there are only eight days, now, eight days of legislative days before the hearings start. there is a lot of work to be done. a lot of words that have in the yet been received. senators are working very hard and we'll do our best to make sure we have the best hearings we've ever had for a supreme court nominee. mr. president, i see my colleague, senator hatch, here, who is a fabulous constitutional lawyer, former chairman of this judiciary committee, and i was honored to work for him, serve under him when he was our leader, and i know he -- whatever he says on these subjects is something that the american people need to listen to, because he loves this country, he loves our constitution, and he understands it. i thank the chair, would yield the floor. mr. hatch: mr. president? the presiding officer: the senator from utah is recognized. mr. hatch: i thank my colleague. he is so nice in his comments. i am so proud that he is the

republican leader on the judiciary committee. he'll do a terrific job and has been doing a terrific job ever since he took over. now, considering that a supreme court nominee is one of this body's most important responsibilities, i come at this wanting to support whoever the president nominates. the president has the right to nominate, appoint. we have the right-to-, it seems to me, to vote one way, up-or-down and determine whether we will consent to the nomination. i can also give advice during this time. only 110 men and women have so far served on our nation's highest court. and president obama has now nominated judge sonia sotomayor to replace justice david souter. our constitutional role of advice and consent requires us to determine whether she is qualified for this position by looking at her experience and, more importantly, her judicial

philosophy. president obama has already described his understanding of the power and role of judges in our system of government. he has said that he will appoint judges who have empathy for certain groups and that personal empathy is an essential ingredient for making judicial decisions. right off the bat, president obama's vision of judges deciding cases based on their personal feelings and priorities is at odds with what most americans believe. a recent national poll found that by more than 3:1, americans reject the notion that judges may go beyond the law and take their personal views and feelings into account. judge sotomayor appears to have endorsed this subjective view of judging. in one speesm that she gave several times over nearly a decade, she endorsed the view that there is actually no objectivity or neutrality in judging, but merely a series of perspectives. she questioned whether judges

should even try to set aside their personal sympathies and prejudices in deciding cases, a view that seems in conflict with the oath of judicial office, which instead requires impartiality. we must require judge sotomayor's entire record for clues about her judicial philosophy. she was, after all, a federal district court judge for six years and has been a federal appeals court judge for nearly 11 more. while we are told that this is the largest federal judicial record of any supreme court nominee in a century, we're being allowed the shortest time in recent memory to consider it. the 48 days from the anowngsment to the hearing for judge sotomayor is more than three weeks, more than 30% shorter than the time for considering justice samuel alito's comparable judicial record. there was no legitimate reason for this stunted and rushed timetable, but that is what the

majority has imposed on us, and that is where we are today. so i want to take a few minutes this morning to take a look at judge sotomayor's judicial record on a very important issue to me, and i think many others in this body: the right to keep and bear arms protected by the second amendment to the constitution. some can be quite selective about constitutional rights, prizing some while ignoring others. some even trumpet rights that are not in the constitution at all, as more important than those that are right there on the page. it appears that judge sotomayor has taken a somewhat dim view of the second amendment. two issues related to the scope and vitality of the right to keep and bear arms are whether it is a fundamental right and whether the amendment applies to the states as well as to the federal government. on each of these issues, judge sotomayor has chosen the side that served to limit, confine,

and minimize the second amendment. she has done so without analysis, when it was unnecessary to decide the case before her, and even when it conflicted with supreme court precedent or her own argument. -- arguments, i should say. in a 2004 case, for example, a second circuit panel, including judge sotomayor, issued a short summary order affirming an illegal alien's conviction for drug distribution and possession of a firearm. the case summary and head notes supplied by lexis take up more space than the three short paragraphs proffered by the court. judge sotomayor's court rejected a second amendment challenge to new york's ban on gun possession in a single sentence relegated to a footnote with no discussion, let alone any analysis of the issue what complete in fact, the court neither described the

appellate's argument nor indicated how the district court has addressed -- or had addressed this constitutional issue. but merely cited a second circuit precedent for the proposition that the right to possess a gun is -- quote -- "clearly not a fundamental right." unquote. that is pretty short shrift for a constitutional claim. last year in the district of columbia v. heller, the supreme court held that the second amendment right to keep and bear arms is an individual rather than a collective rievment but the court also noted that by the time of america's founding, the right to have arms was indeed fundamental and that the second amendment codified this preexisting, fundamental right. several months lairlt a second l months later, a second panel, including judge sotomayor, confircitedan 1886 supreme cour,

