think the -- the process of making a summary opinion was to me pretty much a takes your back. how did you conclude? did you look at that precisely? >> we did look at that case, senator. we do not take a position on whether an opinion is right or is wrong. that's not what our function is. however, we did look at the procedure that was followed in the ricci case. and that is a case in which the 2nd circuit panel heard full briefing and oral arguments and following which the panel which was not presided over by judge sotomayor but the panel decided to adopt in effect the district court ruling because they affirmed the ruling and agreed with the reasoning than did not

-- >> that is basically true but one judge was quite reluctant. another moderated and the judge apparently wanted to do it this way and prevail but the only thing i was asking about and if you're prepared to make an expression of opinion is the decision to decide it as a summary matter. not even a protierum issue. >> we were aware of how the 2nd circuit handled summary opinions. we did not talk to her about that. we did not believe that was within the criteria that we evaluate with judges. we did read the opinion in great detail. members of the reading groups, all three reading groups, indeed, we were very lucky to receive the supreme court opinion on this before our report was finalized so we got a complete briefing on that case. >> well, one more thing.

a recent group of political scientists did a study of the aba nomination process from '85 to 2008 and found that the aba must take affirmative steps to change its system for rating nominees to avoid favor and by in favor of liberal nominees. do you take that seriously? were you willing to look at how you handled these things? >> we take any critique of our process seriously. i can tell you we judge every nominee based on the record presented to us and the background and experience of the nominee. >> i think it is a valuable contribution to the process. >> thank you. >> it is -- when you talk to lawyers, and sometimes most people are very tend very much to be supportive of any nominee, especially if, you know, they just tend to be supportive and

minimize problems but sometimes i think you could pick up things other people wouldn't and can be invaluable to this process and i thank you. >> thank you. >> senator, if i may, i would like to go back to the ricci decision and one thing i did look at is in calendar year 2008 the 2nd circuit issued 1,482 opinions, not counting the nonargued asylum cases. and of those 1,482, 1,081 were decided by summary order. only 401 full opinions were issued. and as i read the record, the -- one of the reasons the panel believed it could proceed by summary order is because it believed that there was controlling 2nd circuit precedent which a panel is not in a position to change.

so i don't mean to open the issue but i would like to put it into some context as to how the 2nd circuit normally operates. >> that's a nice way to say it but this is a -- rule said if it has judicial prudence importance, it should have importance. i think it is in violation of the rule. i don't know why they did it but it was in violation of the rule in my judgment as a practicing lawyer. i thought you would have agreed, miss bois. >> we'll hear next from the distinguished senator of pennsylvania, senator specter. >> well, thank you, mr. chairman. no questions. just a comment to thank you for your service. there have been occasions when the american bar association was not consulted and i think that the aba has a special status. the judiciary committee is hearing from all interested

parties, not possible to invite all interested parties to appear in person but we welcome comments from anyone in a free society to tell us what they think of the nominee. but the aba performs this function regularly with all federal judges and you interview a lot of people knowledgeable and have had contact and i think it is very, very useful so thank you for your service. i have no questions, mr. chairman, on the substance. >> we'll turn to senator cardinal of maryland. >> i also do not have any questions but i do want to make an observation because i very much respect the opinions of the american bar association, fellow lawyers. i think it's the highest compliment when your peers give you the highest rating. they're your toughest critics. i know lawyers selecting a jury

will almost always strike laurels from that jury list because they're the toughest audience that you have and so this is a -- i think speaks to the nominee and as i understand it, the manner in which you go about rating a judge is not only her experience but also the way that she has gone about reaching her decisions from the point of view of the appropriate role of a judge, her judicial temperament and the absence of bias in rendering those decisions and they're exactly what we are looking for in the next justice on the supreme court so i really want to thank you for giving us this information and participating in the process. >> thank you. >> senator kornin? >> thank you, mr. chairman. i just want to welcome the two witnesses and thank you for your assistance to the committee, particularly to say how good it is to see kim eskew from dallas, texas, doing great work as the chair of the committee and

welcome. thank you for your assistance to the committee and performing its constitutional function. >> thank you. >> there being no further questions, the panel is excused with our gratitude for a commendable and very diligent effort. >> thank you very much. >> thank you. >> the hearing of the judiciary committee will come back to order. we are awaiting the arrival of mayor bloomberg and district attorney morganthau coming down from new york. i'm told they're five minutes away but the five minutes that people are away can be a longer five minutes than a regular five

minutes. so in the interest of the time of the proceeding and of the other witnesses, we will proceed. and come to them when they arrive and have a chance to take their seats. >> in the mayor's defense, he probably thought we would be operating under senate time and we would certainly be late and could have a little extra time. >> that is our custom. >> we are moving along well. thank you, mr. chairman. >> our first witness then will be dustin mcdaniel, he is the attorney for the state of arkansas and the southern chair of the national association of attorneys general. previous to his election as attorney, he worked in private practice in jonesboro, arkansas. prior to takes office, he also served as a uniform patrol officer in his hometown of jonesboro, arkansas. he is a graduate of the university of arkansas little rock law school. attorney mcdaniel, will you

please stand to be sworn? do you affirm that the testimony you are about to give before the committee will be the truth, the whole truth and nothing but the truth so help you god? >> i do. >> attorney more beganthau, please be seated. attorney mcdaniel, please proceed. >> thank you. my name is dustin mcdaniel, the attorney of the state of arkansas. i'm here today to speak in support of the nomination of judge sonia sotomayor to the supreme court of the united states. we've all heard all week about her compelling life story and impressive accomplishments. i'm proud to testify on behalf of when person who's first appointed by president george h.w. bush and then my most famous predecessor president bill clinton. more specifically, i'm here to rebut the involvement in ricci

reflects upon the abilities to serve as a justice on the united states supreme court. when the supreme court granted the ricci case i on behalf of the state of arkansas joined in support of the 2nd circuit. before i address the case and the brief, let me address the parties and their issues. i entered the world of public service long before i became an elected official. after college, i turned down by admission into law school and took a civil service exam in jonesbo jonesboro, arkansas. i became a police officer and saw firsthand the heroism and dedication of the men and women who protect and serve our communities every day. firefighters like frank ricci and colleagues run into homes and buildings when everyone else is running out. i have the highest respect and gratitude for all who serve our communities, states and nation. they are heroes among us and they deserve to be treated fairly by the system.

my personal experience with the civil service exam was a favorable one but not all are so lucky. i understand the frustration that the firefighters felt with this process. i also understand the city's fear of litigation and unfair results. i'm for a process that's fair. no one should be given an unfair advantage but no one should be subject to an unfair disadvantage oother. as attorney, i represent hundreds of state agencies, boards and commissions in matters of employment law. my job is to allow my clients to do the job without fear of unreasonable litigation. the law had until recently al w allowed for flexibility necessary for public employers. the supreme court's ruling in this case will likely increase costly litigation and the taxpayers will ultimately pay the bill. all who have commented on the nomination process in recent years have been critical of those labeled an activist judge. it is important to note that the 2nd circuit ruling in this case

was not judicial activism at work. to the contrary they followed existing law. the district attorney they called thorough, thoughtful and well reasoned. they sided cases dating back some 28 years. the ruling was consistent with the law and the doctrine of starry decisis given the supreme court ruled differently but it set new precedent and also important to note that the 2nd circuit's ruling supported by many prestigious groups, including the eeoc, the department of justice, the national league of cities, the national association of counties, international municipal lawyers association and the republican and democratic attorneys general of alaska, iowa, arkansas, maryland, nevada and utah. there's a large body of research available on judge sotomayor's record. no allegation that she rules based on anything other than the law can stand when cast in the

light of her actual record. congressional research service concluded, quote, perhaps the most consistent characteristic of the approach could be described as an adherence to the doctrine of starry decisis, that is upholding of past judicial precede precedent. in haydenver sus pitacki she said, it is the duty of the judge to follow the law. she concluded by saying, quote, congress would prefer to make any needed changes itself rather than have courts do so for it. in my opinion, judge sotomayor is abundantly qualified an enan excellent nominee. i believe that the people of the united states would be well served by her presence on the court. it is my great honor and privilege to be here and i thank you ever so much for the opportunity to appear here today. thank you. >> thank you, very much, attorney mcdaniel. we'll do a round of questions

for the attorney general and then once the panel is completely assembled, i'll have all the witnesses sworn and then proceed to mayor bloomberg, attorney morgan thau and across the panel with an opportunity for the distinguished senator of new york to introduce mayor bloomberg. attorney mcdaniel, as an experienced lawyer, let me ask you. is it not the case that it's the supreme court's task very frequently to resolve conflicts between the circuit courts of appeal? >> yes, of course, it is, senator. >> and if a circuit court is precedent, and therefore, the doctrine of starry decisis controls a particular decision, that does not in any way inhibit the supreme court frombreviewing

thatç second decision against conflicting decisions from other @ @ åzrrrr"rra)a court which dated back up to 28 years made it clear that remedial actions although race conscious but race neutral were permissible, i think that that is precisely what the case demonstrated. and how the court ruled and why the states that participated, arkansas included, thought that it was important to preserve for our clients the ability to try to avoid litigation if they

think they cannot defend an existing practice. no lawyer would tell the client, go do it anyway. but clearly, the supreme court thought that it was right for review and they also thought that it was ripe to change the law which is their per view. >> that's an interesting point. and many observers including prominent observers who have had their views expressed in the public media about this indicated that that decision changed the landscape of civil rights law. if a judge is a cautious and small c conservative jurist on a circuit court, do you believe it's appropriate for the circuit court to change the landscape of civil rights law? >> absolutely not. i don't think that the 2nd circuit did anything short of what it had to do which was to apply the existing law. the fact that the majority, a bare majority, in the united states supreme court decided to

change existing law frankly that would have been inappropriate for the 2nd circuit to take that responsibility on itself. >> thank you, attorney general. >> thank you. mr. mcdaniel, for the two-year attorney general, and it's a great honor. with regard to the ricci case, are you aware that the panel attempted to decide this case on a summary order writing no opinion, not even a procureum decision? >> i am aware of that. >> are you aware that by chance another member of the circuit found out about that and in an uproar of sorts occurred because the people, the other members -- other members of the circuit were very concerned about the opinion and thought it was an

important opinion? are you aware of that? >> i know that the -- i know that the panel at least the body of judges chose to review the matter and they voted not to meet in bond and there was -- >> that's correct. that's correct. now but -- now you say that there was 2nd circuit opinion, authority, to uphold this case. but -- but on rehearing the slate is wiped clean and the panel can develop or form late new authority or determine clearly whether or not that previous case may have applied. and are you aware that when they voted, the vote was 6-6 and judge sotomayor was the key vote in deciding not to rehear the case? and therefore, we can conclude

that not only did she decide this case but it's really not accurate to say she was just following authority since it was her vote that didn't allow that authority to be re-evaluated. >> well, senator, she was in the majority so it's fair to say that any one of those judges could be the deciding vote. >> that is correct but it is not fair i think to say that she didn't have an opportunity to re-evaluate it. she was simply alpplying a law she was bound to follow when she could have allowed it to have been rediscussed. >> i also think that there were supreme court cases not just 2nd circuit cases -- >> are you aware that the supreme court says there were not? are you aware that the supreme court said there was no supreme court authority on this matter? >> i have read their opinion and i tend to agree with the minority that this was, in fact,

squarely within the -- >> okay. now, you filed which i give you credit for and i did some of these things when i was attorney general, you joined with 32 other state attorneys general in submitting -- a brief to the supreme court on the heller case. you took the provision -- the brief argues that the right to keep and bare arms is among the most fundamental of rights because it is essential to securing all other liberties closed quote. i see the mayor not happily listening to that. but -- so you believe that the second amendment is a fundamental right. are you aware that sandy froma, the former president of the nra, you are probably not familiar with this letter but she is a letter and said heller was a 5-4 opinion with some justices arguing that the second amendment does not apply to private citizens or that if it

does even a total gun ban would be uphold if a legitimate government interest could be found. the dissenting justices also found that the d.c.'s absolute gun ban on handguns within the home a reasonable restriction. that wouldn't play too well in alabama or arkansas or oklahoma or texas but most places. so i guess i'm saying, are you concerned that -- and are you aware, of course, the maloney case in which judge sotomayor and i think she can contend there was authority in that case that justified her concluding the second amendment does not apply to the states but i was disappointed in the way she wrote it gave me concern. so are you aware that one vote on the supreme court could make the difference on the question

of whether or not the right to keep and bare arms is protected against mayors or legislatures of states who disagree? >> well, i was proud to join arkansas into the brief on heller versus the district of columbia. i intend to join again in the nra versus chicago in the attempt to have the supreme court review and take up the question which i believe is ripe as to whether or not the second amendment is applied to the states as incorporated by the 14th amendment. i do believe that the second amendment is a fundamental right and i do believe that it is individual right, not one tied to participation in a militia. the attorney -- the current attorney general and i have spent sometime on that issue. even recently. and i am not nonetheless concerned with judge sotomayor's

