On The Nomination Of Judge Sonia Sotomayor

Full Statement, As Prepared

I thank the many Senators who took part yesterday in the historic debate on the nomination of Judge Sonia Sotomayor to the Supreme Court.  I hope today that we will conclude this debate and vote on her confirmation.
Senator Klobuchar, the senior Senator from Minnesota and an active member of the Judiciary Committee, led a group of five women Senators in a powerful opening hour of debate yesterday that included Senators Shaheen, Stabenow, Gillibrand and Murray.  Several Judiciary Committee Senators gave strong speeches of support for Judge Sotomayor’s nomination, including Senator Schumer, Senator Specter, and Senator Cardin.  Senator Franken, our newest member, gave his first Senate speech and I congratulate him.  We also heard from Senators Lautenberg, Dodd, Baucus, Merkley, Akaka, Lieberman, Casey, Wyden, and Burris.
The statements of support for Judge Sotomayor yesterday came from both sides of the aisle.  Senator Martinez, who has been a strong supporter of Judge Sotomayor, gave a particularly moving speech, and Senator Bond joined him in announcing his intent to vote for this well-qualified nominee.  Senators Collins and Snowe also spoke in support of Judge Sotomayor’s nomination.
I was troubled yesterday, however, to hear some Republican critics of Judge Sotomayor making unfounded insinuations about the integrity and character of this outstanding nominee.  That is wrong.   She is a judge of unimpeachable character and integrity.  These critics have also chosen to ignore her extensive record of judicial modesty and restraint from 17 years on the Federal bench and, instead, to focus on—and mischaracterize—her rulings in just a handful out of her more than 3,600 cases.  
In particular, some Republican Senators have twisted Judge Sotomayor’s participation in a unanimous Second Circuit decision that applied a 123-year-old Supreme Court precedent to reject a challenge to a New York state law restriction on chukka sticks, which are a martial arts device.   Some have trumped up a straw man by ignoring the facts of Judge Sotomayor’s decision, the developing state of Second Amendment law, and Judge Sotomayor’s testimony during her confirmation hearing recognizing the individual right to bear arms guaranteed by the Second Amendment.  In fact, in joining the per curiam decision in Maloney v. Cuomo, Judge Sotomayor followed and applied the holding of the Supreme Court that the Second Amendment provides individuals with the right to keep and bear arms.
When the Supreme Court handed down its decision in District of Columbia v. Heller last year,  I applauded the Court for affirming what so many Americans already believe: The Second Amendment protects an individual right to own a firearm.  The Heller decision reaffirmed and strengthened our Bill of Rights.
Vermont has some of the least restrictive gun laws in the country.  One does not need a permit to carry a concealed firearm, and Vermonters are trusted to conduct themselves responsibly and safely.  In my experience, Vermonters do just that.  Like many Vermonters, I grew up with firearms and have enormous respect and appreciation for the freedoms that the Second Amendment protects.  In fact, I own many firearms. Like other rights protected by our Bill of Rights, the Second Amendment right to keep and bear arms is a right I cherish.   
As a prosecutor I protected the rights of Vermonters to possess firearms.  As a Senator I have carefully considered Federal efforts to regulate firearms, and always with an eye toward the burdens it may impose on the Second Amendment rights of law-abiding American citizens.   As an owner of more than a handful of firearms, I strongly agree with the Heller decision.
The Supreme Court’s decision in Heller recognized that the Second Amendment guarantees an individual the right to keep and bear arms against Federal restrictions.  At her confirmation hearing, Judge Sotomayor repeatedly affirmed her view of those Second Amendment guarantees as set forth in the Heller decision.
In response to a question from me, Judge Sotomayor testified:  “I understand how important the right to bear arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA, and I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller.”   
