National Review
To Confirm or Not to Confirm
We must examine Sonia Sotomayor’s entire record.
By Orrin G. Hatch

The Judiciary Committee hearing on the nomination of Judge Sonia Sotomayor to replace Justice David Souter must be respectful and thorough and must focus on whether she is qualified to serve on the Supreme Court. Judicial qualifications include legal experience and, more important, an understanding of the power and role of judges in our system of government.

The Obama administration and Senate Democrats say that Judge Sotomayor’s cases, not her speeches and articles, reveal her approach to judging. When then-senator Barack Obama opposed the appeals-court nomination of California supreme court justice Janice Rogers Brown in 2005, however, he examined her “speeches outside of the courtroom” for clues about her “overarching judicial philosophy.” If that approach was fair when Senator Obama opposed Republican nominees, it should be fair when President Obama picks his own nominees.

Judge Sotomayor spoke about elements of judicial philosophy in one speech that she gave at least five times during ten years of her judicial service. She said, for example, that transcending personal sympathies and prejudices is an aspiration that judges probably cannot accomplish in most cases, and even questioned whether they should try. She said that, in deciding cases, her personal experiences “affect the facts that I choose to see” and that judges must assess when their personal “opinions, sympathies and prejudices are appropriate.”

In contrast, the oath of judicial office, which Judge Sotomayor has taken twice, requires that judges “faithfully and impartially” perform their judicial duties. Most Americans assume, and every litigant expects, that judges will indeed be impartial. By more than three-to-one, Americans reject the idea that judges may go beyond the law as written and consider their personal views and feelings.

Turning to her cases, Senate Democrats say that Judge Sotomayor voted with Republican appointees on the Second Circuit 95 percent of the time. These same senators, however, opposed — and some even voted to filibuster — Justice Samuel Alito’s nomination even though he agreed with his Democratic appointees on the Third Circuit 99 percent of the time during a much longer appeals-court tenure. Another number that must be considered is Judge Sotomayor’s 80 percent reversal rate before the Supreme Court. Of the ten opinions she authored or joined that it has reviewed, the Supreme Court reversed or vacated eight, criticized one, and affirmed one by only a 5–4 vote. These are aspects of her record that must be explored.

Another involves her cases on the Second Amendment right to keep and bear arms. In one case, she needed only a footnote to dismiss a Second Amendment challenge to New York’s ban on gun possession, citing a Second Circuit case for the proposition that possessing a gun is not a fundamental right. The Supreme Court, however, has recently held that its own precedent on which the Second Circuit relied for that proposition “did not even purport to be a thorough examination of the Second Amendment.”

Last year, in addition to holding that the Second Amendment protects an individual rather than a collective right, the Supreme Court recognized that the Second Amendment codified the pre-existing fundamental right to have arms. In another case several months later, however, Judge Sotomayor again treated the right to bear arms as far less than fundamental without analyzing or distinguishing the Supreme Court’s holding. The permissive legal standard she used would allow state or local governments to ban, even in the home, anything “designed primarily as a weapon.”

The focus of the confirmation process must be on whether Judge Sotomayor is qualified, by legal experience and especially by judicial philosophy, to sit on the Supreme Court. We must examine her entire record, including both her speeches and her cases, to determine the kind of justice she would be.

— Sen. Orrin G. Hatch (R., Utah) is a current member and former chairman of the Senate Judiciary Committee.