position. i am confident that her answers provided to this committee and her record are consistent with one another and i do not believe that the right to keep and bare arms is at risk with this nominee or frankly i wouldn't testify for her. >> well, thank you. and i think it is. >> now that the panel is assembled, i will swear the entire panel in. we'll return to regular order. you can all give your opening statements and then questioning will begin at the conclusion of those opening statements. would you please stand to be sworn? you may sit. do you affirm that the testimony you are about to give before the committee will be the truth, the whole truth and nothing but the truth so help you god? please be seated. i will recognize senator schumer for a moment to welcome his constituent and the mayor of new york city. yes. michael bloomberg. >> well, it is my honor to

welcome two very distinguished constituents to be here and extend a welcome to two of new york's greatest public servants. mayor bloomberg and district attorney morganthau. as you know, this nomination is a source of enormous pride to all new yorkers. and your support for judge sotomayor has been extremely helpful to this committee. to the senate as a whole and to the nation in understanding what kind of justice she will be and very much appreciate your being here. >> thank you, mr. chairman. welcome. >> mayor bloomberg, as the mayor of new york city, currently serving in the third term as mayor. founded bloomberg llp with employees and graduate of johns hopkins located in baltimore, maryland, and harvard business school. we look forward to your

testimony. >> mr. chairman, thank you. ranking member sessions, thank you very much. senators, senator, senator, senator sessions, i must say, as a former gun owner, a former member of the nra and also a staunch defender of the second amendment, we probably don't disagree very much if we really had a chance to talk. in any case, i wanted to thank everyone for the chance to testify before you today. i'm mike bloomberg and here not only as the may why are of new york city, the city where judge sonia sotomayor has spent her entire career, but also, as someone who appointed or reappointed more than 140 judges to new york city's criminal and family courts so i do appreciate the job before you. about three months ago, when president obama invited governor schwarzenegger and rendell and me to the white house to discuss infrastructure policy, i found an opportunity to tell him what many of the best legal minds in new york were telling me. judge sonia sotomayor would be a

superb supreme court justice. i strongly believe that she should be supported by republicans, democrats and independents. and i should know because i've been all three. judge sotomayor has all of the key qualities that i look for when i appoint a judge. first, she is someone with a sharp and agile mind, as her record and her testimony i think made clear. and as a former prosecutor, commercial litigator, district court judge and appellate judge, she brings a wealth of unique experience. second, she is an independent jurist who does not fit squarely into an ideological box. review of the rulings by new york university's brennan center found that judges on the 2nd circuit court who are appointed by republicans agreed with her more than 90% of the time when overruling a lower court decision and when ruling a governmental action

unconstitution also this is someone whose decisions cut across party lines which is something i think the supreme court could use more of. and third, whether you. >> agree or disagree with her on particular cases, she has a record of sound reasoning. in interviewing judicial candidates, i like to ask questions with no easy answers and listen to their responses. i want to know they're open minded enough to change the views if they hear compelling evidence and to see if they can provide a strong rational for their legal conclusions. even if i disagree with it. the fact is, you're never going to agree with a judicial candidate on every issue. i have appointed plenty of judges whose answers i don't agree with at all. and i should point out that includes times when judge sotomayor has ruled against new york city as she has done on a number of cases so i'm not here as someone who agrees with the outcome of her decisions 100% of the time and i don't think that that should be the standard.

now, i'm not a lawyer or a constitutional scholar but i i think the standard should be, does she apply the law based on national reasonable thinking and i think the answer is unequivocally yes. it's impossible to know how she will rule on cases in the future or what the cases will be given that a supreme court judge is likely to serve for decades, focusing on the issues rather than intellectual capacity, analytical ability and plain common sense would miss what the country clearly needs. someone who has the ability to provide us with the legal reasoning and guidance that will be necessary to navigate the unchartered waters of tomorrow's great debates. and i'm very confident that judge sotomayor has that ability. finally, as the mayor of her hometown, i would just like to make two brief points. first, on the issue of

diversity, the supreme court currently includes one member that grew up in brooklyn and one in queens. and so there's no doubt that adding someone who comes from the bronx would improve the diversity of this court. and if you disagree with me, you haven't been to brooklyn, queens and the bronx. but seriously, sonia sotomayor's the quintessential new york success story. beaten the odds and rose to the top. if that's not the american dream, i don't know what is and however i don't believe she should be confirmed on the strength of the biography but i think that her life story tells you an awful lot about her character and ability. and second, i just want to add a caution against those who suggest that judge sotomayor's service to the puerto rican legal defense and education fund is somehow negative. that's an organization well respected for its civil rights work in new york city and although i certainly have not always seen eye to eye on every issue with them, there's no question that they have made countless contributions to our

city and judge sotomayor should be based solely on her record and not on the record of others in the group so thank you very much for the opportunity to testify and i urge@@@@@@'2 á@ úe terms in office and staff conducted about 3.5 million criminal prosecutions and homicides in manhattan and has been -- and has a rate of 90% success. graduate of yale law school. district attorney served the board the destroyer in world war ii and a pleasure to have you before the committee. >> thank you, mr. chairman. i appreciate the opportunity of

testifying today and i'm pleased to join those who endorsed the nomination of judge sotomayor for the united states supreme court. i first came to know judge sotomayor while i was on a recruiting trip to the yale law school. at that time, jose cabranos was the general counsel and taught at the law school. i asked if he knew anyone special to speak with and he said, yes, a remarkable student named sonia sotomayor was starting where to work and while he did not know whether she had given any thought to being a prosecutor, it would be well worth my while to meet her. he was decidedly correct. i'm happy to be able to say that the judge joined my office and remained with us for five years. in my conversations, i learned about the compelling story of her life of which you are familiar. she was raised by a mother in a working class home from south bronx and then as a teenager

worked the evening shift in a garment factory to help make ends meet. she went on to hard work, force of will to overcome her initial difficulties with english composition to win princeton university's highest undergraduate honor. a pine prize and the graduate with honors from yale law school. the district attorney's office the judge was immediately recognized by supervisors and as someone a step ahead of her colleagues. one of the brightest and most mature, hard working, standout who's marked for rapid advancement. ultimately she took on every kind of criminal case that comes into an urban courthouse. from turnstile jumping to homicide. one of those cases, the tar zan murder case with an addicted burglar named richard maddox withhold terrorize a neighborhood in a crime spree

with three dead and swinging into apartment window shooting anyone in his way. he is now serving 137 years to life sentence. another case prosecuted by assistant d.a. sotomayor in 1983 with a time square child pornography operation. that is the first child prosecution in new york after a landmark 1982 supreme court decision, people versus gerber upholding new york's new child pornography laws. assistant d.a. sotomayor left the jurors in tears over what the defendants had done to child victims. these cases happened to grab the public attention but judge sotomayor, assistant d.a. sotomayor understood that every case is important to the victim. and appropriately gave undivided attention, proper disposition of

all of them. assistant district attorney sotomayor soon developed a reputation. unlike many prosecutors, she simply would not be pushed around by judges or by attorneys. some judges were eager to dispose of cases chiefly to clear their calendar s and a.d.. sotomayor fought in every case. maybe that experience in the criminal court in new york city helped her prepare for these hearings. after leaving my office, judge sotomayor joined a prominent law firm and also accepted a part time appointment as a member of the new york city campaign finance -- while there, she continued to earn a reputation for being tough, fair, nonpolitical and in an arena where those characteristics were sorely needed and she has taken those characteristics with her to the federal bench where they're equally important.

judge sotomayor's career in the law spans three decades and worked in almost every level of our judicial system, prosecutor, private litigator, trial court judge and apellet court judge and when i think of the second most important court in the world. she is an able champion of the law and her depth of experience will be invaluable on our highest court. judge sotomayor is highly qualified for any position in which a first-rate intellect, common sense and coleenlgality and good character would be assets. i might add that the judge will be the only member of the supreme court with experience trying criminal cases in the state courts. the overwhelming majority of american prosecutions are current state courts. judge sotomayor will bring to the court a full understanding

of problems faced by prosecutors in those cases as well as a firsthand knowledge of the trauma faced by victims and of the legitimate needs of police officials who work in the state law enforcement system. she will also understand the impact of federal judicial decisions on the state prosecutions. in short, the judge is uniquely qualified by intellect, experience, commitment to the rule of law to be an outstanding and i repeat outstachnding memb of the court. president obama and for that matter the united states should be proud to see once more the realization of that central american credo that in this country a person with hard working can rise from humble beginnings to one of the highest

positions in the land. thank you, mr. chairman, for the opportunity to testify today. >> thank you very much for your testimony. we'll hear from wade henderson, familiar person to this committee, wade henderson is the president and ceo of the leadership conference on civil rights and counselor to the leadership conference, education fund. he's a professor of public interest law at the university of the district of columbia. prior to the role with the leadership conference, mr. henderson was the washington bureau director of the naacp. he's a graduate from rutgers university school of law. mr. henderson? >> thank you, mr. chairman, ranking member sessions, members of the committee. i have the privilege of representing the views of the leadership conference. the nation's leading civil and human rights coalition consisting of more than 200 organizations working to build an america that's as good as its ideals. this afternoon, i will briefly address four of the points that have figured in the debate about

judge sotomayor's nomination. first, her qualifications for serving on the nation's highest court. second, her personal background and her empathy for others who have had to work hard to succeed. third, her role in the unanimous ruling bay three-judge panel in the case of ricci versus ste that no and the past membership on one of the board of the member associations. let me rejoice in what is self evident. the nomination of judge sotomayor to be an assistant justice on our nation's highest court is a milestone by many standards. the nation's first african-american president has nominated the first hispanic-american, only the third woman and only the third person of color to serve on the supreme court. while great challenges remain on our nation's quest for equal

opportunity, we have truly reached a historic marker on the journey toward our goal of equal justice for all. the phrase inscribed not far from here on the front of the supreme court building. but hopeful and historic as her nomination has been, judge sotomayor should herself be judged not by who she is but by what she has done. now, let me be as clear as i can, there is no question that she is qualified. judge sotomayor's eloquent and thoughtful testimony before this committee speaks for itself. her distinguishing career as princeton and yale law school have been much stated. she then spent five years as a prosecutor as we have heard in manhattan working for the legendary district attorney robert morganthau. pleased to have him here today and eight years as a corporate litigator. 17 years as a federal district

court judge and appellate court judge add up to an individual who's one of the most qualified to come before this committee. second, as with other nominees across the philosophical spectrum including justices thomas and alito, judge sotomayor has spoken of her family history and her personal struggles. these experiences help her to understand others and to do justice. they further qualify her for the highest court and she has said and done nothing that could reasonably be understood otherwise. third, judge sotomayor has participated in thousands of cases and authored hundreds of opinions. but much of the debate about her nomination concentrated on the difficult case of ricci versus stefano. whatever one may feel about the facts of this case, we know that the supreme court set a new

standard for interpreting title seven. using this one decision to negate judge sotomayor's 17 years on the bench does a disservice to her record and to this country. fourth, i must speak to the attacks on judge sotomayor because of her service on the board of one of our nation's leading civil rights organizations. these attacks do an injustice not only to judge sotomayor and to the puerto rican legal defense and education fund, but also, to the entire civil rights community and to all those who look to us for a measure of justice. make no mistake, legal defense funds play an indispensable role in american life. they are private attorneys general that assist individuals often those with few resources and no other representation to become full shareholders in the american dream.

