Bunning Nails It: Sotomayor "Unsuitable"

Two term incumbent United States Senator Jim Bunning rose to address the United States Senate for the purpose of explaining his intentions to vote against the confirmation of Sonia Sotomayor for Supreme Court.  Here are his remarks:

Mister President, today I rise to speak on the nomination of Judge Sonia Sotomayor to be a Justice on the United States Supreme Court.  After much consideration, I cannot support this nomination.

I have been following this process closely.  I have been reading her rulings and her speeches.  I have been watching her hearing at the Senate Judiciary Committee.  I met with her one-on-one and was able to ask her questions.  Unfortunately, I find her to be unsuitable to be a member of the United States Supreme Court.

The first problem I would like to discuss is her lack of direct answers to direct questions.  I had this problem in my meeting with her and it appears from watching the Judiciary Committee hearings that other members have had that problem too.  My biggest concern in this area is that she answered the questions from the perspective of the job she has, not the job she has been nominated for.  As a member of the district or circuit court, she must rely heavily on precedent.  However, as a Justice of the Supreme Court, she is in the position to set precedent.  When I asked her simple questions about how she would treat certain subjects, she retreated to saying that she would use precedent to decide how to proceed.  I found this unsatisfactory because she would be setting precedent as a member of the Supreme Court.  In fact, throughout her nomination process I have seen her sidestep direct questions time and time again.  We have seen this happen numerous times during her hearing before the Judiciary Committee.  I think we deserve answers to these questions and we have not gotten them.

However, we can learn about her views and how she might perform on the Supreme Court by studying her record.  She has an extensive record, which includes seventeen years as a judge and, prior to that, time spent as a prosecutor, in private practice, and as a member of groups such as the Puerto Rican Legal Defense and Education Fund.  This gives us much to look at, such as her decisions, speeches, and other sources.  I have studied these and I would like to comment on them and her views.

When I spoke on the nomination of Chief Justice John Roberts in 2005, I pointed out the problem of the Supreme Court and other judges trying to replace Congress and state legislatures.  Important social issues have been taken out of the political process and decided by unelected judges.  I can say with certainty that this was not the way the Founding Fathers and authors of the Constitution intended for it to work.

The creation of law is reserved for elected legislatures, chosen by the people.  The Supreme Court is not a nine person legislature created to interact with or replace the United States Congress.  When judges and justices take the law into their own hands and act as if they were a legislative body, it flies in the face of the Constitution.  Because of this, whether in the Supreme Court or in lower courts, many people have lost respect for our judicial system.  This cannot continue to happen.  In addition to obvious constitutional concerns, if someday the public and the rest of the political system begin to tune out the courts and ignore their decisions altogether, it would be grave for our country.

During their confirmations, I felt that Chief Justice Roberts and Justice Alito understood this.  That is probably the biggest reason why I voted for them.  I am afraid that I cannot say the same about Judge Sotomayor. 

Much has been said about Judge Sotomayor’s “wise Latina woman” comments.  Even though they have been discussed many times over, they are still relevant and speak to her views on the role of judges.  In her infamous 2001 speech, she said that “a wise Latina woman” would “more often than not reach a better conclusion than a white male.”  This shows a clear method of her thinking and indicates she accepts the idea that personal experiences and emotions influence a judge’s rulings, rather than the words of the law and the Constitution. 

She used the “wise Latina woman” phrase in at least four other speeches, most recently in 2004.  The fact that it was repeated so often indicates that she believes it.  She has said that the notion of impartiality on the bench is “an aspiration” and has gone on to claim that “by ignoring our differences as women or men of color we do a disservice both to law and society.”  When President Obama began discussing what sort of person he wanted to nominate to Supreme Court, he put a premium on the nominee having “empathy.”  Well, it appears that he got his wish.

Empathy in and of itself is not a bad thing.  However, in this context it means that the law would lose out to a justice who feels an emotional pull to rule one way or the other.  Empathy belongs best in legislatures, where it can reflect the wishes of the people who voted for the members of those bodies.  This is not the job of the Supreme Court, or any other court of law for that matter.  I do not have faith that Judge Sotomayor would fully respect the roles of the judiciary and the legislature.

