Executive Session

Floor Speech

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Mr. CRAPO. Mr. President, I rise today to discuss President Obama's nomination of Judge Sonia Sotomayor to serve on the U.S. Supreme Court.

First, I want to say I appreciate the efforts of my colleagues on the Judiciary Committee to hold thorough hearings and to process this nomination.

There is no doubt that Judge Sotomayor's resume is impressive, with degrees from Princeton and Yale Law School. She then worked as an assistant district attorney, and later in private practice before serving as a U.S. district court judge, and currently as a U.S. circuit court judge.

It is unfortunate the Senate confirmation process has reached a point where nominees with such extensive backgrounds are no longer comfortable candidly discussing their judicial philosophy and views on key issues.

To date, I have received over 1,000 letters, e-mails, and phone calls from Idaho constituents who are overwhelmingly opposed to Judge Sotomayor's nomination. Many of the concerns raised in this correspondence are similar to concerns I personally have about the nomination--concerns relating to the second amendment right to bear arms, concerns relating to judicial activism, concerns relating to whether foreign law should be utilized in interpreting U.S. statutes and our Constitution.

It was my hope that through the committee hearings and my personal meeting with Judge Sotomayor and other evaluation of her writings and her judicial decisions that these concerns and those of my constituents could be addressed. Unfortunately, though, when it came to the key issues, Judge Sotomayor's testimony often lacked the substance necessary and was even contradictory to her own previous statements, rulings, and writings.

I would like to discuss some of those areas of concern. Before I do so, though, I want to make it very clear that with this nomination, many are very rightfully proud that for the first time in our country's history we have a Latina nominated to our highest Court. And it must be noted that she is receiving and being afforded a clean up-or-down vote on the floor of the Senate this week.

As I indicated at the outset, it is unfortunate the confirmation process in the Senate has deteriorated so much over the last few years that others have not received similar opportunities. I am referring in this example to Miguel Estrada. Like Judge Sotomayor, Judge Estrada was rated unanimously ``well qualified'' by the American Bar Association when President Bush nominated him to the U.S. Court of Appeals for the DC Circuit.

The DC Circuit is often considered to be a stepping stone for Supreme Court nominations, and at that time many thought Judge Estrada would be a strong nominee, that he might be the first Latino nominated to the Supreme Court. Judge Estrada would have deserved such an opportunity as Judge Sotomayor does. Unfortunately, some on the left feared that scenario, and as a result there was a filibuster and Judge Estrada was never even allowed to have an up-or-down vote on the floor of the Senate.

I make this point now just to remind us all that although there are many here who have concerns about some of the positions and philosophies Judge Sotomayor has, there has been no effort to deprive her of an opportunity for an up-or-down vote on the floor of the Senate on her nomination. It is important our country recognize this.

Let me now turn to some of the issues I indicated earlier that are of concern. I know a number of my colleagues have spoken already about the issue of the second amendment right to keep and bear arms. That is one of my most significant concerns.

On July 27, 2008, the U.S. Supreme Court ruled in District of Columbia v. Heller that the second amendment to the Constitution protects an individual's right to keep and bear arms unconnected with service in a militia, and to use those arms for traditionally lawful purposes, such as self-defense within the home.

This ruling affirmed what common sense has told us all for a long time: that the second amendment was intended to ensure access to all law-abiding citizens for self-defense and recreation. Unfortunately, despite this ruling in Heller, Judge Sotomayor ruled in the Maloney case that the second amendment does not apply to the States.

Even the Ninth Circuit Court of Appeals, which has jurisdiction over my home State of Idaho and is often considered one of the most liberal courts in the land, has ruled the opposite way in a similar case, making it clear that second amendment rights are binding on the States.

In Nordyke v. King, the Ninth Circuit held that the right to bear arms is ``deeply rooted in this Nation's history and tradition.'' Additionally, the court found that the ``crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed [a] fundamental [right].''

Furthermore, and again even after the Supreme Court's ruling in Heller, Judge Sotomayor held that the second amendment does not protect a fundamental right.

With regard to whether the second amendment applies to States, I do not believe any reasonable person believes that other freedoms contained in the Bill of Rights do not apply to the States, such as freedom of religion, freedom of speech, or freedom of the press. Why is there a different standard or effort to try to keep the second amendment right to bear arms from being freely available to all individuals in the United States?

The Supreme Court has held in a series of opinions that the 14th amendment incorporates most portions of the Bill of Rights as enforceable against the States. Despite that Heller addressed firearms laws in the District of Columbia and not in a particular State, the Supreme Court used State constitutional precedents for its analysis in Heller. In fact, the Court's ruling was based in part on its reading of applicable language in State constitutions adopted soon after our Bill of Rights itself was adopted and ratified. By doing so, the Supreme Court recognized that the second amendment was, in fact, a fundamental right guaranteed under the Constitution.

On the issue of whether the second amendment right to bear arms is a fundamental right, I am extremely concerned that a nominee for the highest Court in our land would make such an argument. I am very concerned that a nominee for the highest Court in our Nation could so construe the second amendment right to bear arms. This disregard of history and legal precedent is, to me, a clear sign of a penchant toward judicial activism.

