GRASSLEY: I assume that I get the time that he didn't use.
LEAHY: No, no. After you demonstrated -- was it yesterday you demonstrated that you intend to turn people on. We don't need any more -- we don't
need any more excitement, Senator Grassley. We want it as low key as possible. But you -- you do have up to 20 minutes. The operative word is up to 20
minutes.
GRASSLEY: Now, I believe that I'm going to ask you something you never been asked before during this hearing, I hope. I'd like to be original on
something.
I want to say to you that there's a Supreme Court decision called Baker v. Nelson, 1972. It says that the federal courts lack jurisdiction to hear
due process and equal protection challenges to state marriage laws, quote, "for one of substantial federal question," which obviously is an issue the courts
deal with quite regularly. I mean, the issue of is it a federal question or not a federal question. So do you agree that marriage is a question reserved
for the states to decide based on Baker v. Nelson?
SOTOMAYOR: That also is a question that's...
GRASSLEY: I thought I was asking...
SOTOMAYOR: ... pending and impending in many courts. As you know, the issue of marriage and what constitutes it is a subject of much public
discussion. And there's a number of cases in state courts addressing the issue of what -- who regulates it, under what terms.
GRASSLEY: Can I please interrupt you? I thought I was asking a very simple question based upon a precedent that Baker v. Nelson is based on the
proposition that yesterday in so many cases, whether it was Griswold, whether it was Roe v. Wade, whether it was Chevron, whether it's a whole bunch of other
cases that you made reference to, the Casey case, the Gonzalez case, the Leegin Creative Leather Products case, the Kelo case. You made that case to me.
You said these are precedents. Now, are you saying to me that Baker v. Nelson is not a precedent?
SOTOMAYOR: No, sir. I just haven't reviewed Baker in a while. And so, I actually don't know what the status is. If it is the court's precedent,
as I've indicated in all of my answers, I will apply that precedent to the facts of any new situation that implicates it.
GRASSLEY: Well...
SOTOMAYOR: What was the first question...
GRASSLEY: ... then, tell me -- tell me what sort of a process you might go through if a case -- a marriage case came to the Supreme Court of whether
Baker v. Nelson is precedent or not. Because I assume if it is precedent, based on everything you told us yesterday, you're going to follow it.
SOTOMAYOR: The question on a marriage issue will be two sides will come in. One will say Baker applies. Another will say this court's precedent
applies to this factual situation, whatever the factual situation is before the court. They'll argue about what the meaning of that precedent is, how it
applies to the regulation that's at issue. And then the court will look at whatever it is that the state has done, what law it has passed on this issue of
marriage and decide, OK, which precedent controls this outcome.
It's not that I'm attempting not to answer your question, Senator Grassley. I'm trying to explain the process that would be used. Again, this
question of how and what is constitutional or not or how a court will approach a case and what precedent to apply to it is going to depend on what's at issue
before the court. Could the state do what it did?
GRASSLEY: Can I interrupt you again? Following what you said yesterday, that certain things are precedent, I assume that you've answered a lot of
questions before this committee about, even after you said that certain things are precedent, of things that are going to come before the court down the road
when -- if you're on the Supreme Court. You didn't seem to compromise or hedge on those things being precedent. Why are you hedging on this?
SOTOMAYOR: I'm not on this because the holding of Baker v. Nelson, as it's holding. As a holding, it would control any similar issue that came up.
It's been a while since I've looked at that case, so I can't, as I could with some of the more recent precedent of the court or the more core
holdings of the court on a variety of different issues, answer exactly what the holding was and what the situation that it apply to.
I would be happy, Senator, as a follow up to a written letter or to give me the opportunity to come back tomorrow and just address that issue. I'd
have to look at Baker again.
GRASSLEY: I would appreciate it.
SOTOMAYOR: It's been too long since I've looked at it. And so -- it may have been, sir, as far back as law school, which was...
GRASSLEY: Oh, you were probably...
SOTOMAYOR: ... 30 years...
GRASSLEY: ... probably in grade school, you were, at that time.
SOTOMAYOR: It was -- that I looked at it, sir.
GRASSLEY: OK.
I want to go on and -- but I would like to have you do that, what you suggested, you'd answer me further after you studied it.
I have a question that kind of relates to the first question. In 1996, Congress passed and President Clinton signed into law the Defense of Marriage
Act, which defined marriage for the purpose of federal law as between one man and one woman. It also prevents a state or territory from giving effect to
another state that recognized same-sex marriages.