when justice author thurgood marshal was nominated, there are those that questioned his association. judge sotomayor lived the american dream and she understands all who aspire to it. her qualifications are unquestioned and the lessons that she has learned in her life as well as in libraries will serve her and our country well in the years ahead. all those who walk through the entrance to the supreme court seeking what is inscribed above its door, equal justice under law, can be confident that a justice sotomayor will continue to do her part to keep the promise of our courts and our country. thank you very much. >> well, thank you very much for your testimony. we'll now hear from frank riccia name mentioned second only to sotomayor during this hearing. frank ricci has over a decade of

experience as a firefighter with the new haven fire department and a plaintiff in the case of ricci versus destefano. a pleasure to have you before the committee. >> thank you, senator. thank you for the opportunity to appear before this distinguished committee. i accepted with honor the invitation to tell my story. many others have a similar story and i feel i'm speaking for them, as well. the new haven fcht firefighters were not alone. firefighters across the country have had to resort to the federal courts to vindicate their civil rights. technology and modern threats have challenged our profession. we have become more effective and efficient but not safer. the structures we respond to today are more dangerous, constructed with light weight components prone to early collapse and face fires to double in size every 30 to 60 seconds. too many think that firefighters

just fight fires. officers are also responsible for mitigating vehicle accidents, hazardous material incidents and handling complicated rescues. rescue work can be very techniqual. all of these things require a great deal of knowledge and skill. lieutenants and captains must understand the dynamic fire environment and the boundaries we operate in. they're forced the make stressful decisions based on imperfect information and coordinate tactic that is support the objectives. almost all of our tasks are time sensitive. when you house is on fire or your life in jeopardy, there are no time for do-overs. the lieutenants' test i took was without a doubt job related exam that was based on skills, knowledge and abilities. needed to ensure public and the firefighter safety. we all had an equal opportunity to succeed as individuals and we

were all provided a road map to prepare for the before, reading, making flash cards, highlighting, reading again, all while listening to prepared tapes. i went before numerous panels to prepare for the oral assessment. i was a virtual absentee father and husband for months because of it. in 2004, the city of new haven felt not enough minorities would be promoted and that the political price for complying with title seven, the city civil service rules and the charter

would be too high. therefore, they chose not to fill the vacancies. such actions deprived all of us the process set forth by the rule of law. firefighters who earn promotions were denied them. despite the important civil rights and constitutional claims we raised, the court of appeals panel disposed of our case in an unsigned, unpublished summary order that consisted of a single paragraph that made mention of my dyslexia and thus led many to think this was a case about me and a disability. this case had nothing to do with that. it had everything to do with ensuring our command officers were competent to answer the call and our right to advance in our profession based on merit, regardless of race. americans have the right to go into our federal courts and have their cases judged based on the constitution and our laws, not

on politics or personal feelings. the lower court's belief that citizens should be reduced to racial statistics is flawed. it only divides people who don't wish to be divided along racial lines. the very reason we have civil service rules is to root out politics, discrimination and nepotism. our case demonstrates that these ills will exist if the rules of merit and the law are not followed. our courts are the last resorts for americans whose rights are violated, making decisions on who should have command positions solely based on statistics and politics where the outcome of the decision could result in injury or death is contrary to sound public policy. the more attention our case got, the more some people tried to distort it. it bothered us greatly that some perceived this case as involving a testing process that resulted

in minorities being completely excluded from promotions. that was entirely false, as minority firefighters were victimized by the city's decision as well. as a result of our case, they should now enjoy the career advancement that they have earned and deserve. enduring over five years of court proceedings took its toll on us and our families. the case was longer -- was no longer just about us, but about so many americans who had lost faith in the court system. when we finally won our case, and saw the messages we received from every corner of the country, we understood that we did something important together. we sought basic fairness and even-handed enforcement of the laws, something all americans believe in. again, thank you for the honor and privilege of speaking to you

today. >> mr. richie, thank you very much for your testimony. we will now hear from lieutenant ben vargas. benjamin vargas is a lieutenant in new haven fire department and was plaintiff in the case of ricci versus distefano and worked part-time for a company that sells equipment to firefighters. mr. vargas? >> thank you. members of this committee, it is truly an honor to be invited here today. notably, since our case was summarily dismissed by the court of appeals panel, this is the first time i am being given the opportunity to sit and testify before a body and tell my story. i thank you for -- this committee for the opportunity. senators of both parties have noted the importance of this proceeding because decisions of the united states supreme court can greatly impact the every day lives of ordinary americans. i suppose that i and my fellow

plaintiffs have shown how true that is. i never envisioned being a plaintiff in a supreme court case, much less one that generated so much media and public interest. i am hispanic and proud of the heritage and background that judge sotomayor and i share. and i congratulate judge sotomayor on her nomination. but the focus should not have been on me being hispanic. the focus should have been on what i did to earn a promotion to captain and how my own government and some courts responded to that. in short, they didn't care. i think it important for you to know what i did, that i played by the rules and then endured a long process of asking the courts to enforce those rules. i am the proud father of three young sons. for them, i sought to better my life and so i spent three months in daily study preparing for an exam that was unquestionably job-related.

my wife, a special education teacher, took time off from work to see me and our children through this process. i knew we would see little of my sons during these months when i studied every day at a desk in our basement, so i placed photographs of my boys in front of me when i would get tired, and wanted to stop, i would look at the pictures, realize that their own future depended on mine, and i would keep going. at one point, i packed up and went to a hotel for days to avoid any distractions, and those pictures came with me. i was shocked when i was not rewarded for this hard work and sacrifice, but i actually was penalized for it. i became not ben vargas, the fire lieutenant who proved himself qualified to be captain, but a racial statistic. i had to make decisions whether to join those who wanted promotions to be based on race and ethnicity or join those who

would insist on being judged solely on their qualifications and the content of their character. i am proud of the decision i made and proud of the principle that our group vindicated together. in our profession, we do not have the luxury of being wrong or having long debates. we must be correct the first time and make quick decisions under the pressure of time and rapidly unfolding events. those who make these decisions must have the knowledge necessary to get it right the first time. unlike the judicial system, there are no continuances, motions or appeals. errors and delays can cost people their lives. in our profession, the racial and ethnic makeup of my crew is the least important thing to us, and to the public we serve. i believe the countless americans who had something to say about our case understand that now. firefighters and their leaders stand between their fellow

citizens and catastrophe. americans want those who are the most knowledgeable and qualified to do the task. i am willing to risk and even lay down my life for fellow citizens but i was not willing to go along with those who placed racial identity over these more critical considerations. i am not a lawyer but i quickly learned about the law as it applied to this case. studying it as much as i studied for my exam. i thought it clear that we were denied our fundamental civil rights. i expect that lady justice with the blindfold on and a reasoned opinion from a federal court of appeals telling me, my fellow plaintiffs and the public, that the court's view on the law -- what the court's view on the law was and do it in an open and transparent way. instead, we were devastated to see a one paragraph, unpublished order summarily dismissing our case and indeed, even the notion that we had presented important legal issues to that court of

appeals. i expected the judges who heard my case along the way to make the right decisions, the ones required by the rule of law. of all that has been written about our case, it was justice alito who best captured our own feelings. we did not ask for sympathy or empathy. we asked only for even-handed enforcement of the law and prior to the majority justice opinion, in our case, we were denied just that. thank you. >> thank you for your testimony. we will now hear from peter kersenau, a maybe of the national labor relations board where he received a recess appointment from president george w. bush. previously he was a partner with the cleveland law firm of b bennish. he received his law degree from cleveland state university. >> thank you, mr. chairman, senator sessions, members of the committee. i am currently back at benefnie

practice group. i am here in private capacity. the commission on civil rights was established by the 1957 civil rights act to, among other things, act as a national clearing house for information related to denials of equal protection and discrimination and in furtherance of the clearing house process, my system and i reviewed the opinions and civil rights cases in which judge sotomayor participated while on the second circuit. in the context of prevailing civil rights jurisprudence and with particular attention to the case of ricci. our review revealed at least three significant concerns with respect to the manner in which the three judge panel that included judge sotomayor handled the case. the first concern was as you have heard the summary disposition of this particular case. the ricci case contained constitutional issues of extraordinary importance and impact. for example, the issues of, that

are very controversial and volatile, racial quotas and racial discrimination. this was a case of first impression, no second circuit or supreme court precedent on point. indeed, to the extent there were any cases that could provide guidance, even private sector cases such as johnson transportation, weber versus steel workers, would dictate or suggest a result opposite of that reached by the sotomayor panel. the case contained a host of critical issues for review, yet the three-judge panel disposed of the case as you heard in unpublished one paragraph per curiam opinion that's usually reserved for cases that are relatively simple, straightforward and inconsequential. the second concern is that the sotomayor panel's order would inevitably result in

proliferation of de facto racial and ethnic quotas. the standard endorsed by the sotomayor panel was lower than that adopted by the supreme court's test of strong basis in evidence. essentially, any race-based employment decision invoked to avoid a disparate impact lawsuit would provide immunity from title seven review. under this standard -- the prospect of expense of litigation regardless of the merit of the case would have a green light to resort to racial quotas. but even more invidious is the use of quotas due to racial politics and as judge alito's concurrence showed, there was glaringly abundant evidence of racial politics in the ricci case. had the sotomayor panel decision prevailed, employers would have license to use racial preferences and quotas on an expansive scale.

evidence produced before the civil rights commission has showed when courts open the door to racial preferences just a crack, preferences expand exponentially. for example, evidence adduced before hearings in 2005 and 2006 show that despite the fact that adderan was decided more than ten years ago, federal agencies persist in using race-conscious programs in federal contracting, governmental contracting, as opposed to race-neutral alternatives. moreover, even though the supreme court has struck down the use of raw numerical wa weighting on college admissions, requiring that race be a thumb on the scale, preferences show no signs of abating. a study by the center for equal opportunity showed that in a major university, preferences were so great that the odds on a minority applicant would be admitted over a similarly situated white comparative were

250 to 1. at another major university, 1,115 to 1. that's not a thumb on the scale. that's an anvil. and had the reasoning of the ricci case in the lower court prevailed, what happened to firefighter ricci and lieutenant vargas would happen to more americans of every race throughout the country. the third concern is that the lower court's decision that would permit racial engineering by employers would actually harm minorities with purported beneficiaries of that particular decision. evidence adduced at a 2006 hearing shows there's increasing data that preferences create mismatch effects that actually increase the probabilities that minorities will fail if they receive beneficial treatment or preferential treatment. for example, black law students were admitted and preferences were 2 1/2 times more likely not to graduate than similarly situated white or asian

comparatives, four times as likely not to pass the bar exam n the first try and six >> mr. chairman, it's respectfully submitted that if a nominee's interpretive doctrine permits an employer to treat one group preferencetially today, there's nothing for shifting the presence preferences tomorrow. it's contemplated by the 1964 civil rights act title 7 in the ricci case. thank you. >> we'll hear from the chairman of the center of equal opportunity and a political analyst for fox newchannel. she's held a number of appointed positions. a number of white house public liaison and staff director of u.s. commission on civil rights. >> thank you, mr. chairman, and members of the committee. i testify today not as a wise latina woman but as an american who believes that skin color and

national origin should not determine who get a job, a promotion or a public contract. or who gets into college or receives a fellow. -- fellowship. mr. chairman, do not vote to confirm this nominee. i say this with some regret because i believe judge sotomayor's personal story is an inspiring one. which proves that this is truly a land of opportunity where circumstances of birth and class do not determine whether you can succeed. unfortunately, based on her statements, both on and off the bench, i do not believe judge sotomayor shares that view. it is clear from her record that she has drunk deep from the well of identity politics. i know a lot about that well, and i can tell you that it is dark and poisonous. it is, in my view, impossible to be a fair judge and also believe that one's race, ethnicity and

sex should determine how someone will rule as a judge. despite her assurances to this committee over the last few days that her wise latina woman statement was simply a, quote, rhetorical flourish that fell flat, nothing could be further from the truth. all of us in public life have at one time or another misspoke. but judge sotomayor's words were not uttered off-the-cuff. they were carefully crafted, repeated not just once or twice but at least seven times over several years. as others have pointed out, if judge sotomayor were a white man who suggested that whites or males made better judges, again, to use judge sotomayor's words, quote, whether born from experience on inherent physiological or cultural differences, end quote, we would not be having this discussion.

because the nominee would have been forced to withdraw once those words became public. but, of course, judge sotomayor's offensive words are just a reflection of her much greater body of work as an ethnic activist and judge. identity politics is at the core of who this woman is. and let me be clear here, i'm not talking about the understandable pride in one's ancestry or ethnic groups which is both common and natural in a country as diverse and pluralistic as ours. identity politics involves a sense of grievance against the majority, a feeling that racism permeates american society and its institutions. and the belief that members of one's own group are victims in a perpetual power struggle with the majority. from her earliest days at princeton university and later yale law school to her 12-year

involvement with the puerto rican education and defense fund to her speeches and writings including her jurisprudence, judge sotomayor has consistently displayed an affinity for such views. i have outlined at much greater length in my prepared testimony, which i ask permission be included in the record in full. the way in which, i believe, identity politics has permeated judge sotomayor's life's work. but let me briefly outline a few examples. as an undergraduate, she actively pushed for race-based goals and timetables. and in her thesis she failed to identify the united states congress by its proper name instead of referred it as the north american congress or mainland congress. during her chair of puerto rican litigation committee, she urged quota-seeking lawsuits, challenging civil service exams,

seeking race-conscious decision-making similar to that by the city of new haven in ricci. she opposed the death penalty as racist. she supported raised-based government contracting. she made dubious arguments in support of bilingual education and more broadly in trying to equate english language requirements as a forum of national origin discrimination. as a judge she descended from an opinion that the voting rights act does not give prison inmates the right to vote and she has said a witness' identification may be institutional ratio profile in violation of the equal protection clause. finally, she has shown a willingness to let her policy preferences guide her in the ricci case. although she has attempted this week to back away from some of her own intemperate words and has accused her critics of taking them out of context, the record is clear. identity politics is at the core

of judge sotomayor's self-definition. it has guided her involvement in advocacy groups, been the topic of much of her public writing and speeches and included her interpretation of law. there is no reason to believe that her elevation of the supreme court will temper this inclination and much reason to fear that it will play an important role in how she approaches the cases that will come before her if she is confirmed. i, therefore, respectfully urge you not to confirm judge sotomayor as an associate justice of the supreme court. thank you. >> thank you for your testimony. let me first recognize our chairman, chairman leahy, who i understand wants to preserve his place. >> thank you, senator cardin. >> i want to thank you and other senators who filled in on this part. i was here throughout the -- throughout all of the testimony by judge sotomayor and the questions asked by both republicans and democrats.

