Executive Session

Floor Speech

EXECUTIVE SESSION -- (Senate - August 06, 2009)

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Mr. REED. Mr. President, the nomination before us of Sonia Sotomayor to replace Associate Justice David Souter is of great importance. The Supreme Court is the ultimate arbiter of justice in the land. Therefore, this is one of the most consequential votes that any Senator can cast.

The Constitution makes the Senate an active participant, along with the President, in the confirmation of a Supreme Court justice. Article II, section 2, clause 2 of the Constitution states that nominees to the Supreme Court shall only be confirmed ``by and with the Advice and Consent of the Senate.'' The Senate's role in the confirmation process places an important democratic check on America's judiciary. As a result, this body's consent is both a constitutional requirement and a democratic obligation. It is in upholding our constitutional duties as Senators to give the President advice and consent on his nominations that I believe we have one of our greatest opportunities and responsibilities to support and defend the Constitution of the United States.

As I have said before, in weighing a nominee's qualifications for the Court, we must consider an individual's intellectual gifts, experience, judgment, maturity and temperament. Judge Sotomayor's compelling life story demonstrates that she possesses each of these qualities.

She overcame early adversity--with the loss of her father, a diagnosis of juvenile diabetes--to become an accomplished student at her high school. She went on to Princeton, where she excelled both inside and outside of the classroom, receiving the school's highest academic prize upon graduation.

From there she became a stellar student at Yale Law School and served on its prestigious law journal. Upon graduating from Yale, Judge Sotomayor surely had a number of very lucrative options available to her. It is a testament to her early commitment to public service that she chose to serve 5 years as assistant district attorney in New York.

By all accounts, she was a zealous and thorough prosecutor and demonstrated the same rigor and commitment to excellence that have been her hallmark throughout her career.

Judge Sotomayor is extremely qualified for this role. As a Supreme Court Justice, Judge Sotomayor would bring to bear her rich and varied real-world experience. She has been a big-city prosecutor. She has been an attorney in private practice. She has been a trial judge, and she also knows what it means to be an appellate judge. Judge Sotomayor would make history as only the third female Justice and the first Hispanic Justice. Moreover, she has more Federal judicial experience than any nominee to the Court in 100 years.

Yet as compelling as these qualities and accomplishments are, there is a higher bar for a nominee to the Nation's highest Court. In previous consideration of Supreme Court judges, I have stated my test for a nominee for the Supreme Court. It is a simple test, one drawn from the text, the history and the principles of the Constitution. A nominee to the Supreme Court must live up to the spirit of the Constitution. A nominee must not only commit to enforcing the laws but also to doing justice. A nominee must give life and meaning to the great principles of the Constitution: Equality before the law, due process, freedom of conscience, individual responsibility, and the expansion of opportunity.

In my view, Judge Sotomayor has met this test quite admirably. Judge Sotomayor's opinions demonstrate that she is no ideologue. Instead, she seeks to carefully weigh the facts in determining a just and fair outcome.

One issue of great concern at this time of conflict is executive power. As Commander in Chief, the President's duty is to guard the country's national security while also safeguarding individual freedoms. All too often, in my view, President Bush, guided by other government officials and questionable legal opinions, erred on the side of concentrating executive power. Indeed, I noted during my comments on Judge Alito's nomination that his avowal of the unitary executive theory was troubling in light of the Bush administration's policies. Judge Sotomayor's record on this issue suggests that she would more appropriately balance national security and individual freedom, and the role of Congress.

In the case of Doe v. Mukasey, she joined a unanimous panel decision that stated:

The fiat of a governmental official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements. ``Under no circumstances shall the Judiciary become the handmaiden of the Executive.''

But she has also shown a clear recognition that within the appropriate sphere, the executive must be supported. In Cassidy v. Chertoff, she authored a unanimous panel opinion on the constitutionality of a ferry company's search of baggage and vehicles. The panel ultimately concluded that searches were permissible because ``it is minimally intrusive, and we cannot say, particularly in light of the deference we owe to the Coast Guard, that it does not constitute `a reasonable method of deterring the prohibited conduct.' ''

In answering questions from my colleagues on the boundaries of presidential power during her confirmation hearing, Judge Sotomayor chose her words carefully. However, she was clear in affirming that no one is above the law. On this issue and many others, Judge Sotomayor has demonstrated a fair and balanced approach that will add to the high Court.

I believe Judge Sotomayor would be an able successor to Judge Souter a court that in recent years has taken a sharp turn away from protections of privacy, freedom, and other values we hold dear.

Judge Sotomayor's careful application of the facts to the Constitution and the quest for justice persuade me that she will make a worthy addition to our Nation's highest Court. Indeed, she meets my test as someone who will not only uphold the letter of the law but the spirit of the law. It is with great pleasure that I support her nomination to the highest Court in the land and urge my colleagues to do the same.

I ask unanimous consent to have printed in the Record a joint letter of support signed by more than 1,200 law professors from all 50 States and the District of Columbia. In their joint letter, these professors write:

Her opinions reflect careful attention to the facts of each case and a reading of the law that demonstrates fidelity to the text of statutes and the Constitution. She pays close attention to precedent and has proper respect for the role of courts and the other branches of government in our society.

There being no objection, the material was ordered to be printed in the Record, as follows:

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