gives very extensive experience in many important facets of the law, something i know from my own experience years ago as an assistant district attorney. then she was in private practice on -- with a very prestigious new york law firm. then served on the united states district court. and more recently on the court of appeals for the second circuit. the hearings will give judge sotomayor an opportunity to respond to a number of issues which have been raised about her background. i think that chairman leahy was correct in moving the hearing date so that the confirmation process could be concluded in time for judge sotomayor, if

confirmed, to sit with the court during september when the court will decide what cases it will hear. a great deal of the important work of the supreme court of the united states is decided on what cases they decide not to hear. and perhaps that in some ways is as important as the cases they do hear. the cases they do decide. that it is during that period of time when the decision is made on a grant of certiorari with four justices deciding what cases to hear where the presence of a new justice could be very, very important. the confirmation hearings at an early stage will give judge sotomayor an opportunity to respond to many questions which are highly publicized.

it's a very noteworthy matter when a nominee is being considered for the supreme court, and there is a lot of publicity, and some of it is controversial. as a matter of fairness, the earlier a nominee can have the opportunity to respond to those issues, there is a question been raised about her decision on the new haven firefighters case. well, the nuances of affirmative action don't lend themselves too well to brief newspaper articles or sound bites on the talk shows. they're made for a supreme court hearing. or her decision on property rights following the kelo decision has been subjected to certain comment. there again, the nuances really require a hearing. her statement about a wise

latino woman has been widely commented upon. and there again, she ought to have an opportunity to speak to those issues. there have been some questions raised about her decisions under the second amendment, membership in the elysian grove and a lot of speculation. so let's bring on the hearings where there will be an opportunity for judge sotomayor to present her views. based on what i have studied and her opinions and an extensive meeting which i had with her, she is a powerful intellect and prospectively she is likely to be able to have good comments. but that's what the confirming

process is all about. so let us move forward on it to the july hearing date so that we can consider her nomination and she can have an opportunity to respond to those issues. there have been contrary views about the value of confirmation hearings. there are some who say that they've really outlived their usefulness, pointing historically to the fact that prior to 1955 or thereabouts there were very few confirmation hearings, only when there were some extraordinary question, and that in recent decades the confirmation hearings have been extensive. having participated in some 11 of these confirmation hearings, it is my judgment that they are

very worthwhile from many'nt points of view. it presents an opportunity to have a public focus on the appropriate role of the supreme court. a lot of very major questions about the respective roles on separation of powers between the courts and congress on fact finding and on the record. important questions on the relative authority of the executive versus the court on the issues of detention and the habeas corpus. important issues on the relative rules of the congress versus the executive as exemplified by the conflict between the foreign intelligence surveillance act and the powers of the president under article 2 of the constitution as commander in

chief. there are also hearings where it's quite a public focus on a civics lesson as to what the court does, and public attention is focused on the court. my preference would be, as i've noted on legislation i've introduced which has been passed out of the judiciary committee to have the proceedings of the supreme court televised under certain circumstances. that has not yet been approved. but i think the day will come when supreme court hearings will be televised. i think they could be televised without having showboating, real insight by the public as to what happens by the supreme court of the united states. just as hearings of the house of representatives and the united states senate are televised. there are a lot of quorum calls

but there are debates that go on here for the public to see,. and at least the confirmation hearings does bring the role of the court into focused hearings. and i think to a very, very beneficial effect. we had the hearings on judge bork widely commented upon. very, very extensive hearings on his writings, his view of original intent. and there was an opportunity for the american peel and the scholars to see what was -- for the american people and the consoli throors see what was involved there. there has grown a myth that in that proceeding the nominee knee was bork, turning his name into a verb. my own view is that that is not

so that the decision made in rejecting the confirmation of judge bork turned on the record, turned on what happened in the judiciary committee proceedings, that when you really took a look at original intent, it was way outside of the mainstream of constitutional law, way outside of the constitutional continuum. if you looked to what congress intended in 1868 when the equal protection clause was passed in the 14th amendment in this chamber, the galleries were segregated. african-americans were on one side and caucasians were on another side. so the intent of the senators certainly couldn't have been that the equal protection meant integration. but after brown v. board of

education in 1954, there was no doubt that equal protection did mean integration. the confirmation proceedings of chief justice rehnquist were very informative. chief justice rehnquist had more than 30 votes cast against his nomination in 1986. the issue aroseerose as to the quadive his answering questions as to the role of the supreme court contrasted with the role of congress. chief justice rehnquist had written an interesting article for "the harvard law record" back in 1958 when he was a young practicing attorney criticizing the senate for the confirmation hearings of justice whittaker, not asking probing questions about due process of law. but only extolling justice

whittaker's virtues because he represented both the state of kansas and the state of missouri, living in one state and practicing law in the other. and when chief justice rehnquist was asked questions about the authority of congress to take away the jurisdiction of the supreme court, he answered finally that the congress did not have the authority on first amendment issues. but declined to answer about the fourth amendment, fifth, sixth, or eighth or to answer a question as to why he would respond on the first amendment but not on the others. and there are some issues which are so firmly established that they are outside of the respected rule that we don't ask nominees to say how they will decide upon cases that might come before them but where you deal wishes like marbury v. madison or brown v. board of education or the authority of