Both provisions have been challenged as unconstitutional, and federal courts have upheld both cases. One is a Wilson case; one is a Bishops case. A
district court -- yes, a district court. Do you agree with federal courts, which have held that the Defense of Marriage Act does not violate the full faith
and credit clause and is an appropriate exercise of Congress's power to regulate conflicts between laws of different states?
SOTOMAYOR: That's very similar to the Austin situation, but the ABA rules would not permit me to comment on the merits of a case that's pending or
impending before the Supreme Court.
The Supreme Court has not addressed the constitutionality of that statute. And to the extent that lower courts have addressed it and made holdings,
it is an impending case that could come before the Supreme Court, so I can't comment on the merits of that case.
GRASSLEY: Have you ever made any rulings on the full faith and credit clause?
SOTOMAYOR: I may have, but if your specific question is, have I done it with respect to a marriage-related issue, no.
GRASSLEY: Well, not -- on -- on anything on the full faith and credit clause.
SOTOMAYOR: I actually have no memory of doing so.
GRASSLEY: OK. That's OK. No, you can stop there. That's OK.
Now, I'm going to go to a place where Senator Hatch left off, but I'm not going to repeat any of the questions that he asked. But there's one that I
want to ask. And I feel a little bit guilty of this. My dad used to have a saying to us kids that we're harping on something. He says, "When are you going
to quit beating a dead horse?" But I want to ask you anyway.
You also wrote, quote, "I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our
differences as women and men of color, we do a disservice both to the law and to society," end of quote.
So the certain I have about the statement is indicating that you believe judges should and must take into account gender, ethnic background, or other
personal preferences in their decision-making process. Is that what you meant?
And I want to follow it up so I don't have to ask two questions. How is being impartial a disservice to the law and society? Isn't justice supposed
to be blind?
SOTOMAYOR: No, I do not believe that judges should use their personal feelings, beliefs or value systems, or make -- to influence their outcomes,
and neither do I believe that they should consider the gender, race or ethnicity of any group that's before them. I absolutely do not believe that.
With respect to -- yes, is the -- is the goal of justice to be impartial? That is the central role of a judge. The judge is the impartial decision
-maker before parties who come before them.
My speech was on something else, but I have no quarrel with the basic principles that you have asked me to recognize. No quarrel sounds equivocal.
I do believe in those things absolutely, and that's what I have proven I do as a judge.
GRASSLEY: OK. Then the last one on this point of another remark you made. You also stated that you, quote, "further accept that our experiences as
women and people of color affect our decisions," end of quote, and then, further quote, "that personal experiences affect the facts that judges choose to
see" and that, further quote, "there will be some differences in my judging" -- "differences in judging" is in parentheses -- "based on my gender and Latina
heritage." Do you believe that it is ever appropriate for judges to allow their own identity politics to influence their judgment?
SOTOMAYOR: No, sir, absolutely not.
GRASSLEY: OK. Then I want to move on to another area. This question comes from your 1992 Senate questionnaire. You wrote in response to a
question about judicial activism that, quote, "intrusions by a judge upon the functions of other branches of government should only be done as a last resort
and limitedly."
Is this still your position? And let me follow up. When would such an intrusion be justified? For example, what is an example of last resort?
What is an example of limitedly?
SOTOMAYOR: The answer is, judges -- and the manner in which that question was responded to -- was, to the extent that there has been a violation of
the Constitution in whatever manner a court identifies in a particular case, it has to try to remedy that situation in the most narrow way in order not to
intrude on the functions of other branches or actors in the process.
The case that I -- was discussed in my history has been the Doe case, in which I joined the panel decision where the district court had invalidated a
statute that -- found unconstitutional a statute that the legislature had passed on national security letters.
Our panel reviewed that situation and attempted to discern and did discern Congress's intent to be that despite a -- isolated provisions that might
have to be narrowly construed to survive constitutional review, it held that the other provisions of the act were constitutional.
So the vast majority, contrary to what the district court -- and I'm not suggesting it was intending to violate what I'm describing, but the court
took a different view than the circuit did, we upheld the statute in large measure.
To the extent that we thought there were and found that there were two provisions that were unconstitutional, we narrowly construed them in order to
assist in effecting Congress's intent. That's what I talked about limitedly in that answer.
