tv Capital News Today CSPAN August 4, 2009 11:00pm-2:00am EDT
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than a judge. her speeches and academic writing or not offhand comments delivered without the aid of notes. they were carefully crafted to dispute the notion that in partiality is realistic or even possible. these were not the musings of the second year law student. they were delivered after she was a federal judge. they were delivered to a number of different audiences, and number of different forums including the bar association. in her speeches and academic articles, judge sotomayor describes other approaches to judging and her approach to the law. she describes the factors judges should consider when reaching decisions. she describes her fully informed judicial philosophy. she challenges the mainstream concept of charging. make no mistake, judicial philosophy matters. it guides judges and tells them
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what to consider. importantly it tells them what not to consider. judicial philosophy is quite different from a judge's personal political moral or social view that a judge is to set aside when they decide a case that is what blindfolded justice means and when a judge puts on that road they are in effect saying to everyone in that courtroom their personal biases and prejudices and so forth will not impact the fairness of the ruling they are called upon to make. judges on trial and appellate courts of course are constrained by precedent. even or appellate judge harbors a radical approach to the law the threat of reversal restricts the judge's ability to employee that philosophy but on the supreme court, however, these restrictions are removed. on the supreme court, there is no additional review.
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on the supreme court the judicial philosophy that is forum is permitted to reach full bloom. as a liberal law dean recently said in "los angeles times," quote, there's a huge difference between being a court of appeals judge bound by precedent and a supreme court justice who can rewrite those precedents. that is why our judicial philosophy matters. frankly after reviewing her consistent speeches and preparation for the confirmation hearing on the expected judge sotomayor to defend her views and to defend her statement that, quote, the wall that lawyers practice and judges declared is not a definitive wall many would like to think exist, and of quote. i expected her to defend the notion the court of appeals is
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where policy is made. i expected her to defend her statements in favor of using foreign while to interpret american statutes and the statement that there is, quote, no objective stance but only a series of perspectives. however during her testimony many of her answers were inconsistent with her record and others were evasive and not adequate. on several occasions judge sotomayor appeared to run away from the philosophy she has so publicly articulated. other answers i conclude were not possible. it has been repeatedly suggested judge sotomayor's speeches and words are being taken out of context. i've read the speeches in their entirety. her words are not taken out of context in fact when one reads her speeches in their entirety in context the impact is more troubling, not less.
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for example, judge sotomayor said on repeated occasions that she, quote, willingly accepts that judges must not deny the differences resulting from experience and heritage but attempt continuously to judge when those opinions, sympathies and prejudices are appropriate, close quote. when i asked whether there was any circumstance which a judge should allow prejudice is to impact the decision making she replied never their prejudices. this is quite the opposite of what her speeches said. in the hearings she said her speech as discussed, quote, the important goal of the justice system to ensure personal biases and prejudices of a judge cannot
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influence the outcome of the case, close quote. wells said but that is and what her speeches said in context or line by line. she was not urging judges to guard against their prejudices as their oath calls upon them to do. she was accepting a judge's prejudice may influence their decision. similarly, judge sotomayor repeatedly stated she accepts that who she is well, quote, affect the facts i choose to see as a judge. the facts she chooses to see. she accepts this. when i asked her about this statement she said it isn't a question of choosing to see facts or another, senator, i don't intend to suggest that, close quote, but that's what she said repeatedly.
