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Barrasso Speech on the Nomination of Sonia Sotomayor to the U.S. Supreme Court


August 6, 2009


I have three criteria in evaluating an individual to fill a vacancy on the Supreme Court. First, select the best candidate for the job. Second, the Justice must be impartial and allow the facts and Constitution to speak. Third, a Justice's responsibility is to apply the law not to write it.

I have reviewed Judge Sotomayor's record, and I met with her to learn more about her. I want to take a moment to share my thoughts on Judge Sotomayor's nomination.
  

Judge Sotomayor has a compelling life story. She was raised in public housing projects in the Bronx. She was diagnosed with type 1 diabetes at age 8. Her father died when she was 9, and she was subsequently raised by her mother. Judge Sotomayor graduated valedictorian of Cardinal Spellman High School in the Bronx. She graduated summa cum laude from Princeton. She earned her juris doctorate from Yale Law School, where she was editor of the Yale Law Review. After graduating from law school, Judge Sotomayor worked as an assistant district attorney in New York City for 5 years. She then worked in private practice for 7 years.
  

In 1991, Judge Sotomayor was nominated to the Federal bench by President George Herbert Walker Bush. In 1998, President Clinton nominated her to the Second Circuit Court of Appeals where she currently sits.
 

I believe Judge Sotomayor has the legal experience and the skills to be considered for the Supreme Court. During the confirmation process, questions were raised about her ability to make decisions on the facts presented not on events and facts that became ingrained during her life. Judges must be impartial and allow the facts and the Constitution to speak not their personal experience. For America's judicial system to work, judges must always remain impartial.
  
At her confirmation hearing, Judge Sotomayor stated that her judicial philosophy is ``fidelity to the law.'' This is in contrast to her extensive commentary over the past 15 years, a commentary that emphasizes personal experience over impartiality in a judge's decisionmaking. The contrast is especially troubling when a judge, as was the situation in the case of Ricci v. DeStaphano, fails to articulate the reasons for the decision.
  
In the Ricci case, the firefighters case, an exam was used as part of the promotion process. The exam consisted of a written test as well as an oral test. It was prepared by Industrial Organizational Solutions, a professional testing firm. The test measured individual knowledge, individual skills, and individual abilities related to the specific position being filled.
  
The highest scores on the written exam were achieved overwhelmingly by White firefighters. After the results were posted, the city of New Haven, CT, did not like the results and decided at that point to not use the exam. Several officers sued. They sued the city for taking this action.
  

Who were the officers who sued? One was Frank Ricci, the lead plaintiff. He was a career firefighter. He is dyslexic. To study, he hired and paid someone to read the recommended study books onto an audio tape so he could listen to the tapes. He studied up to 13 hours a day. He gave up a second job, time with his family.
  

Lt Ben Vargas was another officer who sued and testified at Judge Sotomayor's confirmation hearing. He also has a career as a firefighter. He grew up in Fair Haven, which is a neighborhood of New Haven. His father was a factory worker. His family spoke Spanish at home, making school a challenge for him. He is the father of three boys. One of the reasons he joined the lawsuit:
  

I want them [my three sons] to have a fair shake, to get a job on their merits.
  

The district court ruled against the firefighters. Judge Sotomayor's court upheld the lower court ruling dismissing the case. Judge Sotomayor's court issued a one-paragraph opinion summarily dismissing the appeal. Her court failed to cite any precedents for this decision.
  

In June of 2009, the U.S. Supreme Court reversed Judge Sotomayor's opinion. The Supreme Court stated:
  

The City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.
 
The Supreme Court went on to say:
 
The process was open and fair. The problem of course is that after the tests were completed, the raw racial results became the predominant rationale for the City's refusal to certify the results.
 
The Supreme Court's 34-page majority opinion, fully analyzing the facts and the legal issues, stands in stark contrast to the one-paragraph ruling by Judge Sotomayor . The lack of a detailed explanation by the judge's court on an issue that the Supreme Court said was not settled law is one I find troubling. More importantly, it raises doubt, fairly or unfairly, as to why Judge Sotomayor's court ruled the way it did. Through her own words, Judge Sotomayor's ability to completely disown personal beliefs and biases to reach a decision is in question. 
 

I have additional concerns about the principles Judge Sotomayor will apply in deciding future cases involving important issues such as the second amendment. In a 2009 second amendment case decided by Judge Sotomayor's court, her court ruled that the second amendment did not apply to the States. The court cited Supreme Court cases from the 1800s as precedent. But Judge Sotomayor's court went further. They ruled that the second amendment right is not a fundamental right, thereby allowing States and local authorities broad powers to deny individuals the right to bear arms. The court's ruling that the second amendment right is not a fundamental right can't be reconciled with recent decisions on other courts.
  

The U.S. Supreme Court, in a 2008 case, was asked to decide whether the District of Columbia could deny its citizens rights afforded to them under the second amendment. In its ruling, which was issued before Judge Sotomayor's 2009 decision, the Supreme Court said the second amendment confers an individual's right to keep and bear arms. The Court rightfully overturned the laws of the District of Columbia that denied citizens of the District the right to own a firearm.
  

In a 2009 ruling from the Ninth Circuit Court of Appeals, the court concluded that the series of 19th century Supreme Court cases cited by Judge Sotomayor were not controlling on the issue of whether the second amendment establishes a fundamental right. The Ninth Circuit Court concluded the Constitution did confer that right. The court ruled that the second amendment right to bear arms is a fundamental right of the people, and it is to be protected.
  

Judge Sotomayor , if confirmed, will receive a lifetime seat on the highest Court of the land. Her decisions may impact Americans and America for generations to come. Every American has the right to know what standard Judge Sotomayor will apply in judging future cases--fidelity to the law, as she stated in the hearings or, as she has stated in the past: ``My experience will affect the facts I choose to see.''
  

The Senate should know with absolute certainty the standard that Judge Sotomayor will use before confirming her to the Supreme Court. Without having that certainty, I am unable to support her nomination to the U.S. Supreme Court. 
  

 






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