Sen. Judiciary Comm. Leaders Leahy and Sessions

Sen. Judiciary Comm. Leaders Leahy and Sessions

By Meet the Press - May 31, 2009

GREGORY: Welcome both of you. Good to have you here.

SEN. PATRICK LEAHY (D-VT): Thank you, David.


MR. GREGORY: The first flash point in this nomination of Judge Sotomayor surrounds the issue of race and personal experience. The comments that she made back in 2001 have captured a lot of people's attention, and I want to put them on the screen here in wider context than we've heard them discussed this week because I think the context is important, and I want to get your reaction. This is what she said: "I...accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others. ... Justice O'Connor has often been cited as saying that wise old men and wise old--and a wise old woman will reach the same conclusion in deciding cases. I am...not so sure that I agree with the statement. ... I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who wasn't lived that life. ... Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what the difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage."

Senator Sessions, are you troubled by that?

SEN. SESSIONS: Well, yes, because the entire concept of the American rule of law is blindfolded justice, that the judge sets aside their personal and political and biases of any kind and gives an objective ruling on the law and on the facts. People have to believe that or they lose respect for the law. They--the marvelous moral authority of the law can be undermined if people think that the decision's being made by--on the basis of a judge's personal views or biases or background. And I don't--I think that's--I read her piece, it's very interesting. I think it's something we need to probe. But I think it goes against the great heritage of American law that calls for judges to be a neutral umpire, as John Roberts said.

MR. GREGORY: You will see her this week. What specifically will you ask her on this point?

SEN. SESSIONS: Well, I will talk to her about that. There was a lot in that speech that was interesting, a lot that was troubling to me. I think we ought to be honest about it and give her a full, fair opportunity to explain what she meant in its context.

MR. GREGORY: But you think what she means is clear with the wider context of what she's saying in the essay overall.

SEN. SESSIONS: Well, well, let me say, I, I think President Obama has set the tone for that. He's talked about a judge who has empathy and empathy for certain groups, and he specifically named groups.

MR. GREGORY: Mm-hmm.

SEN. SESSIONS: And that to me also is a troubling philosophy. It goes against the heart of the great American heritage of an independent judge.

MR. GREGORY: Before I get to you, Senator Leahy, Republicans outside the Senate, conservatives, have mounted a pretty fierce reaction in their criticism of her remarks. Former House Speaker Gingrich has called this racism, and he says new, new racism is no better than old racism. And Rush Limbaugh, the conservative radio talk show host, called it reverse racism earlier in the week, and later in the week he went even further. This is what he said.


MR. LIMBAUGH: She brings a form of bigotry or racism to the court. I don't care, we're not supposed to say it, we're supposed to pretend it didn't happen. We're supposed to look at, at other things. But it's the elephant in the room. The real question here that needs to be asked, and nobody on our side, from a columnist to a TV commentator to anybody in our party has the guts to ask: How can a president nominate such a candidate, and how can a party get behind such a candidate? That's what would be asked if somebody were foolish enough to nominate David Duke or pick somebody even less offensive.

(End videotape)

MR. GREGORY: Calling her racist, a reverse racist, comparing her to David Duke. Do you think that's appropriate?

SEN. SESSIONS: I don't think I'm going to use any such words as that. I read her speech. I'm troubled by her speech. I think she has an opportunity to explain that. And I don't think we--that I'm going to use such loaded words. People on the outside can say what they choose to say.

MR. GREGORY: But wait, but do you make a judgment about that? Do you think they're appropriate?

SEN. SESSIONS: I don't think those are words...

MR. GREGORY: You think that's fair?

SEN. SESSIONS: ...that I would use. And I don't think--I don't--they would not be words that I would use.


SEN. SESSIONS: But we need to focus on what...

MR. GREGORY: Do you think she's a racist?

SEN. SESSIONS: ...she would say.

MR. GREGORY: Do you think she's a racist?

SEN. SESSIONS: I think that she is a person who believes that her background can influence her decision. That's what troubles me.