the congress to take away jurisdiction of the supreme court, interrogation of marbury v. madison, there are questions which ought to be arch answered. the confirmation hearings provide an opportunity to go into detail about the functioning of the court. a few years ago when the issue of judicial pay was before the congress, a number of senators were invited to confer with the justices and provided an opportunity for me to see the conference room. i had been a member of the bar of the supreme court, argue add few cases there. but it never seemedz their conference room. and frankly it was quite an eye ownership. is a small room, plain table, modest chairs, very intimate,

very austere, and quite -- some insight as to how close the justices are together. and when we talk about diversity, how long it took to get an african-american on the court, thurgood marshall did not go to the court until 1967. justice lewis powell made a comment reportedly that just having thurgood marshall in the proem made a difference in perspective. really surprising, perhaps scandalous, this it took until 1981 to have a woman on the supreme court. now there are only two. and when i was asked for recommendations for the current vacancy, i recommended four women. to say that a woman's point of view is different and valuable

is really, really trite. when i was elected to the senate in 1980, senator kassebaum was the only woman in the chamber. senator hawkins was elected that year. now we have 15-plus and growing. and i think it's been a very great addition and improvement, a liberation here to have more women here. and another woman would be a plus there, if judge sotomayor is confirmed. and also the diversity on being hispanic is important. we live in a very diverse society. when you see that small supreme court chamber, you can see the intimacy and you can see the -- almost visualize the intellectual discussions and the powerhouses in that room, and how the really big cases are

decided with the court having the last word on life and death, a woman's right to choose, medicinal issues of attempted suicide, the death penalty in capital cases and all of the cutting-edge issues of our society. so the confirmation proceeding of judge sotomayor will give us an opportunity to inquire into some very important issues on executive versus judicial authority, on the authority of the court versus the congress, and toward that end, i wrote a letter to justice sotomayor -- judge sotomayor dated june 15, and i ask unanimous consent that

this letter be included in the record at the conclusion of my statement. the presiding officer: without objection. mr. specter: as i note in the opening paragraph of my letter to judge sotomayor, our meeting, so-called courtesy call, lasted more than an hour. and at that time i commented to her that i would be writing on other subjects, which i intended to ask her at the meeting and she responded that she would be glad to have that advance notice. and the issue that i focus on in this letter involves the respective authority of the congress contrasted with the court on the establishment of a record to warrant legislation which congress enacts. and i noted that i had written to dheef scru chief justice roba

similar vein back on august the 8th of 2005 in advance of his confirmation hearings. and i take you were in my letter to -- and i take up in my letter to judge sotomayor the same issue i took up with chief justice roberts, and that is the decisions of the supreme court in invalidating congressional enactments, declaring them unconstitutional, because of what the court says is an insufficient record. and i note the case of united states v. morrison, which involved the legislation to protect women against violence, where the court was denigrating, really disrespectful to congress, where the court said that the congressional findings were rejected because of our -- quote -- "method of reasoning."

-- close quote, as if there is some unique quality which comes to the nominee when the time of confirmation to walk across the green between the heergt room -e hearing room and the supreme court chambers. noted in the dissent by -- noted in the dissent that the court's judgment was -- quote -- "dependent upon a uniquely judicial competence," as if the competence of the congress was to a lesser extent." that was a dissent by justice souter. and justice souter commented in disagreeing with chief justice rehnquist, who said there was an insufficient record, justice souter noted the -- quote -- "mountain of data assembled by

congress, including a record on gender bias from task force in 21 states, eight separate reports by the congress." there was a similar finding by the supreme court of the united states in the case of alabama v. garrett, where the supreme court decided that there was insufficient record to support the enactment of title 1 for the americans with disabilities act, even though there had been task force hearings in every state aattended by more than 30,000 people, including thousands who had experienced discrimination with more than 300 examples of discrimination by state governments. notwithstanding that, the supreme court in garrett said that there was an insufficient record. in dissent, justice scalia

called the test of congruence in proportionality a flabby test, a test that was -- quote -- "an invitation to judicial arbitrariness and policy-driven decision making." when you look to a standard of congruence and proportionality, it is very vague. sharp divergence from a standard that justice harlan articulated in maryland v. west in 1968, whether there was a rational basis for the congressional decision. so that as justice scalia noted in his dissent in blane v. tennessee, the standard of congruence and proportionality was flabby, and justice scalia went on to say this: "worse still, it tasks this

court in the role of congress's fask h. task master. under it the courts and this court must regularly check congress's homework to make sure it has identified sufficient constitutional violations to make us remedy constitutional -- its remedy constitutional and proportional." in the confirmation hearings of chief justice roberts, he responded in a way very supportive of the role of congress where the court should be differential to the congress. in response to a question by senator dewine, he said that the supreme court ought to defer to congressional findings, and the answer will be in the record with this letter. in response to my quelg, chief justice roberts said the following: "and i appreciate very much the difference in institutional competence between the judiciary and the congress