i'll reserve my time. i do welcome all the witnesses, both for and against the nominee. senator sessions and i joined together to make sure that everybody was invited, everybody is given a chance to testify. and if you wish to add to your testimony, the record will be open for 24 hours for you to do that. thank you very much. >> thank you, mr. chairman. mayor bloomberg, let me start with you, if i might, in my questioning. there's been a lot of discussion about the puerto rican legal defense and education fund including during this panel discussion. and that judge sotomayor served on the board. it had nothing to do with the selection of individual cases from the point of view of its content. but served in a voluntary capacity with that board. first i'm going to quote from you and then give you a chance to perhaps expand upon it. where you have been quoted to

saying only in washington could someone's many years of volunteer service to a highly regarded nonprofit organization that has done so much good for so many be twisted into a negative and that that group has made countless important contributions to new york city. i just want to give you a chance to respond to judge sotomayor's service on the puerto rican legal defense and education fund. >> well, this is an organization that has defended people who don't have the wherewithal to get private counsel. don't have traditions of understanding the law and it happens to focus on people mainly who come from puerto rico and have language problems in addition to a lack of perhaps understanding of how our court system works. and it provides the kind of representation that we all, i think, believe that everybody that appears before a judge and before the law deserves.

they raise money privately to pay lawyers to defend. and i don't agree with some of their positions and i agree with other ones. but having more of these organizations is a lot better than having less, at least people do have the option of getting good representation. >> thank you. mr. henderson, during the hearing of judge sotomayor, we had a chance to talk a little bit about the voting rights and the recent case before the supreme court and the fact that one justice questioned the constitutionality, pretty well determined the constitutionality of the voting rights renewal act saying it was no longer relevant. judge sotomayor, during her testimony, talked about deference to congress. the fact that it was passed by a 93-0 vote in the united states senate and by a lopsided vote in the house of representatives the

25-year extension. i just want to get your comments as to whether the voting rights act is relevant today and your confidence level of judge sotomayor as it relates to advancing civil rights for the people of our nation? >> thank you, mr. chairman, for your question. let me backup for a second and say theeing hearings -- these hearings has been a testament with the president making a nomination for an associate justice on the supreme court. and the senate judiciary committee providing its advice and consent. under our system of government, the senate and the house have a particular responsibility to delve deeply into the constitutional rights of all americans, particularly, around the right to vote. voting really is the language of democracy. if you can't vote, you don't count. and the truth is, that notwithstanding the 15th amendment to the constitution, the 13th and 14th amendments,

african-americans, latinos, women, other people of color were often denied their right to vote well into the 20th century. it took not just those amendments but actually a statute enacted by this congress to ensure that the rights of americans to vote could be in the aftermath of '65 voting rights. and the democratization, small d. having said that, congress reached a decision in reauthorizing the voting rights act in 2006 that this law was necessary. 16,000 pages of a congressional record speak eloquently to that important interest. the fact that this issue was held both with congressional review and also a national commission set up by the lawyers committee for civil rights and others in the civil rights community, holding hearings around the country added to the record that was created.

the fact that this bill passed, rather the reauthorization of the voting right act, 393-330 and 98-0 in the senate speaks eloquently about the important need of this act and the continuing need. so the fact that some on the supreme court found otherwise doesn't disturb me at all. there is a need for it. that need continues. and notwithstanding evidence. >> well, thank you for correcting my numbers -- the numbers voted. i appreciate it. i just want to ask a quick question, and that is during the confirmation hearings both democratic and republican senators have been urging from our nominee that you need to look at what the law is. and you can't judge based upon emotion. and my simple question to you in the ricci case, do you believe the sotomayor decision, with the three-judge panel, was within the mainstream of judicial

decision-making when that decision was reached? >> senator, i do believe that. to hear the stories of these firefighters in person, i don't have any reason not to use the word empathy. i have a great deal of empathy for the circumstances that they have described. and i don't know that i have a great deal for how the city fathers handled the matter. but by the time it made it to the second circuit, i believe that the panel did what the law required and i don't think that there is a just legal criticism for the way that the panel handled the matter. and the fact that the supreme court chose to change the law in a majority is also their prerogative. >> thank you very much. senator session isn't it so >> thank you. -- senator session isn't it so >> i thank all of you. it's a very important panel and most of your testimony was moving. i appreciate it and i think you're calling us to a higher level of discussion on these

issues because they go to the core of who we are as americans. and i just want to share that. we are worried about the second amendment. i will just ask the mayor that you signed a brief in favor of the dc gun ban, which would bar even a handgun in someone's home, so i would assume you would be agreeable with the opinion of judge sotomayor and her view. we've got different views about these things. mayor, i want to tell you i appreciate your leadership. it's a tough job to be mayor of new york. you're showing strength and integrity. mr. morganthal you're the dean of the administration and i know you're proud of this protege that has move forward. >> may i tell you that my

grandmother was born in montgomery, alabama. >> i am impressed to hear that. [laughter] >> i feel better already. [laughter] >> that's good. mr. attorney general, thank you for your able comments and mr. henderson, it's good to work with you. senator leahy and i in talking during these hearings we're going to do that crack cocaine thing that you and i have talked about before. [laughter] >> thank you, senator. i appreciate it. >> let me correct the record. >> please rephrase it, senator. [laughter] >> please rephrase. >> i misspoke. >> no, it's quite all right. >> we're going to reduce the burden of penalties in some of the crack cocaine cases and make them fair. [laughter] >> so mr. ricci, thank you for your work. i would say, mr. henderson, that

i said the legal defense fund is the good organization in my opening statement. and i think it has -- it has every right to advocate those positions that it does. but the nominee was on the board for a long time and it did take some positions that she was rightly asked about whether or not she agreed to it especially during some of those times she was chairman of the litigation committee. but i value these -- i value that groups can come together and file lawsuits and take the matter to the court. just briefly, mr. kirsanow, on a slightly different subject than you started out. i think you probably know this answer but could you tell us for the purpose of this hearing -- as briefly as you can, what the concern is in the voting rights act? it's not that we're against -- anybody is against voting rights. i voted for it.

but there are some constitutional concerns. could you share precisely what that is. >> especially with the latest supreme court decision with that. the preclearance provisions of the voting rights act pertain to the legacy of discrimination that occurred in many states where poll taxes and literacy taxes were being imposed on black citizens. however, in this particular case, the austin political subdivision came into existence after all -- the legacy of this discrimination had actually occurred or even after the voting rights act itself had been passed and the question is, how could it be that you've got a preexisting law that is almost, for lack of a better term ex post facto that came into existence after the law was in effect. there was no denial of political decision. it was peculiar in that regard

and i think there were several justices who evinced some concern about the approach in that particular case. >> thank you. there are two sides to that story. and we passed the bill and we extended it and all of us had some angst and worry. i said i wanted to vote for it and we did. we extended it for probably longer than we should have. not that it would ever end. huge portions of it may never end. but some portions may not be needed to continue. lieutenant vargas, there was a moving story you gave us. let me ask you this. do you think that other members of the fire department, had they studied as hard as you, and mastered the subject matter as well as you did -- more of them would have passed if they studied as hard as you? >> absolutely. >> you think -- >> absolutely.

i studied with a group of them. they all supported me on what i was doing because they knew the effort that i put in and they were righting there. we really weren't all that far behind. and, you know, minorities would have been promoted. that's something that continues to get left out. there would have been minorities to captain and to lieutenant as well. and, you know, when you take these exams, sometimes you have winners and sometimes -- you know bubs you go into that situation knowing that's going to be the case. >> mr. kirsanow, you indicated that all the judges -- i believe your phrase was on the supreme court rejected the standard of review that the panel -- justice sotomayor panel set for the firefighter exam; is that right? >> senator, even the dissent had a different standard.

it was a good cause standard which given a little bit more definitiveness to the approach that defendants would take in defending. as you know, title 7 has a safe harbor of job-related consistent with business necessity. if you can establish that, in fact, the test that the firefighters took were job related, consistent with business necessity, then only under those circumstances -- the only way you could show a disparate impact is if those tests weren't made. even the dissents said it should have been sent back on remand. >> thank you. and ms. chavez, i noticed one thing, according to the aba statistics only 3.5% of lawyers in america in 2000 were hispanic. yet, hispanics make up 5% of the federal district court of judges and 6% of circuit court judges. would you comment on that. >> well, first of all, i think

it's important, you know, there's been a lot of attention on the phrase, a wise latina woman. i've used it before ironically in testifying today but i think it's important to read judge sotomayor's entire speech because, in fact, it was it wasn't that she was just saying a wise latina woman would make a better judge. what she was saying was that the race, ethnicity and gender of judges would and should make a difference in their judging. and she says in the speech itself -- she said she doesn't know always how that's going to happen but she even cites some studies, sociological studies that take a look at the way in which women judges have handed down decisions and makes the case that women judges decide cases than men do and she speaks of this approvingly. and she talks about statistics and how few latinos there are on

the bench and the statistics you just cited come from an article that i wrote in retort to the statistics that she used. i bring that up because inherent in that analysis of hers is the notion that there ought to be proportional representation on judicial panels. that we ought to be selecting judges based on race, ethnicity and gender and that we ought to have more or less proportional representation. and i have to say, you know, that really comes very close to arguing for quotas, a position by the way that she has taken when she was with the puerto rican defense and legal education fund. by the way, she was not just on the board. she actually signed some memorandum. those are in the record, and i cited some instances of that in my written testimony. and the point is that if there is so-called underrepresentation of some groups it, means there's overrepresentation of others.

and i said in my testimony that if we're concerned about the number of latino judges, the first thing you need to be a judge is a college degree and a law degree and, in fact, just using judge sotomayor's own statistics, if anything, if you look at the number of attorneys who are latino at the time she was writing, hispanics were actually somewhat overrepresented on the judicial bench. i reject all of that. that doesn't bother me in the least that they are overrepresented. i think we should not be making ethnicity and race or gender a qualification for sitting on the bench or being a firefighter or being a captain or lieutenant on a firefighting team. i think we ought to take race, ethnicity and gender out of the equation. >> thank you. senator durbin?

>> miss chavez, do you think judge sotomayor being awarded the pine award at princeton for high academic achievement and good character being sum cum laude that there was a quota on that. >> no, i do not. she has said she was admitted as an affirmative action nominee because her test scores were not that of her peers. she talked about what happened when she got there and she recognized that, in fact, she was not particularly well prepared. that she did not write well. and that one of her professors pulled her aside and said she had to work on her writing skills. i admire -- >> that would make it a pretty amaze story. >> that's right. i wish that was the story she

was telling latinos -- well, i wish that what she was telling latinos if you do what ben vargas has done or frank ricci has done if you take home the books and you study them and you memorize what you need to know so that you can pass the test like i did when i took poem grammar books and learned how to write standard english, that that should be the story, not that she should be insisting on racial quotas. >> miss chavez, i think the story of her life is one of achievement. overcoming some odds that many people have never faced. in her family life and personal life. mr. morganthal, when you were alerted about her skills this law school, did they tell you you had the opportunity to hire a wise latina. >> absolutely not. >> if you could speak in the microphone, i would sure appreciate it. >> absolutely not. i mean, i took one look at her

resume, at princeton, the law journal, and i said -- and then i talked to her. i thought she was commonsense and judgment and willingness to work. the fact that she was latina had nothing to do with it. can i just say, i was one of the founding directors of the puerto rican legal defense fund and the reason i did that, i thought it was important a way underrepresented minority. you know, you're looking back 35, 40 years, to have an organization which was dedicated to help people in housing discrimination matters. i mean, i had become a life member of the naacp in 1951. i'd been on the national

commission on the antidefamation league. i think -- i mean, one of the great strengths of the united states is its diversity. but we got to help people from the various minority groups make their way in advance. and i must say i'm very critical of some of my friends and relatives who want to forget where they came from. it's to her credit where she remembers where she came from. >> and mayor bloomberg, i believe you had a quote that i read about washington being maybe the only place. would you recall that quote on the puerto rican legal defense fund? >> yes. i think public service is something that certainly you, senator, know the value of. and the satisfaction when you do it. in new york city, we value those who are willing to give their time and help others. they walk away in many cases from lucrative careers to serve

as public defenders or outside of the legal profession in myriad other ways. and the fact that the organization they work for sometimes do things that you or i disagree with doesn't take away from the value that they provide in other things that they do. >> i just made a note the other day -- this is my third nomination for the supreme court. i've been honored to serve on this committee and considered three nominees. the two previous nominees, chief justice roberts, justice alito, both white males, and the question you really came to this central point. do you as a white males to each of these nominees have sensitivity to those like yourself? in this case, where we have a minority woman seeking a position in the supreme court, it seems the question is, are you going to go too far on the