MR. GREGORY: Right. Right.

SEN. SESSIONS: I would not use those words.

MR. GREGORY: You would not use those words because you don't believe them?

SEN. SESSIONS: I don't think that's an appropriate description of her.

MR. GREGORY: Right. Do you think that conservatives should stop using those words to describe her?

SEN. SESSIONS: I would prefer that they not, but people have a free right to speak and say what they want and make the analogies that they want. This is an important thing. We should not demagogue race. It's an important issue in our culture and our country. We need to handle it with respect that it deserves and the care that it deserves.

MR. GREGORY: Senator Leahy, are you troubled by her remarks?

SEN. LEAHY: Well, I've talked to her about her remarks and, and we will during the hearing. But in answer to the question you asked my friend Jeff Sessions, I totally reject those kind of claims made by leaders of the Republican Party like Newt Gingrich and Rush Limbaugh. To call her--to equate her with the head of the Ku Klux Klan, to call her a bigot, this is baloney. Nothing in her background would indicate that she is a, a bigot or equivalent of the Ku Klux Klan or anything else. This is a woman who has a compelling story; growing up in the, in the projects, her father working as a welder with a third grade education dies when she's a child, her mother works hard as a, as a nurse to put her through school. She works hard to put her through school, graduates with honors both in undergraduate and in law school, becomes a prosecutor and a--and both Senator Sessions and I are former prosecutors. We know all the life experiences you get there. She was a corporate lawyer. She spent more time on a federal--between the trial bench and the appellate bench in the federal court than anybody in the last hundred years who's come...

MR. GREGORY: It's not about qualifications, it's a separate issue.

SEN. LEAHY: No, but it is about qualifications. And for her to talk about her life experience, is this any different than Judge Alito who talked about, well, if an immigration, the matter came before him he would certainly--or Justice Alito, he would certainly think about the experience of his grandparents coming here from Italy and so on, or when Justice Thomas had the same kind of expression...


SEN. LEAHY: ...when his hearing. Everybody--it would be ridiculous to think somebody's life experience doesn't affect them. My experience as a prosecutor and in private practice affects me. The fact that I'm the first Leahy since the family came in 1850 to Vermont, the first one to get a college degree, that affects me.

MR. GREGORY: Senator Sessions, is it appropriate to take into account one's personal story, even a history of discrimination?

SEN. SESSIONS: I don't believe that's the ideal of a judge in the American system. I think a judge should be a neutral arbiter of the disputes between the two parties. And if you are an individual citizen going before a judge in a court...


SEN. SESSIONS: would expect that judge to fairly rule on what the evidence was and what the law was and not what their personal background is.

MR. GREGORY: All right, but to that point...

SEN. SESSIONS: That's the--it's...

MR. GREGORY: ...Judge Alito, during his confirmation...


MR. GREGORY: ...hearing, President Bush's choice, you supported him, he said this back in 2006.

(Videotape, January 11, 2006)

JUDGE SAMUEL ALITO: When I get a case about discrimination, I have to think about people in my own family who, who suffered discrimination because of their ethnic background or because of religion or, or because of gender. And, and I do take that into account.

(End videotape)

MR. GREGORY: You think that's a problem?

SEN. SESSIONS: Well, everybody should have empathy. Everybody should have feelings and sensitivities to other human beings and show that in, in their life and in their compassion to people. But a judge is required, I think, to be neutral, to rule on the law and the facts and not allow their personal experience to override that. She said in her written remarks that she felt that perhaps even in most cases a person should aspire to overcome their personal experiences, but that they, in most cases they may not.

MR. GREGORY: Is this a...

SEN. SESSIONS: So that was a pretty troubling thing to me.


SEN. SESSIONS: But I think she has--let me just say this. This lady has got a good record, as Pat says, for a judge: prosecutor, lawyer, judge, district trial judge, federal judge. She's smart.


SEN. SESSIONS: She's capable. She needs to have the opportunity to explain this.