when it comes to basic questions of fact finding development of a record. and also the authority to make the policy decisions about how to act on the basis of a stick record. -- on the basis of a particular record. it is not just agreement on the record, it is a question of whose job it is to make a determination based on the record. as a judge that you are beginning to transgress into the area of making a law is when you are in a position of r reevaluating legislative findings because that doesn't look like a judicial function." now there the chief justice comes to grips with the dominant role of the congress that ought to be deferred to and says, when the court takes over its judicial law making, which is

something which is generally recognized to be in an area which ought not to be transgressed. transgression is chief justice roberts word. it is up to the congress to make the laws and up to the court to interpret them. in the hearing on the voting rights act on april 29, northwestern austin municipal district v. holder, on the issue of the sufficiency of the record, and here we have 16,000 pages of testimony, 21 different hearings, 10 months of action, then congress in 2006 reauthorized voting rights act. and now in listening to the supreme court argument n., in reading the record, you can't draw any conclusions totally that it looks very much as if

the court may be on the verge of finding the record insufficient. chief justice roberts had to th to say in the course of the argument on the voting rights act. "1/20th of 1% of the submissions are not precleared." that to me suggests that they are sweeping far more broadly than they need to to address the intentional discrimination under the 15th amendment." it's the elephant whistle, you know. i have this whistle to keep away the elephants, you know. well, that's silly. well, there are no elephants. i mean, if you have 99.98% of those being precleared, why isn't that reaching too broadly?" we'll all be watching very closely to say what the supreme court of the united states does in the voting rights case. and especially the opinion of

judge -- chief justice roberts, which testified so emphatically at his confirmation hearing as to the role of the congress being dominant. and it was really, as he put it -- quote -- "as a judge, that you may be beginning to transgress into the area of making a wall." so, those are issues which i'm going to be addressing to judge sotomayor in the course of the confirmation hearings. i'm not going to ask her how she's going to decide a case. that's outside the bound. but i think it is fair to inquire as to what is the standard. is it the justice harlan standard of rational basis? or is it a standard of congruent and proportionally? a standard which is of recent

vintage in the city of bernie case, that having been applied in cases where it is very, very difficult to understand the conclusions of the court. if you take tennessee v. lee, where one article of the americans with disability act was upheld and contrast it with the garrett case where it was stricken. justice scalia, in the argument of the voting rights case, took issue with the congress on a 98-0 decision, suggesting that if it's 98-0, it must not have been too carefully thought through. it reminds me of the 98-0 vote that justice scalia got on his confirmation. many unanimous decisions of the supreme court.

i'll be attaching as an appendix this cases, a group of cases. general moore where justice scalia decided the case 9-0. so if this legislative body, if the united states senate votes 98-0 in favor of renewing the voting rights act, relying upon the extensive record which i have cited, that's not a sign of weakness. that's not a sign that the senate doesn't know what it's doing with a 98-0 vote. so the questions which i have posed for judge sotomayor are these: would you apply the justice harlan rational base standard or the congruent and proportionality standard? what are your views on justice scalia's skarbgtization that the -- quote -- "congruence and

proportionality standard is a flabby test and an invitation to judicial arrest by trarryness and policy -- arbitrariness and policy-driven decision making where justice scalia says that is a standard which is so vague? third, do you agree with chief justice rehnquist's conclusion that the violence against women legislation was unconstitutional because of congress's method of reasoning? fourth, do you agree with the division of constitutional authority between congress and the supreme court's articulated by chief justice roberts in his responses cited in this letter to questions posed at his hearing by senator dewine and myself? i do believe that there will be an opportunity for very important issues to be presented to the nominee based on what i

have seen of her, in reviewing her record, and the meeting that i had with her, i have noted her excellent resume and looking forward to giving her an opportunity to answer the many questions raised in the press where she will have more of an opportunity to have a sound bite, but to give commentary on her record in support of her nomination. i thank t c c c c c call be dis. the presiding officer: without objection. a senatormr. sessions: the nomif a new justice to the supreme court of the united states brings to our minds a core question both for the senate and the american people, than is what is the proper role of a federal judge in our republic? answering this question is not simply an academic task. it's fundamental to what we will

be doing here. how the american people and their representatives and their senators, the ones who have been delegated that responsibility, answer this question impacts not only the future of our judiciary, but i think future of our legal system and the american experience, really. i would just say that from traveling the world as part of the armed services committee, i'm more convinced than ever before that the glory of our american experience, our liberty and our prosperity is based on the fact that we have a legal system you can count on. and when you go to places like afghanistan or iraq or pakistan or the west bank and -- and you see people -- bosnia, and they just can't get a legal system working. and it does not work and people re not protected in >> and people are not protected in their persons from