The Honorable Sheldon Whitehouse

Opening Statement of Sheldon Whitehouse
Confirmation Hearing: Judge Sonia Sotomayor to be
an Associate Justice of the Supreme Court
As Delivered

Thank you, Mr. Chairman.

Judge Sotomayor, welcome, welcome to you and to your family. Your nomination caps what has already been a remarkable legal career. And I join many, many Americans who are so proud to see you here today. It is a great country isn't it? And you represent its greatest attributes.

Your record leaves no doubt that you have the intellectual ability to serve as a Justice. From meeting with you and from the outpouring of support I've experienced both personally and from organizations that have worked with you, your demeanor and your collegiality are well established. I appreciate your years as a prosecutor, working in the trenches of law enforcement. I am looking forward to learning more about the experience and judgment you are poised to bring to the Supreme Court.

In the last two and a half months and today, my Republican colleagues have talked a great deal about judicial modesty and restraint. Fair enough to a point, but that point comes when these words become slogans, not real critiques of your record. Indeed, these calls for restraint and modesty, and complaints about "activist" judges, are often codewords, seeking a particular kind of judge who will deliver a particular set of political outcomes.

It is fair to inquire into a nominee's judicial philosophy, and we will here have a serious and fair inquiry. But the pretence that Republican nominees embody modesty and restraint, or that Democratic nominees must be activists, runs starkly counter to recent history.
I particularly reject the analogy of a judge to an "umpire" who merely calls "balls and strikes." If judging were that mechanical, we would not need nine Supreme Court Justices. The task of an appellate judge, particularly on a court of final appeal, is often to define the strike zone, within a matrix of Constitutional principle, legislative intent, and statutory construction.

The "umpire" analogy is belied by Chief Justice Roberts, though he cast himself as an "umpire" during his confirmation hearings. Jeffrey Toobin, a well-respected legal commentator, has recently reported that "n every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff." Some umpire. And is it a coincidence that this pattern, to continue Toobin's quote, "has served the interests, and reflected the values of the contemporary Republican party"? Some coincidence.

For all the talk of "modesty" and "restraint," the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights: the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases; the first limitation on Roe v. Wade that outright disregards the woman's health and safety; and the DC Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Some "balls and strikes." Over and over, news reporting discusses "fundamental changes in the law" wrought by the Roberts Court's right wing flank. The Roberts Court has not kept the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito.


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http://judiciary.senate.gov/hearings/testimony.cfm?id=3959&wit_id=6151


:applause:

:applause: especially for accurately describing the rw activism of the current court.