Senator Jim Bunning On The Nomination Of Judge Sonia Sotomayor To The U.S. Supreme Court

Mr. President, today I rise to speak on the nomination of Judge Sonia Sotomayor to be a Justice on the United States Supreme Court.  After much consideration, I cannot support this nomination.


I have been following this process closely.  I have been reading her rulings and her speeches.  I have been watching her hearing at the Senate Judiciary Committee.  I met with her one-on-one and was able to ask her questions.  Unfortunately, I find her to be unsuitable to be a member of the United States Supreme Court.


The first problem I would like to discuss is her lack of direct answers to direct questions.  I had this problem in my meeting with her and it appears from watching the Judiciary Committee hearings that other members have had that problem too.  My biggest concern in this area is that she answered the questions from the perspective of the job she has, not the job she has been nominated for.  As a member of the district or circuit court, she must rely heavily on precedent.  However, as a Justice of the Supreme Court, she is in the position to set precedent.  When I asked her simple questions about how she would treat certain subjects, she retreated to saying that she would use precedent to decide how to proceed.  I found this unsatisfactory because she would be setting precedent as a member of the Supreme Court.  In fact, throughout her nomination process I have seen her sidestep direct questions time and time again.  We have seen this happen numerous times during her hearing before the Judiciary Committee.  I think we deserve answers to these questions and we have not gotten them.


However, we can learn about her views and how she might perform on the Supreme Court by studying her record.  She has an extensive record, which includes seventeen years as a judge and, prior to that, time spent as a prosecutor, in private practice, and as a member of groups such as the Puerto Rican Legal Defense and Education Fund.  This gives us much to look at, such as her decisions, speeches, and other sources.  I have studied these and I would like to comment on them and her views.


When I spoke on the nomination of Chief Justice John Roberts in 2005, I pointed out the problem of the Supreme Court and other judges trying to replace Congress and state legislatures.  Important social issues have been taken out of the political process and decided by unelected judges.  I can say with certainty that this was not the way the Founding Fathers and authors of the Constitution intended for it to work.


The creation of law is reserved for elected legislatures, chosen by the people.  The Supreme Court is not a nine person legislature created to interact with or replace the United States Congress.  When judges and justices take the law into their own hands and act as if they were a legislative body, it flies in the face of the Constitution.  Because of this, whether in the Supreme Court or in lower courts, many people have lost respect for our judicial system.  This cannot continue to happen.  In addition to obvious constitutional concerns, if someday the public and the rest of the political system begin to tune out the courts and ignore their decisions altogether, it would be grave for our country.


During their confirmations, I felt that Chief Justice Roberts and Justice Alito understood this.  That is probably the biggest reason why I voted for them.  I am afraid that I cannot say the same about Judge Sotomayor. 


Much has been said about Judge Sotomayor’s “wise Latina woman” comments.  Even though they have been discussed many times over, they are still relevant and speak to her views on the role of judges.  In her infamous 2001 speech, she said that “a wise Latina woman” would “more often than not reach a better conclusion than a white male.” This shows a clear method of her thinking and indicates she accepts the idea that personal experiences and emotions influence a judge’s rulings, rather than the words of the law and the Constitution. 


She used the “wise Latina woman” phrase in at least four other speeches, most recently in 2004.  The fact that it was repeated so often indicates that she believes it.  She has said that the notion of impartiality on the bench is “an aspiration” and has gone on to claim that “by ignoring our differences as women or men of color we do a disservice both to law and society.”  When President Obama began discussing what sort of person he wanted to nominate to Supreme Court, he put a premium on the nominee having “empathy.”  Well, it appears that he got his wish.