Capitol Words a project of the Sunlight Foundation

Sen. Patrick J. Leahy

I thank the distinguished Presiding Officer, also himself a member of the Judiciary Committee. He sat through and participated in all of the hearings on Judge Sotomayor.

When the Judiciary Committee began the confirmation hearing on the nomination of Judge Sotomayor to the Supreme Court, in my opening statement I recounted an insight from Dr. Martin Luther King, Jr. I did this because it is often quoted by President Obama, the man who nominated her. The quote is:

Let us realize the arc of the moral universe is long, but it bends towards justice.

Each generation of Americans has sought that arc toward justice. Indeed, that national purpose is inherent in our Constitution. In the Constitution's preamble, the Founders set forth to establish justice as one of the principal reasons that ``We the people of the United States'' joined together to ``ordain and establish'' the Constitution. This is intertwined in the American journey with another purpose for the Constitution that President Obama often speaks about. We all admit it is the unfinished goal of forming ``a more perfect Union.'' Our Union is not yet perfected, but we are making progress with each generation.

That journey began with improvements upon the foundation of our Constitution through the Bill of Rights and then it continued with the Civil War amendments, the 19th amendment's expansion of the right to vote for women, the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the 26th amendment's extension of the vote to young people. These actions have marked progress along the path of inclusion. They recognize the great diversity that is the strength of our Nation.

Judge Sotomayor's journey to this nomination is truly an American story. She was raised by a working mother in the Bronx after her father died when she was a child. She rose to win top honors as part of one of the first classes of women to graduate from Princeton. She excelled at Yale law school. She was one of the few women in the Manhattan District Attorney's Office in the mid-1970s. She became a Federal trial judge and then the first Latina judge on a Federal appeals court when she was confirmed to the second circuit over a decade ago.

I might note on a personal basis, I am a member of the bar of the second circuit, as well as the Federal District Court of Vermont. That is the circuit I belong to as a member of the Vermont bar. I know how excited we were in the second circuit when she became a judge.

She is now poised to become the first Latina Justice and actually only the third woman to serve on the U.S. Supreme Court. She has broken barriers along the way. She has become a role model to many. Her life journey is a reminder to all of the continuing vitality of the American dream.

Judge Sotomayor's selection for the Supreme Court also represents another step toward the establishment of justice. I have spoken over the last several years about urging Presidents--I have done this with Presidents of both political parties--to nominate somebody from outside the judicial monastery to the Supreme Court. I believe that experience, perspective, an understanding of how the world works and how people live--how real people live and the effect decisions will have on the lives of people--these have to be very important qualifications.

One need look no further than the Lilly Ledbetter and the Diana Levine cases to understand the impact each Supreme Court appointment has on the lives and freedoms of countless Americans.

In the Ledbetter case, five Justices on the Supreme Court struck a severe blow to the rights of working families across our country. In effect, they said we can pay women less than men for the exact same work. Congress acted to protect women and others against discrimination in the workplace more than 40 years ago, yet we still struggle to ensure that all Americans, women and men, receive equal pay for equal work. It took a new Congress and a new President to strike down the immunity the Supreme Court had given to employers who discriminate against their workers and successfully hide their wrongdoing.

The Supreme Court had allowed them to do that. We changed that again. I remember the pride I had when I stood beside President Obama when he signed his first piece of legislation into law, the Lilly Ledbetter law, which says something that every one of us should know instinctively in our heart and soul: that women should be paid the same as men for the same kind of work.

But for all the talk about ``judicial modesty'' and ``judicial restraint'' with the nominees of a Republican President at their confirmation hearings, we have seen a Supreme Court these last 4 years that has been anything but modest and restrained.

I understand decrying judicial activism when judges have simply substituted their judgment for that of elected officials. That is what we have seen these last few years from the conservative members of the Supreme Court.

When evaluating Judge Sotomayor's nomination, I believe Senators should consider what kind of Justice she will be. Will she be in the mold of these activists who have gutted legislation designed to protect Americans from discrimination in their jobs and in voting, laws meant to protect the access of Americans to health care and education, and laws meant to protect the privacy of all Americans from an overreaching government? I think not and I hope not.

The reason I think not and hope not is I have been looking at what kind of judge she has been for the last 17 years and that is not the kind of judge she has been for 17 years. Keep in mind, this is a nominee who has had more experience on the Federal court than any nominee to the Supreme Court in decades. What we see is she has applied the law to the facts of the cases she has considered. She has done that while understanding the impact of her decisions on those before the court.

Those who struggle to pin the label of judicial activist on Judge Sotomayor are met by her very solid record of judging based on the law. She is a restrained, experienced, and thoughtful judge who has shown no bias in her rulings.

The charge of some Senate Republican leaders that they fear she will show bias is refuted over and over again in her record of 17 years. In fact, her record as a judge is one of rendering decisions impartially and neutrally. No one has pointed to decisions that evidence bias. No one has shown any pattern of her inserting her own personal preferences into her judicial decisions. No one can because that does not exist. That is not who she is nor is it the type of judge she has been.

As her record demonstrates and her testimony before the Judiciary Committee reinforced, she is a restrained and fair and impartial judge who applies the law to the facts to decide cases--the kind of judge that any one of us who practiced law would want to appear before, whether we were plaintiff or defendant, government or respondent, rich or poor. Ironically, the few decisions for which she has been criticized are cases in which she did not reach out to change the law or to defy judicial precedent; in other words, cases in which she refused to ``make law'' from the bench.

In her 17 years on the bench there is not one example, let alone a pattern, of her ruling based on bias or prejudice or sympathy. She has been true to her oath. She has faithfully and impartially performed her duties under the Constitution.

As a prosecutor--a distinguished prosecutor--and then as a judge, she has administered justice without favoring one group of persons over another. In fact, she testified directly to this point. She said:

I have now served as an appellate judge for over a decade, deciding a wide range of constitutional, statutory and other legal questions. Throughout my 17 years on the bench, I have witnessed the human consequences of my decisions. Those decisions have not been made to serve the interest of any one litigant, but always to serve the larger interests of impartial justice.

About 12 years ago in a case called City of Boerne v. Florida, the Supreme Court struck down the Religious Freedom Restoration Act, a law that Congress had passed to protect religious freedom. Since then, an activist conservative group of Justices has issued a number of rulings that further restricted the power of Congress under section 5 of the 14th amendment.

They have limited other important Federal statutes such as the Violence Against Women Act, and they have done this by using a test created out of whole cloth, without any root in either history or in the text of our Constitution. Scholars across the political spectrum have criticized the Supreme Court's rulings in this line of cases, including Judge Michael McConnell and Judge John Noonan, Jr., both Republican appointees to the Federal bench.

Let's have some history. Hundreds of thousands of Americans lost their lives fighting a civil war to end the enslavement of millions of Americans. After the war, we transformed our founding charter, the Constitution, into one that embraced equal rights and human dignity through the reconstruction amendments by not only abolishing slavery but also by guaranteeing equal protection of the law for all Americans and prohibiting the infringement of the right to vote on the basis of race.

But these reconstruction amendments to our Constitution are not self-implementing. Both the 14th and 15th amendments to the Constitution contain sections giving Congress the power to enforce the amendments. Congress acts to secure Americans' voting rights when it passes statutes like the Voting Rights Act pursuant to its authority to implement the 14th and 15th amendment's guarantees of equality. Congress acts to ensure the basis for our democratic system of government when we provide for implementation of this principle.

In contrast to the resistance that met the initial enactment of the Voting Rights Act of 1965--something that brought about enormous debate in this country--3 years ago, Republicans and Democrats in the Senate and House of Representatives came together to reauthorize key expiring provisions of the Voting Rights Act. This overwhelmingly bipartisan effort sought to preserve the rights of all Americans to equal access to the democratic process.

