On Tuesday morning, Senate Judiciary Committee
Chairman delivered the Rauh Lecture at the University of the District of
Columbia David A. Clarke School of Law. His remarks, as prepared,
follow.
Remarks of Senator Patrick Leahy
(D-Vt.),
Chairman, Senate Judiciary Committee,
The Supreme Court And The Nomination
Of Judge Sonia Sotomayor
UDC David A. Clarke School of Law
Annual Rauh Lecture
June 16, 2009
As Prepared
It is an honor to have been invited by my friend Wade
Henderson, the longtime President of the Leadership Conference on Civil
Rights and the Joseph L. Rauh, Jr. Professor of Public Interest Law here
at the David Clarke School of Law. I have been lucky to have
worked with both Joe Rauh and Wade on many issues.
It’s great to see so many students here today.
You are going to law school at such an exciting time. In just six
months, President Obama has already begun restoring the role of the
United States around the world, on such important issues as human rights
and economic recovery. While I was in law school here in
Washington, I was inspired by another young President. In the
Senate, I have had the privilege of working with President Kennedy’s
youngest brother for the past 35 years on some of the most pressing
social issues of our time.
Next month, the Senate Judiciary Committee will hold
hearings on President Obama’s historic nomination of Judge Sonia
Sotomayor to be an Associate Justice of the Supreme Court of the United
States. Judge Sotomayor’s nomination marks a number of firsts.
She is President Obama’s first nominee to the Supreme Court. She
is the first nominee in well over a century to be nominated to three
different Federal judicial offices by three different Presidents. And,
of course, she is the first Hispanic nominated to the Supreme Court.
Being the first is not always easy. Some of you may
be the first in your family to attend law school or college. I was
the first Leahy to graduate from college. Judge Sotomayor was in only
the third class of women admitted to study at Princeton. She
graduated Summa Cum Laude and Phi Beta Kappa. She went on to excel
at law school, and began her legal career as a prosecutor in New York
City.
President George Herbert Walker Bush appointed her to
be a Federal trial judge, and she was confirmed with overwhelming
support in the Senate. Six years later, President Clinton
nominated her to the Second Circuit. I remember those days very
well. I made more than a dozen speeches to the Senate urging those
who had placed an anonymous hold on her nomination to come forward.
In June 1998, a column in The Wall Street Journal confirmed that
the Republican obstruction was driven by fear that President Clinton
would nominate her to the Supreme Court. After the Supreme Court
ended its term without a vacancy, the Senate finally voted on her
nomination, and she was confirmed overwhelmingly. And not one word
was spoken on the Senate floor by those who did not support her to
justify their dissent.
That brings me back to “firsts.” When Thurgood
Marshall was nominated to the Second Circuit, he faced stiff opposition.
Despite graduating first in his class from Howard University Law School,
and having been the lead counsel for the NAACP Legal Defense Fund, he
faced a barrage of hostile questions at his confirmation hearing, and
his nomination was stalled in the Senate for some time. He was
then appointed Solicitor General of the United States. Throughout
his career as a Supreme Court advocate, he successfully argued a
remarkable 29 out of 32 cases before the Court. When President
Johnson nominated him to be the first African-American Supreme Court
justice, he noted that it was “the right thing to do” and “the right
time to do it.”
President Obama has followed this tradition in
selecting a highly qualified person with great experience—both in life
and in the courts. It is long overdue to add such a jurist to our
highest court.
To borrow a phrase that the First Lady used recently,
not only do I believe that Judge Sotomayor is prepared to serve all
Americans as a Supreme Court Justice, I believe the country is “more
than ready” to see this accomplished, respected woman do just that.
This historic nomination should be an occasion for the Senate and the
American people to come together and celebrate the strength in our
diversity.
At Justice Marshall’s confirmation hearing to the
Supreme Court, he was asked questions designed to embarrass him. I
believe those questions did more to embarrass the Senators asking them.
He fielded questions like, “Are you prejudiced against the white people
of the South?” I hope we do not see such a tactic repeated when
Judge Sotomayor is before the Senate Judiciary Committee on July 13.
I hope that Senate Republicans will remember their proud history as the
party of Lincoln, and of the Civil Rights Acts of the 1960s, and as a
party that voted unanimously to confirm Thurgood Marshall to the United
States Supreme Court.
Justice Marshall was not the only “first” to face
adversity. When Justice Brandeis was nominated to the high court,
he overcame anti-Semitism and significant opposition. The
commentary at the time included questions about “the Jewish mind” and
how “its operations are complicated by altruism.” Sounds like an
early attack on empathy, doesn’t it? Likewise, the first
Catholic nominee had to overcome the argument that “as a Catholic he
would be dominated by the pope.”
I recently asked Judge Sotomayor about her approach
to the law. She responded that of course one’s life experience
shapes who they are, but she went on to say this:“Ultimately and
completely” – and she used those words – as a judge, you follow the law.
There is not one law for one race or another. There is not one law
for one color or another. There is not one law for rich and a
different one for poor. There is only one law. She said ultimately
and completely, a judge has to follow the law no matter what their
upbringing has been. That is the kind of fair and impartial
judging that the American people expect. That is respect for the
rule of law. That is the kind of judge she has been.
I am confident that when elevated to the Nation’s
highest court, Judge Sotomayor will continue to live up to Justice
Marshall’s description of the work of a judge. Justice Marshall
said: “In our day-to-day work we must continue to realize that we are
dealing with individuals – not statistics.”
