Media Updates
WASHINGTON – Sen. Orrin Hatch (R-Utah) today raised concerns about Supreme Court nominee Sonia Sotomayor’s judicial record with respect to cases involving Americans’ Second Amendment right to keep and bear arms.
Speaking on the Senate floor, Hatch noted that in Sotomayor’s years as a federal appeals court judge, she has taken a “somewhat dim view of the Second Amendment.”
“It appears that on … issues related to the right to keep and bear arms – whether it is a afundamental right, an individual right, and a right limiting the states – Judge Sotomayor consistently opted for the most limiting, the most minimizing view of the Second Amendment,” Hatch said during his remarks on the Senate floor.
“No matter how distasteful, this result would be legitimate if it followed adequate analysis, properly applied precedent, and was necessary to decide the cases before her …,” Hatch continued. “But as I have indicated here, that 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 reaching politically correct results.”
The full text of Sen. Hatch’s remarks on the Senate floor follows:
Consideration of a Supreme Court nominee is one of the most important of this body’s responsibilities. 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. I believe that our role of advice and consent requires determining whether she is qualified for this position by looking at her experience and, more importantly, her understanding of the power and role of judges in our system of government.
President Obama has already 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, that picture 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 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 that 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 at odds with the oath of judicial office which instead requires impartiality.
To be sure, we must examine Judge Sotomayor’s entire record. She was, after all, a federal district court judge for six years and has been a federal appeals court judge for nearly eleven more. While we are 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 three 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 imposed and that is where are today.
So I want to take a few minutes this morning to look at Judge Sotomayor’s judicial record on a very important issue, 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 constitutional 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. Three issues related to the scope of the right to keep and bear arms are whether it is a fundamental right, whether it is an individual right, and whether the Amendment applies to the state as well as to the federal government. On each of these issues, Judge Sotomayor chose the side that served to limit, confine, and minimize the Second Amendment. She did 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 at all. In fact, the court neither described the appellant’s argument nor indicated how the district court had addressed the 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 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 indeed codified a pre-existing right.
Several months later, a Second Circuit panel including Judge Sotomayor affirmed a conviction under state law for possessing a weapon. Citing an 1886 Supreme Court precedent, the Second Circuit held that the Second Amendment applies only to the federal, not to state, government. That holding was obviously enough to decide the issue in that case.
Judge Sotomayor’s court, however, went on to minimize the Second Amendment that it had already held did not apply by once again characterizing it as not a fundamental right. The court said that there need be only a so-called rational basis for the law banning such weapons, a legal standard it said applies when there is no fundamental right involved.
While the court cited the Supreme Court’s decision in Heller that the Second Amendment protects an individual right, it ignored and actually contradicted Heller’s treatment of the Second Amendment as protecting 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 pre-constitutional nature of the right to bear arms. Her court never addressed this obvious contradiction.
The Seventh Circuit has similarly held that the Second Amendment limits only the federal government. Judge Sotomayor’s supporters will no doubt quickly add that this decision was made by three Republican appointees including Chief Judge Frank Easterbrook, who wrote the opinion, and Judge Richard Posner. But they gave this issue much more analysis than did Judge Sotomayor’s court and properly declined to address the unnecessary issue of whether the right to keep and bear arms is fundamental. The Second Circuit failed to demonstrate similar restraint.
So it appears that on each of these issues related to the right to keep and bear arms – whether it is a fundamental right, an individual right, and a right limiting the states – Judge Sotomayor consistently 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, properly applied precedent, and was necessary to decide the cases before her. I would not like it but could not quarrel with it. But as I have indicated here, that 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 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. We have a written Constitution which is supposed to limit government, including the judiciary. We have the separation of government power, which includes the legislative branch where empathy and other subjective elements play an appropriate, and even a necessary, role. 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 “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.
So let me close my remarks this morning 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 matter will no doubt be raised.
I yield the floor.
Speaking on the Senate floor, Hatch noted that in Sotomayor’s years as a federal appeals court judge, she has taken a “somewhat dim view of the Second Amendment.”
“It appears that on … issues related to the right to keep and bear arms – whether it is a afundamental right, an individual right, and a right limiting the states – Judge Sotomayor consistently opted for the most limiting, the most minimizing view of the Second Amendment,” Hatch said during his remarks on the Senate floor.
“No matter how distasteful, this result would be legitimate if it followed adequate analysis, properly applied precedent, and was necessary to decide the cases before her …,” Hatch continued. “But as I have indicated here, that 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 reaching politically correct results.”
The full text of Sen. Hatch’s remarks on the Senate floor follows:
Consideration of a Supreme Court nominee is one of the most important of this body’s responsibilities. 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. I believe that our role of advice and consent requires determining whether she is qualified for this position by looking at her experience and, more importantly, her understanding of the power and role of judges in our system of government.
President Obama has already 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, that picture 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 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 that 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 at odds with the oath of judicial office which instead requires impartiality.
To be sure, we must examine Judge Sotomayor’s entire record. She was, after all, a federal district court judge for six years and has been a federal appeals court judge for nearly eleven more. While we are 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 three 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 imposed and that is where are today.
So I want to take a few minutes this morning to look at Judge Sotomayor’s judicial record on a very important issue, 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 constitutional 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. Three issues related to the scope of the right to keep and bear arms are whether it is a fundamental right, whether it is an individual right, and whether the Amendment applies to the state as well as to the federal government. On each of these issues, Judge Sotomayor chose the side that served to limit, confine, and minimize the Second Amendment. She did 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 at all. In fact, the court neither described the appellant’s argument nor indicated how the district court had addressed the 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 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 indeed codified a pre-existing right.
Several months later, a Second Circuit panel including Judge Sotomayor affirmed a conviction under state law for possessing a weapon. Citing an 1886 Supreme Court precedent, the Second Circuit held that the Second Amendment applies only to the federal, not to state, government. That holding was obviously enough to decide the issue in that case.
Judge Sotomayor’s court, however, went on to minimize the Second Amendment that it had already held did not apply by once again characterizing it as not a fundamental right. The court said that there need be only a so-called rational basis for the law banning such weapons, a legal standard it said applies when there is no fundamental right involved.
While the court cited the Supreme Court’s decision in Heller that the Second Amendment protects an individual right, it ignored and actually contradicted Heller’s treatment of the Second Amendment as protecting 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 pre-constitutional nature of the right to bear arms. Her court never addressed this obvious contradiction.
The Seventh Circuit has similarly held that the Second Amendment limits only the federal government. Judge Sotomayor’s supporters will no doubt quickly add that this decision was made by three Republican appointees including Chief Judge Frank Easterbrook, who wrote the opinion, and Judge Richard Posner. But they gave this issue much more analysis than did Judge Sotomayor’s court and properly declined to address the unnecessary issue of whether the right to keep and bear arms is fundamental. The Second Circuit failed to demonstrate similar restraint.
So it appears that on each of these issues related to the right to keep and bear arms – whether it is a fundamental right, an individual right, and a right limiting the states – Judge Sotomayor consistently 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, properly applied precedent, and was necessary to decide the cases before her. I would not like it but could not quarrel with it. But as I have indicated here, that 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 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. We have a written Constitution which is supposed to limit government, including the judiciary. We have the separation of government power, which includes the legislative branch where empathy and other subjective elements play an appropriate, and even a necessary, role. 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 “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.
So let me close my remarks this morning 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 matter will no doubt be raised.
I yield the floor.