I stood with President George W. Bush when he proudly signed that restoration. But earlier this year, I attended the oral argument in a case challenging the constitutionality of the reenacted Voting Rights Act.

It appeared from the questions posed by the conservative Justices that they were ready to apply the troubling line of rulings in which they have second guessed Congress in order to strike down a key provision of the Voting Rights Act, one of this country's most important civil rights laws. Lacking a fifth vote for such a seismic shift, the constitutional ruling was avoided. But I remain concerned that the Supreme Court nonetheless remains poised to overturn other decisions made by Congress in which we decide how best to protect the rights and well-being of all American people.

I believe Judge Sotomayor will be a Justice who will continue to do what she has done as a judge for the last 17 years. I believe she will show appropriate deference to Congress when it passes laws to protect the freedoms of Americans.

I also believe she will have an understanding of the real world impact of the Supreme Court's decisions, which will be a welcome addition. When she was designated by the President, Judge Sotomayor said:

The wealth of experiences, personal and professional, have helped me appreciate the variety of perspectives that present themselves in every case that I hear. It has helped me to understand, respect and respond to the concerns and arguments of all litigants who appear before me, as well as the views of my colleagues on the bench. I strive never to forget the real-world consequences of my decisions on individuals, businesses, and government.

Well, it took a Supreme Court that understood the real world to see that the seemingly fair-sounding doctrine of ``separate but equal'' was in reality a straitjacket of inequality and it was offensive to the Constitution.

We had ``separate but equal.'' For years in this country, we had segregation. We had segregation in our schools. It was a blight on the idea of a colorblind Constitution. And all Americans have come to respect the Supreme Court's unanimous rejection of racial discrimination and inequality in Brown v. Board of Education. That was a case about the real-world impact of a legal doctrine.

But just 2 years ago, in the Seattle school desegregation case, we saw a narrowly divided Supreme Court undercut the heart of the landmark Brown v. Board decision, a decision that was unanimous. The Seattle school district valued racial diversity and was voluntarily trying to maintain diversity in its schools. By a five-to-four vote, the conservative activists on the Court said that program was prohibited. That decision broke with more than half a century of equal protection jurisprudence, and I believe it set back the long struggle for equality in this country.

Justice Stevens wrote that the Chief Justice's opinion twisted Brown v. Board in a ``cruelly ironic'' way.

I think most Americans understand that there is a crucial difference between a community that does its best to ensure that schools include children of all races and one that prevents children of some races from attending certain schools. I mean, real-world experience tells us that. Those of us who are parents, grandparents, we know this.

Justice Breyer's dissent criticized the Chief Justice's opinion as applying an ``overly theoretical approach to case law, an approach that emphasizes rigid distinctions . . . in a way that serves to mask the radical nature of today's decision. Law is not an exercise in mathematical logic.''

Actually, I might say, if it were, we could just have computers on our Supreme Court.

Chief Justice Warren, a Justice who came to the Supreme Court with real-world experience as a State attorney general and Governor, recognized the power of a unanimous decision in Brown v. Board.

The Roberts Court, in its narrow desegregation decision 2 years ago, ignored the real-world experience of millions of Americans and chose to depart from the most hallowed precedents of the Supreme Court.

I am hopeful and confident that when she serves as a Justice on the Supreme Court of the United States, Sonia Sotomayor, a woman from the South Bronx who has overcome so much, will be mindful of the real-world experiences of Americans.

Those critics who devalue her judicial record and choose to misconstrue a few lines from speeches, ignore the aspiration behind those speeches. In fact, Judge Sotomayor begins the part of the speech so quoted by critics with the words ``I would hope.'' She would ``hope'' that she and other Latina judges would be ``wise'' in their decision-making and that their experiences would help inform them and help provide that wisdom. I hope so, too. Just as I hope that Justices Thomas' early life leads him to, as he testified in his confirmation hearing, ``stand in the shoes of other people.'' And I hope that Justice Alito's immigrant heritage, as he too discussed in his confirmation hearing, helps him understand the plight of the powerless in our society.

Judge Sotomayor also said in her speeches that she embraced the goal that: ``[J]udges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.'' I am going to be saying more about this as we go along, but I would note that her critics missed that Judge Sotomayor was pointing out a path to greater fairness and fidelity to the law by acknowledging that despite the aspirations of impartiality she shares with other judges, judges are human. Her critics seem to ignore her modesty in claiming not to be perfect. I would like to know which one of the 100 U.S. Senators could claim to be perfect. There are some who could; I am not one of them.

By acknowledging that judges come to the bench with experiences and personal viewpoints, they can be on guard against those views influencing judicial outcomes. By striving for a more diverse bench drawn from judges with a wider set of backgrounds and experiences, we can better ensure that the decisions of the Court will be freer of limited viewpoints or narrow biases.

All Supreme Court nominees have talked about the value they will bring to the bench from their backgrounds and experiences. That diversity of experience is a strength, not a weakness, in achieving an impartial judiciary. A more diverse bench with a better understanding of the real world impact of decisions can help avoid the pitfalls of the Supreme Court's decisions these last years.

Let me point to just one example because judges--just as Senators bring their experience to this body--judges do, too.

Judge Sotomayor sat on a three-judge panel that heard a case involving strip searches of adolescent girls in a juvenile detention center. The parents of two female children challenged Connecticut's blanket strip search policy for all those admitted to juvenile detention centers as a violation of the fourth amendment's prohibition against unreasonable searches. Two of the male judges on the Second Circuit upheld the strip searches of the young girl.

In dissent, Judge Sotomayor cited controlling circuit precedent describing what is involved in the strip searches of these girls who had never been charged with a crime--keep in mind that they had never been charged with a crime--and without any basis for individual suspicion. She said that courts ``should be especially wary of strip searches of children, since youth is a time and condition of life when a person may be most susceptible to influence and to psychological damage.'' She also emphasized that since many of these girls had been victims of abuse and neglect, they may be more vulnerable mentally and emotionally than other youths their age.

The Supreme Court recently decided a similar case, the Redding case. They found that school officials violated the fourth amendment rights of a young girl by conducting an intrusive strip search of her underclothes while looking for the equivalent of a pain reliever many of us have in our medicine cabinet. During oral arguments in that case, one of the male Justices compared the search to simply changing for gym classes. Several of the other Justices answered with laughter--not the reaction I would have if that was my adolescent daughter. And Justice Ginsburg, the lone female Justice on the Supreme Court, described the search as humiliating to young girls. She spoke out. She did not join in that laughter.

Ultimately, the Supreme Court decided that case by a vote of 8 to 1. Justice Souter, the Justice whom Judge Sotomayor is nominated to replace, wrote the opinion for the Court. Of course, that position mirrored that of Judge Sotomayor. I suspect that it was Justice Ginsburg's understanding of the intrusiveness of the strip search of the young girl that ultimately prevailed. Can we say our life experience bears no weight in what we do?

Among the very first purposes of the Constitution is ``to establish justice.'' It is a purpose that has animated the improvements we have made over generations to our Constitution. It is a purpose engraved in the words over the entrance of the Supreme Court. These words are in Vermont marble, and they say, ``Equal Justice Under Law.'' All the dozens and dozens of times I have walked into the Supreme Court, up those steps straight out across from this Chamber, I have always paused to read those words, ``Equal Justice Under Law.'' Is that not what we should stand for?

I hope and believe Judge Sotomayor understands the critical importance of both fairness and justice. A decade ago, she gave another speech in which she spoke about the meaning of justice. She said, ``Almost every person in our society is moved by that one word. It is a word embodied with a spirit that rings in the hearts of people. It is an elegant and beautiful word that moves people to believe that the law is something special.''

I believe Judge Sotomayor will live up to those words when she is confirmed, as she will be confirmed to the U.S. Supreme Court. The senior Senator from Vermont will vote for that confirmation. I yield the floor and reserve the remainder of my time.