side of minorities and not really use the law in a fair fashion? >> isn't the reason that the founding fathers, at least i assume the founding fathers said nine justices is that they wanted a diverse group of people with different life experiences who could work collaboratively and collectively to understand what the founding fathers meant generations later on. and so the fact that -- i said before in my testimony, i do not think that no matter how compelling justice sotomayor's life experience and biography is, that's not the reason to appoint her. certainly, we benefit from having a diverse group of people on the court in the same way my city benefits from a diverse group of citizen had seen >> -- citizen had seen >> mayor you're getting close to

empathy. i agree with you. when judge sotomayor worked in your office, did you notice whether or not she treated minorities any differently? >> she was right down the middle, senator. she didn't treat minorities any differently the way she treated anybody else. the only time in the middle, looked at the law, she's tough but fair. >> thank you very much. thanks, chairman. >> senator graham will be the next to inquire. >> i would like to thank my colleagues. i have to go back and do some things. this has been a great panel. we're grappling issues right here in the senate. the country is grappling with and i'll try to put it in perspective the best i can. ms. chavez, identity politics, i think i know what you're talking about. i asked the judge about it. it's a practice of politics i don't agree with and i think overall is not the right way to go. but having said that, i've tried to look at the judge in

totality. the well qualified rating from the aba, when it was given to judge alito and roberts, we all embraced it. and i used it a couple of times to say that if you thought this person had a rigid view of life or the law, it'd been very hard for the aba to give them a well qualified rating. does that impress you at all that the aba had a different view in terms of how she might use identity politics on the bench? >> well, i'm not sure they dealt with that question. i think they did deal with her record as a judge. and the decisions that she has made as a judge. the aba and i often disagree -- >> i totally understand. i totally understand. but i guess the point i'm making -- i don't want to sit here and try to have it both ways, you know, saying the aba is a great thing one day and means nothing the next. have you ever known a republican political leader to actively try

to seek putting a minority in a position of responsibility to help the party? >> i think that the idea of giving due deference to making sure that people are representative in diverse ways is a standard way of operating in political circles. >> the only reason i mention that -- the statement you made, the way we pick our judges should be based on merit, the way we pick our -- i totally agree with that. but politics is politics in the sense that i know that republicans sit down and think, okay, we've got some power now. let's make sure that we let the whole country know the republican party is just not a party of short white guys. >> i think that's different, though, senator, than as she suggested in her speech that there ought to be some sort of proportional representation. >> that's right. >> i think that's farther.

and i think it also matters that we're not just doing that because we want to see diverse opinions. but it seems to me that what she was saying in her speech was that we do that because blacks, latinos, and women are different, think differently and will behave differently. i mean, she said that explicitly. she said it may be as a result of physiological differences. i think any white man that said such a thing about minorities or women would be laughed out of this room. >> well, since i'm the white guy that said that, i agree with that. the point is that i'm trying to get the country in a spot where you're not judged by one thing. that we just can't look at her and say, that's it. you know, when i look at her, i see speeches that bug the hell out of me as i said before, but i also see something that very much impresses me. and the aba apparently sees something and ken starr sees

something. you know, what i want to tell the country is is that republicans very much do sit down and think about political picks and appointments in a political essentially to try to show that we're a party that looks at all americans who wants to give an opportunity and that's just life and that's not a bad thing. now, mr. ricci, i would want you to come to my house if it was on fire. [laughter] >> and i appreciate how difficult this must have been for you to bust your ass and to study so hard and to have it all stripped at the end. but i just want you to know that as a country we're probably one generation removed where no matter how hard you studied, based on your last name or the color of your skin, you would have no shot. and we're trying to find some balance. and in your case, i think you were poorly treated and you did not get the day in court you

deserved. it was a 5-4 decision. but please don't lose sight of the fact not so very long ago, the test was rigged a different way. mr. vargas, your one generation removed from where your last name would have been it. do you understand that? >> yes, sir. >> what did you go through personally to stand with mr. ricci? what came your way? did anybody criticize you? >> i received lots of criticism. >> tell me the kind of criticisms you received. >> i have thick skin. >> did people call you an uncle tom? >> yes. >> people thought you were disloyal to the hispanic community? >> yes. >> my friend, i think you've done a lot for america and the hispanic community. my hats off to you. >> thank you, senator. >> finally, mayor, having to govern a city as diverse as new

york must be very, very difficult. is it also a pleasure? >> it is a pleasure. i said before you came in that some of the judge sotomayor's views i don't happen to agree, some of her decisions, i think, were wrong. we, for example -- i agreed with what the city of new haven did and new york city should know our city is a defendant in a case, a class action suit, in the justice department where the challenges to entry level tests for our fire department, one given in 1999 before i became mayor and one afterwards in 2002, and we're defending it on the grounds -- the suit alleges that the written portions of the test were not germane to the job and it has a bad impact. i chose to fight this. i think the job test was job related and consistent with business necessity.

this is a case that's going to go to trial sometime later this year. what we've tried to do is to approach it from a different point of view. aggressive recruiting to try to get more minorities to apply to be firefighters and we have revised our test. we've had a substantial increase in the number of minorities taking the test, passing the test, and joining our fire department. and i really do believe that's a better way to solve the diversity problem which does affect an awful lot of fire departments around this country rather than throwing out tests and thereby penalizing those who pass the test. >> senator klobuchar? >> thank you. i'm going to let senator specter, who is -- i guess i'm more senior to him only because of a technicality, but also he's been here longer. so i'm going to let him go and then i will go. >> senator specter?

>> i'll defer to senator klobuchar. [laughter] >> okay. here we go. i first wanted to thank both firefighters for your service. as a prosecutor we worked extensively on arson cases and i got a little sense of what you go through everyday and how dangerous your job is. so thank you for that. i just wanted to follow-up on one thing, ms. chavez, when you talked about you clearly know ms. sotomayor's history and her record. but when you talked about how she got into princeton, you didn't point out the one thing that i think mr. morgenthau did and that is she ended up graduated summa cum laude and that's about numbers and grades and not affirmative action; correct. >> i wish she was giving a message that she was able to do it and overcome adversity and because she applied herself and working hard and put in the

hours studying to be able to succeed and that is not the message. >> and she was valedictorian in class and when i went to high school it was nothing and grades and nothing to do with anything else. is that true? >> i'm only quoting what she said herself. i have no idea what her test scores were. i don't think anyone -- but she does but she has said she got into princeton and also yale based on the affirmative action programs of those universities. >> okay. mr. morgenthau, it's just an honor to meet you. when i was district attorney i hired a number of attorneys that learned everything from you in your office. thank you for that. and when i did my open the, i talked about a quote you gave once about how you hired people and you say we want people with good judgment because a lot of the job of a prosecutor is making decisions. you said i also want to see some signs of humility in anybody that i hire. we're giving young lawyers a lot of power and we want to make

sure that they're going to use that power with good sense and without arrogance. could you talk about those two qualities, the good judgment and the humility and how you think those qualities may or may not be reflected in our nominee? >> i think she met all the standards. i interviewed her and talked to her. i thought she was a hard worker. i thought she would relate to victims and witnesses. i thought she had humility. i thought she was fair. i thought she'd apply the law. she met all of those standards that i thought were important. i hired her entirely on the merits. entirely on the merits. nothing to do with her ethnic background or anything else. she was an outstanding candidate on the merits. excuse me. >> there's also a letter that we received from 40 of her colleagues and one of the things

i've learned while maybe sometimes someone does well in the workplace by their superiors, sometimes their colleagues think something else, and here you have her colleagues talking about the long hours she worked, how she was among the very first in her starting class to be selected to handle felonies. could you describe how your process works in your office and how certain people get to handle felonies sooner than others? >> well, not only we have six trial boroughs and 60, 65 attorneys and it's up to the chiefs to decide who should move along. i know one of the people who wrote that letter had gone to princeton and to yale law school and studied with the bar with sonia. and i guess she was a little bit ahead of you and he said she was a full step ahead of us. she had the judgment, the

commonsense, the knowledge of people, the ability to persuade victims and witnesses to testify. she was a natural to move up to the supreme court. >> very good. mayor bloomberg, i noted today earlier that the -- that judge sotomayor has the support of so many law enforcement organizations in new york national district attorney's association. can you talk about what that support means and how -- i know you've had success along with mr. morgenthau's amazing record of bringing crime down in new york. working with the police, working with the county attorneys as a team and while our nominee was a small part of that, one assistant district attorney as part of the big effort -- what difference that has made to new york. >> well, i think, senator, the reason that we've been able to bring crime down and improve the

schools and the economy and all of these things is because i've never asked anybody or considered there ethnicity, their marital status, orientation, gender or anything else. i just try to get the best that i possibly can to come to work for the city and i think the results are there. when i interview for judges and appointed 140 in the last seven and a half years, i look for integrity, professional competence, and judicial temperament and how well they write and their appellate records and their reputation for fairness and impartiality. but also we extensively talk to members of the bar and the bench to see what professionals who have to work with the candidate day in and day out thing. it's very easy to be on your best behavior when you come to washington and have to testify before a group like this, but the truth of the matter is, your

real character comes out when you do it day in and day out over a long period of time and that's what your contemporaries see. and so the fact that a lot of people who have worked with this judge think that she is eminently qualified to move up carries enough weight with me. they know enough about her and her abilities than you or i could ever find out with the short period of time that we interact with her or read -- read about her decisions, put them out of context of what was going on at the time and we don't have the ability to do all of the research that her contemporaries have been doing. >> so you're saying -- you give that a lot more weight than all the questions we've been asking for the last three days? >> i wouldn't go quite that far. but i do think that people who work with somebody for a long period of time really do get to know them. and most importantly, people who are on the other side of the issues, on the other side of the

bench -- if they think that even though and sometimes they win and sometimes they lose, their views to me matter an awful lot more. >> i would agree. thank you. >> senator hatch? >> well, thank you, mr. chairman. mayor, it's always good to see you. i appreciate the joy and the verve in which you run new york city. i know it's a tough city to run but you do a great job. mr. morgenthau, we all respect you. you know that. i know that. and you've given a long public service that is of great distinction. it's always great to have attorneys here from the state here and we're grateful to have you here, mr. mcdaniel. mr. henderson, you and i have been friends for a long time. we sometimes oppose each other but it's always been with friendship and kindness. we're grateful to have you two good people from the city of new hav

haven. mr. kirsanow and linda chavez, we recognize your genius, too. and the things you bring to the table. let me talk about the ricci case. i have two related questions about the ricci case. do you agree with the judge and the other five judges who agreed with him that this was a case of first impression in the second circuit, which means that there was no precedent? >> that's correct, senator. we took a very strong look as to whether or not there was anything on point. there may have been some peripheral cases that wouldn't provide any definitive guidance but as i indicate in my statement, to the extent there were cases to provide guidance, mainly equal protection clause cases, and so forth, those were the kind of cases you'd to have look to. none under title 7. >> explain what was the issue of first impression that these six

judges found. they were a minority 7-6 but they -- the judge got very alarmed because this is a summary order that ordinarily they wouldn't have seen but he caught it in the newspaper and asked to see it and said, my gosh, this is a case of first impression. we ought to do more than just a summary order which is something i've been very critical of. >> senator, it's the tension between two provisions of title 7. >> you're talking about disparate treatment and impact. >> precisely. we tried to balance the two and keep in mind the 1991 amendments were really a product of riggs versus duke power. it was the response in difficulty in demonstrating intentionedal discrimination so that there was a resort to disparate impact to try to help prove the case. so whether you give primacy to intentional discrimination or disparate impact was what was trying to be determined here. and not necessarily primacy but

trying to evaluate both and consistently with the purposes of title 7. >> well, please explain the difference between what the supreme court's split 5-4 and what all 9 of the justices on the supreme court -- why they criticized judge sotomayor's decision. >> it had to do with the process by which the decision was reached. even the dissent justice ginsburg noted in footnote 10 that this was something ordinarily that should have been sent back on remand because it was to determine whether -- that is to determine whether or not there was good cause for taking the decision new haven took. the majority on the other hand said the city of new haven had to have a strong basis in evidence before it discarded the test results. there are two separate standards by both the majority and the dissent but neither agreed with the manner in which the sotomayor panel disposed of the case. >> so nine justices on the court

agreed that the appropriate law wasn't followed? >> correct. and five of them said the city of new haven was wrong? >> correct. >> so the firefighters won. mr. vargas, i want to make it clear. i don't think a lot of people realize it. it's a very, very big thing to me. mr. vargas your comments about your sons were powerful. what difference does it make for them whether merit or race determines opportunity? what difference does this case mean for them? >> i believe this is going to be a greater opportunity for them in the future because they're not going to be stigmatized that way or looked that way. they are going to rise and fall on their own merits. >> and that's one reason why you brought this case. >> that's absolutely right. >> mr. ricci, i only have a few seconds. i want to thank you for your service for protecting your fellow citizens up there. as i understand it, the city of new haven went to great lengths to devise this promotion test

