Executive Session

Floor Speech

EXECUTIVE SESSION -- (Senate - August 05, 2009)

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Ms. COLLINS. Mr. President, I rise in support of the nomination of Sonia Sotomayor to serve as an Associate Justice of the U.S. Supreme Court.

The Constitution grants the President the power to nominate and appoint individuals to the Federal judiciary. It also gives the Senate the power of advice and consent to such appointments. It does not, however, provide any specific guidance to the Senate on how we should exercise this important power.

In a democracy, discourse and disagreement are inevitable. Some, including myself, would say that these ingredients are not only expected, they are necessary for the healthy continuation of our vibrant, dynamic democracy.

Given this backdrop, disputes regarding the scope of the Senate's power of ``advice and consent'' are not uncommon or unexpected whenever the President puts forth a nominee for the Supreme Court. In fact, the ink on our Constitution was barely dry when the Senate rejected John Rutledge, one of President Washington's 13 nominees to the Supreme Court. Some Senators suggested they had voted against Mr. Rutledge out of a concern that he was losing his sanity. But the main reason for opposition to Mr. Rutledge appears to have been the nominee's opposition to the Jay Treaty with Great Britain--a treaty popular with the federalist-controlled Senate.

Since Mr. Rutledge's rejection by the Senate in 1795, Senators have continued to grapple with the criteria applicable to their evaluation of Supreme Court nominees and the degree of deference that should be accorded to the President.

There is no easy answer to this difficult question. Some argue that closer scrutiny by the Senate and less deference to the President is required when confirming judicial nominees, not only because Federal judges are in a separate branch of government but also because they have lifetime appointments. Thus, constitutional law scholar John McGinnis concludes that the text of the Constitution gives the Senate ``complete and final discretion in whether to accept or approve a nomination.''

Many other legal scholars, however, articulate a more constrained role for the Senate. They argue that the Senate's power should be exercised narrowly, giving extraordinary deference to the President. Under this standard, the Senate would not reject judicial nominees unless they were clearly unqualified to serve.

Citing Alexander Hamilton's Federalist 76, those who would constrain the Senate's review of judicial nominees explain that the ``advice and consent'' responsibility was only intended as a safeguard against incompetence, cronyism, or corruption. As Dr. John Eastman testified before the Judiciary Committee in 2003, the Senate's power of ``advice and consent'' does not give ``the Senate a coequal role in the appointment of Federal judges.''

The constitutional arguments on both sides of this question of how much deference to give the President are enlightening. But, as is so often the case, my personal belief is that the truth lies between the two extremes. As a Senator, I have afforded considerable deference to both Democratic and Republican Presidents on their Supreme Court nominees. In considering judicial nominees, I carefully consider the nominee's qualifications, competency, personal integrity, judicial temperament, and respect for precedent. Those are the tests I have applied to Sonia Sotomayor. Having reviewed her record, questioned her personally, and listened to the Judiciary Committee hearings, I have concluded that Judge Sotomayor should be confirmed to our Nation's highest Court.

My decision to support this nominee does not reflect agreement with her on all of her rulings as a judge serving on the Second Circuit Court of Appeals. I disagreed, for example, with the perfunctory manner in which Judge Sotomayor has disposed of one case of constitutional consequence. Her panel's cursory analysis of the complex and novel questions about the 14th amendment's equal protection clause and title VII in the Ricci case--the case involving the New Haven firefighters, which has been called a reverse discrimination case--was as unfortunate as the decision itself. Indeed, in contrast to her panel's one-paragraph opinion, the Supreme Court, in this case, needed nearly 100 pages to debate and resolve just the statutory question presented--never mind the difficult constitutional questions that were set aside for another day.

But my concerns about a handful of Judge Sotomayor's rulings, as well as some of her prior comments over the course of her 17 years on the Federal bench, do not warrant my opposing her confirmation. Upon reading some of her other decisions, talking personally with her, questioning her at length, and hearing her response to probing questions, I have concluded that she understands the proper role of a judge and that she is committed to applying the law impartially, without bias or favoritism. Specifically, in her testimony before the Judiciary Committee, Judge Sotomayor reaffirmed that her judicial philosophy is one of ``fidelity to the law.''

She pledged ``to apply the law,'' not to make it. She testified that her ``personal and professional experiences'' will not influence her rulings.

There is no question in my mind that Judge Sotomayor is well qualified to be an Associate Justice of the Supreme Court. She has impressive legal experience. She has excelled throughout her life, and she is a tremendously accomplished person. Indeed, the American Bar Association Standing Committee on the Federal Judiciary--after an exhaustive review of her professional qualifications, including more than 500 interviews and analyses of her opinions, speeches, and other writings--unanimously rated her as ``well qualified.''

Based on my personal review--a careful review--of her record, my assessment of her character, and my analysis of her adherence to precedent, Judge Sotomayor warrants confirmation to the High Court.

I know I will not agree with every decision Justice Sotomayor reaches on the Court, just as I have disagreed with some of her previous decisions. I believe, however, that her legal analyses will be thoughtful and sound and that her decisions will be based on the particulars of the case before her. My expectation is that Justice Sotomayor will adhere to Justice O'Connor's admonition that ``a wise, old woman and a wise, old man would eventually reach the same conclusion in a case.''

Based on her responses to the Judiciary Committee, Justice Sotomayor will avoid the temptation to usurp the legislative authority of the Congress and the Executive authority of the President. As Chief Justice John Marshall famously wrote in Marbury v. Madison, the Court must ``say what the law is.'' That, after all, in a nutshell, is the appropriate role for the Federal judiciary. For a judge to do more would undermine the constitutional foundations of the separate branches.

I will cast my vote in favor of the confirmation of Judge Sotomayor, as I believe she will serve our country honorably and well on the Supreme Court.

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

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