Senator Cornyn's Statement on Nomination of Judge Sotomayor
by John Cornyn on July 24, 2009 at 1:46 PM
As a member of the Senate Judiciary Committee, I announced on the Senate floor today my intention to vote against the nomination of Judge Sonia Sotomayor. My remarks are as follows:
Today I would like to address the nomination of Judge Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States.
The power to give our advice and consent on judicial nominees is one of the most solemn responsibilities delegated to the United States Senate in our Constitution. Supreme Court Justices have always had tremendous power within our constitutional system of separated and enumerated powers. Yet in recent decades, Supreme Court Justices have taken even more power away from the people’s elected representatives – and imposed their own policy views through their judicial opinions.
We now see that five votes on the Court can invent new “rights” that aren’t found in the Constitution – or narrow the scope of rights that generations of Americans have regarded as fundamental. Each Justice serves for life – so every time a nominee comes before us, we must exercise the power of advice and consent with great care.
Senators must exercise our powers with care – and with respect for each and every nominee. Sadly, over the last several decades, judicial nominees have not always been treated with respect. Some nominations have quickly become politicized. We have seen outrageous accusations to score political points with one constituency or another.
I remain deeply frustrated by the treatment of Miguel Estrada for the DC Court of Appeals. He was filibustered seven times and refused an up-or-down vote – because many Senators shared my view that – had he been confirmed – he could have been the first Hispanic nominated to serve on our nation’s highest Court.
Instead, that honor goes to the nominee we have before us – Judge Sonia Sotomayor. From the beginning, I was determined that Judge Sotomayor’s hearings would be different from many of those in the past.
When I first met her in June, I promised that she would receive a fair and respectful hearing. When individuals and organizations said or did things that cheapened the process, I said so. When supporters and opponents of Judge Sotomayor made accusations of racism, I repudiated them – because I believe that all such accusations are unfair, untrue and incompatible with a respectful and dignified consideration of her nomination.
In the end, I was pleased that Judge Sotomayor said that she couldn’t have received fairer treatment during her hearing.
Fair treatment means neither pre-judging nor pre-confirming the nominee. Fair treatment means looking at Judge Sotomayor’s record – as well as her public statements about the role of judging. Fair treatment means giving her the opportunity to explain her record and her statements – and put them in the appropriate context.
So going into the hearings – I found much to admire about Judge Sotomayor’s record. She is an experienced judge with an excellent academic background. She has the temperament we expect from members of our highest court. And – for the most part – her decisions as a District Court judge and on the Second Court of Appeals were within the mainstream of American jurisprudence.
Yet going into the hearings, I also had questions that I felt she needed to answer. While her record was generally in the mainstream, several of her decisions demonstrated the kind of liberal judicial activism that has steered the court in the wrong direction over the last few years.
And many of her public statements reflected a surprisingly radical view of the law. Now, some have said that we can ignore her speeches – and just focus on her decisions as a judge. I disagree. Judges on our lower courts have less room to maneuver that those on the Supreme Court. Supreme Court Justices can more easily ignore precedents or reinterpret them. This is why Judge Sotomayor’s speeches on judicial philosophy matter to me.
And those speeches contain very radical ideas on what the role of a judge is. In her speeches, she said: there is no objectivity in law; courts should change the law to make new policy; and ethnicity and gender can and even should impact a judge’s decision making.
I’ve served as a judge – and I strongly disagree with this view of the law and what the role of a judge should be. I believe in the rule of law, impartial justice and equal justice under the law.
Despite my concerns about some of her decisions – as well as many of her public statements about judging – I went into the hearings with an open mind. I felt she deserved the opportunity to explain how she approached some of the most controversial cases on which she ruled – and to put her public statements into context. I hoped that she would use the hearings to clear up the confusion that many of us had – about what kind of Justice she would be.
The hearings were an opportunity for Judge Sotomayor – and ultimately, in my view, a missed opportunity. Regarding her public statements about judging, I was surprised to hear her say that: She meant exactly the opposite of what she said. She had been misunderstood every single time. And that she doesn’t really believe any of these radical ideas after all – her views on the law are right in line with Chief Justice John Roberts.
And regarding her most controversial decisions, she refused to explain them on the merits. She did not explain her legal reasoning or the constitutional arguments she found persuasive. She hid behind process arguments and judicial procedure whenever she could. She assured us her decisions were guided by precedent – even when many of her colleagues on the Second Circuit and a majority of the Supreme Court disagreed.
So at the end of the hearings, I found myself asking: will the real Judge Sotomayor please stand up?
Some have argued that if I am uncertain about what kind of Justice she’d be, I should vote to confirm Judge Sotomayor anyway. I disagree. Voting to confirm Judge Sotomayor – despite my doubts – would certainly be the politically expedient thing to do. But it would not be the right thing to do.
The future decisions of the Supreme Court will have great impact on all Americans. The Court could weaken the Second Amendment right of Americans to keep and bear arms. The Court could fail to protect the Fifth Amendment private property rights of our people from cities and states that want to condemn their property for non-public uses. The Court could invent new rights that appear nowhere in the Constitution – based on foreign law, a liberal social agenda or the latest intellectual fad.
The stakes are simply too high for me to confirm someone who could address all these issues from a liberal, activist perspective.
I will vote against confirmation of Judge Sotomayor to be an Associate Justice of the Supreme Court of the United States. I will vote with the certain knowledge that she will be confirmed despite my vote. I wish her well. I congratulate her on her historic achievement. I know she will be an inspiration to young people – within the Hispanic community and beyond.
And I hope she proves that my doubts are unfounded. The Justice she is replacing, after all, proved to have a far different impact on the Court than many of us anticipated. Perhaps Justice Sonia Sotomayor will surprise us all.