that was -- the test was fair and objective and not against any demographic group. they worked on the kind and content and question but would not create a hurdle for anyone. they used both a written and an oral exam format, right? is your understanding of how they worked to put together the tests and did -- that's the way they put it together and did that make you believe that you would be judged on your merits? >> yes, senator. the rules of the game were set up and we have a right to be judged fairly and just by taking the test, we knew that the test -- we didn't even need to go any further. just by taking the test, we knew the test was job related and measured the skills and ability for firefighters. >> do you believe this is an opportunity that might be open to you. >> yes, senator. >> tell me about the

expectations when you looked at the opportunity. you were no doubt of the racial dynamics. did you think at all because the test was so rigorously and fairly designed that any of those outside racial dynamics would become an obstacle of your future service in the fire department as long as you were qualified for the job. >> no, myself and all 20 plaintiffs including other firefighters that didn't join the suit including african-americans and hispanics -- i think we all had the expectation when we took the test that the test would be fair and job-related and that it was going to be dictated by one's merit on how well you did on the exam, not by the color of your skin. >> okay. i just have one statement to make. you made the comment that the supreme court changed the law by a majority. they didn't change the law. they actually recognized there

was a case of first impression here. that had to be decided and they decided. they didn't change any laws. it wasn't by a majority. nine of them said the case should be reexamined. five of them said that new haven was wrong. and i just wanted to make that clear so that everybody would understand it. 'cause this is not some itty bitty case. this is one of the most important cases in the country's history. and that's why it's caused such a furor. this is an important issue for people for whatever race or gender or ethnicity. and you've taken a lot of flak for it, and you shouldn't. thank you, mr. chairman. >> senator specter? >> thank you, mr. chairman. mr. ricci, i agree with just about everything you said, but you had a right to go to federal

court and get justice. that racial statistics are wrong. what we saw was even-handed justice and as the court finally decided, you had been deprived of your rights and made a change. the question that i have for you, do you have any reason to think that judge sotomayor acted in anything other than good faith in trying to reach a fair decision in the case? >> that's beyond my legal expertise. i'm not an attorney or a legal scholar. i simply welcomed an invitation by the united states senate to come here today 'cause this is our first time that we've gotten to testify about our story. so i can't comment on it. >> well, i think it's a very good that you've been here and have had a chance to testify. i agree with that totally.

and there's enormous appreciation for the work the firefighters do. i had a lot of association with the firefighters in my days as a city official in philadelphia and on the homeland security, been in the forefront of funding for firefighters. and what the firefighters did on 9/11 -- words are inadequate. the heroism and the bravery and the loss of lives and so forth. lieutenant vargas, again, i agree with all of your testimony. in your work you have to get it right the first time. well, when you have 5-4 decisions it's hard to say which way the ball bounces especially when they get reversed from time to time. but i would ask you the same question i asked of mr. ricci, whether you have any reason to doubt the good faith of judge

sotomayor coming to the conclusion that she did. >> well, i would to have defer to pretty much the same response. we were invited here to give our story and we wanted to focus on that. i really didn't put much to that. >> okay. well, that's fair enough. it's up to the senate -- we hope we get it right. but all anybody can use is their -- is their best judgment. when you place so much reliance on ricci versus destefano, isn't that case just overloaded with subtly and nuance? it could have gone the other way? can you really place much

reliance on criticism of judge sotomayor as a disqualifier? >> well, first of all, senator specter, i think i actually went back to criticize judge sotomayor's activities going all the way back to princeton university. so i don't think i relied exclusively. i think what -- and i would answer the question that you asked mr. vargas and mr. ricci. i do think judge sotomayor, based on her history, her involvement with the puerto rican legal defense and education fund, her writings, her activism has indicated a preference to eliminate testing. she has fought to get rid of civil service testing. she has challenged tests as being inherently -- standardized tests as being inherently unequal and always arriving at a disparate impact and i think that activism, that involvement

going back decades did, in fact, influence the way she approached this case. so i think it is relevant. and that is the reason i'm criticizing her. it's not just her one decision in one case. it is her whole body of work, her whole life experience and the views that she has experienced over several decades. >> well, we consistently have nominees for the supreme court come to this panel. justice alito, chief justice roberts, justice thomas, on both sides of the ideological divide, and what they do in an advocacy position is customarily set aside to make an evaluation as to their competency. when you talk about being a woman or being a hispanic, in my view, it's that kind of diversity is enormously helpful.

i go back to a question i asked attorney general meese more than 25 years ago. the debate was raging affirmative action even more than it is now. if you have two people of equal competency and one is a minority, attorney general meese, not known for being a flaming liberal, took the minority position. and my own view is that it's time we had more women and we had more diversity and we have to have qualifications. have to have qualifications, and i think that's what ultimately determines this nomination. attorney general mcdaniel, let me ask you a loaded question. you can handled the loaded question. do you think with all of the

critical issues that we have to face or separation of powers and what the congress does by way of fact-finding and what is done on the americans with disabilities act and trying to find out about warrantless wiretaps and foreign intelligence surveillance act, compensation for the survivors of the victims of 9/11 and the intricate relationship to the state department influencing the way congress interprets the foreign sovereign immunity that there's a little too much attention paid to the ricci case? not that it's not very important, but there are a lot of other matters that are important. isn't this a little heavy on one case? a lot of other matters that are important. isn't this a little heavy on one case? >> senator, not only do i agree with you about the other issues that should be given ample attention because of their

enormous weight. i think that perhaps the wrong focus of attention, even on this case, has a@ rr@ @ @ @ a)@ @ a@ that. one of the important issues in that case was a standing issue, it was their standing to bring action if one had not been denied promotion. senator hatch's own attorney general joined with me in the brief because we thought that was among the issues that were important. and should have been followed, in stead, the court expanded standing to someone who had not been harmed under the legal standard. that is important to consider. it is important to know that

they're in standing, it is somewhat unfair to put emphasis on the footnote. if we are going to change the rules of the game we should remand the case. that was not critical of the second circuit. i agree with you about your emphasis. >> there was so little time, having mayor bloomberg -- would like to really have a chance to cross-examine. i agreed with their testimony. >> senator gordon. i want to extend my appreciation for being here today. it is very important, as we need to remind ourselves, this is a historic time, these are important issues that should not

be neglected or overlooked. because of the press and other activity. sonia sotomayor is well qualified all things being equal. unfortunately because of their speeches and other statements that there's no such thing as objectivity, the opposite of objectivity is subject to become a there is no neutrality. if there is no neutrality, all that leaves is bias and it strikes a body blow to the concept of equal justice under the law. judges are not policymakers, judges should leave that job to the representatives of the people. if they don't like what we're doing, as elected members of the

legislative branch. my concern is what kind of judge would she be if confirmed as united states supreme court, speeches or the kind that follows the law, i just want to say to these firefighters what i told them earlier. judges make mistakes, the only lawyer that lost the case went ahead and tried one. sonia sotomayor did not rule your way in a case, unfortunately she did not give it the proper respect, or the attention that she should. every citizen is entitled to that, to have judges pay attention and not make mistakes by trying to sweep it under the

rug. it almost got slipped through the cracks. or to the supreme court, the supreme court could address this important issue that you presented here. one of the most important aspects of this hearing is -- would not have been provided unless these firefighters had the courage for us to refocus our attention on some of these areas, as chief justice roberts said, is sorted business, this divvying up by race, looking at people not as an individual human being but as a member of a group or because of their sex or ethnicity or race, it is time for this nation, i hope we would all agree, to let everyone as individuals, and reward hard

work, sacrifice and initiative, the kinds of things that you, frank, and ben, all the firefighters have helped demonstrate the importance of not divvying up by race or using the facto quotas, i would have felt a lot better if sonia sotomayor had said this is an important issue and we should have addressed it, but we slipped through our fingers but thank goodness it was caught and ultimately reviewed, but she didn't. the idea that the city would throw out a test just because the outcome wouldn't -- wasn't what they wanted, is really pretext for racial discrimination, denied people what they are entitled to because of the color of their skin. so i just want to ask, in the short time i have here, i read

earlier a statement that you made to the new york times about the reason you have gone to these five grueling years of litigation and the abuse you have taken from people who tried to shame you out of standing on your rights and seeing this thing through. could you just tell the committee what sacrifices you have made, what your family's maid and why you felt those sacrifices was so important to vindicate this important right? >> let alone the financial sacrifice, it starts from the moment you get out of the academy. this is something of wanted to do, to advance my career as a firefighter through the ranks, the books came with me every single day from the minute i graduated the academy to when i got promoted to lieutenant and can coming through me until i

took the captain's exam. once i got promoted to captain, it would come with me until i go through the ranks. it is about something i could lose sight of. i want to instill that in my kids. this is what america is all about. this is how america was built, we are the greatest country in the world. >> do you hope for a day for your children, martin luther king's statement previously, a day when they will be judged by the content of their character and not the color of their skin? >> it goes a long way to help in the shoring up for them. they will benefit from this. we are going in the right direction. >> i couldn't agree more.

>> welcome to all of you. one of the things that may have gotten lost in this is why tests are important. what difference does it make how well you perform on the test, whether you pass it or not, what is the big deal? what do you have to show in those tests? when you are performing your duties, what difference does it make whether you passed the test or not? >> it is important to realize that over 100 firefighters sign an additional 80,000 injured. we need to have a command of the knowledge in order to make command decisions, you need to understand the rules and regulations. experience is the best teacher but only a fool learned in that school alone. you have to have a basis to make

the right decisions because firefighters operate in all different types of environments. i had the privilege of training the united states marine corps -- they respond to interesting facts in these buildings. firefighters have to be prepared for a regular house fire to a car accident, to hazardous material. you go to work every day, we are like an insurance policy for the american public, that they hope they never have to use but when someone calls 9 one one, within four to five minutes there's a fully staffed fire company at your door with no paperwork and labor are there to answer the call. the officer has to be confident to lead his men and women of this fire service, career and volunteer across the country, to make the right decisions. >> that is a great explanation. >> there is not much i can add

to that. that was pretty good. i appreciate it. everyone here, regardless of party or position on the nominee, appreciates what you do and what your colleagues do and i speak for all of us in that regard. one of the things i wanted to say briefly, i am very proud -- i was a lawyer and i practiced law, i won some and i lost some by always had confidence in our system. america is not unique but there are not many countries in the world like us, where we willingly volunteer to put our fortunes, our freedom, in the event we are accused of a crime, maybe even our life if there could be a death penalty involved, our careers, we will lead do that. the way we do it is interesting. the lawyers are certainly not. when i filed a case in the district court in arizona i didn't know which judge i was

going to get. there were ten. there was one i hope i didn't get. i knew that the other nine didn't matter. they democrats, republicans, but i didn't know because it is the next one in order and lawyers don't know the order so it is almost by lot. we had confidence that we could put our clients's issue before the court and justice would be done because that is the way our system works. in 220 years, the rule of law has been established in this country by judges applying the law fairly and impartially and overtime presidents have been built up. what struck me about -- the two of you had to go through. you were confronted with a judge who in a very thorough decisions that you lose. then you appeal to the second circuit. you know what the procuring -- procuring opinion is, the court didn't even write about it, you

lose again. the day that you get the results from the supreme court, what is the difference between what you felt in the first situation, and the news about the supreme court. the confidence in the system? >> this is exactly how the country was built, you can work hard or go after the thing you want in this country, you are going to be successful but you have -- those are the things i try to instill in my kids. i will speak with my actions so they can see it is a great country. that is why you need to work hard. >> the grace of democracy is vigilance, being willing to participate. the original feeling, through

our attorneys, always went back to that process and said this is america. if we keep going forward, the process will work. that at the end, to be able to look at my son and say i haven't been there for you, but to look at him and say this is an unbelievable lesson, if you participate in democracy, that is how it all works and i thank you. >> i hope that all of you will have confidence in our legal system in the future, and everyone regardless of position will stand in off the face system which has proved to be a very good system for our people. >> i want to thank you for your questions and the responses. it was the right way to reflect the end of this panel, which has been helpful to us. i want to thank the chairman for

allowing me to chair this panel. we had a distinguished -- i particularly want to thank mayor bloomberg for taking the time to come to new york. i mentioned him because not only does he do a great job as mayor but it is an important role at johns hopkins university and we appreciate that. is a real honor before the committee. we will continue in public service. i want to thank you for being here. you put a face on the issues. we talked about the impact, it affects real people and real families. i think you have added to today's hearing by your personal stories. each of us thank you for your public service and we thank you

for your belief in our nation and the testimony you have given to this committee, it is extremely helpful to each of us on the judiciary committee. we are going to take a five minute recess. >> well done. [inaudible conversations] >> we will start our third panel if everyone will be seated. i will warn those of you out there, anyone who has asked david cohen to sign a baseball you must ask all seven of our other panelists as well. we will start by getting sworn in. please stand. raise your right hand.

