Senate Proceeding 08-04-09 on Aug 4th, 2009 :: 5:49:05 to 6:07:25
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5:48:45 to 5:49:05( Edit History Discussion )

Orrin Hatch: foreign law, to -- quote -- "interpret our law in the best way we can." but in the hearing, she said that -- quote -- "i will not use foreign law to interpret constitution or american statutes." in her speech, she said that judges may use ideas from any source if that they find persuasive, but in the hearing, she said that foreign law cannot

5:49:05 to 6:07:25( Edit History Discussion )
Speech By: Orrin Hatch

5:49:06 to 5:49:27( Edit History Discussion )

Orrin Hatch: be used to influence a legal decision. thes cleay at odds with each other. judge sotomayor took a different tack in answering post-hearing questions. she said that decisions of foreign courts may not serve as -- quote -- "binding or controlling precedent" in deciding cases. the issue, however, is not whether a decision by the

5:49:28 to 5:49:49( Edit History Discussion )

Orrin Hatch: supreme court of france literally binds the supreme court of the united states. of course it doesn't. the issue is whether that foreign decision our supreme court in determining what our statutes and the cons mean. and in her answers to st-hearing questions, judge sotomayor once again said that

5:49:50 to 5:50:12( Edit History Discussion )

Orrin Hatch: decisions of foreign courts can, indeed, be -- quote -- "a source of ideas in forming our understanding of our own constitutional rights." in these speeches, judge sotomayor described how such things as race, gender, life experience, personal sympathies or prejudice -- prejudices

5:50:13 to 5:50:35( Edit History Discussion )

Orrin Hatch: affect judges and their decisions. that is certainly possible. but i waited for her to say that judges have an obligation to eliminate the influence of these factors. i wanted for her to say that because these things judge's impartiality, judges must be vigilant to prevent their influence.

5:50:36 to 5:50:59( Edit History Discussion )

Orrin Hatch: that would have given me more solace about what judge sotomayor's the law" really means. but she never said it. instead, she endorsed the notion that judges may look either inside themselves to their empathy or oside to foreign law for ideas and notions to guide their decisions. turning to her cases, the supreme court has disagreed wit

5:51:00 to 5:51:21( Edit History Discussion )

Orrin Hatch: judge sotomayor in nine of the ten cases three of them in the most recent supreme court term alone. that is nine of her t cases that they have reviewed. and these were not close decisions either. the total vote in the cases

5:51:22 to 5:51:42( Edit History Discussion )

Orrin Hatch: reversing judge sotomayor happen to be a lopsided 52-19. in one case, judge sotomayor had held that the environmental protection agency could not consider cost-benefit analysis when adopting a regulation. the supreme court reversed her, citing its own precedence extending back more than 30

5:51:43 to 5:52:05( Edit History Discussion )

Orrin Hatch: years and hding that the e.p.a.'s use of cost-benefit analysis was well within the bounds of its statutory authority. in another case, judge sotomayor had reopened part of a bankruptcy proceeding that had closed more than 20 years ago to resurrect a tort suit.

5:52:06 to 5:52:27( Edit History Discussion )

Orrin Hatch: judge st or, whom judge sotomayor would replace, wrote the supreme court's 7-2 decision reversing her. in another case, judge sotomayor declared unconstitutional a state law providing for political party election of judges because she felt the law did not give people called a -- quote -- "fair

5:52:28 to 5:52:48( Edit History Discussion )

Orrin Hatch: shot." the supreme court unanimously reversed her saying that it gives -- quote -- "no hint of even the existence much less the content" of the fair shot standard judge sotomayor had invent in one case, the supreme court affirmed judge sotomayor's result but rejected her reasoning because her reading of

5:52:49 to 5:53:10( Edit History Discussion )

Orrin Hatch: the relevant statute -- quote -- "flies in the face of the statutory language." and in one case where the supreme court affirmed both judge sotomayor's result and reasoning, it did so by the slimmest 5-4 margin. now, this is a very shaky record on appeal.

5:53:11 to 5:53:34( Edit History Discussion )

Orrin Hatch: the ricci vs. which has been mentioned quite a cases in which the supreme court reversed judge sotomayor. the court reversed her by a 5-4 vote but unanimously rejected her reasoning. in this casenjury, sotomayor

5:53:35 to 5:53:58( Edit History Discussion )

Orrin Hatch: affirmed the new haven's result of a fairly designed and administered firefighters promotion exam because too few racial minorities passed t. this case presents troubling questions of both process and substance. judge sotomayor initially used a summary order that did not have to be circulated to the full second circuit.

