06.16.09

Remarks On The Supreme Court And The Nomination Of Judge Sonia Sotomayor UDC David A. Clarke School of Law Annual Rauh Lecture

As Prepared

Part 1

Part 2

On Tuesday morning, Senate Judiciary Committee Chairman delivered the Rauh Lecture at the University of the District of Columbia David A. Clarke School of Law.  His remarks, as prepared, follow.

It is an honor to have been invited by my friend Wade Henderson, the longtime President of the Leadership Conference on Civil Rights and the Joseph L. Rauh, Jr. Professor of Public Interest Law here at the David Clarke School of Law.  I have been lucky to have worked with both Joe Rauh and Wade on many issues. 

It’s great to see so many students here today.  You are going to law school at such an exciting time.  In just six months, President Obama has already begun restoring the role of the United States around the world, on such important issues as human rights and economic recovery.  While I was in law school here in Washington, I was inspired by another young President.  In the Senate, I have had the privilege of working with President Kennedy’s youngest brother for the past 35 years on some of the most pressing social issues of our time.

Next month, the Senate Judiciary Committee will hold hearings on President Obama’s historic nomination of Judge Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States.  Judge Sotomayor’s nomination marks a number of firsts.  She is President Obama’s first nominee to the Supreme Court.  She is the first nominee in well over a century to be nominated to three different Federal judicial offices by three different Presidents. And, of course, she is the first Hispanic nominated to the Supreme Court. 

Being the first is not always easy. Some of you may be the first in your family to attend law school or college.  I was the first Leahy to graduate from college. Judge Sotomayor was in only the third class of women admitted to study at Princeton.  She graduated Summa Cum Laude and Phi Beta Kappa.  She went on to excel at law school, and began her legal career as a prosecutor in New York City.

President George Herbert Walker Bush appointed her to be a Federal trial judge, and she was confirmed with overwhelming support in the Senate.  Six years later, President Clinton nominated her to the Second Circuit.  I remember those days very well.  I made more than a dozen speeches to the Senate urging those who had placed an anonymous hold on her nomination to come forward.  In June 1998, a column in The Wall Street Journal confirmed that the Republican obstruction was driven by fear that President Clinton would nominate her to the Supreme Court.  After the Supreme Court ended its term without a vacancy, the Senate finally voted on her nomination, and she was confirmed overwhelmingly.  And not one word was spoken on the Senate floor by those who did not support her to justify their dissent.

That brings me back to “firsts.”  When Thurgood Marshall was nominated to the Second Circuit, he faced stiff opposition.  Despite graduating first in his class from Howard University Law School, and having been the lead counsel for the NAACP Legal Defense Fund, he faced a barrage of hostile questions at his confirmation hearing, and his nomination was stalled in the Senate for some time.  He was then appointed Solicitor General of the United States.  Throughout his career as a Supreme Court advocate, he successfully argued a remarkable 29 out of 32 cases before the Court.  When President Johnson nominated him to be the first African-American Supreme Court justice, he noted that it was “the right thing to do” and “the right time to do it.” 

President Obama has followed this tradition in selecting a highly qualified person with great experience—both in life and in the courts.  It is long overdue to add such a jurist to our highest court. 

To borrow a phrase that the First Lady used recently, not only do I believe that Judge Sotomayor is prepared to serve all Americans as a Supreme Court Justice, I believe the country is “more than ready” to see this accomplished, respected woman do just that.  This historic nomination should be an occasion for the Senate and the American people to come together and celebrate the strength in our diversity.  

At Justice Marshall’s confirmation hearing to the Supreme Court, he was asked questions designed to embarrass him.  I believe those questions did more to embarrass the Senators asking them.  He fielded questions like, “Are you prejudiced against the white people of the South?”  I hope we do not see such a tactic repeated when Judge Sotomayor is before the Senate Judiciary Committee on July 13.  I hope that Senate Republicans will remember their proud history as the party of Lincoln, and of the Civil Rights Acts of the 1960s, and as a  party that voted unanimously to confirm Thurgood Marshall to the United States Supreme Court.   

Justice Marshall was not the only “first” to face adversity.  When Justice Brandeis was nominated to the high court, he overcame anti-Semitism and significant opposition.  The commentary at the time included questions about “the Jewish mind” and how “its operations are complicated by altruism.”  Sounds like an early attack on empathy, doesn’t it?   Likewise, the first Catholic nominee had to overcome the argument that “as a Catholic he would be dominated by the pope.”

I recently asked Judge Sotomayor about her approach to the law.  She responded that of course one’s life experience shapes who they are, but she went on to say this:“Ultimately and completely” – and she used those words – as a judge, you follow the law. There is not one law for one race or another.  There is not one law for one color or another.  There is not one law for rich and a different one for poor.  There is only one law. She said ultimately and completely, a judge has to follow the law no matter what their upbringing has been.  That is the kind of fair and impartial judging that the American people expect.  That is respect for the rule of law.  That is the kind of judge she has been.