Justice Marshall’s words here are important because
they remind us that the Supreme Court’s decisions have a fundamental
impact on Americans’ everyday lives. One need look no further than
the Lilly Ledbetter and Diana Levine cases to understand the impact each
Supreme Court appointment has on the lives and freedoms of countless
Americans.
In Lilly Ledbetter’s case, five justices on the
Supreme Court struck a severe blow to the rights of working families
across our country. Congress acted to protect women and others
against discrimination in the workplace more than 40 years ago, yet we
still struggle to ensure that all Americans—women and men—receive equal
pay for equal work. It took a new Congress joined by the new
president to strike down the immunity the Supreme Court had given to
employers who discriminate against their workers.
For all the talk about “judicial modesty” and
“judicial restraint” from nominees at their confirmation hearings, we
have seen a Supreme Court these last four years that has been anything
but modest and restrained.
For those who care about the Constitution, the
question we should be asking is whether Judge Sotomayor will act in the
mold of conservative activists who have gutted legislation designed to
protect Americans from discrimination in their jobs and in voting, laws
meant to protect the access of Americans to health care and education,
and laws meant to protect the privacy of all Americans from an
overreaching government.
We should be asking whether she will be the kind of
Justice who understands the real world impact of the Supreme Court’s
decisions.
It
took a Supreme Court that understood the real world to see that the
seemingly fair-sounding doctrine of “separate but equal” was in reality
a straitjacket of inequality and offensive to the Constitution.
All Americans have come to respect the Supreme Court’s rejection of
racial discrimination and inequality in Brown v. Board of Education.
But just two years ago in the Seattle school
desegregation case, a narrowly divided Supreme Court undercut that
landmark decision. Chief Justice Robert’s opinion failed to
recognize the struggle for equality that has persisted long after
Brown v. Board. It also failed to follow more than half a
century of equal protection jurisprudence.
Justice Stevens wrote in dissent that the Chief’s
opinion twisted Brown v. Board in a “cruelly ironic” way.
Most Americans recognize that there is a crucial difference between a
community that does its best to ensure that its schools include children
of all races and one that prevents children of some races from attending
certain schools. Experience in the real world tells us that.
Justice Breyer’s dissent criticized the Chief Justice’s opinion as
applying an “overly theoretical approach to case law” and concluded that
“Law is not an exercise in mathematical logic.”
Chief Justice Warren, a Justice with real world
experience, recognized the power of a unanimous decision in
Brown v. Board. And the world came to recognize the necessity
of that decision for bringing about an end to segregated America
treating certain people as inferior. In contrast, the Roberts
Court, in its divided desegregation decision two years ago, ignored the
real world experience of millions of Americans and showed that it would
depart from even the most hallowed precedents of the Court.
In the coming days, the Supreme Court will issue one
of its most important decisions in years – the constitutionality
of the reauthorized Voting Rights Act. The Voting Rights Act
provision at risk (Section 5) is a time-honored and effective method to
prevent discrimination. Despite numerous challenges, the Court has
always upheld the constitutionally of Section 5. But after I
attended the oral argument in that case in April, I became
concerned that the current court would abandon those precedents and the
traditional view of the civil war amendments to the Constitution.
In law schools across the country, students are
taught that there is no more explicit grant of power to Congress than
that given by the 15th Amendment to protect the right to
vote.
Passage of the Voting Rights Act of 1965 was the
result of an historic struggle for civil rights, which reached a crucial
turning point on March 7, 1965, on the Edmund Pettis Bridge in Selma,
Alabama, when state troopers brutally attacked John Lewis and his fellow
civil rights marchers who were trying to exercise their civil rights.
The events of that day, now known as “Bloody Sunday,” were captured in
newspaper photos and on television, and those powerful images proved to
be a catalyst. Congress passed the Voting Rights Act within months
so that the Constitution’s guarantees of equal access to the political
process, regardless of race, would not be undermined by discriminatory
practices.
In contrast to the tremendous resistance and bitter
politics that met the initial enactment of the Voting Rights Act, three
years ago, Republicans and Democrats in the Senate and the House of
Representatives came together to reauthorize key expiring provisions of
the Voting Rights Act of 1965. We did so after an extensive
fact-finding process determined that these provisions were still needed
to preserve the rights of all Americans to have equal access to the
ballot box. We held more than 20 hearings in the House and Senate,
and considered changes to the Section 5 preclearance process.
Congress decided that Section 5 was still necessary to prevent
discrimination that has persisted at the ballot box.
Since the initial court challenges in 1966, whenever
the Supreme Court has reviewed or even cited to the Voting Rights Act,
it has affirmed the Act as a valid exercise of congressional authority.
The Court should not depart from these precedents. It should not
substitute its own judgment for that of Congress. Striking down
the Voting Rights Act would be conservative activism pure and simple.
As we consider Judge Sotomayor’s nomination this
summer, Americans will begin to focus on the enormous impact that these
justices have on our freedoms and our values.
Judge Sotomayor’s considerable record is that of a
restrained and thoughtful jurist who understands the role of the judge.
She will bring more than just her first-rate legal mind and impeccable
credentials to the Supreme Court. Whether you are from the south
Bronx, the south side of Chicago or south Burlington, the American Dream
inspires all of us, and her life story IS the American Dream.
This historic nomination should unite the American
people and unite the 100 Senators who will act on their behalf. It
is a nomination that keeps faith with the words engraved in Vermont
marble over the entrance of the Supreme Court: “Equal Justice Under
Law.” And we should confirm her nomination without delay.
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