5:53:59 to 5:54:19( Edit History Discussion )

Orrin Hatch: that bothered me a great deal. because judges know when they issue a summary order the rest of the judges probably aren't going to see it. she then converted once it was found by judge jose cabrenas. and once he insisted that the whole circuit look at it. she then converted it to a per curiam opinion that is

5:54:20 to 5:54:40( Edit History Discussion )

Orrin Hatch: permissible only when the law is entirely settled. each was a mere single paragraph paragraph -- each of these cases was a mere single paragraph and neither appears to be an apopriate vehicle for deciding this challenging case. on the merits, title 7 of 1964 civil rights act prohibits

5:54:41 to 5:55:01( Edit History Discussion )

Orrin Hatch: two kinds of discrimination. it prohi treatment, which is intentional, and disparate impact, which must be treatment focuses on the employment decision while disparate impact focuses on its effect. while discrimination cases

5:55:02 to 5:55:25( Edit History Discussion )

Orrin Hatch: typically involve one or the other, the ricci both. in this case, the city claimed it had to -- it had disparate treatment of those who passed the promotion exam because it had -- it feared a

5:55:26 to 5:55:46( Edit History Discussion )

Orrin Hatch: piss ratdisparate impact judge sotomayor and her advocates claimed that they are decision was based squarely on settled and long-standing circuit and supreme court precedent. 've heard some of that here on the floor tonight. contrary to her statement to me at the hearing, however, her one-paragraph opinion cited

5:55:47 to 5:56:09( Edit History Discussion )

Orrin Hatch: precedent at all. the only case she cited was the district court opinion in that very case. but the district court actually acknowledged that this case was the opposite of the rather than those fling an employment test challenge the use of results -- of the

5:56:10 to 5:56:30( Edit History Discussion )

Orrin Hatch: results, in t passed the test challenged the refusal to use the results none of the the district court involve this kind of case. for this reason, six of judge sotomayor's second circuit colleagues believed that the full circuit should have reviewed her decision, arguing

5:56:31 to 5:56:51( Edit History Discussion )

Orrin Hatch: that the case raised important questions the second circuit and the entire nation. contrary to her assertions and very order that she had given and the per curiam opinion. when a

5:56:52 to 5:57:13( Edit History Discussion )

Orrin Hatch: the supreme court similarly observed that there were few, if any, precedence in any court even discussing the issue in this case. in a column published today in tayl whether judge sotomayor's decision in ricci was indealed compelled by -- indeed compelled by precedent.

5:57:14 to 5:57:35( Edit History Discussion )

Orrin Hatch: we've all read stewart taylor through the years. he's one of the most prescient commentators and journalists with regard to the he concludes -- bottom line is that second circuit precedence did not make sotomayor rule as she did. supreme court p

5:57:36 to 5:57:56( Edit History Discussion )

Orrin Hatch: the firefighters. sotomayor's ruling was her own." i ask consent that mr. taylor's column appear in the record following my remarks. the presiding officer: without objection. mr. hatch: i thank the chair. in addition to claiming that her decision in ricci was grounded in either second circuit or supreme court precedent, judge

5:57:57 to 5:58:18( Edit History Discussion )

Orrin Hatch: sotomayor offered at the hearing that the sixth circuit had addressed a similar issue in the same way. i can only assume that she did so to imply tha circuit independently came to the sam parallel case, then would be difficult to say that judge sotomayor's decision in ricci is

5:58:19 to 5:58:41( Edit History Discussion )

Orrin Hatch: controversial. well, i would first note that in oakley vs. city the sixth circuit actually analyzed the case, applied the law to the facts, and issued a real opinion. i wish judge sotomayor h done

5:58:42 to 5:59:05( Edit History Discussion )

Orrin Hatch: it was an important case. a lot of lives depended on it. people worked hard to pass that test. but more importantly, judge sotomayor failed to mention that the sixth circuit and, in fact, relied upon her decision as persuasive authority authority. there is no evidence that her

5:59:06 to 5:59:26( Edit History Discussion )

Orrin Hatch: decision was procedurally or substantively sound. in fact, every evidence to the contrary. neither are her decisions on the second amendment right to keep and bear arms. last year in district of columbia vs. heller, the supreme court clearly identified the proper analysis for whether the second amendment

5:59:27 to 5:59:48( Edit History Discussion )

Orrin Hatch: binds states as well as the federal government. several months later, judge sotomayor ignored that directive and clung to insistence following a different analysis the supreme court had discarded that the arms does not apply to the states. she also held that the right to bear arms is so insignificant

5:59:49 to 6:00:09( Edit History Discussion )

Orrin Hatch: that virtually any conce reason is sufficient to justify a weapons restriction. when i asked her about the restrictions, she refused to acknowledge that the supreme court's so-called rational basis test is its most permissive legal standard. yet this is practically a self-evident truth in the law,

6:00:10 to 6:00:31( Edit History Discussion )

Orrin Hatch: one that judge sotomayor herself cited and applied just last fall to uphold a weapons restriction in maloney v. cuomo. she likewise gave short shrift to the fundamental right to private property. she is an express right in constitution and didn't -- in

6:00:32 to 6:00:54( Edit History Discussion )

Orrin Hatch: didden v. village of portchefort, judge sotomayor affirmed dismissal of a property owner's lawsuit after the village condemned his property gaifnedz it to a developer. the supreme court incorrectly, in my view, had previously held in kilo v. city of new london that economic development can constitute the public use for which the fifth amendment allows

6:00:55 to 6:01:15( Edit History Discussion )

Orrin Hatch: the taking of private property. in didden,owever, the village had only announced plan for economic development. no taking of had occurred. mr. didden sued only after the village actually took his property.

