Executive Session

Floor Speech

EXECUTIVE SESSION -- (Senate - June 24, 2009)

BREAK IN TRANSCRIPT

SOTOMAYOR NOMINATION

Ms. KLOBUCHAR. Mr. President, I will be joined on the floor today by some of my fellow women Senators to talk about the President's nominee for the Supreme Court. I will note that some of my colleagues on the other side of the aisle came to the floor yesterday to, as one news report described it, ``kick off their campaign against her.'' So we wanted to take this opportunity to get the facts out to correct any misconceptions and to set the record straight.

The Supreme Court confirmation hearing for Judge Sotomayor will begin on July 13, but my consideration of her will not begin then. I began considering her the day she was announced because, as a member of the Judiciary Committee, I wish to learn as much as I can about President Obama's choice to fill one of the most important jobs in our country.

Even though there are many questions that will be asked and many areas we will want to focus on, I wish to speak today about how Judge Sotomayor appears to me based on my initial review. After meeting with her and learning about her, I am very positive about her nomination. Judge Sotomayor knows the Constitution, she knows the law, but she also knows America.

I know Americans have heard a lot about her background and long career as a judge. But it is very important for us to talk about what a solid nominee she is because we have to keep in mind that there have been accusations and misstatements, many made by people outside of this Chamber on TV and Ð24/7 cable. There have been misstatements.

It came to me a few weeks ago when I was in the airport in the Twin Cities in Minnesota. A guy came up to me on a tram in the airport and said: Hey, do you know how you are voting on that woman?

I said that I want to listen to her and see how she answers some of the questions.

He said: I am worried.

I said: Why? She is actually pretty moderate.

He said: She is always putting her emotions in front of the law.

I said: Do you know that when she is on a panel with three judges--which they often do on the circuit court where she sits now, and they have her and two other judges--95 percent of the time she comes to an agreement with the Republican-appointed judge on the panel? You must be thinking the same thing about those guys because you cannot just say that about her.

That incident made me think we really need to set the record straight here about the facts, that we should be ambassadors of truth and get out the truth about her record and the kind of judge we are looking for on the U.S. Supreme Court. We need to make sure she gets the same civil, fair treatment other nominees have been given.

Judge Sotomayor's story is a classic American story about what is possible in our country through hard work. She grew up, in her own words, in modest and challenging circumstances and worked hard for every single thing she got. Many of you know her story. Her dad died when she was 9 years old, and her mom supported her and her brother. Her mom was devoted to her children's education. In fact, her mom was so devoted to her and her brother's education that she actually saved every penny she could so that she could buy Encyclopedia Britannica for her kids. I remember when I was growing up that the Encyclopedia Britannica had a hallowed place in the hallway. I now show my daughter, who is 14, these encyclopedias from the 1960s, and she doesn't seem very interested in them. They meant a lot to our family and also to Judge Sotomayor.

Judge Sotomayor graduated from Princeton summa cum laude and Phi Beta Kappa, and she was one of two people to win the highest award Princeton gives to undergraduates. She went on to Yale Law School, which launched her three-decades-long career in the law. So when commentators have questions about whether she is smart enough--you cannot make up Phi Beta Kappa. You cannot make up that you have these high awards. These are facts.

Since graduating, the judge has had a varied and interesting legal career. She has worked as a private sector civil litigator, she has been a district court and an appellate court judge, and she taught law school.

The one experience of hers that particularly resonates for me is that, immediately graduating from law school, she spent 5 years as a prosecutor at the Manhattan district attorney's office, which was one of the busiest and most well thought of prosecutor's offices in our country. At the time, it paid about half as much as a job in the private sector, but she wanted the challenge and trial experience, she told me when we met, and she took the job as a prosecutor. Before I entered the Senate, I was a prosecutor. I managed an office of about 400 people in Minnesota, which was the biggest prosecutor's office in our State. So I was very interested in this experience we had in common.

One of the things that I learned and that I quickly learned that she understood based on our discussions is that, as a prosecutor, the law is not just some dusty book in your basement. After you have interacted with victims of crime, after you have seen the damage crime can do to a community, the havoc it can wreak, after you have interacted with defendants who are going to prison and you have seen their families sitting in the courtroom, you know the law is not just an abstract subject; you see that the law has a real impact on real people.

As a prosecutor, you don't just have to know the law, you have to know people, you have to know human nature. Sonia Sotomayor's former supervisor said that she was an imposing and commanding figure in the courtroom who would weave together a complex set of facts, enforce the law, and never lose sight of whom she was fighting for. Of course, she was fighting for the people in those neighborhoods, the victims of crime. Judge Sotomayor's experience as a prosecutor tells me she meets one of my criteria for a Supreme Court nominee: She is someone who deeply appreciates the power and impact that laws have and that the criminal justice system has on real people's lives. From her first day at that Manhattan district attorney's office, Judge Sotomayor learned that the law is not just an abstraction.