do you affirm the testimony you are about to give before the committee will be the truth, the whole truth and nothing but the truth so help you god? thank you. we are going to start, i will introduce each of you and you will give your five minutes of testimony and we will have questions after that. we are going to start here with mr. lewis free, for director of the federal bureau of investigation, whose career in the department of justice began in 1975 when he became a special agent in the fbi. he has a long and distinguished career as public service under a democratic and republican presidents, he was appointed by president george h. w. bush as federal district court judge on the southern district of new york. he was also a career federal prosecutor in the united states attorney general's office for the southern district of new

york serving as chief of the organized crime unit. that the united states attorney and associates, united states attorney. he graduated from rutgers law school and has a degree in criminal law in new york university law school. i look forward to your testimony. >> thank you very much, senator, good afternoon. it is a great privilege to be before the committee, a committee where i have appeared over 100 times and it is always a pleasure to be here. many friends on the committee who i have seen over the last few days, you have a prepared statement from me. i generally don't read my opening statements which has got me in trouble over the years i thought it might be good to talk and tell you why i am here. i had the privilege to work with great judges and appear before great judges.

let me just mention a couple. i served on a district court with constance baker motley who, before, she was a judge, had those qualities of fairness and open-minded this and commitment to the rule of law that i think we wish to see in our judges. the last case i tried as a judge was in the district of minnesota. it was a case which, by the way, senator sessions and i worked on together, he was attorney general of alabama, great attorney general, i was an assistant u.s. attorney working on the case and it was the murder of a federal judge, it was one of the few tragic times in our history when a federal judge was murdered. the case was tried before judge debt, whom many of his peers said was a judge from central casting, the model of judicial

commitment. the instruction book debt and blackmun is named after him. there is an award, the most prestigious award that goes to judges, named after him, he was actually one of my mentors when i went on the southern district bench. was sworn in as fbi director by judge frank johnson who, as someone mentioned before, was a legendary judicial hero from winston county, alabama, who with a handful of other republican judges, really change the tide of history by their commitment to the law, there fearlessness, and the honesty and integrity with which they took upon their office. so is my pleasure to recommend to the committee the confirmation of this outstanding judge. i want to talk about her judicial experience. i think i have been listening to

these proceedings the last few days, i may be the only lawyers who has been with her in the program. since experience is the best indicator of what someone will do in the future, how they behave and conduct in written and decided manners as a judge, as has been mentioned before, this candidate has an enormous, rich judicial record, 17 years, thousands of opinions, all the things you want to look for as you make your evaluation. in the process by which you come here is quite extensive, you have the president and his reviewers's own investigation, you have this committee, you have the fbi that conducted three background investigations. i was director when the second one was done, any and all

information from the public, from citizens for americans, you have reputation lessons from other judges, lawyers who appeared before her. my association began in 1992, she was a new judge on the district and we had a tradition where the second newest judge would mentor the new judge. some didn't think it was the wisest move to have since i had nine months on the bench since she was in my care. i sat with her in court, i helped review opinions that she asked me to look at. what i want to communicate to you in a short period remaining, the enormous judicial integrity and commitment to finding the facts, being open-minded and fair, she struggled to make sure

she had the facts, making sure she had the right law, following the law, being the right judge that we will all be proud of. speeches are important. when you enter the courtroom and put the bench on, just as you assumed the authority when you take your committee, there's a different set of influences and immense power and influence takes over. when she has been on the bench, when she has argued and conducted herself, we can very safely predicted is going to be an outstanding judge, all the qualities i know you would want. i urge you all to support her. thank you very much. >> next, check canterbury is the national president of the

fraternal order of police. he served as national vice-president and national second vice-president. he has 25 years of experience in law enforcement where he worked as a police officer in south carolina. maybe you know lindsey graham, one of our members, in one of the best ways. we look forward to your testimony. thank you. >> thank you. it is a pleasure to be here today to offer the support of 325,000 rank-and-file police officers in the fraternal order of police. it is my pleasure to testify in support of the nomination of judge sonia sotomayor to the supreme court. speaking as a law enforcement officer, it speaks a lot about the character of a young person who graduated from yale and

accepted her first job as up for the paid prosecutor in the district of manhattan. yet that is exactly what judge sonia sotomayor did, as my members do in every city in america. she spent five years with that office, prosecuted many criminal cases including the triple homicide, she forged an excellent working relationship with the men and women working the beat in manhattan. she earned their respect and reputation as being tough which in my profession is a compliment. as an appellate judge she participated in 3,000 panel decisions and authored roughly 400 opinions handling different issues of constitutional law, complex procedural matters and lawsuits involving complicated business organizations. some of her critics have pounced on a few of those decisions as well as the comments made during speaking engagements, and engaged in some wild speculation

as to what she would do as a supreme court justice. as a law enforcement officer i preferred to rely on evidence and fact, not speculation, to reach those conclusions. one such area of speculation is her feelings towards our right to bear arms as guaranteed by the second amendment. i want no mistake to be made. i take a backseat to no one in my reverence for the second amendment. in fact, if i thought judge sonia sotomayor's presence on the court posed a threat to my second amendment right, i would not be supporting her here today. the fact, as some have pointed out, reflect a brilliant and thoughtful jurist respectful of the law and committed to its appropriate enforcement. over the course of her career she has analyzed each case on its merits. to me that is evidence of strong commitment to duty and to the law. two characteristics we should expect from all of our judges.

i want to site a few cases i am familiar with because they deal with issues everyone in united states has dealt with. the united states verses an offended the indicted on 242 counts related to child pornography, he sought to have evidence thrown out because of a search warrant that was thrown out lacked probable cause. sonia sotomayor's ruling held the error was committed by the district court issuing the warrants, not the officers who executed it. the conviction was upheld. in the united states forces santa she ruled that law enforcement officers executing a search of a suspect based on an arrest warrant they believe to be active and valid should not result in the suppression of evidence even if that board had expired. in the united states firs as howard, she attended district's

court decision to suppress evidence. she did not ask to see the been played on a vehicle after discovering it was missing. all of these rulings show that judge sonia sotomayor got at least as much of her legal education over five years as a prosecutor as she did at yale law school. these five years, in my view, reflect the same kind of commitment to the law that i have seen in the officers that i represent. she has clearly demonstrated that she understands the fine line that police officers must walk, and these rulings reflect working knowledge, not theoretical knowledge, of the everyday realities of law enforcement work. after reviewing her record i can say that judge sonia sotomayor is a jurist of him anyone can have confidence. for that reason, the national executive board voted unanimously to support her nomination and we urge you to do

so as well. thank you very much. >> thank you very much. next, david cohen is a former major league baseball pitcher who over an 18 year, trade for five teams in the american and national leagues. he won the american league cy young award in 1994 and pitched a perfect game in 1999 as a member of the new york yankees. he was a member of the major league baseball association throughout his major-league career and was an officer from 1994 through 2000. thank you for being here. >> thank you, senator klobuchar, nice to see again. on behalf of all major league players, former and current, i greatly appreciate the opportunity to acknowledge the unique role that judge sonia sotomayor played in preserving america's past time. i am not a lawyer, much less a supreme court scholar. i was a professional baseball player from the time of is

drafted out of high school in 1991 until the time i retired in 2003. i was also a union member and an officer of the major league baseball players association. as is well-known, major league baseball has a long history of acrimonious labor relations. it was not until the 1970s that players gained the right to free agency and salary arbitration. this meant for the first time ever, players were able to earn what they were worse and have some choice about where is a play. the next 20 years for difficult. there was a lockout or strike at the end of contract. for the players, every dispute seemed to center on the owners' desire to rollback the rights that players had won. but 1994 was the worst. the owners said they wanted a salary cap and refused to promise that they would abide by the rules of the just expired contract after the season ended. believing we had no choice, players went on strike in august

of 1994. i should note that this was before congress passed the curt flood act offered by senators hatch and lady which made it clear baseball antitrust exemption should not be used to undermine federal law. in response, the owners cancelled the remainder of the season, which meant there would be no world series. discussions continued through the fall and early winter but were fruitless. in december 1994, the owners unilaterally implemented a salary cap and impose new rules and conditions of employment which would have made free agency virtually meaningless. and they announced they would start, 1995 season with so-called replacement players instead of major layers. they were not negotiated in good faith as required under law. we went to the national labor relations board, the board agreed with us and went to federal court to seek an injunction against the owners' unilateral changes. the united states district judge

who drew the case would just -- was judge sonia sotomayor. the rest is history, or at least baseball history. she found the owners in gauge in bad faith bargaining. shea issued an injunction. heard decision stop the owners from imposing new work rules, ended hour strike and got us all back on the field. the words she wrote cut right to the heart of the matter, and i quote, this strike is about more than whether the players and owners will resolve their differencess, it is also about how the principles embodied by federal law operate. this strike has placed the entire concept of collective bargaining on trial. issuing an injunction by opening day is to ensure the symbolic value of that day is not tainted by an unfair labor practice and inability to take effective steps against this perpetuation. judge sonia sotomayor asked not only the complexity of the case

but its importance to our sport. her decision was upheld by unanimous court of appeals panel comprised of judges appointed by different presidents, from different parties with different judicial philosophy's. on the day he announced turn nomination, president obama observed that some had said judge sonia sotomayor saved baseball. others may think this is an understatement. a lot of people inside and outside baseball trying to settle the dispute, president's special mediators, secretaries of labor, members of congress, all tried to help, but were not successful. with one decision, judge sonia sotomayor change the entire dispute. her ruling rescued the 1995 baseball season and force the parties to resume real negotiation. the negotiations were not easy but ultimately were successful, which in turn led to improved

relationship between the owners and players. today baseball is enjoying a run of 14 years without interruption of record that would have been inconceivable in the 1990s. all of us have loved the game, players, owners and fans, are in heard that. if judge sonia sotomayor is confirmed i hope the rest of the country will realize as the players did in 1995, that it can be a good thing to have a judge or a justice on the supreme court recognizeds that the law cannot always be separated from the realities involved and the disputes being decided. thank you again, and i would be glad to answer any questions you may have. >> thank you very much. our next week this is kate smith, the lobbyist, a professor of law, she teaches and writes in the area of criminal law, criminal procedure and

constitutional law. previously she was an assistant u.s. attorney for the southern district of new york. she was a clerk for the court of appeals in the district of columbia and 4 associate justice byron wright on the supreme court. thank you for being here and we look forward to your testimony. >> thank you for the opportunity to comment on the nomination of judge sonia sotomayor. i have known her since she became a judge in 1992. as you noted before i joined the faculty at yale law school in 1985 i was a prosecutor in new york and special assistant to the department of justice in washington. the federal prosecutor, i had the pleasure of working with louis freeh. this is an exceptionally strong nomination. my judgment has nothing to do with sonia sotomayor's sex,

ethnicity or personal story. i am judging her on the same criteria that i use when i was asked by that yale daily news some years ago. i answered yes then and i answer yes now, specifically, i am confident that sonia sotomayor will serve the nation with powerful intelligence, vigor, and an abiding commitment to the constitution. moreover, her service as a state prosecutor and district judge will make her unique on the court to which she will attend. my views on her our informed by many sources. i have been unusually involved for a professor with members of the bench with in the second circuit. among these lawyers and judges, in the highest repute across the board. my views are based on many conversations with her.

among the most telling are those used to describe the attributes she is looking for. two of these discussions -- her view for the role of a judge. what she wants are the qualities we all want in a judge. she wants to make sure they're serious about the law, not about politics or professional opportunities. they must be serious in all areas of the law. there are no favorite areas. that brings me to a third quality, the prospective klerk must be willing to work his or her fingers to the bone. the opinions, although she joins. there is a fourth quality the

judge considers critical, the prospective clerk is willing to take criticism, work harder and, where appropriate, rethink her an initial assessment tortoise a initial assessment of the issues. over the years, clerks told me time and again that they greatly appreciate her devoted devotion to the law as a result of which they were held to higher standards and learn more than at any other time in their lives. born out by judicial opinions that i had read in the area of criminal law and procedures. on criminal procedure let me note that the usual categories of left and right denied easily apply. i would say that her decisions were more pragmatism and less formalism than those of say, justice souter. this says more of the government or against. i want to focus on one criminal

law cases. united states versus george in 2004. sonia sotomayor ask unanimous 16 page opinion in that case concerns the meaning of the men's term willfully in the federal statute that makes it a crime to of willfully falsify passport application. opinion makes clear that the role of the court is not to determine what level they think should apply, but what congress intended when it wrote the word will fully. the opinion embarks on a heroic effort to figure out what congress meant in this particular statutes. the opinion is so clarifying and insightful that michael authors and i decided to include a long excerpt in our criminal law case book. the significance is not only that it is an excellent opinion, it also resulted from the willingness of judge sonia sotomayor and her two colleagues to reconsider their initial

decision when additional arguments were brought to their attention. even though this meant a different party would prevail. their aim was neither to affirmed the conviction or reverse the conviction but find the best resolution of the complex and conflicting issue. in conclusion, i submit that judge sonia sotomayor's opinion in the georgia case reveals judicial qualities she clearly possesses. first, she cared deeply about the issue at hand, no matter how minor it may seem even to lawyers. second, she was willing to reassess her initial judgment and dig deeper. third, her legal analysis was exceptionally clear and a stooge. fourth, she had no agenda other than trying to get the law right and in a society committed to the rule of law, trying to get the law right is what it means

to be fair and impartial. this is a great judge. i urge you to vote in favor of her confirmation. >> thank you very much. next, we have dr. charlemagne yost, president and ceo of americans united for life, the first national pro-life organization in the nation whose legal strategists have been involved in every pro-life case before the united states supreme court since roe v wade. she began her career in the white house during the reagan administration. she has worked as project director of the family gender project at the university of forging and vice-president at the family research council. we look forward to your testimony. >> thank you very much. thank you for inviting me to testify before you today. on behalf of americans united for life, we are the oldest pro-life legal organization.