Judge Sotomayor re-affirmed this statement in answers to questions from Senator Kyl, Senator Coburn, and Senator Feingold.  Judge Sotomayor testified in response to a question from Senator Kyl that: “The decision of the Court in Heller . . . recognized an individual right to bear arms as applied to the Federal Government.”  Judge Sotomayor testified in response to Senator Coburn that:  “In the Supreme Court's decision in Heller, it recognized an individual's right to bear arms as a right guaranteed by the Second Amendment.”  In response to Senator Feingold, Judge Sotomayor testified about Heller that: “[T]he Supreme Court did hold that there is . . . an individual right to bear arms, and . . . I fully accept that.”
Judge Sotomayor participated on a Second Circuit panel in a case called Maloney v. Cuomo decided earlier this year, in which the unanimous panel recognized the Supreme Court decision in Heller that the personal right to bear arms is guaranteed by the Second Amendment against Federal law restrictions.
Justice Scalia’s opinion in the Heller case expressly left unresolved and explicitly reserved as a separate question whether the Second Amendment guarantee applies to the States and laws adopted by the States.  In doing so, Court left in place a series of Supreme Court holdings from 1876 to 1894 that the Second Amendment does not apply to the States.   
The question posed to Judge Sotomayor and the Second Circuit in Maloney involved a challenge by a criminal defendant to a New York state law restriction on a martial arts device called nunchucks or chukka sticks, not firearms.  Indeed, in that case the appellant had pleaded guilty to disorderly conduct, agreed to the destruction of the nunchucks as part of the plea, and the charge of possession of the nunchucks in violation of New York law had been dismissed.  The Second Circuit considered the case on appeal from a denial of a subsequent declaratory judgment case.  In declining to overrule the trial judge and reach out to nullify the State law against nunchuks, the Second Circuit panel emphad that its decision was dictated by Supreme Court precedent, holding that: “Where, as here, a Supreme Court precedent ‘has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.’”  Had the Second Circuit acted otherwise, it would have been seen as judicial activism and an unwillingness to adhere to Supreme Court precedent.
The approach taken by Second Circuit’s decision in Maloney was adopted, as well, by some of the most respected conservative jurists in the country.  Judges Easterbrook and Posner, both renowned conservatives who serve on the Seventh Circuit, agreed with the Second Circuit panel.  In National Rifle Association v. City of Chicago, they cited the Second Circuit’s decision in Maloney.  Like the Second Circuit in Maloney, Judges Easterbrook and Posner refused to ignore the direction from the Supreme Court to implement Supreme Court holdings even if the reasoning in later opinions undermines their rationale and “‘leave to [the Supreme Court] the prerogative of overruling its own decisions.’”
If Republican Senators wish to criticize, let them criticize Justice Scalia for the Supreme Court’s decision in Heller to limit its application against Federal Government restrictions and expressly reserve for another Supreme Court decision whether to incorporate the Second Amendment right against the States.  Judges Easterbook, Posner and Bauer of the Seventh Circuit and Judges Pooler, Sotomayor and Katzmann of the Second Circuit all followed Justice Scalia and the holdings of Supreme Court precedent.
Petitions for certiorari have been filed in both Maloney and National Rifle Association and are currently pending before the Supreme Court.  A third, related decision by a panel of the Ninth Circuit is being reconsidered en banc by that Court of Appeals.  Republican Senators insisted during the Roberts and Alito hearings that a Supreme Court nominee must avoid making predictions about how she might rule in a case that is likely to come before the Supreme Court.   Yet Republican Senators have now reversed their approach to demand that Judge Sotomayor ignore these standards and commit to how she intends to rule on these cases and this issue if confirmed.
Recognizing that she would be unable to say how she would rule, I asked Judge Sotomayor whether she would approach these matters with an open mind and she assured us that she would.  I do not see how any fair observer could regard her testimony as hostile to the Second Amendment personal right to bear arms, a right she has embraced and recognizes.