the second circuit held that under the constitution's privileges and immunities clause, the second amendment applies only to the federal government, not to the states. whether correct or not, that holding was obviously enough to decide the issue in that particular case. judge sotomayor's court, however, went beyond what was necessary to further minimize the second amendment by once again characterizing its something less -- characterizing it as something less than a fundamental right. the court said that there need be only a show of called rational basis to justify a law banning such weapons, a legal standard it said applies where there is no fundamental right involved. the court simply ignored and actually contradicted the supreme courtstddition in heller by treating the second amendment as protecting less than a fundamental right. in fact, the very 1886 precedent

judge sotomayor's court cited to hold that the second amendment limits only the federal government recognized that preconstitutional nature of the right to bear arms. her court never addressed these contradictions. the seventh circuit has since also held that under the privileges and immunities clause, the second amendment limits only the federal government. but the ninth circuit last month held that under the constitution's due process clause, the second amendment does indeed apply to the states. these courts gave this issue much more analysis than did judge sotomayor's court, and neither found it necessary to address whether the right to keep and bear arms is fundamental. i wish that judge sotomayor's court had shown similar restraint. so it appears that judge sotomayor has consistently and even gratuitously opted for the

most limiting, the most minimizing view of the second amendment. no matter how distasteful, this result would be legitimate if it followed adequate analysis, if it properly applied resident, and if it was necessary to decide the cases before her. in any event, it -- in that event, i would not like it but probably could not quarrel with it. but as i've indicated here, this is not the case. there was virtually no analysis to her conclusion conflicted with precedent. it was unnecessary to decide the cases before her. this is not the picture of a restrained judge who has set aside personal views and is focusing on applying the law rather than on reaching politically correct results. these are serious and troubling issues which go to the very heart of the role judges play in our system of government. these are elements not from her speeches but from her cases that

give shape to her judicial philosophy. we have a written constitution which is supposed to limit government, including the judiciary. we have the separation of government power under which the legislative branch may employ empathy to make the law but the judicial branch must impartially interpret and apply the law. we have a system of self-government in which the people and their elected representatives make the law and define the culture. it is no wonder that most americans believe that judges must take the law as it is, not as judges would like it to be. and decide cases impartially. that is exactly what scwudges are supposed to do if our system of ordered liberty, based on the rule of law, is to survive. president george washington said that the right to keep and bear arms is -- quote -- "the most effectual means of preserving

peace" -- unquote. justice joseph story, in his legendary commentaries on the constitution, called this right the -- quote -- "palladium of the liberties of a republic" -- unquote. i, for one, am glad that our founders did not give short shrift to this fundamental individual right. so let me close my remarks this morning -- or this afternoon by saying that these are some of the questions that need answers, issues that need clarification and concerns that need to be satisfied as the senate examines judge sotomayor's record. perhaps such answers, clarification, and satisfaction exist. my mind is open, and i look forward to the nearing which these and many other matters no doubt will be raised. these are important issues. they can't just be shunted aside as though they're unimportant. and judge sotomayor needs to answer some of these issues and

questions that we are raising, as we go along. i've told her that we will ask some very tough questions and that she's going to have to answer them. she understands that, and i appreciate that. with that, i yield the floor.

shiewn shiewn mr. president? the presiding officer: the senator from south dakota. mr. thune: thank you, mr. president. i rise today to follow on some of the comments that were made by my colleagues who have come to the floor to talk about the nomination of judge sonia sotomayor to the supreme court of the united states, and i would start by saying, mr. president, that any confirmation the senate considers is important, but none more so than a lifetime appointment to the most distinguished judicial office in our nation

now that the president has nominated judge sotomayor, it is the senate's job to give advice and consent. as alexander hamilton told the constitution convention, senators -- and i quote -- "cannot themselves choose, they can only ratify or reject the choice of the president." mr. president, i take this role very seriously, as do all of my senate colleagues. in fact, just 3 1/2 years ago, on this very floor, one of our colleagues in the senate at the time rose and gave the following views on a then pending supreme court nomination. and i want to quote for you, mr. president, what he said. he said, "there are some who believe that the president, having won the election, should have complete authority to appoint his nominee and the senate should only examine whether the justice is intellectually capable and an all-around good person, that once you get beyond intellect and personal character, there should be no further question as to whether the judge should be