6:01:16 to 6:01:36( Edit History Discussion )

Orrin Hatch: yet in another cursory opinion that for some reason took more than year to produce, judge sotomayor denied mr. didden even a chance to argue his case. she said that the three-year period for filing suit began not when the village actually took his propey but when the village earlier had merely announced its general development plan.

6:01:37 to 6:01:57( Edit History Discussion )

Orrin Hatch: in other words, mr. didden should have sued over the taking of his property before his property had been taken. but had he done so then, he would certainly have been denied his day in court because his legal rights had not yet bee violated. this catch-22 amounts to a case of dismissed if he did and

6:01:58 to 6:02:18( Edit History Discussion )

Orrin Hatch: dismissed if he did not. once again judge sotayor gave protection to a fundamental constitutional right. this is important stuff. in another effort to block the impact th society coats attempt to portray her as moderate by observing

6:02:19 to 6:02:39( Edit History Discussion )

Orrin Hatch: that on the second circuit she agreed with republican-appointed colleagues 95% of the time. on the other hand, this is one of several misguided attempts to defend her by suggesting that a calculator s. is all it takes properly to evaluate a judicial record. on the other hand this claim comes

6:02:40 to 6:03:00( Edit History Discussion )

Orrin Hatch: senators who voted against justice samuel alito just a few years ago. on the agreed with his democratic-appointed colleagues 99% of the time longer it shows how specious some of the arguments are. let me return to where i began.

6:03:01 to 6:03:22( Edit History Discussion )

Orrin Hatch: i believe that judge sotomayor is a good i respect her achievements and applaud her service to her community, the the country. while appointment of the first puerto rican justice says a lot about america, how believe appointed a justice with her judicial philosophy says the wrong thing about the power and role of judges in our system of

6:03:23 to 6:03:44( Edit History Discussion )

Orrin Hatch: government. i might add that i was very concerned with her answers when i asked her questions about abortion and about the amicus curiae briefs that rican defense fund had filed. she said she knew nothing those, even though she had 1

6:03:45 to 6:04:07( Edit History Discussion )

Orrin Hatch: different positions, if i recall it correctly, on that trust. and at one time headed the litigation department. that bothered me the nominee's approach to judging is more important than her supreme court, where

6:04:08 to 6:04:29( Edit History Discussion )

Orrin Hatch: cooperate -- or should i say operate with the fewest constraints. judge sotomayor had expressed particularly adoration for benjamin cardozo, often mentioned as one of the premier judges in the history of the supreme court. his book on the judicial process contains a chapter titled, "the

6:04:30 to 6:04:51( Edit History Discussion )

Orrin Hatch: judge as a legislator" in which he compares judges legislators who decide cases on the basis of personal reflections and considerations. that sounds very much like president obama's appointment standard and judge sotomayor's express judicial philosophy. i believe it is inconsistent

6:04:52 to 6:05:12( Edit History Discussion )

Orrin Hatch: with the limited role that america's founders prescri for judges in our system of government. my colleagues know that i take a generous approach to the confirmation process, and i believe some deference to the president of the united states of his i have rarely voted against judicial nominee and took very

6:05:13 to 6:05:35( Edit History Discussion )

Orrin Hatch: seriously the question of whether to do so now. to that end, i studied her speeches, articles, and cases. i spoke with advocates from different perspectives. i participated in all three question rounds during the judiciary committee hearings, but in the end neither general deference to the president nor a

6:05:36 to 6:05:57( Edit History Discussion )

Orrin Hatch: specific desire to support an the serious conflicts between judge sotomayor's record and the principles about the judiciary and liberty in which i deeply believe. i wathe one who republican senatorial hispanic task force and ran if for many

6:05:58 to 6:06:19( Edit History Discussion )

Orrin Hatch: years bringing democrat, independent, and together in the best interests of the hispanic community, trying to give them more of a voice. so i feel pretty deeply about hispanic people, as i do all people i just want everybody to know

6:06:20 to 6:06:41( Edit History Discussion )

Orrin Hatch: that this took a lot of consideration on my part to come to the that i've come to. i wish president obama had taken a different course, but this is a decision that i have to make in t

6:06:42 to 6:07:02( Edit History Discussion )

Orrin Hatch: like sotomayor. i particularly like her life story -- a mother, a brother, other members of the family who were there. the last thing on earth i want to do is vote against her, but i think i've given just a few of the thoughts that i have on this matter tonight, and i think

6:07:03 to 6:07:24( Edit History Discussion )

Orrin Hatch: these are serious, important things. she's going to b sure, by this body. and i will wish her well. and nothing would make me happier -- nothing would make me happier than to see sherr become a great justice on the united states supreme court. i hope she proves me wrong, and

6:07:25 to 6:07:39( Edit History Discussion )

Orrin Hatch: i'm going mr