The question of incorporation of the Second Amendment of the Bill of Rights against the States is not merely likely to come before the Court; petitions to decide it are currently pending before the Supreme Court.  There are well-recognized limits to how much a judicial nominee can say during her confirmation hearings.  Nominees do not answer questions about cases or issues pending before the Supreme Court.  It is striking that many of those who today criticize Judge Sotomayor’s adherence to these limits strongly defended them just a few years ago, when a Republican President was doing the nominating.
A 2005 Senate Republican Policy Committee Report commissioned by Senator Kyl concluded that “the preservation of an independent judiciary” depends on a nominee’s ability to avoid signaling how she will rule on upcoming cases.  According to this report:
“It is inappropriate for any nominee to give any signal as to how he or she might rule on any issue that could come before the court, even if the issue is not presented in a currently pending case.  If these novel ‘prejudgment demands’ were tolerated, the judicial confirmation process would be radically transformed.”
Senator Kyl’s Republican Policy Committee Report raised concerns that “no judge can be fair and impartial if burdened by political commitments that Senators try to extract during confirmation hearings” and concluded that “nothing less than judicial independence and the preservation of a proper separation of powers is at stake.”
Senators Sessions, Cornyn, Grassley, Coburn and Hatch referred to these restrictions on a nominee’s ability to answer questions during the Senate’s consideration of President Bush’s Supreme Court nominees.  During the Senate’s consideration of the Roberts nomination, Senator Sessions said:
“Judges apply the facts to the legal requirements of the situation, and only then make a decision.  [Judge Roberts] refused to make opinions on cases that may come before him.  Of course, he should not make opinions on that…. He should not be up there making opinions on the cases.  That is so obvious.”
At that time, Senator Cornyn shared their view and strongly defended Republican nominees who refused to discuss legal issues that might arise in the future.  He said:
“It undermines a nominee's ability to remain impartial once he or she becomes a judge if he or she has already taken positions on issues that might come before him or her on the bench. . . . In other words, just because some Members may ask these questions does not mean the President's nominee should answer them.  In accordance with long tradition and norms of the Senate in the confirmation process, they should not answer them.”
At the beginning of confirmation hearings for John Roberts, Senator Grassley said: “The fact is that no Senator has a right to insist on his or her own issue-by-issue philosophy or seek commitments from nominees on specific litmus-test questions likely to come before that Court.”
Senator Coburn criticized those Senators whom he said planned to vote against the Roberts nomination for his failure to state positions on specific issues: “The real reason they will be voting against John Roberts is because he would not give a definite answer on two or three of the social issues today that face us. He is absolutely right not to give a definite answer because that says he prejudges, that he has made up his mind ahead of time.”
In 2005, Senator Hatch noted the ethical restrictions on a nominee’s ability to answer questions and said:
“I have said Senators on the Judiciary Committee can ask any question they want, no matter how stupid the question may be. . . . But the judge does not have to answer those questions.  In fact, under the Canons of Judicial Ethics, judges should not be opining or answering questions about issues that may possibly come before them in the future.”
Both Judge Roberts and Judge Alito followed their advice and did not answer questions with any specificity about cases that could come before the Supreme Court.  Judge Roberts testified during his hearing: “I think I should stay away from discussions of particular issues that are likely to come before the Court.”  During his hearing, Judge Alito testified:
“I think it’s important to draw a distinction between issues that could realistically come up before the courts and issues that…are still very much in play...that’s where I feel that I must draw a line, because no issues that could realistically come up, it would be improper for me to express a view, and I would not reach a conclusion regarding any issue like that before going through the whole judicial process that I described.”
I asked Judge Sotomayor during her hearing whether, if not bound by Second Circuit or Supreme Court precedent on whether Second Amendment rights should be considered “fundamental rights,” she would keep an open mind in evaluating that legal question.  Her response to me was straightforward.   She said: “You asked me whether I have an open mind on that question. Absolutely.”  Judge Sotomayor continued: “I would not prejudge any question that came before me if I was a Justice on the Supreme Court.”   Judge Sotomayor could not have gone further without prejudging the question Justice Scalia’s opinion in Heller left open and that is currently pending before the Supreme Court.