In addition to her work as a prosecutor, I have also learned a lot about Judge Sotomayor from her long record as a judge. She has been a judge for 17 years--11 years as an appellate judge and 6 years as a trial judge. President George H.W. Bush--the first President Bush--gave her the first job she had as a Federal judge. She was nominated by a Republican President. The job was to be a district judge in the Southern District of New York. Her nomination to the Southern District was enthusiastically supported by both New York Senators, Democratic Senator Daniel Patrick Moynihan and Republican Senator Alfonse D'Amato.

If you watch TV or read newspapers or blogs, you know that Judge Sotomayor has been called some names. It always happens in these Supreme Court nominations--the nominees are called names by talking heads on TV and on the radio. In most cases, these commentators may have read a case or two of hers or, even worse, a speech and took a sentence or so out of context, and they have decided they are entitled to make a sweeping judgment about her judicial fitness based on a few words taken out of context.

I think just about everything in a nominee's professional record is fair game to consider. After all, we are obligated to determine whether to confirm someone to an incredibly important position with lifetime tenure. That is a constitutional duty I take very seriously. But that said, when people get upset about a few items and a few speeches a judge has given, I have to wonder, do a few statements someone made in public, for which they said they could have used different words, do those trump 17 years of modest, reasoned, careful judicial decisionmaking? I don't think so.

If we want to know what kind of a Justice she will be, isn't our best evidence to look at the type of judge she has already been? Here are the facts. As a trial judge, Sonia Sotomayor presided over roughly 450 cases on the Second Circuit and participated in more than 3,000 panel decisions. She has authored more than 200 appellate opinions. In cases where she and at least one Republican-appointed judge sat on a three-judge panel, she and the Republican-appointed judge agreed 95 percent of the time, as I mentioned. The Supreme Court has only reviewed five cases where she authored the decision and affirmed the decision below in two of them. The vast majority of her cases have not been in any way overturned or reversed by a higher court.

It is worth noting that this nominee, if confirmed, would bring more Federal judicial experience to the Supreme Court than any Justice in 100 years.

With that, I see one of my colleagues, the Senator from New Hampshire. We will have a number of women Senators here today. I will come back and finish my remarks sometime in the next half hour. I think it is very important that Senator Shaheen, the Senator from New Hampshire, be able to say a few words about the nominee.

I yield the floor.

BREAK IN TRANSCRIPT

Ms. KLOBUCHAR. Mr. President, I thank my colleague, Senator Shaheen, for her remarks and for her reminiscence of meeting with the judge and once again the judge showing how she perseveres in the face of adversity.

I wish to talk a little bit more--I was ending my last comments talking about how, in fact, this nominee would bring more Federal judicial experience to the Supreme Court than any Justice in 100 years. I had earlier noted my exchange with someone in an airport, where he wondered if she was worthy of this, if she was able to apply the facts, apply the law.

Clearly, when you look at this experience she brings and you compare it to any of these other nominees on the Supreme Court, she stands out. She stands out not only because of her unique background, as she overcame obstacles to get here, but she stands out as to her experience, all those years as a prosecutor, all those years as a Federal judge. That makes a difference.

I wish to address one other point that has been made about Judge Sonia Sotomayor in her capacity as a judge. It is something Senator Shaheen mentioned, this temperament issue. There have been some stories and comments, mostly anonymous, I note, that question Judge Sotomayor's judicial temperament. According to one news story about this topic, Judge Sotomayor developed a reputation for asking tough questions at oral arguments and for being sometimes brusque and curt with lawyers who were not prepared to answer them. So she was a little curt, one anonymous source said. Where I come from, asking tough questions and having very little patience for unprepared lawyers is the very definition of being a judge. I cannot tell you how many times I have seen judges get very impatient with lawyers who were not prepared and who did not know the answer to a question. As a lawyer, you owe it to the bench and to your clients to be as well prepared as you possibly can be.

As Nina Totenberg said on National Public Radio, if Sonia Sotomayor sometimes dominates oral arguments at her court, if she is feisty, even pushy, then she would fit right in on the U.S. Supreme Court.

I would add this to that comment. Surely, we have come to a time in this country where we can confirm as many gruff, to-the-point female judges as we have confirmed gruff, to-the-point male judges. Think how far we have come with this nominee.

When Sandra Day O'Connor graduated from law school 50-plus years ago, the only offer she received from a law firm was for a position as a legal secretary. She had this great background, a very impressive background, and yet the only offer she received was as a legal secretary.