I am confident that when elevated to the Nation’s highest court, Judge Sotomayor will continue to live up to Justice Marshall’s description of the work of a judge.  Justice Marshall said: “In our day-to-day work we must continue to realize that we are dealing with individuals – not statistics.”  

Justice Marshall’s words here are important because they remind us that the Supreme Court’s decisions have a fundamental impact on Americans’ everyday lives.  One need look no further than the Lilly Ledbetter and Diana Levine cases to understand the impact each Supreme Court appointment has on the lives and freedoms of countless Americans. 

In Lilly Ledbetter’s case, five justices on the Supreme Court struck a severe blow to the rights of working families across our country.  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 joined by the new president to strike down the immunity the Supreme Court had given to employers who discriminate against their workers. 

For all the talk about “judicial modesty” and “judicial restraint” from nominees at their confirmation hearings, we have seen a Supreme Court these last four years that has been anything but modest and restrained. 

For those who care about the Constitution, the question we should be asking is whether Judge Sotomayor will act in the mold of conservative 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.  

We should be asking whether she will be the kind of Justice who understands the real world impact of the Supreme Court’s decisions.

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 offensive to the Constitution.  All Americans have come to respect the Supreme Court’s rejection of racial discrimination and inequality in Brown v. Board of Education.

But just two years ago in the Seattle school desegregation case, a narrowly divided Supreme Court undercut that landmark decision.  Chief Justice Robert’s opinion failed to recognize the struggle for equality that has persisted long after Brown v. Board.  It also failed to follow more than half a century of equal protection jurisprudence. 

Justice Stevens wrote in dissent that the Chief’s opinion twisted Brown v. Board in a “cruelly ironic” way.   Most Americans recognize that there is a crucial difference between a community that does its best to ensure that its schools include children of all races and one that prevents children of some races from attending certain schools.  Experience in the real world tells us that.  Justice Breyer’s dissent criticized the Chief Justice’s opinion as applying an “overly theoretical approach to case law” and concluded that “Law is not an exercise in mathematical logic.” 

Chief Justice Warren, a Justice with real world experience, recognized the power of a unanimous decision in Brown v. Board.  And the world came to recognize the necessity of that decision for bringing about an end to segregated America treating certain people as inferior.  In contrast, the Roberts Court, in its divided desegregation decision two years ago, ignored the real world experience of millions of Americans and showed that it would depart from even the most hallowed precedents of the Court.  

In the coming days, the Supreme Court will issue one of its most important decisions in years – the  constitutionality of the reauthorized Voting Rights Act.  The Voting Rights Act provision at risk (Section 5) is a time-honored and effective method to prevent discrimination.  Despite numerous challenges, the Court has always upheld the constitutionally of Section 5.  But after I attended the oral argument in that case in April,  I became concerned that the current court would abandon those precedents and the traditional view of the civil war amendments to the Constitution. 

In law schools across the country, students are taught that there is no more explicit grant of power to Congress than that given by the 15th Amendment to protect the right to vote. 

Passage of the Voting Rights Act of 1965 was the result of an historic struggle for civil rights, which reached a crucial turning point on March 7, 1965, on the Edmund Pettis Bridge in Selma, Alabama, when state troopers brutally attacked John Lewis and his fellow civil rights marchers who were trying to exercise their civil rights.  The events of that day, now known as “Bloody Sunday,” were captured in newspaper photos and on television, and those powerful images proved to be a catalyst.  Congress passed the Voting Rights Act within months so that the Constitution’s guarantees of equal access to the political process, regardless of race, would not be undermined by discriminatory practices. 

In contrast to the tremendous resistance and bitter politics that met the initial enactment of the Voting Rights Act, three years ago, Republicans and Democrats in the Senate and the House of Representatives came together to reauthorize key expiring provisions of the Voting Rights Act of 1965.  We did so after an extensive fact-finding process determined that these provisions were still needed to preserve the rights of all Americans to have equal access to the ballot box.  We held more than 20 hearings in the House and Senate, and considered changes to the Section 5 preclearance process.  Congress decided that Section 5 was still necessary to prevent discrimination that has persisted at the ballot box. 

Since the initial court challenges in 1966, whenever the Supreme Court has reviewed or even cited to the Voting Rights Act, it has affirmed the Act as a valid exercise of congressional authority.  The Court should not depart from these precedents.  It should not substitute its own judgment for that of Congress.  Striking down the Voting Rights Act would be conservative activism pure and simple. 

As we consider Judge Sotomayor’s nomination this summer, Americans will begin to focus on the enormous impact that these justices have on our freedoms and our values.

Judge Sotomayor’s considerable record is that of a restrained and thoughtful jurist who understands the role of the judge.   She will bring more than just her first-rate legal mind and impeccable credentials to the Supreme Court.  Whether you are from the south Bronx, the south side of Chicago or south Burlington, the American Dream inspires all of us, and her life story IS the American Dream. 

This historic nomination should unite the American people and unite the 100 Senators who will act on their behalf.  It is a nomination that keeps faith with the words engraved in Vermont marble over the entrance of the Supreme Court: “Equal Justice Under Law.”  And we should confirm her nomination without delay.

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