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she said all i accept the fact that who she is will affect the facts, quote, i choose to see as a judge. the context of her speech states a clear fi philosophy. judge sotomayor was contrasting her own views with those of see the bomb and justice o'connor, two women and judges of prominence, justice o'connor was a former member of the supreme court. the context was her view that, quote come in short the aspiration, and i'm quoting her, the aspiration to impartiality is just that, and aspiration, close quote. such a statement evidences the lack of the kind of firm commitment to fairness and to the judicial oath of in partiality that is expected in my opinion. we have heard again and again
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our concerns are based on three words, the wise latino woman. that is not the case. we are talking about a judicial shall philosophy as reflected speech after speech, year after year. that is what is causing the problem here. senator coburn at the hearing made a point i think is worthy of emphasizing that her refusal to effectively defend her own speeches and statements was almost as troubling as the philosophy contained within the speeches. as "the washington post" said in endorsing her on july 19th in their editorial said this,
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quote, judge sotomayor's attempt to explain a way and distance herself from the wise latina statement were on convincing and at times uncomfortably close to disingenuous especially when she argued her reason for raising questions about gender or race was to warn against injecting personal by agassi's into the judicial process. her repeated and lengthy speeches on the matter do not support that interpretation, close quote. justice sotomayor's opening statement she said her philosophy was fidelity to the wall with her record demonstrates if true purview of the law is different in mind for example she advocated for the use of the four in full by american judges. once again we are left with statements made at a hearing
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that were in direct conflict to the statements made before she was nominated. as judge sotomayor noted in the april, 2009 speech, april of this year before the puerto rico american civil liberties union, the current debate regarding the use of foreign and wall in the courts she noted dustin to use against one another on one side six justices scalia and thomas to believe for and what shouldn't be used in interpreting the u.s. constitution. that's correct in my view. on the other side is justice ginsburg who believes courts should be more aggressive in their use of the foreign law. in this speech in april justice sotomayor clearly indicated who she thinks had the better view of the issue stating that she, quote, shares more of the ideas of justice ginsburg be leaving unless american courts are more
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open to discussing the ideas raised by four encases and by international cases that we are gwen to lose influence in the world, *close quote . moreover, judge sotomayor talked approvingly about recent supreme court cases in which justices did look to the fore in what precisely to interpret our constitution. that is a very clear position. i think it is incorrect, but it is a clear one and others at here to it when she can't for the judiciary committee judge sotomayor articulated a very different view of all state and foreign law cannot be used as a holding or precedent or to influence the outcome of eight legal decision interpreting the constitution or the american law. that doesn't direct you to the wall. that is quite a different position from the theme and
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statements in her april speech. so i agree it lamented judge sotomayor's tendency to avoid answering questions with one colleague noting her extreme caution and answering. i don't think many would dispute she is less forthcoming of in justice alito and roberts, however last confirmations to the court just a few years ago. in addition to the stated judicial philosophy i am also quite concerned regarding how judge sotomayor has approached the most important constitutional cases that have come to her court. most of the cases a court of appeals judge considers are routine fact is dominated and do not offer questions or require substantial legal discussion. still a few important cases that present new and critical issues
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do periodically come before the courts of appeals. these cases can give in sight how the nominee will handle the many cases that regularly come before the supreme court. within the last three years judge sotomayor has heard three monumentally important cases at the circuit level. the constitutional right to be free from racial discrimination, the right to keep and bear arms, and the fifth amendment right to keep one's own property. in all three of these cases judge sotomayor joined or offered at three very brief opinions, oddly brief opinions that avoided the careful analysis we would expect of an appellate judge and in all three cases individuals went to court with the plain text of the constitution on their side and in each case judge sotomayor reached conclusions that denied
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individual americans their rights they were asserting against governmental power. when confronting an appeal based on fundamental notions of equal protection of law judge sotomayor took a pass. by now we are familiar with basic facts of the new haven fire fighters case. 18 firefighters brought suit against the city of new haven after the city throughout the results of the promotional exams it was thrown out because not enough of certain minorities did well enough on the exam. judge sotomayor's decision in the case is troubling. her curious one paragraph summary order and the supreme court's subsequent reversal are
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starting points but there is more, and there is reason so much attention has been focused on this case. her initial attempt of the disposal of the case by summary order was quite simply unacceptable and an embarrassment a summary order is by circuit for will only cases in which there is no principle, legal principle worthy of discussion. and in the end every supreme court justice concluded she applied the wrong legal standard for granting a judgment against the fire fighters and the city before a trial kurd and a majority of the supreme court found the firefighters' case was so strong they were entitled to a verdict for their side on the evidence that already existed without a trial.
