Kyl: On the Nomination of Judge Sotomayor

All Americans should be proud that a Hispanic woman has been nominated for the Supreme Court. Judge Sonia Sotomayor represents one of the greatest opportunities we all have in America – the freedom to pursue any career or goal we choose, by working hard and using our God-given talents.

When the Senate undertakes its Constitutional advise and consent responsibility on a judicial nomination like Judge Sotomayor, we judge the nominee on her qualifications, record, and judicial temperament. Hopefully, this analysis will give us an indication as to whether she will apply the law fairly, without bias.

Unfortunately, certain aspects of Judge Sotomayor’s record give me reason to believe she will not set aside her own personal biases when deciding a case.

I’m concerned that in 8 out of 10 cases in which she participated and were challenged in the Supreme Court, the justices reversed or vacated most of her decisions.

One such reversal, Ricci v. DeStefano, involved 18 firefighters who sued the town of New Haven, Connecticut, charging that the city discriminated against them by nullifying promotional exams.

The three-judge appellate court on which Judge Sotomayor sat rejected the firefighters’ claims in a one-paragraph opinion. Judge Sotomayor maintained during her confirmation hearings they were bound by precedent, but the Supreme Court said in its reversal there were no precedents. I believe Judge Sotomayor showed poor judgment in dismissing serious claims in an unsettled area of the law without even writing an opinion and then refusing to acknowledge that she was wrong.

I am also concerned about Judge Sotomayor’s decision in Maloney v. Cuomo, a Second Amendment case that could find its way to the Supreme Court next year. Judge Sotomayor ruled that the Second Amendment right to bear arms was not enforceable against states.

If her decision were allowed to stand as precedent, states and municipalities that wish to prohibit the ownership and use of guns and other arms would likely be able to do so – eroding the rights clearly provided in the Second Amendment.

Judge Sotomayor has also given several controversial speeches that suggest that she believes it is appropriate for judges to base decisions on personal biases. The most widely-known, of course, is her “wise Latina” speech, which she has given various times over the years. In this speech, she claims a wise Latina judge will often reach a different and “better” result in a case than a white male. This assertion undermines the American principle that it should never matter what judge you draw in a case – that every judge will decide cases on the same precedent and law. And, contrary to her assertions, it is clear this is not just a comment out of context, but is the actual centerpiece of these speeches.

In a different speech, Judge Sotomayor weighed in on whether foreign law has any place in U.S. courts. She aligned her views with those who endorse it, saying “…unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases, that we are going to lose influence in the world. Justice Ginsburg has explained very recently . . . that foreign opinions . . . can add to the story of knowledge relevant to the solution of a question. And she’s right.”

But it’s not right. The use of foreign law is completely irrelevant to interpreting our Constitution. She should not have reserved the right to consider foreign law in U.S. cases.

For 220 years, presidents have sought out judges and justices who fulfill the requirement that they put aside any personal opinions and apply appropriate U.S. law to impartially resolve disputes. I have not been persuaded that Judge Sotomayor will uphold this important tradition.

For these reasons, and others, I will oppose her confirmation.