Sen. Jeanne Shaheen

The Senator from Alabama is recognized.

Sen. Jeff Sessions

I appreciate the opportunity to speak. Before I do, I want to say that we had some disagreements as we went along about how to conduct the hearings. But Chairman Leahy made a commitment that we would have a fair hearing, that every Senator would have an opportunity to question the witnesses and have the time to follow up, and he complied with that. I think we had a good hearing.

Judge Sotomayor was voted out of the committee, and I appreciate her kind words to me and to our colleagues on how she felt she was treated. I think the hearings were fair and effectively discussed the important issues raised by this nomination.

Our confirmation process began with the President indicating that empathy was a standard that he believes should be applied to selecting judges. There is some disagreement about that. I am one of those who do not believe that is a legal standard. It is a kind of standard that is closer to a political standard, and we need to be careful that politics do not infect the judiciary.

I certainly do not profess to be able to say with certainty how Judge Sotomayor will perform if confirmed to the Supreme Court.

History shows that Justices, once confirmed, often surprise. I have previously expressed my evaluation and decision in this matter. I will just say I hope I am wrong. But I have concluded that the nominee has a fully formed judicial philosophy, one that is held by quite a few other lawyers and judges, but it is a philosophy contrary to the classical underpinnings of the American legal system, a system that has blessed us so much. Edmond Burke, in his famous speech ``On Conciliation with the Colonies,'' urged the King to avoid war, noting that the Colonies were simply asserting the rights to which they had become accustomed. He observed that almost as many copies of Blackstone's Commentaries on the Laws were being sold in America as in England.

From the beginning, Americans have honored law because, I suspect, it was the arena in which the poor individual citizen could and often did prevail against the powerful. Even before the Revolution, judges, juries, and English law decided cases. It was a people's power controlled by law that would prevail even over the political wishes of the powerful. Laws, Burke noted, were to be created by the people through their elected representatives, not judges. Law in the new Republic was not an abstract. It was concrete. The laws meant what they said. If by some loophole even an evil act was not covered by criminal law, the prisoner was to go free.

Importantly, our system rested upon a near universally held belief that law and order were necessary for freedom and progress to occur. It further rested on the firm belief that there was such a thing as objective truth and that if a real effort was put forth, truth could be ascertained. For most, this was an easy concept, since a belief in God, the ultimate truth, was widespread. Thus, the legal system was arranged to best discover truth. Rules of evidence, cross-examination, and the adversarial system were parts of the design to discover truth. Many nations have tried to replicate it without success. It is a national treasure, our legal system.

I believe our Federal courts are the greatest dispensers of justice the world has ever known. For 15 years, I practiced full time as a Federal attorney before Federal judges. I saw the system operate. I have seen State and local judges, Republicans and Democrats, serve faithfully day after day, adhering to the ideal of objectivity, fairness, and law. But many intellectuals in recent decades look upon such an approach as anti-intellectual. They conclude such thinking that judges actually do in an ideal way, they find this is hopelessly naive. They think it is unrealistic. The brilliant jurist and intellectual Jerome Frank, quoted favorably by Judge Sotomayor in a law review article, said as much in the early part of the last century.

Since then, many theorists have gone even further, moral relativists, postmodernists, deconstructionists, critical legal studies adherents, they all come from the same pond. They don't believe--some don't--that there is an ascertainable truth. They believe these ideals actually confuse thinking and mislead. They believe it is results that count.

I don't agree. The American people don't agree. Ideals are important. High standards can be reached. Not every time, I am sure, but most times. If the ideal is not ardently sought, it will be reached less and less. The American people are not cynics who settle for less than the ideal of impartiality and equal justice for the poor and the rich under the Constitution and the laws of this country. Each judge operates under the Constitution and laws of this country. They expect, rightly, that every judge will be fully committed to the heritage of law and the judicial oath they take to follow it.

That is why I have expressed the view since this process has begun, that we are at a fork in the road, perhaps. Will we continue to adhere to the classical ideal of American jurisprudence, or will we follow results-oriented judging, where judges cease to be committed to the law and equal justice because they know it is not possible. Do they believe words are just words? Do they believe the Constitution can be made to say what one wants it to say? In this world, the Constitution cannot bind a judge to what the judge considers an unwise result. Instead, we should see the Constitution as a flexible, living document. Under this view, judges are not just umpires. Judges are more powerful. Judges can make the Constitution and law say what they would prefer it to say. Judges can ensure that the right team wins. Judges can make policy. That is the seductive siren call of judicial activism, and judicial activism is an impropriety that can be embraced by conservatives as well as liberals.

Our former chairman, Senator Hatch, has often said: Activism is a tendency in a judge to allow their personal and political views and values to override the law and the facts of a case to achieve a result they think is desirable. That is what is not acceptable in our system.

That is why, at the most fundamental level, many have a problem with this nominee. It seems clear from her writings and speeches that she is a devotee of the new philosophy of judging. Her speeches, over the years, are quite clear on this matter, although her hearing testimony backtracked from it in a somewhat confusing manner.

Regrettably, I was not able to support her nomination in committee, nor will I support her nomination before the full Senate. I would like to discuss in greater detail a few of the reasons that lead me to that conclusion. There are more things that will be discussed later as we go along, but let me say a few things now.

Even before the nomination of Judge Sotomayor, I made clear what my criteria would be for assessing a Supreme Court nominee: impartiality, commitment to the rule of law, integrity, legal experience, and judicial temperament. Judge Sotomayor possesses the well-rounded resume I like to see in a Supreme Court Justice. She has a wonderful personal story. She was a prosecutor. She was a private practitioner. She was a trial judge, and she was an appellate judge. Those are good experiences for a judge on the Supreme Court. However, her speeches and cases she has decided are troubling because they reflect the lack of a proper sense of the clearly stated constitutional rights that are guaranteed to American citizens. Her testimony was her opportunity to convince us she would be the type of Justice we could vote for. Instead her answers lacked clarity, the consistency and courage of conviction one looks for in a nominee to the Supreme Court.

In many instances, she raised more questions through her testimony than she answered. Judge Sotomayor's expressed judicial philosophy rejects openly the ideal of impartial and objective justice. Instead, her philosophy embraces and accepts the impact that background, personal experience, gender, sympathies, and prejudices--these are her words--have on judging. A fair and plain reading of these speeches--read in context--calls into question Judge Sotomayor's commitment to impartiality and objectivity. When given an opportunity to explain this philosophy, as was reflected in speech after speech, year after year, Judge Sotomayor dodged and deflected. In many cases, her answers could not be squared with the facts.

It has been suggested we should disregard those speeches. It has been suggested they are just words, that they are merely meant to inspire. In short, it has been suggested the words of the speeches simply do not matter. But words do matter. Words are important. They must have meaning or the result is chaos. No one should know this more than a judge. Her speeches and academic writings were not offhand comments delivered without the aid of notes. They were carefully crafted to dispute the notion that impartiality is realistic, or even possible. These were not the musings of a second-year law student. They were all delivered after she was a Federal judge. They were delivered to a number of different audiences, a number of different forums, including a bar association.

In her speeches and academic articles, Judge Sotomayor describes other approaches to judging and her approach to the law. She describes the factors judges should consider when reaching decisions. She describes her fully formed judicial philosophy. She challenges the mainstream concept of judging.

Make no mistake, judicial philosophy matters. It guides judges. It tells them what to consider. Importantly, it tells them what not to consider. Judicial philosophy is quite different from a judge's personal, political, moral or social views that a judge is to set aside when they decide a case. That is what blindfolded justice means. When a judge puts on that robe, they are, in effect, saying to everyone in that courtroom that their personal biases and prejudices and so forth will not impact the fairness of the ruling they are called upon to make.