SEN. SESSIONS: And I think she can explain some of it, and, and we'll ask questions about it, and she should expect a rigorous but fair hearing.

MR. GREGORY: Your view is she is qualified to be on the Supreme Court.

SEN. SESSIONS: Oh, she's got the kind of background you would look for, almost an ideal mix of private practice, prosecution, trial judge and circuit judge. That's very strong in her favor.

SEN. LEAHY: I, I am very impressed with her. I--when President George H.W. Bush first nominated her to the court I was happy to vote for her, when President Clinton then nominated her to another federal court I was happy to vote for her, all based on her merits. It would be absolutely wrong to assume that people's individual experience...

MR. GREGORY: Mm-hmm.

SEN. LEAHY: ...doesn't at least influence their thinking. That doesn't mean they can't follow the law. They--that doesn't mean that somebody is going to go up there and say, "Man, I had an experience like this, but the law is clear on it."


SEN. LEAHY: They're going to follow the law. Of course she is. And as Senator Session says, she's going to have--she'll be questioned about that, and that's fair. She should be questioned about it. And we'll give her a chance very soon to do that.

MR. GREGORY: One more question on this point, and that is this New Haven case that has been debated where she...

SEN. SESSIONS: The Ricci case.

MR. GREGORY: The Ricci case. She played a major role, in which you had a group of white firefighters who sued the city because they passed a promotion exam, the city did not recognize it because no African-Americans passed that same exam. And it was Judge Sotomayor who upheld the, the city's decisions when they decided not to recognize that promotion test.

SEN. LEAHY: As did, as did the Second Circuit Court of Appeals and Judge Barrington Parker, who is a Republican, nominated by a Republican president. Said she was bound--not matter how you feel about it, she was bound by the precedence of the Second Circuit, which she...

MR. GREGORY: Well...

SEN. LEAHY: ...which she followed. Now, the U.S. Supreme Court may decide to reverse those precedents, which it can. But she was--whether she liked it or not, she was following the law. It's, it's the kind of judge that the Republicans always say they want, somebody who doesn't make law but follows the law.

MR. GREGORY: The White House says, Senator Sessions, that in more than 80 percent of the cases Judge Sotomayor has rejected race claims. Are you troubled by this decision?

SEN. SESSIONS: I'm, I'm a little bit troubled. It was a divided court, pretty strongly divided. Hispanic judge criticized Judge Sotomayor pretty aggressively for not dealing with the serious constitutional questions that arise when you take a person who made the best score on the test and then invalidate it for basically a racial concern. And so that requires a careful analysis by the court. He criticized her and her panel for not carefully analyzing it. That was his criticism, and I think she'll need to explain that.

MR. GREGORY: Let, let me move on to the broader question of a judge's ideology, and whether senators should weigh that in taking on a vote like this. President Obama said in his weekly radio address this weekend that the Senate should really move on from such considerations. This is what he said.

(Videotape, Saturday)

PRES. OBAMA: But what I hope is that we avoid the political posturing and ideological brinksmanship that has bogged down this process and Congress in the past.

(End videotape)

MR. GREGORY: And yet, Senator Leahy, back in 2006 it was Senator Obama who supported a filibuster against Judge Alito, who made it very clear that ideology should be a factor in determining a judge's record and said this back in 2006.

(Audiotape, January 31, 2006)

PRES. OBAMA: There are some who believe that the president, having won the election, should have complete authority to appoint his nominee, and that the Senate should only examine whether or not the justice is intellectually capable and is nice to his wife, or she is nice to her husband; that once you get beyond issues of intellect and personal character, then there shouldn't be further question as to whether the judge should be confirmed. I disagree with this view.

(End audiotape)

SEN. LEAHY: Well...

MR. GREGORY: Is he trying to have it both ways?

SEN. LEAHY: Well, I, I don't know...

MR. GREGORY: I mean, either you give deference to the president or you don't.