As I have said, to reach her decision in Maloney, Judge Sotomayor had to, and did, make a judicial finding that the second amendment right to bear arms is not a fundamental right. In contrast, the Ninth Circuit Court of Appeals, in a footnote, said it as well as I think it can be said. The Ninth Circuit Court said:

The county--

Which in this case was the defendant which was seeking to implement some restrictions that were an infringement on the right to bear arms--

The county and its amici--

Those others who have filed briefs on the county's behalf--

point out that, however universal its earlier support, the right to keep and bear arms has now become controversial.

Again, this is the Ninth Circuit Court of Appeals speaking.

But we do not measure the protection the Constitution--

The Constitution--affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of [our] Founders to enshrine a given right in the Constitution. If so, then people can amend the document. But such amendments are not for the courts to ordain.

That is the kind of correct analysis the Supreme Court has clearly guided us to with regard to the second amendment right to bear arms.

Throughout Idaho and across the United States, many millions of Americans believe the second amendment is a fundamental right, and I am one of those. Soon enough, the Supreme Court will decide whether the second amendment is incorporated by the 14th amendment to apply to the States. When that case is taken up, the Court will decide just how ``fundamental'' the second amendment is and whether States and communities can take away Americans' right to bear arms any time they want.

I cannot support a nominee to the Supreme Court who does not recognize this fundamental right in our Constitution. For this reason, I must oppose the nomination of Judge Sotomayor.

In addition, with regard to the role of a judge and judicial activism, when it comes to her views on the proper role of a judge, once again Judge Sotomayor's testimony before the Senate Judiciary Committee appears to directly contradict her publicly stated words and philosophy expressed prior to her nomination.

In 2003, when discussing her gender and heritage, Judge Sotomayor said:

My experiences will affect the facts I choose to see as a judge.

In another previous speech, she said:

Personal experiences affect the facts that judges choose to see.

This is simply shorthand for judicial activism and making policy rather than applying the law--exactly what the Ninth Circuit said courts were not to do. To defend against this very notion, however, justice is supposed to be blind. Indeed, Lady Justice is depicted with a blindfold. To judge by selectively choosing which facts to emphasize is akin to lowering the blindfold and taking a peek, thereby rejecting equal justice under the law. Those who are called to judge must adhere to the rule of law no matter what they personally think the law should be or what the outcome of a particular case should be.

After she was nominated to the Supreme Court, Judge Sotomayor told the Judiciary Committee:

My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.

So we are left to wonder what has caused this contradiction, and whether she still believes that judges may choose to see the facts they want to see to get the result they want to get.

Also, I indicated I had a concern about foreign law. Another very puzzling contradiction in Judge Sotomayor's testimony involves the issue of judges looking to foreign law when deciding cases.

In her testimony before the Judiciary Committee, Judge Sotomayor said:

I have actually agreed with Justices Scalia and Thomas on the point that one has to be very cautious even in using foreign law with respect to the things American law permits you to.

However, in March of this year, in a speech to the ACLU of Puerto Rico, she did not seem to agree with Justices Scalia and Thomas when she said:

And that misunderstanding is unfortunately endorsed by some of our Supreme Court justices. Both Justice Scalia and Justice Thomas have written extensively criticizing the use of foreign and international law ..... in Supreme Court decisions. How can you ask a person to close their ears? Ideas have no boundaries. Ideas are what set our creative juices flowing. They permit us to think, and to suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that's based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to good ideas. .....Unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases, we are going to lose influence in the world.

Mr. President, I do not agree. In fact, that a nominee to the highest Court in our land would say that our Constitution and our statutes in America may be interpreted by reliance on foreign law is alarming.

The Supreme Court is charged with deciding the constitutionality of a law or interpreting it in the context of our American system of justice, not in accordance with selectively chosen foreign laws, which are numerous, contradictory, and often inconsistent with American jurisprudence. How else would a judge choose among these various foreign laws and precedents other than selecting those that align with that judge's personal opinion?

Mr. President, I have raised three issues today that have caused me very significant concern: Judge Sotomayor's interpretation of the second amendment right to keep and bear arms, clearly written after the Supreme Court of the United States has given the guidance necessary for us to resolve the issue; her penchant toward choosing facts, enabling a judge or Justice, in this case, to reach the outcomes they want regardless of the way the law should be applied and the outcome that the law would otherwise require; and her willingness to allow American jurisprudence to be determined at the highest levels in our land by reliance on foreign law, foreign cases, and foreign precedent.

For these reasons, I cannot support President Obama's nomination of Judge Sotomayor to the Supreme Court. When we get to the vote on it this week, I will cast a ``no'' vote. I recognize the likelihood is her nomination will proceed and be confirmed, but it is my keen hope and conviction the issues I have raised and that many others have raised today will be heard and that, regardless of the outcome of the vote in the Senate this week, Judge Sotomayor, if she is confirmed, and all Justices on the Supreme Court will continue to recognize the fundamental nature of our right to bear arms under the second amendment; that they will focus on the proper role of judges not in creating law but in interpreting the law, and that they will decline to rely on foreign law to interpret and to create American jurisprudence.

With that, I yield the floor and note the absence of a quorum.

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