confirmed. i disagree with this view. i believe firmly that the constitution calls for the senate to advice and consent. i believe it calls for meaningful advice and consent and that includes an examination of the judge's philosophy, ideology, and record." mr. president, the senator who made those remarks was then-senator obama. he spoke these words in january of 2006 on this floor when the senate was debating the confirmation of now supreme court justice samuel alito. and i, like the president, believe that it is the senate's constitutional duty to thoroughly review all nominees to the federal bench, especially those who will have a lifetime appointment to the highest court in our nation. this review should be their proceed and fair and cover a nominee's background, judicial record, and adherence to the constitution. this is especially true with the voluminous judicial record that judge sotomayor has come piled

with over -- has compiled with over 3,00 federal, district and appellate level decisions. the senate must also work to ensure that the nominee will decide cases based on the bedrock rule of law as opposed to their own personal feelings and political views. as part of this confirmation process, i had the opportunity this morning to meet personally with judge sotomayor. like many in this body, i agree that judge sotomayor has an impressive background as well as a compelling personal story. mr. president, what we have to do is we have to examine and look at her record. when it comes to her understanding of the constitution, especially as it relates to the second amendment right to bear arms, that's an area where i have significant concerns. while sitting on the second circuit court of appeals, judge sotomayor has consistently advanced a narrow view of the second amendment and done so with little explanation or reasoning.

for example, twice judge sotomayor has ruled that the second amendment is not a -- quote -- "fundamental right." the first time she did so with a one-sentence footnote and most recently it was simply stated as fact without any explanation or reasoning being provided. judge sotomayor's views on whether the second amendment right to bear arms is a fundamental right are so important because the supreme court has made this determination a key element in deciding whether to apply parts of the bill of rights, such as the second amendment, to state and local governments. this question, also known as incorporation, is likely to be the next second amendment issue the supreme court will consider. because the circuit court of appeals is split and the supreme court specifically noted that they were not deciding this issue in the landmark district of columbia vs. heller decision, which was decided last

year. what is most troubling to me, though, is that these second amendment cases point out a trend that legal experts have expressed about judge sotomayor. that she has a record of avoiding or casually dismissing difficult and important constitutional issues. it doesn't take an attorney to notice that judge sotomayor's discussion of incorporation, challenging a constitutionally significant issue, consists of just a few paragraphs. in contrast, the opinions for both the 9th circuit and the 7th circuit discuss the issue at length, and in doing, so give this important issue the attention and analysis that it deserves. now, while i understand that writing styles can and do vary, even in the writing of judicial opinions, i am still concerned about the apparent lack of thoughtfulness and thorough reasoning in her decisions. another example of a judge sotomayor opinion that appears to be unnecessarily short and

inadequately reasoned is the ricci vs. dave stauffano case. in this case, a three-judge panel, which included judge sotomayor, published an unusually short and unsigned opinion that simply adopted the lower court's ruling without adding any original analysis. even one of judge sotomayor's old mentors, judge jose cabranas,commented that the ricci opinion -- and i quote -- "contains no reference whatsoever to the constitutional claims at the core of this case and that the perfunctory disposition of it is case rests uneasily with the weighty issues that are presented by this appeal." mr. president, without careful reasoning being provided, critics and supporters alike have been left to wonder on what basis these decisions have been made and i am left with concerns

about these rulings and whether or not they are based upon personal views and feelings rather than the rule of law. mr. president, in my short meeting that i had with judge sotomayor this morning, it did not provide either of us with enough time to address these issues and these concerns at length and that is why, like many of my colleagues, i will be monitoring closely the confirmation hearings that are set to occur next month. during those hearings, it is my hope that the members of the judiciary committee take the necessary time to explore and thoroughly examine her positions and legal reasoning, especial oy on the second amendment in greater detail. so, mr. president, i, like many of my colleagues, are anxious to see this process move forward. we also understand the weight that is attached to the constitutional role of the senate when it comes to advise and consent and that when you consider a lifetime appointment

