have. Obviously, cloture was invoked this morning, and my guess is that he will ultimately be confirmed. We have an opportunity in a postcloture period to talk a little bit about this nominee.

I have to say this is an important position. If confirmed, Mr. Koh would be the top lawyer at the State Department and would be involved in the negotiation, the drafting, and the interpretation of treaties and U.N. Security Council resolutions. He would also represent the United States in other international negotiations, at international organizations, and before the International Court of Justice. To put it simply, he would be viewed as the top legal authority for the United States by the international community.

Similar to Judge Sotomayor, Mr. Koh highlights an alarming trend which I think we see in some of President Obama's nominees. They have impressive backgrounds, but when their records are examined in detail, there are substantive questions about their understanding of the Constitution. For example, Mr. Koh has said repeatedly, including at his confirmation hearing, that he believes the congressionally authorized 2003 U.S. invasion of Iraq ``violated international law'' because the United States had not received ``explicit United Nations authorization'' beforehand. He also said that the U.S. Supreme Court should ``tip more decisively toward a transnationalist jurisprudence'' as opposed to basing decisions on the U.S. Constitution and laws made pursuant to it.

His views on the second amendment are also extremely worrisome. In a speech called ``A World Drowning in Guns,'' which was given at Fordham University Law School in 2002 and later published in the Law Review, he explains why he believed there should be a global gun control regime and admits that ``we are a long way from persuading government to accept a flat ban on the trade of legal arms.''

He concludes his speech with this statement:

When I left the government several years ago, my major feeling was of too much work left undone. I wrote for myself a list of issues on which I needed to do more. One of those issues was the global regulation of small arms.

Given, again, that Mr. Koh will be the top legal adviser at the State Department on both domestic and international issues, I have concerns, because of statements such as these, that he could place his own personal agenda ahead of the needs of our country and the Constitution.

So we will have an opportunity probably--we have had the cloture vote on the nomination, but I wanted to express for the record my concerns about this nominee and the types of statements he has made in the past, the type of agenda he has expressed support for, and how, in my view, it contradicts many of the basic constitutional freedoms and rights--the second amendment being one--that I would raise as a major concern but also this notion that transnational jurisprudence--that the Supreme Court ought to tip more decisively in that direction. That is a cause for great concern.

I hope that on final disposition of this nominee, the Senate will vote to reject this nomination. It is, in my view, dangerous to the national security interests of the United States and some of our basic constitutional freedoms when he rules in the way he has in the past and continues to issue statements that, in my view, are very troublesome. I will be opposing this nomination, and I hope my colleagues will as well.

I yield the floor.

BREAK IN TRANSCRIPT

Source