Judges in trial and appellate courts, of course, are constrained by precedent. Even if a trial or appellate judge harbors a radical approach to the law, the threat of reversal restricts that judge's ability to employ that philosophy. But on the Supreme Court, however, these restrictions are removed. On the Supreme Court, there is no additional review. On the Supreme Court, a judicial philosophy that is fully formed is permitted to reach full bloom. As a liberal law dean recently said in the Los Angeles Times: ``There's a huge difference between being a court of appeals judge who is bound by precedent and a Supreme Court justice who can rewrite those precedents.''

That is why judicial philosophy matters. Frankly, after reviewing her consistent speeches in preparation for the confirmation hearing, I expected Judge Sotomayor to defend her views. I expected her to defend her statement that ``[t]he law that lawyers practice and judges declare is not a definitive, capital `L' law that many would like to think exists.''

I expected her to defend the notion that the court of appeals is where ``policy is made.'' I expected her to defend her statements in favor of using foreign law to interpret American statutes and her statement that there is ``no objective stance, but only a series of perspectives.''

However, during her testimony, many of Judge Sotomayor's answers were inconsistent with her record and others were evasive and not adequate. On several occasions, Judge Sotomayor appeared to run away from the philosophy she had so publicly articulated. Other answers, I concluded, were not plausible.

It has been repeatedly suggested that Judge Sotomayor's words and speeches are being taken out of context. I have read the speeches in their entirety. Her words are not taken out of context. In fact, when one reads her speeches in their entirety, in context, the impact is more troubling, not less.

For example, Judge Sotomayor said, on repeated occasions, that she ``willingly accept[s] that . . . judge[s] must not deny the differences resulting from experience and heritage but attempt . . . continuously to judge when those opinions, sympathies and prejudices are appropriate.''

When I asked whether there was ``any circumstance in which a judge should allow prejudices to impact decision-making,'' she replied: ``Never their prejudices.''

This is quite the opposite of what her speeches said. In the hearing, she said her speeches discussed ``the very important goal of the justice system . . . to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case.'' Well said. But that is not what her speeches said--in context or line by line. She was not urging that judges guard against their prejudices, as their oath calls on them to do. She was accepting that a judge's prejudices may influence their decisions.

Similarly, Judge Sotomayor repeatedly stated she accepts that who she is will ``affect the facts I choose to see'' as a judge--the facts she chooses to see as a judge. She accepts this. When I asked her about this statement, she said: ``It's not a question of choosing to see some facts or another, Senator. I didn't intend to suggest that.''

But that is what she said repeatedly. She accepts the fact that who she is will ``affect the facts I choose to see'' as a judge. The context of her speech states a clear philosophy. Judge Sotomayor was contrasting her own views with that of Judge Cedarbaum and Justice O'Connor, two women judges of prominence. Of course, Justice O'Connor was a former member of the Supreme Court. The context was her view that ``[i]n short . . . the aspiration''--I am quoting her--``the aspiration to impartiality . . . is just that, an aspiration.'' Such a statement evidences a lack of the kind of firm commitment to fairness and to the judicial oath of impartiality that is expected, in my opinion.

We have heard again and again that our concerns are based on three words: The ``wise Latina woman.'' That is not the case. We are talking about a judicial philosophy, as reflected in speech after speech, year after year. That is what is causing the problem here.

Senator Coburn, at the hearing, made a point that I think is worthy of emphasizing: that her refusal to effectively defend her own speeches and statements was almost as troubling as the philosophy contained within those speeches.

As the Washington Post, in endorsing her, on July 19, in their editorial, said:

Judge Sotomayor's attempts to explain away and distance herself from [the ``wise Latina'' statement] were unconvincing and at times uncomfortably close to disingenuous, especially when she argued that her reason for raising questions about gender or race was to warn against injecting personal biases into the judicial process. Her repeated and lengthy speeches on the matter do not support that interpretation.

In Judge Sotomayor's opening statement, she said that her philosophy is ``fidelity to the law.'' But her record demonstrates that, if true, her view is far different than mine. For example, she has advocated for the use of foreign law by American judges. Once again, we are left with statements made at the hearing, though, that were in direct conflict with statements made before she was nominated.

As Judge Sotomayor noted in her April 2009 speech--April of this year--before the Puerto Rico American Civil Liberties Union, the current debate regarding the use of foreign law in the courts, she noted, pits two distinct views against one another. On one side sit Justices Scalia and Thomas, who believe that foreign law should not be used in interpreting the U.S. Constitution. That is correct, in my view. On the other side is Justice Ginsburg, who believes that courts should be more aggressive in their use of foreign law.

In this speech in April, Judge Sotomayor clearly indicated who she thinks has the better view of the issue, stating that she ``share[s] more the ideas of Justice Ginsburg . . . in believing, that unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases, that we are going to lose influence in the world.''

Moreover, Judge Sotomayor talked approvingly about two recent Supreme Court cases in which Justices did look to foreign law precisely to interpret our Constitution. That is a very clear position. I think it is incorrect, but it is a clear one. Others adhere to it.

When she came before the Judiciary Committee, however, Judge Sotomayor articulated a very different view of foreign law, stating:

Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law.

Well, that is quite a different position from the theme and statements in her April speech.

So I agree with my colleagues who lamented Judge Sotomayor's tendency to avoid answering questions, with one colleague noting her ``extreme caution'' in answering. I do not think many would dispute that she was less forthcoming than Judges Alito and Roberts, our latest confirmations to the Court just a few years ago.

In addition to her stated judicial philosophy, I am also quite concerned regarding how Judge Sotomayor has approached the most important constitutional cases that have come to her court. Most of the cases a court of appeals judge considers are routine, fact dominated, and do not offer novel questions or require substantial legal discussion. Still, a few important cases that present new and critical issues do periodically come before the courts of appeals. These cases can give insight into how the nominee will handle the many such cases that regularly come before the Supreme Court.

Within the last 3 years, Judge Sotomayor has heard three monumentally important cases at the circuit level: the constitutional right to be free of racial discrimination, the right to keep and bear arms, and the fifth amendment right to keep one's own property.

In all three of these cases, Judge Sotomayor joined or authored very brief opinions--very brief opinions, oddly brief opinions--that avoided the kind of careful analysis we would expect of an appellate judge. In all three cases, individuals went to court with the plain text of the Constitution on their side. In each case, Judge Sotomayor reached conclusions that denied individual Americans their rights that they were asserting against governmental power.

When confronted with an appeal based on fundamental notions of equal protection of the laws, Judge Sotomayor, to be charitable, took a pass. By now we are familiar with the basic facts of the New Haven firefighters, the Ricci case. Eighteen firefighters brought suit against the city of New Haven after the city threw out the results of a promotional exam. It was thrown out because not enough of certain minorities did well enough on the exam. Judge Sotomayor's decision in the case is troubling. Her curious one-paragraph summary order, and the Supreme Court's subsequent reversal, are the starting points. But there is more. And there is a reason that so much attention has been focused on this case.

Her initial attempted disposal of the case by summary order was, quite simply, unacceptable and an embarrassment. A summary order is, by circuit rule, only for cases in which there is no legal principle worthy of discussion. In the end, every Supreme Court Justice concluded she applied the wrong legal standard in granting a judgment against the firefighters and for the city before a trial occurred, and a majority of the Supreme Court found that the firefighters' case was so strong that they were entitled to a verdict for their side on the evidence that already existed without a trial.

The Supreme Court understood the importance of this case--why we care about it as Americans. As they said of Judge Sotomayor's logic:

Allowing employers to violate the disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. . . .That would amount to a de facto quota system. . . .

That is the Supreme Court language.

