Orrin HatchU.S. Senator Class 1
[R] Utah, United States

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Mr. HATCH. Mr. President, I thank my colleague for his comments. He knows how deeply I respect him and how proud I am that he is the Republican leader on the Judiciary Committee. He will do a terrific job, and has been doing a terrific job, ever since he took over.

Considering a Supreme Court nominee is one of this body's most important responsibilities. I come at this wanting to support whomever the President nominates. The President has the right to nominate and appoint, and we have a right, it seems to me, to vote up or down one way or the other and determine whether we will consent to the nomination. We can also give advice during this time.

Only 110 men and women have so far served on our Nation's highest Court, and President Obama has now nominated Judge Sonia Sotomayor to replace Justice David Souter. Our constitutional rule of advise and consent requires us to determine whether she is qualified for this position by looking at her experience and, more importantly, her judicial philosophy.

President Obama has already described his understanding of the power and role of judges in our system of government. He has said he will appoint judges who have empathy for certain groups and that personal empathy is an essential ingredient for making judicial decisions. Right off the bat, President Obama's vision of judges deciding cases based on their personal feelings and priorities is at odds with what most Americans believe. A recent national poll found that by more than three to one, Americans reject the notion that judges may go beyond the law as written and take their personal views and feelings into account.

Judge Sotomayor appears to have endorsed this subjective view of judging. In one speech she gave several times over nearly a decade, she endorsed the view that there is actually no objectivity or neutrality in judging, but merely a series of perspectives. She questioned whether judges should even try to set aside their personal sympathies and prejudices in deciding cases, a view that seems in conflict with the oath of judicial office which instead requires impartiality.

We must examine Judge Sotomayor's entire record for clues about her judicial philosophy. She was, after all, a Federal district court judge for 6 years and has been a Federal appeals court judge for nearly 11 more. While we were told that this is the largest Federal judicial record of any Supreme Court nominee in a century, we are being allowed the shortest time in recent memory to consider it. The 48 days from the announcement to the hearing for Judge Sotomayor is more than 3 weeks--more than 30 percent--shorter than the time for considering Justice Samuel Alito's comparable judicial record. There was no legitimate reason for this stunted and rushed timetable, but that is what the majority has imposed on us and that is where we are today.

I wish to take a few minutes this afternoon to look at Judge Sotomayor's judicial record on a very important issue to me and, I think, many others in this body: the right to keep and bear arms protected by the second amendment to the Constitution.

Some can be quite selective about constitutional rights--prizing some, while ignoring others. Some even trumpet rights that are not in the Constitution at all as more important than those that are right there on the page. It appears that Judge Sotomayor has taken a somewhat dim view of the second amendment. Two issues related to the scope and vitality of the right to keep and bear arms are whether it is a fundamental right and whether the amendment applies to the States as well as to the Federal Government. On each of these issues, Judge Sotomayor has chosen the side that served to limit, confine, and minimize the second amendment. She has done so without analysis, when it was unnecessary to decide the case before her, and even when it conflicted with Supreme Court precedent or her own arguments.

In a 2004 case, for example, a Second Circuit panel including Judge Sotomayor issued a short summary order affirming an illegal alien's conviction for drug distribution and possession of a firearm. The case summary and headnotes supplied by Lexis take up more space than the three short paragraphs proffered by the court. Judge Sotomayor's court rejected a second amendment challenge to New York's ban on gun possession in a single sentence relegated to a footnote with no discussion, let alone any analysis of the issue whatsoever. In fact, the court neither described the appellant's argument nor indicated how the district court had addressed this constitutional issue, but merely cited a Second Circuit precedent for the proposition that the right to possess a gun is ``clearly not a fundamental right.'' That is pretty short shrift for a constitutional claim. Last year, in the District of Columbia v. Heller, the Supreme Court held that the second amendment right to keep and bear arms is an individual rather than a collective right. But the Court also noted that by the time of America's founding, the right to have arms was indeed fundamental, and that the second amendment codified this preexisting fundamental right. Several months later, a Second Circuit panel including Judge Sotomayor affirmed a conviction under State law for possessing a weapon. Citing a 1886 Supreme Court precedent, the Second Circuit held that under the Constitution's privileges and immunities clause, the second amendment applies only to the Federal Government, not to the States. Whether correct or not, that holding was obviously enough to decide the issue in that particular case. Judge Sotomayor's court, however, went beyond what was necessary to further minimize the second amendment by once again characterizing it as something less than a fundamental right. The court said that there need be only a so-called rational basis to justify a law banning such weapons, a legal standard it said applies where there is no fundamental right involved. The court simply ignored and actually contradicted the Supreme Court's decision in Heller by treating the second amendment as protecting less than a fundamental right. In fact, the very 1886 precedent Judge Sotomayor's court cited to hold that the second amendment limits only the Federal Government recognized the preconstitutional nature of the right to bear arms. Her court never addressed these contradictions.

The Seventh Circuit has since also held that under the privileges and immunities clause, the second amendment limits only the Federal Government. But the Ninth Circuit last month held that under the Constitution's due process clause, the second amendment does indeed apply to the States. These courts gave this issue much more analysis than did Judge Sotomayor's court and neither found it necessary to address whether the right to keep and bear arms is fundamental. I wish Judge Sotomayor's court had shown similar restraint.

It appears that Judge Sotomayor has consistently and even gratuitously opted for the most limiting, the most minimizing view of the second amendment. No matter how distasteful, this result would be legitimate if it followed adequate analysis, if it properly applied precedent, and if it was necessary to decide the cases before her. In that event, it would not like it but probably could not quarrel with it. But as I have indicated here, this is not the case. There was virtually no analysis, her conclusion conflicted with precedent, and was unnecessary to decide the cases before her. This is not the picture of a restrained judge who has set aside personal views and is focusing on applying the law rather than on [Page: S6973] reaching politically correct results. These are serious and troubling issues which go to the very heart of the role judges play in our system of government. These are elements not from her speeches but from her cases that give shape to her judicial philosophy. We have a written Constitution which is supposed to limit government, including the judiciary. We have the separation of government power under which the legislative branch may employ empathy to make the law, but the judicial branch must impartially interpret and apply the law. We have a system of self-government in which the people and their elected representatives make the law and define the culture. It is no wonder that most Americans believe that judges must take the law as it is, not as judges would like it to be, and decide cases impartially. That is exactly what judges are supposed to do if our system of ordered liberty based on the rule of law is to survive.

President George Washington said that the right to keep and bear arms is ``the most effectual means of preserving peace.'' Justice Joseph Story, in his legendary commentaries on the Constitution, called this right the ``palladium of the liberties of a republic.'' I, for one, am glad that our Founders did not give short shrift to this fundamental individual right.

Let me close my remarks this afternoon by saying that these are some of the questions that need answers, issues that need clarification, and concerns that need to be satisfied as the Senate examines Judge Sotomayor's record. Perhaps such answers, clarification, and satisfaction exist. My mind is open, and I look forward to the hearing in which these and many other matters no doubt will be raised. These are important issues that can't be shunted aside as though they are unimportant, and Judge Sotomayor needs to answer some of these issues and questions that we are raising as we go along.

I told her that we will ask some very tough questions and that she is going to have to answer them. She understands that, and I appreciate that.

With that, I yield the floor.