our vision is a nation where everyone is welcome to life and protected in law. we have been committed to defending human life through vigorous judicial legislative and educational efforts since 1971, and we have been involved in every abortion related case before the united states supreme court beginning with roe v wade. i am here because of the concern about the nomination of judge sonia sotomayor to the united states supreme court. a vote to confirm judge sonia sotomayor to our highest court is a vote for unrestricted abortion on demand and a move towards elevating abortion as a fundamental right equal to our freedom of religion and freedom of speech. a nominee's to judge las vegas to the heart of his or her qualifications to serve on the united states supreme court and based on judge sonia sotomayor's record in prior statements combine with her over decade-long service on the board of the quarterly illegal defense of education fund, her judicial philosophy makes her unqualified

to serve on the supreme court. when judges failed to respect their limited role under our constitution by imposing their personal preferences regarding public policy through their decisions, our entire judicial system of equal justice under the law is corrupted. in a series of speeches as we heard chronicled this week, judge so my or indicated a troubling willingness to celebrate her own personal preferences and characteristics. several references have been made to the judge's 2001 speech. i would note that in that same speech she stated that, quote, personal experience affect the fact that judges choose to see, not just what they do see, but what they choose to seek. of greater concern, judge sonia sotomayor stated in the same lecture that the aspiration to impartiality is just that, it is an aspiration. impartiality is not merely an

aspiration. is a discipline and its necessity is and trying to judicial oath. a judge to inject personal experience into a decision corrupt the very foundation of our judicial system. perhaps the clearest example of judge sonia sotomayor's problematic philosophy is for april 2009 speech in which she set ideas have no boundaries, ideas are what set our creative juices flowing, ideas our ideas and if it persuades you, you're going to adopt its reasoning. we see her building a case for judicial activism, yet creativity is the approach americans want beast from a judge, a judge who approaches the bench seeking to, quote, implement ideas is an activist judge by definition. the laboratory for democracy in our system should be lodged in the state legislatures, not pre-empted from the court. the struggling speeches did not occur in isolation. looking at the totality of the judge's record must include her

12 years of service on the board as the puerto rico legal defense fund. during that time reorganization found not one, but six in five abortion related cases. given her particular emphasis on personal viewpoint in jurisprudence, we believe these cases become uniquely relevant in providing insight into her judicial philosophy. judge sonia sotomayor served as member and vice president of the board of directors and also as chair person in the education of litigation committee and has been described as involved and ardent supporter of various legal effort. what does her tenure with the organization tell us about her judicial philosophy? it consistently our use the position that abortion is a fundamental right expressing hostility to any regulation of abortion including parental notification, informed consent and ban on partial birth abortion. in planned parenthood, to the

first amendment right to free speech and argued any burden on the right to abortion was unconstitutional. in ohio the akron case, ask the court to strike down parental involvement statutes insisting-should be, quote, protected against parental involvement that might prevent or obstruct the exercise of their right to choose. she argued failure to put the belief on the abortion was discriminatory. in reproductive health services, against a requirement that physicians personally counsel patients. even argued strict scrutiny is required because of the preciousness of the fundamental right to abortion, underscoring not just a willingness to avoid jurisprudence but to take an extremist abortion agenda. in conclusion i want to end on a personal note related to the brief. we have heard quite a bit about settled versus unsettled this

week. the one thing we do know is this country is still very unsettled about abortion doctor and. but among the american people, there are some elements of abortion related policy that absolutely do provide common ground. preeminent among these is a a core american belief in the bond between parent and child. i have five children, and the notion that my daughters might be taken for a surgical procedure without my knowledge is horrific. a common-sense commitment to protect our children is overwhelmingly shared among all of those who identify themselves as pro-life and pro-choice. yet it is precisely these kinds of common sense policies like parental notification, that are threatened by this nomination. in the fund brief by ohio they argue, quote, accord would need to consider whether the state through giving the parents confidential information is enhancing the ability to

indoctrinate, control or punish their minor daughters who choose abortion. this is a viewpoint far outside the mainstream of american public opinion and points to another truth about the argument which the evidence indicates judge sonia sotomayor stairs, arguing to promote abortion to a fundamental right equivalent to the freedom of religion or speech may actually wish to elevate it even further placing it singularly alone among rights beyond the reach of the american public to regulate or even debate. thank you very much. >> thank you merriman next, we have sandy freeman, also currently a member of the and our a board of directors since 1992. in 2007, unanimously elected to a lifetime appointment on the n r h council. a graduate of stanford university and harvard law school, this froman speaks and

writes regularlymiss froman spe writes regularly on the second amendment. >> thank you for the opportunity to talk about the nomination of judge sonia sotomayor. it is critical the supreme court justice understand and appreciate your engine of the meaning of the right of the people to keeping and bearing arms, valued by almost ninety million american gun owners. judge sonia sotomayor's record on the second amendment and her unwillingness or inability to engage in any meaningful analysis of this enumerated right when twice given the opportunity to do so suggests lack of understanding of second amendment jurisprudence or hostility to the right. in 2004, judge sonia sotomayor and two colleagues discuss the second amendment claim in a one

sentence footnote holding without any analysis that the right for a gun is not a fundamental right. judge sonia sotomayor reiterated her view as part of a panel holding that the second amendment is not a fundamental right, does not apply to the state and as an object is designed as a weapon as a sufficient basis for a total prohibition even in the home. the court ignored directives from the supreme court in last year's landmark case district of columbia versus keller holding that the amendment guaranteeing responsible citizens the right to arms particularly for self-defense. although the supreme court warned against applying these cases from the 1800s without proper fourteenth amendment inquiry, judge sonia sotomayor's panel did just that. they cited the case of presser vs. illinois, decided underprivileged class our unity

clause of the fourteenth amendment proposition that the second amendment does not -- was not one of the states and they ignored the supreme court's 2008 directive to conduct the fourteenth amendment analysis under the modern doctrine of due process to determine if the right is fundamental and should be incorporated. the ninth circuit nordai vs. n king concluded the second amendment is a fundamental right. our second amendment rights are no less deserving of protection against state and local government than the first and fifth amendments, all of which have been incorporated. when faced with the most important question remaining after heller, the right to keep and bear arms is fundamental and applies to the state, judge sonia sotomayor dismissed the issue with no substantive analysis. she and her colleagues failed to

follow supreme court precedent when they held that the new york statute could be upheld if the government had a rational basis for the law. they ignore that the supreme court and heller rejected the rational basis test for second amendment claims. by failing to conduct a proper fourteenth amendment analysis, the maloney court he evaded its judicial responsibilities, offered no guidance to the record and provided no assistance in framing the issue for resolution by the supreme court. whenever an appellate judge fails to provide supporting analysis for their conclusion or address serious constitutional issues presented by the case, it is a legitimate question whether the judge reach the conclusion by application of the constitution and statutes or based on a political or social agenda. judge sonia sotomayor's view robs the second amendment of any real meaning. under curfew the city of new orleans's ported or confiscation of firearms from law-abiding peaceful citizens in the

aftermath of hurricane katrina was constitutional. preventing an individual from exercising with the heller court says was the second amendment's for lawful purpose of self-defense is no less dangerous one accomplished by state law and by federal law. the second amendment was derived by a single vote in the supreme court, application to the state and whether there will be meaningfully strict standard of review remains to be decided. judge sonia sotomayor has revealed her views and they are contrary to the history and meaning of the second and fourteenth amendments. as a circuit court judge, she is constrained by precedent. as a supreme court justice appointed for life, she would be making precedent. a supermajority of americans believe in an individual personal right to arms. they deserve a justice who will interpret the second amendment in a fair and impartial manner and write well crafted opinions were the of respect, and those

of us who must live by their decisions. the president nominated judge sonia sotomayor has expressed grease support for the city chicago's gun ban which is being challenged the-nominating a judge to does not recognize the right is more dangerous than a legislation passed by congress. >> thank you for your testimony, miss froman. our next witness is david kopel, the research director of the independence institute in golden, colorado, associate policy analyst at the cato institute. he is a contributor to the national magazine, he graduated from the university of michigan law school. thank you for being here, we look forward to your testimony. >> the case of sonia sotomayor versus the second amendment is not yet found in the record of

supreme court decision that if judge sonia sotomayor is confirmed to the supreme court, the decision of the newest justice may soon begin to tell the story of the justice's disregard for the exercise of constitutional rights by tens of millions of americans. new york state is the only state of the union which completely prohibits the peaceful position, as enough of a ban enacted after the opening to china in 1970s and the growth of interest in martial arts. with senator hatch on july 14th, judge sonia sotomayor said there was a rational basis for the ban because it could injure or kill someone. the same point could just as accurately be made about bose and arrows, swords or guns, all of them our weapons and all of them can be used for sporting purposes legitimate self-defense. this would allow states to ban archery equipment with no more bases than declaring the obvious, that they are a weapon. even if there was no issue of fundamental rights in this case, judge sonia sotomayor's

application of the rational basis test was shallow and insufficiently reasoned and contrary to supreme court precedent showing that the rational basis test is supposed to involve a genuine inquiry, not a mere repetition of a few statements made by prejudiced people who imposed the law. the plaintiff argued that even putting aside the second amendment, the new york prohibition violated his rights under the fourteenth amendment. there was no controlling precedent on whether mr. maloney's activity involved and an enumerated right protected by the fourteenth amendment. accordingly, judge sonia sotomayor our and the panelists to have provided a reason for the decision on the issue. jenna sonia sotomayor simply presume, with no legal reasoning, then mr. maloney's use of arms was not part of the exercise of a fundamental right. testifying before this committee on july 14th, judge sonia sotomayor provided further

examples for troubling attitude to the right to arms. cheadle senator hatch the heller decision had authorized gun-control laws which could pass the rational basis test. to the contrary, the heller decision had explicitly rejected the week standard of review which justice prior have argued for in his dissent. shea enter advocates pointed to the second circuit decision in and are a versus chicago in justifying her actions in maloney. the argument is not persuasive. both the maloney and and are a courts decided nineteenth century precedents which said the fourteenth amendment, privilege the immunity claus, did not make the second amendment enforceable against states. however, as the other decision itself had pointed out, those cases, quote, did not engage in the fourteenth amendment inquiry required by our leader cases. in particular, the later cases required analysis under the sector provision of the fourteenth amendment, the due

process was. the seventh circuit addressed this very issue and provided a detailed argument for why the existence of modern incorporation under the due process clause would not change the result. in contrast, judge sonia sotomayor's procuring opinion in maloney did not acknowledge the existence of the issue. various advocates have made the argument that since maloney and and are a reach the same result and since we to of the judges were republican appointees who are often called conservatives, the maloney opinion must be all right. this argument is valid only if one presumes that conservatives and/or republican appointees always meet the standard of strong protectiveness of constitutional rights which should be required for any supreme court nominee. in the case of the nra versus chicago judges, that standard was not that. the seventh circuit judges made a policy argument that the second amendment should not be incorporated because incorporation would prevent

states from outlawing self-defense by people who are attacking their own homes. a wise judge demonstrates respect for the rule of law by writing opinions was carefully examine the relevant legal issues which provide careful written explanations for the judge's decisions on those issues. judge sonia sotomayor's records has been the opposite. her glib and dismissive attitude to the rights manifest and her decisions and further demonstrated by her testimony before this committee, in sonia sotomayor's america, but the peaceful citizens who possess firearms or martial arts instruments have no rights which states about respect and those citizens are not worthy of serious explanation as to why. thank you. >> thank you, did i say your name correctly? that was good. thank you. next, we have ilya somin, assistant professor at george mason university school of law. his research focuses on

constitutional law, property law and the study of popular political participation and its implications for constitutional democracy. he currently serves as co-editor of the supreme court economic review, one of the country's top rated law and economic journals. after receiving his am a in political science from harvard university and his law degree from yale law school, he clerked for judge jerry e. smith of the u.s. court of appeals for the fifth circuit. i look forward to your testimony. thank you for being here. >> thank you very much. i would like to thank the committee for the opportunity to testify, and more importantly, for your interest in the issue of constitutional property rights that i will be speaking about. the founding fathers, protection of private property was one of the most important reasons for the establishment in the first place and president barack obama has written our constitution places the ownership of private property at the very heart of