While understanding that the role of the Supreme Court is interpreting law instead of making it might be the most important quality of a Justice, there will be times when precedent must be set and it is crucial that this is done correctly.  Now, I understand a nominee’s hesitancy to discuss a case or issue that might come before them, but I do think they can explain their methods for arriving at a conclusion.  During the confirmation hearings of Justices Roberts and Alito, they were both willing to walk through their decision making process.  However, Judge Sotomayor has been unwilling to do even this.  It is unfortunate, but I have no basis to understand how Judge Sotomayor will think through a case as a member of the highest court in the land. 

Her views on race, as seen in the Ricci case, are troubling.  The city of New Haven decided to throw out the results of their firefighter promotional exam because they felt that not enough minorities had passed it.  Many who passed that exam had made great sacrifices to prepare for the test, including the lead plaintiff, Frank Ricci, who overcame a disability to pass it with flying colors.  Seventeen white and one Hispanic firefighter filed suit that this was reverse discrimination and their case eventually found its way before Judge Sotomayor at the Second Circuit.  She dismissed their claims in a one-paragraph opinion that cited no precedent and was later roundly criticized by judges of all stripes.  Fortunately, just last month, the Supreme Court overturned this erroneous decision.

Judge Sotomayor also has shown an unacceptable hostility to Second Amendment rights.  In the recent Heller Supreme Court ruling, it was found that the Second Amendment confers an individual right to keep and bear arms.  However, in two cases Judge Sotomayor has lent her name to extremely brief opinions that the Second Amendment is not a fundamental right.  Her rulings, and the lack of explanation on them, indicate that she is hostile to the Second Amendment and will not protect it with the same energy as she might for any of the other nine amendments in the Bill of Rights.  She has not stated that she believes a clearly spelled out right, such as the Second Amendment, is fundamental, but she is willing to recognize that something that is not clearly spelled out, such as a right to privacy, is fundamental.  I fear that her appointment to the Supreme Court could undo the progress from the Heller decision that recognizes Americans have the right to defend themselves.

Another area of concern is Judge Sotomayor’s views on the use of foreign law in American courts.  Less than three months ago, she said she believes “that unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases, that we are going to lose influence in the world.”  First of all, the court’s responsibility is to review the laws passed by the government that it is a part of, not laws passed by a foreign government.  Second of all, if there is a foreign law that looks like a good idea, then an elected legislature should consider it and, if it has merit, pass it into law.  Judges should not be looking around the country or the globe for laws that they like and then trying to implement them. 

Judge Sotomayor has a history of writing or signing onto brief and inadequate opinions that are not suitable for the gravity of the matters she is ruling on.  In the Ricci firefighter case that I discussed earlier, half of the judges on her court criticized her opinion as a “perfunctory disposition” that “rests uneasily with the weighty issues presented by this appeal.”  The opinion was only one paragraph long.  When the Supreme Court issued its majority opinion on the case it was 34 pages.  In one of the cases I mentioned above, she joined a summary panel opinion and discarded the idea of the Second Amendment as a fundamental right in a one-sentence footnote.  This is unacceptable.

What is perhaps most shocking about these exceedingly brief investigations of the law was that they affected very important cases on very important issues.  For instance, the Ricci case could become the affirmative action case of this generation and it received only one paragraph of analysis from Judge Sotomayor.  Her casual treatment of Second Amendment cases flies in the face of the efforts the Supreme Court has put into these decisions.  The United States Supreme Court is the last stop for important legal decisions and a Justice must provide explanation and insight to the country on how and why they ruled the way that they did.  Judge Sotomayor did not do that for these extremely important cases. 

This will be the first time that I have voted against a Supreme Court nominee and I am not happy that I have to do so.  However, it is the Constitutional role of the Senate to provide confirmation for this position and my duty as a Senator is to be a part of this process.  On viewing the record of Judge Sonia Sotomayor, I do not find her to be a suitable candidate for Justice of the Supreme Court of the United States, and will vote against her whenever the Senate considers her nomination.

I yield the floor.

 

 

Comments

[KyRepNews]

Bunning has it right, as always. He might be an arrogant old cuss, but he votes right. Why any conservative would go against him is beyond me (unless of course, he wouldn't kiss the godfather's ring).
Go Jim, the conservatives are with you. Hang in there, another check's in the mail this weekend ...
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