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the supreme court understood the importance of this case. why do we care about it as americans, as they said of judge sotomayor's logic, quote, allowing employers to violate the disparate impact liability would encourage race-based action at the slightest hint of disparate impact. that would amount to a defacto system, close quote. that is the supreme court language. and i was struck by something one firefighter, lt. vargas, said that his testimony he said before the senate was the first opportunity he had had to tell his story because the district court threw out the case before a trial and judge sotomayor dismissed the case by summary order initially meaning that a hard copy of her order was never even delivered to the other judges on the court. one of her colleagues apparently
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independently not heard about the case and sought a full review, rehearing is what he sought through the whole second circuit. it is likely the supreme court would never have even known the case existed or consider the case. it's also likely lieutenant gargasz wouldn't have had the opportunity to tell his story to explain to his children, his profound hope as the result of his efforts they would be judged on their merit and not on their race or ethnicity. in response to my questions, judge sotomayor also claimed her ricci decision was controlled by an established supreme court precedent saying, quote, a variety of different judges on the appellate court will looking at the case in light of established supreme court second circuit precedent, close quote. the supreme court didn't see it
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that way. supreme court noted, quote, few if any presidents in the court of appeals, close quote, discussed this issue. as noted, commentators have recently confirmed even if judge sotomayor had believed her panel was bound by a second circuit precedent review and rehearing by the whole second circuit would have provided the opportunity to review the previous cases of fresh and overrule them if they were on the sound. but judge sotomayor cast the deciding vote against rehearing this case by the full circuit. she defended her ruling and will be other authority exist that time in the second circuit. the case is also troubling to me because judge sotomayor pledged
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not to me during her confirmation in 1997 that she would follow the supreme court decision in a well-known case and subject any preference for one race over another race to the courts established standard of strict judicial scrutiny. when i asked her about this promised she had made, i once again found her answer to be dismayed. she stated that the case is asked about the seminal equal protection cases and so forth, quote, or not what was an issue in this decision. she was talking about the ricci case, but that is not right. there were two ferry nuclear claims made by the fire fighters in this case. one based on the statutory right and one based on the equal
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protection walls of the constitution -- >> i want to advise you your initial 30 minutes has been used so he would be moving into the next period of debate. >> madame president i ask unanimous consent to have five additional minutes. >> without objection. >> madame president, we will discuss some of the other cases in more detail later but one only need look at the papers in the district court and court of appeals to see that the average at issue and constitutional question were central issues in this case or look at judge cabranas's decision. one doesn't expect this type of mistake or lack of accuracy from the supreme court nominee in a case of this importance that she understands and she will have to discuss before the judiciary committee.
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judge sotomayor repeatedly stated in quoting her opening statement with against deserved explanations that she looks into the fact is, delves into the record and explains to a litigant's why she rules for or against them. i have read the one ricci and she didn't for the firefighters the respect they deserve. i've also considered very carefully judge sotomayor's views regarding the second amendment and i am troubled i heard eckert and not reassured by the answers she gave during the hearing. in some she effectively help the second amendment right to keep and bear arms didn't bind the states and that means any city or state in america if her opinion is upheld what can ban all guns in the jurisdictions. and if her opinion is not
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reversed that is what will happen in america and i would note the supreme court in ruling on that case, the hell lowercase but told clearly for the first time the second amendment is an individual right and applied to the district of columbia which effectively band firearms in the district of columbia and they said that was not constitutional, that the citizens of the district have a constitutional right to keep and bear arms and it cannot be eliminated so if the sotomayor opinion is upheld i can only say the second amendment be viable in the district of columbia and now the other cities and states in the country. madam president, with regard to the takings case one of the most significant taking cases in recent years she ruled against a
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private land owner who had his property taken and he intended to build a pharmacy. a developer working with the city utilized the power of the city to attempt to extort money from the individual so that he could build another private drug store on the lot and when the owner refused of the city condemned his property, gave it to the developer who then built his own kind of drugstore. this is in violation i believe of the constitutional protection that private property can only be taken for public use. so madame president, words have meaning. the constitution and the laws have meaning. people come to assert their rights under the constitution and laws.
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these against didn't have their rights properly listened to or protected in my opinion. is it because she would have preferred a different results from the exam for firefighters? is it because she didn't believe in the rights protected by the second amendment as set forth in the constitution? is it because she favors redevelopment? we will have to wonder because the cases were certainly not decided days on the plain language of the constitution and did not openly and throughly in any of these cases she did not openly and throw the in any of these cases engage in a serious discussion of the issues raised. each was just a page or two or three. one of the important rules of the judge's words, meaning of words is obviously where the power of the constitution amol is found when a judge feels empowered to redefine the meaning of words and our
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constitution they feel empowered to amend our constitution and if they don't like the death penalty may be they will call it on constitutional. if they don't like the right to keep and bear arms maybe they will say the second amendment doesn't apply to states and cities. in a recent speech before this nomination two-time winner of the lincoln prize noted that a constitutional system recites on a bedrock of shared assumptions and while it may seem to be a collection of laws and statutes the most important thing is, quote, those the first on a reference for words and the reason and orderliness. he adds that, quote, reference must grow from confidence that words, reasons really do
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protect, close quote. the rights of citizens. citizens must know their rights when stated in the constitution will be steadfast protected by the courts. it is here to have significant qualms. the nominee reconciled or attempted to reconcile fundamentally differing statements and speeches and hearing evidence is a lack of words. her explanation of controversy decisions lacked clarity, a serious shortfall indeed for supreme court justice. so i came to this process with an open mind regarding judge sotomayor. she has many wonderful qualities and i truly mean that and i like her and she was ever graceful in her testimony. certain aspects of her record troubled me whether for example she has a kind of deep commitment to the idea of object of pity and impartiality that i
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believe is necessary. i hope those concerns would be addressed effectively and unfortunately many of the answers did little to ease my concerns. but instead reinforce them and lead to more unanswered questions. regrettably i cannot support a nomination for the lifetime appointment to the united states supreme court. i thank the chair and yield the floor. >> the next two hours more debate on the supreme court nomination of judge sotomayor. later, he will hear from republican senators orrin hatch and james inhofe. this portion begins with democratic senators sheldon whitehouse, robert menendez and dianne feinstein. >> madame president, it should be no surprise might views are not those of the distinguished ranking member of our judiciary committee. but somewhat different. i served on this committee for 16 years now. i have sat through the
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confirmation hearing of four supreme court justices and all i am very proud to say on a believe the president made an excellent choice and i enthusiastically support this nominee. judge sotomayor is a boreman and intelligent woman. more importantly though, she is a solid tested and mainstream federal judge. her personal story is one of hard work. she has risen above all kind of obstacles and she has perseverance. she's a role model for women until all and i cannot help feel a sense of enormous pride in her achievements, her nomination and hopefully before the end of the week her confirmation to be a supreme court justice. as i said the confirmation hearings a supreme court justice should possess at least five qualities.