I was struck by something one firefighter, Lieutenant Vargas, said to us--that his testimony before the Senate was the first opportunity he had to tell his story because the district court threw out the case before he even had a trial. On appeal, Judge Sotomayor initially dismissed the case by summary order, meaning that a hard copy of her order was never even delivered to the other judges on the court. Had one of her colleagues, Judge Cabranes, apparently, independently, not heard about the case and sought a full review--a rehearing en banc is what he sought through the whole Second Circuit--it is likely the Supreme Court would never have even known the case existed or considered the case. It is also likely Lieutenant Vargas would never have had the opportunity to tell his story, to explain to his children his profound hope that, as a result of his efforts, they would be judged on their merit and not on their race or their ethnicity.

In response to my questions, Judge Sotomayor also claimed that her Ricci decision was controlled by ``established'' Supreme Court precedent, saying ``a variety of different judges on the appellate court were looking at the case in light of established Supreme Court and Second Circuit precedent.'' But the Supreme Court did not see it that way. The Supreme Court noted that ``few, if any, precedents in the Court of Appeals'' discuss this issue.

As noted commentator Stuart Taylor has recently confirmed, even if Judge Sotomayor had believed her panel was bound by Second Circuit precedent, review and rehearing by the whole Second Circuit would have provided the opportunity to review those previous cases afresh and to overrule them if they were unsound. But Judge Sotomayor cast the deciding vote against rehearing this case by the full circuit. She defended her ruling and defended whatever authority existed at the time in the Second Circuit.

The case is also troubling to me because Judge Sotomayor had pledged to me during her confirmation, in 1997, that she would follow the Supreme Court's decision in Adarand--a well-known case--and subject any preference for one race over another race to the Court's established standard of strict judicial scrutiny. When I asked her about this promise she had made, I, once again, found her answer to be dismaying. She stated that the cases I asked about, the seminal equal protection cases--Adarand and so forth--``were not what was at issue in this decision.'' She was talking about the Ricci case.

But that is not right. There were two very clear claims made by the firefighters in this case--one based on a statutory right and one based on the equal protection clause of the Constitution.

One need only look at----

Sen. Jeff Sessions

Madam President, I ask unanimous consent to have 5 additional minutes.

Sen. Jeff Sessions

Madam President, we will discuss some of the other cases in more detail later. But one need only look at the papers filed in the district court and the court of appeals to see that the Adarand issue and the constitutional question were central issues in this case. Look at Judge Cabranes' decision, where one of the first cases he cites is Adarand. One does not expect this type of mistake or a lack of accuracy from a Supreme Court nominee in a case of this importance, when she understands she will have to discuss before the Judiciary Committee.

Judge Sotomayor repeatedly stated, including in her opening statement, that litigants deserve explanations; that she looks into the facts, delves into the record, and explains to litigants why she rules for or against them. I have read the one-paragraph Ricci opinion. Judge Sotomayor did not afford the firefighters the respect they deserved.

I have also considered very carefully Judge Sotomayor's views regarding the Second Amendment, and I am troubled by her record and not reassured by the answers she gave during the hearing.

In sum, she effectively held that the Second Amendment--the right to keep and bear arms--does not bind the States, and that means any city or any State in America, if her opinion is upheld, can ban all guns in those jurisdictions. If her opinion is not reversed, that is what will happen in America. I would note the Supreme Court, in ruling on the Heller case, held clearly for the first time that the Second Amendment is an individual right that applied to the District of Columbia, which effectively banned firearms in the District of Columbia. They said that was not constitutional, that the citizens of the District of Columbia have a constitutional right to keep and bear arms and it cannot not be eliminated.

So if the Sotomayor opinion is upheld, I can only say the Second Amendment might be viable in the District of Columbia but not in the other cities and States throughout the country.

With regard to the takings case, one of the most significant takings cases in recent years, she ruled against a private landowner who had his property taken. He intended to build one kind of pharmacy on it. A developer who was working with the city utilized the powers of the city to attempt to extort money from that individual so he could build another private drugstore on that lot. When the owner refused, the city condemned the man's property, gave it to the developer, who then built his own kind of drugstore there. I believe this is in violation of the constitutional protection that private property can only be taken for public use.

So words have meaning. The Constitution and laws of the United States have meaning. People come to courts to assert their rights under the Constitution and laws. In these three cases I have mentioned, the litigants did not have their rights properly listened to nor protected, in my opinion. Is it because she would have preferred different results from the promotional exam for firefighters? Is it because she did not believe in the rights protected by the Second Amendment as set forth in the Constitution? Is it because she favors redevelopment?

We are left to wonder because the cases were certainly not decided based on the plain language of the Constitution, and she did not openly and thoroughly in any one of these cases engage in a serious discussion of issues raised. Each was just a page or two or three.

One of the most important tools of a judge is words. The meaning of words is obviously where the power of our Constitution and laws is found. When a judge feels empowered to redefine the meaning of words in our Constitution, they feel empowered to amend our Constitution. If they don't like the death penalty, maybe they will call it unconstitutional. If they don't like the right to keep and bear arms, maybe they will say the Second Amendment doesn't apply to States and cities.

In a recent speech before this nomination, Professor Allen C. Guelzo, a two-time winner of the Lincoln Prize, wisely noted that a constitutional system resides on a bedrock of shared assumptions. While it may seem to be a collection of laws and statutes, the most important thing is that ``those laws and statutes depend first on a reverence for words, for reason, and for orderliness.''

He adds that ``reverence must grow . . . from the confidence that words, reasons . . . really do protect'' the rights of citizens.

Citizens must know their rights, when clearly stated in the Constitution, will be steadfastly protected by the courts. It is here that I have significant qualms. The ease by which the nominee reconciled or attempted to reconcile fundamentally different statements in speeches at our hearing evidences a lack of respect for the meaning of words. Her explanation of controversial decisions lacked clarity, a very serious shortfall indeed for a Supreme Court Justice.

So I came to this process with an open mind regarding Judge Sotomayor. She has many wonderful qualities, and I truly mean that. And I like her. She was ever graceful in her testimony. But certain aspects of her record troubled me--whether, for example, she has the kind of deep commitment to the ideal of objectivity and impartiality that I believe necessary. I had hoped those concerns would be addressed effectively. Unfortunately, many of the answers did little to ease my concerns but, instead, reinforced them and led to more unanswered questions. Regrettably, I cannot support her nomination to a lifetime appointment to the U.S. Supreme Court.

I thank the Chair and yield the floor.

Sen. Dianne Feinstein

Madam President, it should be no surprise that my views are not those of the distinguished ranking member of our Judiciary Committee but somewhat different. I have served on this committee for over 16 years now. I have sat through the confirmation hearings of four Supreme Court Justices. I am very proud to say I believe the President made an excellent choice, and I enthusiastically support this nominee.

Judge Sotomayor is a warm and intelligent woman. More importantly, though, she is a solid, tested, and mainstream Federal judge. Her personal story is one of hard work. She has risen above all kinds of obstacles, and she has perseverance. She is a role model for women in the law, and I cannot help but feel a sense of enormous pride in her achievements, her nomination, and, hopefully, before the end of the week, her confirmation to be a Supreme Court Justice.

As I said at the confirmation hearings, a Supreme Court Justice should possess at least five qualities.

One, broad and relevant experience. So how does she stand? You can't find a nominee with better experience than Judge Sotomayor.

She has 29\1/2\ years of relevant legal experience, and she has seen the law from all sides.

For 4\1/2\ years she was a prosecutor in New York City. She prosecuted murders, robberies, and child pornography cases as an assistant district attorney. She worked with law enforcement officers and victims of crime, and she sent criminals to jail.

We heard from the distinguished New York City District Attorney, Mr. Morgenthau, who said he looked for bright young people, and he found her and he heard her story and she had been to Princeton. She graduated summa cum laude. She went to Yale Law School. She was editor of the Law Review.