Judge Ginsburg, who now sits on the Court, faced similar obstacles. When she entered Harvard in the 1950s, she was only 1 of 9 women in a class of more than 500. One professor actually asked her to justify taking a place that would have gone to a man in that class in Harvard. Mr. President, 9 women, 500 spots, and someone actually asked her to justify the fact that she was there. I suppose she could justify it now, saying she is now on the U.S. Supreme Court. Later Justice Ginsburg was passed over for a prestigious clerkship despite her impressive credentials.

Looking at Judge Sotomayor's long record as a lawyer, a prosecutor, and a judge, you can see we have come a long way.

She was confirmed by this Senate for the district court. She was nominated at that point by the first President Bush.

She was confirmed by this Senate for the Second Circuit, and she now faces a confirmation hearing before our Judiciary Committee and confirmation, again, for a position with the U.S. Supreme Court.

I will tell you this, after learning about Judge Sotomayor, her background, her legal career, her judicial record, similar to so many of my colleagues, I am very impressed. To use President Obama's words, I hope Judge Sotomayor will bring to her nomination hearing and to the Supreme Court, if she is confirmed, not only the knowledge and the experience acquired over the course of a brilliant legal career but the wisdom accumulated from an inspiring life's journey.

Actually today, Justice O'Connor was on the ``Today Show.'' She was asked about her work on the Court and what it was like. She was actually asked about Judge Sotomayor. She was asked: When you retired, you let it be known you would like a woman to replace you and you were sort of disappointed when a woman didn't replace you. So what is your reaction to Judge Sotomayor's nomination?

Justice O'Connor said: Of course, I am pleased that we will have another woman on the Court. I do think it is important not to just have one. Our nearest neighbor, Canada, also has a court of nine members and in Canada there is a woman chief justice and there are four women all told on the Canadian court.

Then she was asked: Do you think there is a right number of women who should be on the Court?

Justice O'Connor, this morning, said: No, of course not.

But then she pointed out: But about half of law graduates today are women, and we have a tremendous number of qualified women in the country who are serving as lawyers and they ought to be represented on the Court.

She was also asked later in the interview about opponents of Judge Sotomayor who have brought up this term ``activist judge.''

She was asked: I know that is a term you have railed against in the past. What is it about the term that you object to?

She answered: I don't think the public understands what is meant by it. It is thrown around by many in the political field, and I think that probably for most users of the term, they are distinguishing between the role of a legislator and a judge, and they say a judge should not legislate. The problem, of course, Justice O'Connor says, is at the appellate level, the Supreme Court is at the top of the appellate level. Rulings of the Court do become binding law. So it is a little hard to talk in terms of who is an activist.

I, again, ask people to look at Judge Sotomayor's opinions. When I talked with her about this, she talked about how she uses a set formula, laying out the facts, laying out the law, showing how the law applies to the facts, and then reaching a decision.

We can also look at her record where, in fact, when she was on a three-judge panel with two other judges, when you look at her record of what she agreed with judges who had been appointed by a Republican President, 95 percent of the time they reached the same decision. So unless you believe those Republican-appointed judges are somehow activist judges, then I guess you would say she is an activist judge. But I think when you look at her whole record, you see someone who is moderate, sometimes coming down on one side and sometimes coming down on another.

I can tell you, as a former prosecutor, I did not always just look at whether I agreed with the judge if I was trying to figure out if someone would be a good judge. I would look at whether they applied the laws to the facts, whether they were fair. Sometimes our prosecutor's office would not agree with a judge's decision. We would argue vehemently for a different decision. In the end, when we evaluated these judges, when we decided whether we thought they were a fair person to have on a case, we looked at that whole experience, we looked at that whole experience to make a decision about whether this was a judge who could be fair.

That is what I think when you look at her record--and I am looking very much to her hearing, where we are going to explore a number of these cases--again, colleagues on one side of the aisle will agree with one case or disagree with another, and the other side of the aisle would have made a decision one way or the other.

You have to look at her record as a whole. When you look at her record, you will see someone of experience, someone thoughtful, someone who makes a decision based on the facts and based on the law.

I am very much looking forward to these hearings. I know that some of my colleagues are coming to the Chamber as we speak. I am looking forward to their arrival as we become, as I said, ambassadors of truth to get these facts out as so many things have been bandied about in names and other things that get into people's heads. I think it important for all those watching C-SPAN right now and for all of those who are in the galleries today, that people take these facts away with them--the facts of her experience, that in over 100 years of judicial experience, when you look back 100 years, she has more experience on the bench than any of the Justices who were nominated. You have to go back 100 years to find someone with that much experience. You look at that work she has done as a prosecutor, you look at the work she has done throughout her whole life, where she basically came from nothing, worked her way up, got into a good college, got into a good law school, did it on her own, with maybe a little help from her mom who bought the ``Encyclopedia Britannica.''

As I said at the beginning, this is a nominee who not only understands the law, understands the Constitution but also understands America.

Mr. President, I yield the floor. I suggest the absence of a quorum.

BREAK IN TRANSCRIPT

Source