Remarks on Nomination of Judge Sonia Sotomayor to the U.S. Surpeme Court

*** As Prepared for Delivery ***

"Mr. President, a decision as to whether to confirm a President's nominee to the Supreme Court is one of the most significant decisions any of us will make during our Senate careers. The precedents that are established by the U.S. Supreme Court do not merely affect the litigants but the entire fabric of American society, often for centuries.

"Justices of the Supreme Court enjoy life tenure. They are not accountable to the President who appointed them or to the Senators who voted to confirm them. They are not directly accountable to the American people. Yet it is undeniable today, as it has been since the founding of our Republic, that the Supreme Court is relied upon as the last line of defense against the loss of our liberties.

"It is critical that the American people have the highest confidence in the Supreme Court and its objectivity. In a Democratic society, the credibility of any institution relies on the consent of the governed. Those who seek nomination to the Supreme Court must be ever vigilant in their words and in their deeds that they do nothing to undermine that credibility.

"Mr. President, after lengthy, lengthy introspection, I rise this evening to inform my colleagues that I am unable to support the nomination of Judge Sotomayor to serve on the Supreme Court. This is a difficult result for me because I like Judge Sotomayor on a personal level. I visited with the judge for nearly an hour when she came through to meet with Senators. She is absolutely an engaging individual, and I left thoroughly impressed with her intellect and certainly with her resolve. She was open to my invitation to visit Alaska, and that invitation still stands.

"The nomination of Judge Sotomayor, who would be the first woman of Puerto Rican descent to serve on the Supreme Court, is indeed a historic one. Many were disappointed that President Bush did not nominate a woman to fill Justice Sandra Day O'Connor's seat on the Supreme Court. Justice O'Connor herself underscored the importance of placing women on the bench and in other high governmental positions in an interview with the National Law Journal that was published on May 26, 2009. So I am pleased that President Obama has nominated a woman to succeed Justice Souter.

"Judge Sotomayor's education and experience certainly qualify her for the position for which she was nominated--experience as a prosecutor and in the private practice of law, 17 years service on the Federal trial and appellate bench, a gifted and inspiring law professor.

"Judge Sotomayor's rise from the South Bronx to Princeton and Yale Law School is truly an American success story. Her excellence in practice as a prosecutor and private practice attorney is also an American success story. Her rise through the ranks of the Federal Court system is an American success story. And here in America, we celebrate success stories such as Judge Sotomayor's.

"But as much as I like Judge Sotomayor and am impressed with the obstacles she has clearly overcome, there are aspects of Judge Sotomayor's record that make me uncomfortable. I have heard from about 1,400 Alaskans who are troubled by what they know of Judge Sotomayor as well, and this discomfort arises from Judge Sotomayor's speeches as well as her decisions in key cases involving the second amendment and property rights.

"Alaskans, by their nature, are independent thinkers, and this nomination has rightly engaged their attention. So let's begin with the speeches.

"In the National Law Journal interview I referred to a moment ago, Justice O'Connor reasserted her viewpoint that ''a wise old woman and a wise old man, at the end of the day, can reach the same conclusion.'' I agree with that conclusion. But this is a viewpoint that Judge Sotomayor has challenged in one form or another on some eight different occasions.

"During the confirmation hearings I was looking for a simple, straightforward statement that Judge Sotomayor had come to appreciate that perhaps her remarks were ill-conceived; that she would not use those words if she were delivering those speeches today. During the confirmation hearings Judge Sotomayor used many words to justify and to explain her statements. She argued vigorously that she was misunderstood. But I am still not clear she understands the impact the plain meaning of her words had upon the American people or the impact they potentially could have on the credibility of the Court.

"Many of my constituents in the State of Alaska are not impressed with this talk. Alaskans champion diversity. In the Anchorage school district where my children attended elementary and middle school, more than 90 different languages are spoken. About 20 percent of Alaskans are of Alaska Native ancestry. Yet we reject the notion that coming from a particular background makes you wiser than one who has a different background. Alaskans judge each person as an individual.

"Alaskans respect those who respect our lifestyle and our values--hunting and fishing and sustaining one's self from the land, responsible development of our natural resources, and a government that restrains itself from intruding on the lawful choices of American citizens.

"About 63 percent of our State is owned by the Federal Government. Alaska is constantly in Federal court defending attacks to our ability to access Alaska's lands and develop our economy, and often these issues end up before the Supreme Court. Many Alaskans were disappointed recently with the outcome of the Exxon Valdez punitive damages case. This may explain why so many Alaskans are so attuned to the objectivity of those nominated to serve on our Supreme Court.

"We are initially suspicious of those who are educated at Ivy League schools and spend their entire careers in the Boston-Washington corridor. Alaskans wonder whether those with this background truly understand the slice of the American experience that we live in the 49th State, and with good reason.

"I would not expect that Judge Sotomayor would devalue her own experiences. But neither should she have suggested that the experiences of others would lead them to decisions of lesser wisdom. One's diverse background does not and should not diminish the value of another's experiences.