She came to his attention, and he went to recruit her as a prosecutor in New York City. For 8 years after that, she practiced business law as a litigator in a private firm. She worked on complex civil cases involving real estate law, banking law, contracts, and intellectual property law.

Then, she was appointed by George Herbert Walker Bush--as we might fondly say ``Bush 41''--as a U.S. district court judge for 6 years. She heard roughly 450 cases in the district court up close and personal, where litigants come before the judge and the judge gains a sense of what the Federal court means to an individual.

I think that is important to know on the Supreme Court. She saw there firsthand the impact of the law on people before her.

Then she was appointed by President Clinton. For 11 years she has been a Federal appellate court judge on the Second Circuit Court of Appeals. She has been on the panel for more than 3,000 Federal appeals, and she has authored opinions in more than 600 cases. These 11 years were rigorous and appropriate training ground for the Supreme Court.

Judge Sotomayor will be the only sitting Justice with experience on both the Federal trial and appellate courts, and she has more Federal judicial experience than any Supreme Court nominee in the last 100 years. That is a substantial qualification.

Secondly, a Supreme Court Justice should have deep knowledge of the law and the Constitution. I believe her broad experience gives her firsthand knowledge of virtually every area of the law.

As a prosecutor she tried criminal cases--homicides, assaults, pornography cases--those crimes that destroy lives.

As a business lawyer, she examined contracts, represented clients in complex civil litigation, and tried intellectual property disputes.

As a district court judge she presided over criminal and civil jury trials; she sentenced defendants; she resolved complicated business disputes; and she reached decisions in discrimination and civil tort cases where people had been unfairly treated, injured, or harmed.

Finally, as an appellate judge, she has grappled with the difficult and critical questions that arise when people disagree about what our Constitution and our Federal statutes mean today. So she certainly has ample experience.

Third, a Supreme Court Justice should have impeccable judicial temperament and integrity. Anyone who watched Judge Sotomayor at her confirmation hearings has seen her temperament and demeanor firsthand. She is warm, she is patient, and she is extremely intelligent. She sat at that table with a broken ankle up on a box hour after hour and day after day in a hot room listening to members of the Judiciary Committee pepper her with questions. Not at any time did she lose her presence, lose her cool, or show anger. She showed determination and patience and perseverance. I think that means a great deal.

At times, the hearings became quite heated, but she would remain calm even in the face of provocative questioning.

So I am not surprised the American Bar Association and the New York City Bar Association gave her their highest rating.

As one of her Republican-appointed colleagues on the Second Circuit said: ``Sonia Sotomayor is a well-loved colleague on our court. Everybody from every point of view knows she is fair and decent in all her dealings. The fact is, she is truly a superior human being.''

What greater compliment could there be for a prospective Supreme Court nominee?

After spending time with her during our one-on-one meeting and participating in her confirmation hearings, I agree. She is a walking, talking example of the very best America can produce. She has overcome adversity. Here is a woman--a child--the product of a poor Puerto Rican family living in a housing project in New York. She is 8 years old, she finds herself with juvenile diabetes. She is 9 years old, her father dies. She goes to school. She struggles with the language. She overcomes it. She graduates from high school. She goes to Princeton. She succeeds in every way, shape, and form, as I said, summa cum laude, and then on to Yale and a member of the Yale Law Review. She overcame adversity and she kept going.

She has given back to her country and her community, and she is now on track to become the first Latina Justice of the U.S. Supreme Court and only the third woman ever appointed to that Court.

I not only will vote for her, I will do so with great pride.

Finally, a Supreme Court Justice should exhibit mainstream legal reasoning and a firm commitment to the law. I have heard people say that they don't believe she will follow the law.

I sat in the room during those 4 days of hearings. There was never an instance that I saw where she moved away from legal precedent and the law.

I have said before, and I say today, I am somewhat concerned about the current Supreme Court. As I see it, conservative activists have succeeded in moving our Court to the right of mainstream American thought.

In just the last 2 years, this has been abundantly clear. The Justices have disregarded precedent at an alarming rate, and they have rewritten the law in ways that make clear that they are not just ``calling balls and strikes.''

In 2007, the Court held that a school district cannot consider race when it assigns students to schools--even to ensure any amount of racial diversity. This is Parents Involved in Community Schools v. Seattle School District, 551 U.S. 701, 2007.

It held that women who were paid less than men had to sue within 180 days--even when they had no way of knowing they were paid less, or they lost their right to back pay. This is Lily Ledbetter v. Goodyear Tire & Rubber Co. Inc., 550 U.S. 618, 2007. The occupant of the chair is new to the Senate. One of the first things we did was pass the Lily Ledbetter law to overcome that Supreme Court decision.

The Court held for the first time since 1911 that manufacturers could fix minimum prices for their products. This is Leegin Creative Leather Products Inc. v. PSKS, Inc., 551 U.S. 877, 2007.

It held that the Endangered Species Act did not apply to certain Federal actions--even though the Court, in 1978, said the Act had ``no exception.'' This is National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 2007.

And it held that Congress could pass a law restricting access to OB/GYN services for women without including an exception for when a woman's health is at risk. This is Gonzales v. Carhart, 550 U.S. 124, 2007.

That last decision was not only dangerous to a woman's health, it is also contrary to the Court's opinions in Roe, in 1973; in Ashcroft, in 1983; in Casey and Thornburgh, both in 1992; in Carhart I in 2000; and in Ayotte, in 2006. So this Court of conservative activists cast aside precedent and ``super-precedent'' to do essentially what they believe--not to follow the precedent, which was simply thrust aside.

The Supreme Court's shift to the right and discarding of precedent is not just an ivory tower issue either. These decisions have real-life impact.

Last week, USA Today reported that older white men, 55 years or older, are losing jobs at the highest rate since the Great Depression. This is Dennis Cauchon, In this Recession, Older White Males See Jobs Fade, USA Today, July 30, 2009.

This is troubling. We have a law--the Age Discrimination in Employment Act--that is supposed to protect workers from being laid off because of their age. But 2 months ago, the Supreme Court changed the burden of proof under that law, making it harder for older workers to get protection when they are fired, demoted, or not given a job because of their age. This is Jack Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2009.

Let me be clear, in my view, after 16 years on this committee: The Justices on the Supreme Court are not umpires; they do not just call balls and strikes. And they are not computers. It matters who sits on our Supreme Court, and it matters whether they will respect precedent and follow the law.

Judge Sotomayor is a nominee with a 17-year record of following the law. She has faithfully applied the law to the facts in case after case.

We have a research service called the Congressional Research Service. It is a neutral, respected adjunct to what we do in the Senate and the House. It carries out significant research. They took a look at her record, examined it, and this is what they said:

Her decisions do not fall along any ideological spectrum. The most consistent characteristic of her approach as an appellate judge has been an adherence to the doctrine of stare decisis--the upholding of past judicial precedents.

When her record is objectively researched by the number one objective research service we have, she has been found to abide by court precedent. They have essentially said she is not an activist, she follows legal precedent. When her confirmation hearing ended, even one Senator who is now voting against Judge Sotomayor said this:

I actually agree that your judicial record strikes me as pretty much in the mainstream of judicial decisionmaking.

This is Senator John Cornyn, Confirmation Hearings for Judge Sonia Sotomayor, July 16, 2009.

Judge Sotomayor's mainstream record, her respect for precedent, and her commitment to the law have earned her the support of groups that cut across party lines.

She has been endorsed by law enforcement groups, such as the International Association of Chiefs of Police; civil rights groups, such as the Leadership Conference for Civil Rights; business groups, such as the U.S. Chamber of Commerce--yes, they have endorsed her; former officials from both parties, including conservative lawyer Kenneth Starr; and legal groups, such as the American Bar Association.

This is a nominee with a solid record, with more Federal judicial experience than any nominee in a century, and with widespread support.

There are those who oppose her because of a line from a speech she made--one line in 29\1/2\ years of legal experience.

