Sotomayor Nomination

Floor Speech

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

Mr. CORNYN. I would like to use the next 10 minutes or so to address the nomination of Judge Sonia Sotomayor to be the next Associate Justice of the U.S. Supreme Court. I spoke last week a little bit on this nomination and the constitutional responsibility of the Senate to conduct a fair and, I believe, dignified hearing that will be held, now, on July 13, just a couple of short weeks from now. As I said then, and I will say it again, she deserves the opportunity to explain her judicial philosophy more clearly and to put her opinions and statements in proper context. I think every nominee deserves that. But I don't think it is appropriate for anyone--this Senator or any Senator--to prejudge or to preconfirm Judge Sotomayor or any judicial nominee.

This is an important process, as I said, mandated by the same clause of the Constitution that confers upon the President the right to make a nomination, and it is the duty of the Senate to perform something called advice and consent, a constitutional duty of ours. It should be undertaken in a responsible, substantive, and serious way.

Last Thursday I raised three issues I will reiterate briefly with regard to Judge Sotomayor's record. I would like to hear more from her on the scope of the second amendment to the Constitution and whether Americans can count on her to uphold one of the fundamental liberties enshrined in the Bill of Rights: the right to keep and bear arms. I would also like to hear more from Judge Sotomayor on the scope of the fifth amendment and whether the government can take private property from one person and give it to another person based on some elastic definition of public use. And, I want to hear more from her on her thoughts on the equal protection clause of the 14th amendment of the Constitution, which reads in part:

No State shall ..... deny to any person within its jurisdiction the equal protection of the laws.

Obviously, the third issue is going to be very much in the news, probably again as soon as next Monday, when the Supreme Court hands down its decision in the Ricci v. DiStefano case, a case in which Judge Sotomayor participated on the panel before her court of appeals. That case, as you may recall, involves firefighters who took a competitive, race-neutral examination for promotion to lieutenant or captain at the New Haven Fire Department.

The bottom line is, the Supreme Court could decide the Ricci case in a matter of days, and the Court's decision, I believe, will tell us a great deal about whether Judge Sotomayor's philosophy in that regard, as far as the Equal Protection Clause is concerned, is within the judicial mainstream or well outside of it.

The Ricci case is one way the American people can get a window into Judge Sotomayor's judicial philosophy. Another way is to look at some of her public comments, including speeches made on the duty and responsibility of judging.

The remarks that have drawn the most attention are those in which she said:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

As I said before, and I will say it again, there is no problem--certainly from me, and I do not believe any Senator--if she is just showing what I think is understandable pride in her heritage, as we all should as a nation of immigrants. But if the judge is talking about her judicial philosophy and suggesting that some people, some judges, because of their race, because of their ethnicity, because of their sex, actually make better decisions on legal disputes, then that is something Senators will certainly want to hear more about, this Senator included.

Judge Sotomayor has made other public remarks that deserve more scrutiny than they have received so far. For example, in a speech in 2002, Judge Sotomayor embraced the remarks of Judith Resnick and Martha Minow, who are two prominent law professors who have each proposed theories about judging that are far different than the way most Americans think about these issues. Most Americans think the people elect their representatives, Members of the House and Senate, to write the laws, and the judges, rather than rewriting those laws, should interpret those laws in a fair and commonsense way, without imposing their own views on what the law should be.

Most Americans think that when judges impose their own views on a case, when they substitute their own political preferences for those of the people and their elected representatives, then they undermine Democratic self-government and they become judicial activists.

Professors Resnick and Minow have very different ideas than I think the mainstream American thinks on what a judge's job should be. Their views may not be controversial in the ivory tower of academia. Academics often encourage each other to engage in provocative theories so they can write about them and get published and get tenure.

But the American people generally do not want judges to experiment with new legal theories when it comes to judging. They have a more commonsense view that judges should follow the law and not the other way around.

So where does Judge Sotomayor stand on some of these academic legal theories, which I think are far out of the mainstream of American thought? I am not sure. But in her 2002 remarks she said this:

I accept the proposition that as [Professor] Resnick describes it, ``to judge is an exercise of power.''

And:

as ..... Professor Minow ..... states ``there is no objective stance but only a series of perspectives--no neutrality, no escape from choice in judging.''

If I understand her quotes correctly, and those are some things I want to ask her about during the hearing, that is not the kind of thing I think most Americans would agree with. They do not want judges who believe that there is no such thing as neutrality in judging because neutrality is an essential component of fairness. If you know you are going to walk into a courtroom only to have a judge predisposed to deciding against you because of some legal theory, then that is not a fair hearing. And we want our judges to be neutral and as fair as possible when deciding legal disputes.

The American people, I do not think, want judges who believe they have been endowed with some power to impose their views for what is otherwise the law. Americans believe in the separation of powers, the separation between Executive, legislative and judicial power and that judges should, by definition, show self-restraint and respect for our branches of government.

I hope Judge Sotomayor will address these academic legal theories during her confirmation hearing. I hope she will clarify what she sees in the writings of Professors Resnick, Minow, and others whom she finds so admirable.

I hope she will demonstrate that she will respect the Constitution more than those new-fangled legal theories and that she will respect the will of the people as represented by the laws passed by their elected representatives and not by life-tenured Federal judges who are not accountable to the people.

I yield the floor.

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