"All of this leads me to question whether Judge Sotomayor will consider the pleas of those with experiences different from her own with the objectivity that is demanded of a Supreme Court Justice. My constituents are also troubled by the speech in which Judge Sotomayor expresses her notion that the appellate courts are where policy is made. Judge Sotomayor has subsequently explained that the point she was trying to make is that the courts of appeal establish precedent and the district courts do not. But there is a difference between policy and precedent, and my constituents don't believe Judge Sotomayor would have used the words ''make policy'' to mean ''establish precedent.''

"They believe that she really did mean ''make policy.'' Alaskans get nervous when courts make policy decisions. Particularly those policy decisions that infringe upon our constitutional rights, as Alaskans understand them.

"And no constitutional issue concerns my constituents in Alaska more than the second amendment. They question whether Judge Sotomayor's experiences enable her to fully understand why people in the West fear the creep of government regulation on their second amendment right to bear arms. Judge Sotomayor has dealt with second amendment issues on two occasions. Neither inspires confidence.

"Let me focus on the 2009 Maloney decision. Maloney presented the question whether the second amendment protects citizens from State interference with their right to keep and bear arms. It was heard by a three judge panel in the Second Circuit. Judge Sotomayor served on that panel. Maloney was one of the first cases to construe the second amendment following the Supreme Court's landmark 2008 decision in Heller.

"Judge Sotomayor's panel held that the second amendment did not protect citizens from state interference. It reasoned that it was constrained by the U.S. Supreme Court's 1866 decision in Presser v. Illinois.

"But as the Supreme Court explained in Heller, the Presser case said nothing about the second amendment's meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations.

"Maloney had nothing to do with private paramilitary organizations. The sole question in Maloney was whether the State of New York could ban the possession of a particular kind of weapon.

"A three judge panel in the Ninth Circuit, a circuit which is often regarded as one of the more ''liberal'' circuits, reached quite the opposite conclusion from Judge Sotomayor's panel. The case was Nordyke v. King.

"It concluded that Heller left little doubt that the second amendment is a fundamental right. Accordingly the second amendment is incorporated into the 14th amendment and applies with equal vigor to the States. To the Ninth Circuit panel this was not a question of ideology or judicial activism. It was the undeniable outcome of Heller's reasoning.

"But if Judge Sotomayor and her colleagues really believed that courts of appeals must await additional guidance from the Supreme Court before determining whether the second amendment constrains State action they could have stopped there. Instead, the Sotomayor panel went on to conclude that the rights secured under the second amendment are not fundamental rights. It was not necessary to reach any conclusion on this issue because the panel had already decided that the second amendment doesn't apply to the States. So why did Judge Sotomayor's panel go out of its way to make this point?

"I am also disappointed that Judge Sotomayor did not write a separate opinion in Maloney. On a question as significant as whether the second amendment is a fundamental right, I would have expected that Judge Sotomayor would have written a thoughtful and scholarly opinion. Instead she signed on to an analysis of the second amendment that is widely regarded as superficial.

"Unfortunately, this is not the first time that Judge Sotomayor failed to write a substantial opinion on a significant constitutional issue. Some of my colleagues have discussed their concerns with Judge Sotomayor's handling of the New Haven firefighters' case.

"I would like to take a moment to discuss the Didden case which involves property rights and constitutional limits on the scope of eminent domain.

"The reasoning of Didden is particularly perplexing. The panel on which Judge Sotomayor sat concluded that Didden's constitutional challenge to the taking of his property was time barred. If a suit is time barred there is no reason for judges to reach the merits of the case.

"Yet for reasons I cannot fathom, Judge Sotomayor's panel went on to do just that. They performed a superficial analysis of whether the taking of a piece of private property by a municipality for a drugstore is a constitutionally permissible public purpose. The Supreme Court invited lower courts to scrutinize a claim of public purpose to determine whether it is pretextual. Judge Sotomayor's panel never analyzed this question.

"They simply concluded that Didden's constitutional rights were not violated. This analysis was dicta. Not necessary to the outcome of the case. But it is a most troubling piece of dicta because it undermines the constitutional protection for private property. It could be used to limit the rights of litigants in other cases.

"My professional training is no different than that of the other lawyers in this body. In law school you spend 3 years reading appellate decisions day in and day out. Hundreds of appellate decisions--over a 3-year period. We are taught that the measure of a judge is in the quality of her analysis.

"The strength of a judge's reasoning is as important, if not more important, than who wins and who loses. It is important because that reasoning is part and parcel of the precedent that is used in deciding future cases.

"In three separate cases of significant constitutional import, Judge Sotomayor's panel failed to provide the rigorous analysis we commonly expect of future Supreme Court Justices. That troubles me deeply.

"I appreciate that the decision of who to nominate to the Supreme Court belongs to the President. However, if advice and consent is to be meaningful the Senate cannot be a mere rubberstamp on the President's decision.

"My decision to oppose Judge Sotomayor's nomination is not based upon partisanship, ideology or the recommendations of any outside interest group. It is the product of reservations I have about the positions that Judge Sotomayor has taken in speeches on multiple occasions over a period of years. It is based on the brief and superficial treatment she has given to important constitutional questions. Equally troubling is the fact that about 1,400 Alaskans have arrived at the same conclusion.

"This is not the conclusion I would have preferred to announce but it is one that is compelled by Judge Sotomayor's record.

"I yield the floor."

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