Second, there are those who oppose her because of one case. It is the Ricci case--the New Haven case involving firefighters. But Judge Sotomayor was squarely in the mainstream in that case. She followed established precedent. That is what the district court said in an almost 50-page opinion. This is Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, D. Conn. 2006, unpublished opinion. Her second circuit panel unanimously agreed. This is Ricci v. DeStefano, 530 F.3d 87, 2d Cir. 2007.

At about the same time, in the U.S. District Court in Tennessee, a judge held that in a nearly identical situation, the Memphis Police Department could replace a promotional exam that it feared was discriminatory.

Last year, a three-judge circuit court panel on the Sixth Circuit--including one judge appointed by President George W. Bush--agreed. This is Oakley v. City of Memphis, No. 07-6274, 6th Cir. 2008, unpublished opinion. So there was agreement on the courts.

It is true that five Justices, in a 5-to-4 opinion on the Supreme Court, disagreed, and their decision is now the law of the land. This is Ricci v. DeStefano, 129 S. Ct. 2658, 2009. I was a mayor for 9 years of a difficult city going through a number of affirmative action cases. I can tell you that this ruling has placed cities in what Justice Souter called a ``damned if you do, damned if you don't situation.''

I agree with that. If a city has to prove that it would lose in court before replacing a civil service exam it believes is discriminatory, this jeopardizes virtually any exam they might choose.

Finally, and most important, there is the third point of opposition, and that is the National Rifle Association. The NRA actively opposes Judge Sotomayor. They say they are scoring her confirmation vote. They will tell their members that any Senator who votes to confirm Judge Sotomayor has voted against the NRA's priorities. So let's look at that for a minute.

The NRA says Judge Sotomayor erred in the case of United States v. Sanchez-Villar, a 2004 case. In this case, an illegal immigrant named Jose Sanchez-Villar was caught dealing crack cocaine and carrying a gun in New York City. This is United States v. Sanchez-Villar, 99 Fed. Appx. 256, 2d Cir. 2004.

Those are the facts of the case. A jury convicted. On appeal, the defendant argued, among other things, that to prohibit him from carrying a gun in New York City violated the second amendment.

Judge Sotomayor and her colleagues unanimously rejected his argument and upheld the conviction. The NRA is apparently upset that Judge Sotomayor and her colleagues did not agree with Mr. Sanchez-Villar's second amendment argument.

But in 2004, when this case was decided, the law had been clear for 65 years. The Supreme Court had said in 1939 that the second amendment only related to militia service and judges all across our country had followed that decision for decades. This is United States v. Miller, 307 U.S. 174, 1939.

Would the NRA have preferred that Judge Sotomayor rule against 65 years of settled law and hold that an undocumented drug dealer had a constitutional right to carry a gun in New York City? Do you want that, Mr. President? Do I want that in my State? The answer is absolutely no.

The NRA also says Senators should oppose Judge Sotomayor's nomination because of another case, Maloney v. Cuomo. This is Maloney v. Cuomo, 554 F.3d 56, 2d Cir., 2009. There, Judge Sotomayor and her colleagues unanimously upheld a New York law banning a particular Japanese martial arts weapon called nunchakus.

The unanimous decision said the second amendment limits only the Federal Government, not the States. Why would Judge Sotomayor and her colleagues say that? Because it was binding Supreme Court law. Look at the decisions:

In 1876, the Supreme Court held that the second amendment only applies to the Federal Government. That was United States v. Cruikshank, 92 U.S. 542 (1876). It said it again in 1886, in Presser v. Illinois, 116 U.S. 252, 1886, and again, in 1984, in Miller v. Texas, 153 U.S. 535, 1984.

The fourth circuit followed that law and said in 1995 that the second amendment only applies to the Federal Government. That case was Love v. Pepersack, 47 F.3d 522, 1995. The Sixth Circuit agreed in 1998, in People's Rights Organization v. City of Columbus, 152 F.3d 522, 1998. Judge Sotomayor's own court, the second circuit, agreed in 2005, in Bach v. Pataki, 408 F.3d 75, 2005.

Then last year, Justice Scalia wrote in footnote 23 of the famous Heller opinion:

[Our] decisions in Presser v. Illinois and Miller v. Texas reaffirmed that the Second Amendment only applies to the Federal Government.

That case was District of Columbia v. Heller, 128 S.Ct. 2783, 2008. Justice Scalia is not exactly a liberal Supreme Court Justice, and that is his view:

Presser v. Illinois and Miller v. Texas reaffirm that the second amendment only applies to the Federal Government.

Finally, just 2 months ago, three Republican appointees on the Seventh Circuit agreed that the second amendment only applies to the Federal Government. They said anyone who doubts this need only read Justice Scalia's opinion. And that case was the National Rifle Association v. City of Chicago, 567 F.3d 856, 2009.

So once again Judge Sotomayor's decision was squarely in agreement with court after court after court.

Some of my colleagues have said that the Ninth Circuit disagreed. It is true that three of its judges did. But last week, the full Ninth Circuit voted to review these three judges' decision and to rehear it as a full court en banc. And that case is Nordyke v. King, No. 07-15763, En Banc Order, Ninth Circuit, July 29, 2009.

The NRA tried its case before the Seventh Circuit and lost. They lost in front of three Republican-appointed judges.

Let me summarize. Judge Sonia Sotomayor has 29\1/2\ years of relevant legal experience. She has a 17-year record of following the law. She has experience, temperament, and knowledge. She will be, in my view, a fine Supreme Court Justice.

Supreme Court Justices do not merely call balls and strikes; they make decisions that determine whether acts of Congress will stand or fall. They decide how far the law will go to protect the safety and rights of all of us. They have the power to limit or expand civil rights protections. They have great leeway to interpret the laws protecting or limiting a woman's right to choose. And they can expand or limit child pornography laws and campaign finance laws and so many more.

I believe Judge Sotomayor is an exceptional person who brings a rich background as a prosecutor, a business lawyer, a trial judge, and appellate court judge. And her 17-year record of judicial temperance shows she will faithfully apply the law. I cannot tell you how proud I will be to vote to confirm her as an Associate Justice on the Supreme Court. I sincerely hope that a dominant majority of my colleagues will do the same.

I yield the floor.

Sen. Mark Udall

The Senator from New Jersey.

Sen. Robert Menendez

Mr. President, I rise in proud support of the confirmation of Judge Sonia Sotomayor. We are not only about to cast a vote this week that will make history, but we are about to stand witness in some small way to the coming age of America.

The great Founders of this democracy built a nation on an idea and an ideal. They devised the unique experiment in a new form of government built on tolerance, equal rights, justice, and a constitution that protected us from the mighty sword of tyranny. They forged a community from shared values, common principles, yet preserved the freedom of every citizen to pursue happiness and reach for the stars no matter their position, no matter their circumstance at birth.

It was a revolutionary notion that in America one is not bound by his or her social or economic status; that if we work hard, reach further, aim higher, everything--anything--is possible.

Unlike other nations united by common history, common language, and common culture, America prides itself on its motto: E pluribus unum--out of many, one. In our blind rush to one side of the political spectrum or the other, we too often forget those words. We too often forget that we are united in our differences in a vast melting pot forged from common values and an ideal of freedom that is the envy of the world.

Today, as we prepare to confirm Judge Sotomayor, the full realization of that ideal is closer than it has ever been. I know it, I feel it, for I have lived it. I stand here, someone who himself came from humble beginnings, raised in a tenement building in a neighborhood in Union City, NJ, a son of immigrants, first in my family to go to college, and now in a nation of 300 million people, 1 of 100 Members of the U.S. Senate.