SEN. LEAHY: Well, he looks at it one view, of course, as a senator, and a different view as a president. I've only had the opportunity and only will ever have the opportunity to look at it as a, as a senator. I've voted on every single member of the current Supreme Court. I'm aware of the ideology of each of them. I voted for a number of Republican nominees on the Court. But--and I, I have a rule, I will not meet with special interest groups of either the right or the left. I remember some of the liberal groups picketing my office, complaining I was going to vote for Justice Souter and that he would be against women's rights. Well, he's turned out to be, of course, a strong supporter of women's rights. I look at the justice themselves. We'll have a full hearing. Every one of these issues will be brought up. I'm disturbed when I see a Republican group saying, even an hour before she was actually nominated, "Oh, you must reject her"; others going on TV, leaders of the Republican Party, like Rush Limbaugh and Newt Gingrich, saying you, you must reject her. We haven't even had the hearing. To their credit, no Republican senator has stepped up and made statements like that. They've all said let's have the hearing. We'll have a hearing, ask her the questions, make up your mind. This is--you know, there's only 101 people who get to choose on the Supreme Court justice: the president and the 100 members of the Senate.

MR. GREGORY: OK, let me ask you this. When will these hearings start? Will you have her in place, if she's confirmed, by the August recess, Senator?

SEN. SESSIONS: I think that's rushing it. I believe that she has over 3,000, maybe 4,000-plus opinions that need to be examined. And I think there's no need for us to do that. We do need to do it by October. That's when Justice Souter will be stepping down.

MR. GREGORY: Right. President Obama wants it sooner than that.

SEN. LEAHY: The--some of the White House probably like it next month, which would be June.


SEN. LEAHY: That may be, and I think that probably would be too soon. Most of these cases we've talked about are pro forma cases. It's, it's not going to take a lawyer much time to, to figure out that. Our staff's had all those cases, they've done that. Senator Sessions and I have worked closely together, we agreed on the questionnaire for her. She--that--those answers should be here this week, then I'll decide when we're going to set it. But I'll tell you one thing that, that is going to influence the timing of when I will set this hearing is all these attacks are going out against her, she can't answer them.

MR. GREGORY: Mm-hmm.

SEN. LEAHY: As a judge, she has to sit back there; some of the most vicious attacks, being called bigoted...


SEN. LEAHY: ...calling her racist, saying that no Republican should be allowed to vote for her. I intend to give her an opportunity as soon as possible to answer those...

MR. GREGORY: Will you--as you sit here now, do you meet the president's timetable?

SEN. LEAHY: I will meet my timetable.

MR. GREGORY: And that could be different.

SEN. LEAHY: It could be different.

MR. GREGORY: Senator Sessions, are you prepared to say now that a filibuster will not happen?

SEN. SESSIONS: I don't think that's appropriate for me to say. I think it's unlikely, but we'll have to see how this hearing plays out. President Obama filibustered Alito. So it's...

MR. GREGORY: Right. But you don't see it here? You think it's unlikely here.

SEN. SESSIONS: But I, I feel like a filibuster should not be used readily and ought to be for extraordinary circumstances.

MR. GREGORY: Final point: Is there political peril for Republicans opposing the first Hispanic Supreme Court justice?

SEN. SESSIONS: I think it's important that this nominee be given a fair hearing, that the American people, all the American people feel like this was fairly discussed. But these are important issues, and if she evidences a philosophy that would justify her setting policy on the bench, going beyond what the case called for her to go on, promoting her own personal agenda in, in the guise of making decisions, then that could be a basis to vote no.

SEN. LEAHY: (Unintelligible)...could I add, add just one thing...

MR. GREGORY: Very quickly.

SEN. LEAHY: ...on the timing. I certainly understand why the president wants her in there soon. In the Senate, we have to determine what the time's going to be. I, I, I agree with the president, he's made a good choice. I agree with him, we should have it soon. But I'm going to have to make that decision of when, when the hearing will be, in consultation with Senator Sessions.


MR. GREGORY: All right, we'll leave it there for now. Thank you both for joining us this morning.

SEN. SESSIONS: Thank you.

SEN. LEAHY: Thank you.


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