to the highest court in the happened, that you better make sure -- court in the land, that you better make sure that do you your homework, that you thoroughly and completely and fairly examine that record. and i hope that the judiciary committee -- and i know that they will -- will conduct this in a way that's consistent with the tone that i believe ought to be a part of this. it ought to be a civil discussion, but it also needs to be thorough, mr. president, because we are talking about a lifetime appointment to the supreme court. and whoever ends up on that court is going to be faced with a great many issues, all of which have consequence, lasting consequence for this great republic. in my view, it's important that we have judges who are put on the supreme court who understand that the role of the judiciary in our democracy is not to play -- take sides. it is to be the referee, it is to be the up pierks it is to be -- umpire, it is to be someone who applies the constitution, the laws of this land fairly to the facts in

front of them, the cases that they will hear. and i would certainly hope that as we have an opportunity to more thoroughly review the record of this nominee, that the members of the judiciary committee and all the members of the united states senate will take very seriously that responsibility. but that will be the criteria, mr. president, and the -- the filter by which i look at this nominee, is whether or not in my view she exercises an appropriate level of judicial restraint, does not view the role of a judge in our judiciary system in this country to be that of an activist, someone who expresses personal feelings or tries to advance some particular political agenda but someone who in terms of their philosophy, their temperament is committed to that fundamental principle of judicial restraint, which sink a hallmark of our democracy -- which i think is a hallmark of our democracy and has been over the past two centuries. mr. president, i yield the floor, and i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

mr. thune: mr. president? the presiding officer: the senator from south dakota. mr. thune: i ask unanimous consent the quorum call be dispensed with. the presiding officer: without t

objection, so ordered. mr. thune: mr. president, while i have the floor, i did want to express, because i didn't have an opportunity to this morning, we had a cloture vote on the nomination of harold koh to be the next u.s. state department legal advisor. and i wanted to express some of my views and the concerns that i have. now, obviously cloture was invoked this morning. my guess is ultimately he will have the votes to be confirmed here, but we have an opportunity now in the postcloture period to talk a little bit about this nominee. and i have to say, mr. president, that, again, this is an important position. if confirmed for this position, mr. koh would be "the" top lawyer at the state department and would be involved in the negotiation, the drafting, and the interpretation of treaties in u.n. security council resolutions. he would also represent the united states in other international negotiations, at international organizations and before the international court of justice.

to put it very simply, mr. president, he would be viewed as the top legal authority for the united states by the international community. now, similar to judge sotomayor, mr. koh highlights a trend which i think we see in some of president obama's nominees. they have impressive backgrounds, they're -- but when their records are examined in more detail, there are substantive questions about their understanding of the constitution. for example, mr. koh has said repeatedly, including at his confirmation hearing, that he believes the congressionally authorized 2003 u.s. invasion of iraq -- and i quote -- "violated international law" because the united states had not received -- and i quote -- "explicit united nations authorization" beforehand. he's also said that the united states supreme court should -- quote -- "tip more decisively toward a transnationallist jurisprudence."

as opposed to basing their decisions on the united states constitution and laws made pursuant to it. his views on the second amendment are also extremely worrisome. in a speech called "a world drawing in guns," which was given at fordham university law school in 2002 and later published in their law review, he explains why he believes there should be a global gun control regime and admits that -- and i quote -- "we are a long way from persuading government to accept a flat ban on the trade of legal arms." he concludes his speech with this statement: "when i left the government several years ago, my major feeling was of too much work left undone. i wrote for myself a list of issues on which i needed to do more. one of those issues was the global regulation of small arm arms." mr. president, given again that mr. koh will be the top legal

advisor at the state department on both domestic and international issues, i have concerns because of statements like these that he could place his own personal agenda ahead of the needs of our country and the u.s. constitution. and so we're going to have an opportunity probably still fo for -- we've had the cloture vote on this nomination, but i wanted to express for the record, mr. president, my concerns about this nominee and the types of statements that he's made in the past, the types of agenda that he clearly has expressed support for, and how, in my view, it contradicts manufacture thmanyof the basic d rights, the second amendment being one that i mentioned early dwhrearks i would raise as a major concern, but also this notion that transnational jurisprudence that the supreme court ought to tip more decisively in that direction. that, to me, is a cause for great concern,