I never dreamed growing up that one day I would have the distinct honor to come to the floor of the Senate to rise in favor of the confirmation of an eminently qualified Hispanic woman who grew up in the Bronx across the river from the old tenement I lived at in Union City. I never dreamed that as a U.S. Senator of Hispanic heritage, I would have the privilege of standing in the well of this Chamber to cast a historic vote for the first Hispanic woman on the highest Court in the land. So for me personally, my vote for Judge Sonia Sotomayor will be a proud moment, one I will always remember as a highlight of my time in the Senate.

When Judge Sotomayor takes her seat on the U.S. Supreme Court, America will have come of age. We will need only to look at the portrait of the Justices of the new Supreme Court to see how far we have come as a nation, who we really are as a people, what we stand for, and what our Founders intended us to be. It will be a striking portrait--one of strength, diversity, spirit, and wisdom, the portrait of a nation united by common concerns, yet still too often divided by deeply held individual beliefs.

There are those in this Chamber who, because of those deeply held beliefs, will vote for Judge Sotomayor and those who will not, each for their own reasons, each in part because of who they are, where they grew up, how their perspective has been uniquely shaped by their individual circumstances and experiences. Their vote will be based on their own logic, their own reasoning, how they interpret the facts and the testimony before them. Each of us will analyze and debate those facts from our own perspective. We will hold to our own intellectual positions. We will disagree. Some will find fault with Judge Sotomayor's choice of words. Some will interpret her statements and rulings differently than she may have clearly intended. Some will question her temperament, her judgment, the details of her decisions. But in this debate and, ultimately, in the final analysis, none of us can deny the role our experience will play in our decision. None of us can deny our backgrounds, our upbringing, the seminal events that shaped our life. We cannot deny who we are. All we can ask of ourselves--of any of us--is that wisdom, intelligence, reason, and logic will always prevail in the decisions we make.

Those who would say a U.S. Senator or a Justice of the U.S. Supreme Court does not carry something with them from their experience are simply out of touch with reality. But let us remember that who we are is not a measure of how we judge; it is merely the prism through which we analyze the facts. The real test is how we think and what we do.

Let's be clear. Given the facts, given the evidence before us, Sonia Sotomayor is one of the most qualified and exceptionally experienced nominees to come before the Senate. I am proud to stand in favor of her confirmation, not because of where she came from, not because we share a proud ethnicity, but because of Judge Sotomayor's experience and vast knowledge of the law. I am proud to stand in favor of her nomination not because she is a Hispanic woman but because of her commitment to the rule of law and her respect for the Constitution; not because of the depth of her theoretical knowledge and respect for precedent but because of her practical experience fighting crime; not because of one statement she may have made years ago outside the courtroom but because of a career-long, proven record of dedication to equal justice under law. Nothing--I repeat nothing--should be more important to any nominee than a dedication to those simple words chiseled above the entrance to the Supreme Court: ``Equal Justice Under Law.''

These are the reasons I am proud to stand in support of her confirmation, and these are the reasons I believe Judge Sotomayor should be unanimously confirmed by the Senate. But I know that will not be the case. I know there will be few on the other side of the aisle who will cast their vote in support of her. I know some of my colleagues have suggested that Judge Sotomayor may not have the judicial temperament necessary to serve on the Supreme Court. To those Senators who get up and say that, I say watch the hearings again. Watch them closely. Listen to what was asked, watch her responses, take note of the depth, the dignity, and clarity of her answers. Be aware of the deference she showed every Senator on the committee, her tone, the tenor of her responses, her rebuttals, and then tell me she does not have the proper judicial temperament.

I think most Americans who watched her, who listened to her, would respectfully disagree. Most Americans do not care about one specific statement out of hundreds of statements. They care about the person. They care about the experience. They care about honor and decency and dignity and fairness. They care about who she is and what she has accomplished in her long judicial career. Put simply, they care about the record, and the record is clear. It shows she has a deep and abiding respect for the Constitution. It shows that the leaders of prominent legal and law enforcement organizations who know her best, those who have actually seen her work, say she is an exemplary, fair, and highly qualified judge. It shows a crime fighter who as a prosecutor put the ``Tarzan murderer'' behind bars. It shows a judge who has upheld the convictions of drug dealers, sexual predators, and other violent criminals. And it highlights a deep and abiding respect for the liberties and protections granted by the Constitution, including the first amendment rights of those with whom she strongly disagrees.

Judge Sotomayor's credentials are impeccable. Set aside for a moment the fact that she graduated at the top of her class at Princeton. Set aside her tenure as editor of the Yale Law Review, her work for Robert Morgenthau in the Manhattan District Attorney's Office, her successful prosecution of child abusers, murderers, and white-collar criminals. Set aside her courtroom experience and practical hands-on knowledge of all sides of the legal system. Even set aside her appointment by George H.W. Bush to the U.S. District Court in New York and her appointment by Bill Clinton to the U.S. Court of Appeals and the fact that she was confirmed by both a Democratic majority Senate and a Republican majority Senate, which alone tells this Senator, if she was qualified then, she must be qualified now. Set all that aside, and you are still left with someone who would bring more judicial experience to the Supreme Court than any Justice in the last 70 years, more Federal judicial experience than anyone nominated to the Court in the last century. Her record clearly shows that someone so experienced, so skilled, so committed, so focused on the details of the law can be an impartial arbiter who follows the law and still has a deep and profound understanding of the effect her decisions will have on the day-to-day lives of everyday people.

With all due respect to my colleagues who plan to vote against this nominee, what speaks volumes about Judge Sotomayor's temperament, what speaks volumes about her experience, what speaks volumes about her record is that the worst--the very worst--her opponents can accuse her of is an accident of geography that gave her the unique ability to see the world from the street view, from the cheap seats. I know that view very well. I grew up in it. I can tell you that certainly it gives you a unique perspective on life. it engenders compassion. It engenders pathos. It focuses a clear lens on the lives of those whose struggles are more profound than ours, and whose problems run far deeper. Yes, I know that view well, and it remains with me today, and it will remain with me all of my life.

I daresay there may be no greater vantage point from which to view the world--to see the whole picture--than a tenement in Union City or a housing project in the Bronx. Thomas Jefferson, in his first inaugural address said:

I shall often go wrong through defect of judgment. When right, I shall often be thought wrong by those whose positions will not command a view of the whole ground.

Judge Sonia Sotomayor surely commands a full, wide expansive view of the whole ground. It is a strength, not a weakness. It is who she is, not what she will do or how she will judge. It is the long view, and it gives her an edge where she may see what others cannot. And that is a gift that will benefit this Nation as a whole.

I ask my colleagues to take the long view and see what this nomination means in the course of this Nation's glorious history. For me, the ideal, the idea of America, the deep and abiding wisdom of our Founders, will have come of age when Judge Sonia Sotomayor raises her right hand, places her hand on the Bible, and takes the solemn oath of office. With it, the portrait of the Justices of the U.S. Supreme Court will more clearly reflect who we are as a nation, what we have become, and what we stand for as a fair, just, and hopeful people. Let that be our charge. Let that be our legacy. Let someone who is committed to the Constitution, to the rule of law, to precedent--and who has exhibited that over a lifetime of work--be our next Supreme Court Justice.

I am proud and honored to support the confirmation of Judge Sonia Sotomayor as the next Justice of the U.S. Supreme Court.

And finally, numerous civil rights, Latino, and law enforcement organizations join me in supporting Judge Sotomayor's nomination. I ask unanimous consent to have printed in the Record letters of support from the following organizations: Mexican American Legal Defense and Education Fund, the National Hispanic Leadership Agenda, the National Puerto Rican Coalition, the National Fraternal Order of Police, the National Organization of Black Law Enforcement Executives, Federal Hispanic Law Enforcement Officers Association, the United States Hispanic Chamber of Commerce, the Arizona Hispanic Chamber of Commerce, and the Fort Worth Hispanic Chamber of Commerce, to name a few.