GRASSLEY: OK. A little bit along the same line in your law review articles you wrote that, quote: "Our society would be straight-jacketed were not
the courts, with the able assistance of the lawyers, constantly overhauling," and I don't know whether that's your emphasis or mine, but I've got it
underlined, "overhauling the law and adapt" -- maybe I had better start over again.
Quote: "Our society would be straight-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and
adapting it to the realities of ever-changing social, industrial, and political changes."
Explanation of the statement from you. I think you're saying that judges can twist the law regardless of what the legislature, the elected branch of
government has enacted into law. It's kind of my interpretation of that.
Now obviously I think you're going to tell me you don't mean that, but at least you know where I'm coming from.
SOTOMAYOR: No, that interpretation was clearly not my intent. And I don't actually remember those particular words. But I do remember the speech.
I'm assuming you're talking about "Returning Majesty to the Law."
And there I was talking about a broader set of questions which was how to bring the public's respect back to the function of judges. And I was
talking about the judges that lawyers have an obligation to explain to the public the reasons why what seems unpredictable in the law has reasons.
And I mentioned in that speech that one of the big reasons is that Congress makes new laws. That was the very first reason I discussed. And also
that there is new technology, there is new developments in society.
And what lawyers do is come in and talk to you about, OK, we've got these laws, how do you apply them to this new situation? And what judges do --
and that's why I was talking about the assistance of judges, is -- of lawyers, is what you do is you look at the court's precedents, you look at what a
statute says, and you try to understand the principles that are at issue and apply them to what the society is doing.
And that was the focus of my speech which was, talk to the public about the process. Don't feed into their cynicism that judges are activists, that
judges are making law. Working at explaining to the -- to the public what the process is. I also talked to -- part of my speech is what judges can do to
help improve respect of the public in the legal process.
GRASSLEY: So the use of the word overhaul does not in any -- overhaul the law does not in any way imply usurpation of legislative power by the
courts?
SOTOMAYOR: Right. No. And if you look at what I was talking about, it was the society develops. We are not today what we were a hundred years ago
in terms of technology, medicine, so many different areas.
GRASSLEY: Yes.
SOTOMAYOR: There are new situations that arise and new facts that courts look at. You apply the law to those situations, but that is the process of
judging, which is sort of trying to figure out what does the law say about a set of facts that may not have been imagined at the time of the founding of the
Constitution but it's what the judge is facing then. How do you apply it to that?
GRASSLEY: I want to go back to Didden based upon my opportunity to reflect on some things you said yesterday. The -- the time limit to file a case
in Didden was three years. Mr. Didden was approached for what he classified as extortion in November 2003. Two months later in January of 2004, he filed
his lawsuit.
But under your ruling, Mr. Didden was required to file his lawsuit in July 2002, close to a year and-a-half before he was actually extorted. So that
doesn't make sense to require someone to file a lawsuit on a perceived chance that an order might occur.
You also testified that the Supreme Court's Kelo decision was not relevant to the Didden holding. But your opinion in cursory fashion, which is a
problem that we've addressed yesterday, states that if there was no statute of limitation issue, Kelo would have permitted Mr. Didden's property to be taken.
It's hard to believe that an individual's property can be seized when he refuses to be extorted without any Constitution violation taking place.
It's even hard to believe that under these circumstances Mr. Didden did not deserve his day in court or at least some additional legal analysis.
Could you please explain how Mr. Didden could have filed his lawsuit July 2002 before he was extorted in November 2003? And also please explain why
a July 2002 filing would not have been dismissed because there was no proof that Mr. Didden had suffered an injury, only an allegation that he might be
injured in the future.
SOTOMAYOR: The basis of Mr. Didden's lawsuit was the state can't take my property and give it to a private developer and because that is not
consistent with the takings clause of the Constitution. To the extent he knew the state -- and there's no dispute about this, that the state had found a
public use for his property, that it had a public purpose, that it had an agreement with a private developer to let that developer take the property -- he
knew that he was injured because his basic argument was, "The state can't do this. It can't take my property and give it to a private developer"
The Supreme Court in Kilo addressed that question and said, "Under certain circumstances, the state can do that if it's for a public use and for a
public purpose" And so his lawsuit, essentially addressing that question, came five years after he knew what the state was doing.
The issue of extortion was a question of whether the private developer, in settling a lawsuit with them, was engaging in extortion and extortion is
an unlawful asking of money with no basis. But the private developer had a basis. He had an agreement with the state. And so that is a different issue
than the timeliness of Mr. Didden's complaint.
LEAHY: Thank you.