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Senator Specter’s Opening Statement on Sotomayor
Washington, D.C.
Monday, July 13, 2009 -
U.S. Senator Arlen Specter (D-Pa.) today delivered the following opening statement during the confirmation hearing of Judge Sonia Sotomayor to serve on the Supreme Court of the United States:
I join my colleagues, Judge Sotomayor, in welcoming you and your family here.
I compliment the president for nominating an Hispanic woman. I think it was
wrong for America to wait until 1967 to have an African-American justice,
Thurgood Marshall, on the court. We waited too long - until 1981 - to have the first
woman justice, Sandra Day O'Connor. I think, as a diverse nation, diversity is
very, very important.
You bring excellent credentials, academically and professionally, with
your service on the court. But the Constitution requires the process
for this committee, and then the full Senate, to consider in detail
your qualifications under our consent function.
Most of the questions which will be asked of you in the course of
these hearings will involve decided cases. I intend to ask about
decided cases, but also about cases that the Supreme Court decided not
to decide. And on the rejection of cases for decisions, it's a big
problem.
The court, I would suggest, has time for more cases. Chief Justice Roberts noted,
in his confirmation hearing, that the decision of more cases would be very helpful.
If you contrast the docket of the Supreme Court in 1886 with currently, in 1886
there were 1,396 cases on the docket, 451 were decided. A century later, there were
only 161 signed opinions. In 2007, there were only 67 signed opinions.
I start on the cases which are not decided, although I could
start in many, many areas. I could start with the Circuit splits, where
one Court of Appeals in one section of the country goes one way and
another Court of Appeals goes the other way. The rest of the courts
don't know which way the precedents are, and the Supreme Court decides
not to decide.
But take the case of the terrorist surveillance program, which
was President Bush's secret, warrant-less wiretaps and contrast it
with congressional authority exercised under Article I on the Foreign
Intelligence Surveillance Act, providing the exclusive way to have
wiretaps, perhaps the sharpest conflict in the history of this great
country on the Article I powers of Congress and the Article II powers
of the president as Commander-In-Chief.
The Federal District Court in Detroit said the terrorist surveillance program
was unconstitutional. The Sixth Circuit decided two-to-one that the plaintiffs did not
have standing. I thought the dissenting opinion was much stronger
than the majority opinion. And standing, as we all know, is a very
flexible doctrine and, candidly, at least as I see it, used frequently
by the court to avoid deciding a case.
Then, the Supreme Court of the United States denied certiorari,
decided not to hear the case, didn't even decide whether the lack of
standing of standing was a justifiable basis. This has led to great
confusion in the law, and it's as current as this morning's newspapers
reporting about other secret programs which, apparently, the president
had in operation.
Had the Supreme Court of the United States taken up the terrorist
surveillance program, the court could have ruled on whether it was
appropriate for the president not to notify the chairman of the
Judiciary Committee about the program. We now have a law which says
all members of the Intelligence Committees are to be notified. Well,
the president didn't follow that law. Did he have the right to do so
under Article II powers? Well, we don't know.
Or within the past two weeks, the Supreme Court denied hearing a
case involving claims by families of victims of 9/11 against Saudi
Arabia, of Saudi Arabian Commissions and four princes in Saudi Arabia.
The Congress decided what sovereign immunity was in legislation in
1976 and had exclusions for torts. But the Supreme Court denied an
opportunity for those families who had suffered grievously from having
their day in court.
One of the questions, when my opportunity arises, will be to ask you what would be
the standards that you would employ in deciding what cases the Supreme Court would hear.
There is currently a major matter, an issue, on the Voting Rights
Act. And the conflict has been present for many years between the
authority of Congress to decide what is the factual basis for
legislation, the standard which Justice Harlan decided in the Maryland v Wirtz
case, was a rational basis.
The Supreme Court more recently has adopted a standard of
congruency and proportionality, a standard which Justice Scalia has
said is a “flabby” test, which invites judicial lawmaking. You'll hear
a lot of that in this hearing, about a judge's responsibility to
interpret the law and the statutes, and not to make laws. During the
confirmation hearing of Chief Justice Roberts, he said in pretty plain terms
that the Court ought to allow the Congress to decide what the factual basis is and for
the Court to do otherwise is to engage in judicial legislation.
The Voting Rights case was decided on narrow grounds. But it
certainly looks, if you read the record, that the Court is about ready
to upset the Voting Rights case, just like it did in Alabama v Garrett on
the Americans With Disabilities Act, notwithstanding a vast record establishing the basis.
So, I would like to know what your standard will be, if confirmed: a rational basis,
which had been the traditional standard, or congruence and proportionality? And
if you tell me congruence and proportionality, then I'll ask you what it means,
because it slips and slides around so much, that it's impossible to tell what a constitutional standard is.
And we senators would like to know what the standards are, so we
know what to do when we undertake legislation.
Your decision on the circuit court in a case captioned Entergy
Corporation v. Riverkeeper, Incorporated, involving the Environmental
Protection Agency and the Clean Water Act, has a special prominence,
now that we are debating climate control and global warming.
In the 2nd Circuit opinion, you were in the majority, deciding
that it was the best technology. The Supreme Court reversed 5-4,
saying that it turned on a cost-benefit analysis. It, I think, is
worthy of exploration, although what you answer, obviously is a matter
of your discretion as to whether -- on a 5-4 decision it's hard to say
who's really right, the five or the four, as a matter of interpreting
the Constitution or the statute.
Having a different view, I'd be interested to know, if you'd care
to respond when the time comes, as to whether you'd be with what had
been the minority. And perhaps a voice as strong as yours in the
conference room would produce a different result. It could have a
real impact on what we're legislating now, on cap-and-trade.
With the few seconds I have left, I'd like to preview some questions on televising the court.
I don't know why there is so much interest here today. I haven't
counted this many cameras since just Alito was sitting where you're sitting.
You've had experience in the district court with television.
You're replacing Justice Souter, who said that if TV cameras were to
come to the court, they'd have to roll over his dead body.
If you're confirmed, they won't have to roll over his dead body.
But the court decides all the cutting-edge questions of the day.
The Senate is televised, the House is televised. A lot of people are
fascinated by this hearing.
I'd like to see the court televised. You can guess that.
Thank you very much, Judge Sotomayor.
Thank you, Mr. Chairman.
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