In response to a question from Senator Coburn, Judge Sotomayor testified:  “In the Supreme Court's decision in Heller, it recognized an individual's right to bear arms as a right guaranteed by the Second Amendment . . . . The Maloney case presented a different question. That was whether that individual right would limit the activities that States would do to limit the regulation of firearms.”   Judge Sotomayor also told Senator Coburn at the hearing: “I can assure your constituents that I have a completely open mind on this question. I do not close my mind to the fact and the understanding that there were developments after the Supreme Court's rulings on incorporation that will apply to this question or be considered.”
In response to a question from Senator Sessions on how she would come down on the question of incorporation of the Second Amendment, Judge Sotomayor testified:  “I have not prejudged the question that the Supreme Court left open in Heller . . . of whether this right should be incorporated against the States or not.”  She also answered Senator Sessions’ questions about the panel decision in Maloney:
“Well, when the Court looks at that issue, it will decide is it incorporated or not. And it will determine by applying the test that it has subsequent to its old precedent, whether or not it is fundamental and hence, incorporated. But the Maloney decision was not addressing the merits of that question. It was addressing what precedent said on that issue.”
The only other case in which Judge Sotomayor was involved as an appellate judge involving a Second Amendment contention was a case in which an illegal alien was convicted of distribution and possession with intent to distribute approximately 1.2 kilograms of “crack” cocaine and of illegal possession of a firearm while an illegal alien.  In that case, United States v. Sanchez-Villar, decided in 2004--before the Supreme Court’s decision in Heller—involved an attempt to overturn a jury conviction.  The defendant in that case claimed he had received ineffective assistance from his lawyer because his possession of the firearm in New York did not provide probable cause for seizure and arrest was rejected by a unanimous panel of the Second Circuit.   The Second Circuit unanimously rejected this claim.  In so doing, the panel quoted in a footnote to language from an earlier Second Circuit decision decided before Heller or Maloney.  This is not unlike a number of cases in which Judge Sotomayor has upheld police actions when undertaken in good faith.
I am disappointed by recent news accounts that the National Rifle Association has decided to “score” the vote on confirming Judge Sotomayor to the Supreme Court in response to pressure from the Republican Leader.  This is the first time in the history of the NRA that it has “scored” a Supreme Court confirmation vote.  In connection with this matter, I ask consent to place in the Record at the conclusion of my statement a copy of a July 24 letter from four members of the Congressional Hispanic Caucus who have consistently earned high ratings from the NRA to the NRA’s Executive Vice President and Executive Director.  Congressmen Joe Baca, Solomon Ortiz, Silvestre Reyes, and John Salazar wrote: “[W]e are disappointed by the NRA’s opposition to the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court.  It is not merited by either Judge Sotomayor’s Record or hearing testimony.”
In their letter, they point out that at her hearing Judge Sotomayor “emphad that she has an ‘open mind’ on the question of incorporation and has ‘not prejudged’ the issue.”  They write that “Judge Sotomayor has said more than either of the two previous Supreme Court nominees about the Second Amendment—specifically, she said that it confers an individual right, as recognized by the Supreme Court in its Heller decision.”
The letter continues: “Even more troubling, it appears you are holding Judge Sotomayor to a different standard than you held Judges Roberts and Alito when they were nominated to the Court, or for that matter, any previous nominee to the Court.  The double standard you have set for Judge Sotomayor is a disservice to all members of the NRA, particularly those who are Hispanic” and that “we are mystified as to why the NRA is characterizing Judge Sotomayor as hostile to the rights of gun owners and evaluating Judge Sotomayor by a different standard than that to which you have held previous Supreme Court nominees.”
I urge each Senator to vote his or her own conscience in connection with this historic nomination.
I see Senator Lincoln on the floor and yield to the distinguished Senior Senator from Arkansas.

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