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one, broad and relevant experience. so how does she stand? you can't find a nominee with bitter experience than just judge sotomayor. she has 29 and a half years of relevant legal experience and has seen the law from all sides. four and a half years shoup was a prosecutor in new york city she prosecuted murders, robberies, child pornography cases as an assistant district attorney. she worked with law enforcement officers and victims of crime and send criminals to jail. we heard from the distinguished new york city district attorney mr. morgan fall who said he looked for a bright young people and he found her and he heard her story and she had been to princeton. she graduated suma cum lade. she is the editor of all review and came to his attention and he
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went to recruit her as a prosecutor in new york city. for eight years after that she practiced business law. as a litigator in a private firm. she worked on complex civil cases involving real-estate law, banking law, contractors and intellectual property law. then for six years she was appointed by judge herbert walker bush as we might say bush 41 as a united states district court judge. she heard roughly 450 cases in the district court up close and personal where litigants come before the judge, where the judge gains a sense of what the federal court means to an individual. i think that is important to know on the supreme court and she saw firsthand the impact of
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the law on people before her and then she was appointed by president clinton for 11 years she has been a federal appellate court judge on the second court of appeals. she's been on the panel for more than 3,000 federal appeals and she has authored opinions and more than 400 cases. these 11 years were rigorous inappropriate training ground for the supreme court. judge sotomayor will be the only sitting justice with experience on both the federal, trial and appellate courts, and she has more federal judicial experience than any supreme court nominee in the last 100 years. that is a substantial qualification. ..
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as a district court judge, she presided over criminal and civil jury trials. she sentenced defendants. she resolved complicated business disputes and she reached decisions in discrimination an civil tort -- and civil tort cases where people had been unfairly treated, injured, or harmed. treated, injured, or harmed. injured or honda. finally as an appellate judge she grappled with a difficult and critical questions that arise when people disagree about what our constitution and our federal statues mean to -- peer
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down so she certainly has ample experience. thirdly, the supreme court justice should have impact of zero judicial temperament and integrity and madam president, anyone who watched judge sotomayor at her confirmation hearings has seen her temperament and demeanor firsthand. she is warm, she is patient, and she is extremely intelligent. she sat at that table with a broken leg and up on a box hour after hour and day his after day and in a hot room listening to members of the judiciary committee peppered her with questions and not at any time did she lose her presence, lose your cool, show and number but she showed determination and patience and perseverance and i
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think that means a great deal. at times the hearings began friday he did it but she remained,, even in the face of a provocative questioning. so i am not surprised that the american bar association and the new york city bar association gave her their highest rating. now as one of her rhythm of an appointed colleagues on the second circuit said and i quote, sonia sotomayor is a well loved colleague on our court. everybody from every point of view knows that she is fair and decent in all her dealings. the fact is she is true lies is superior human being here now there and do what greater compliment could there be for a prospective supreme court nominee?
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with spending time with her during our one-on-one meeting in participating in her confirmation hearing, i really agree. and she is a walking talking example when of a who very best america can produce. she has overcome adversity hear here is a woman, a child, and products of a poor quarter rican family living in a housing project in new york. she is a years old, her father dies, she is nine years old, she finds herself in the juvenile diabetes, she goes to school, she struggles with a language. she overcomes it, she graduates from high school, she goes to prince and, she succeeds in every way shape and form as i said summa cum laude and then on
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to yale and head of the yale law review. she overcame adversity and she can't gun. she has given back to her country in her community and she is now on track to the, the first latina justice of of the united states supreme court to prevent an only the third woman ever appointed to that port to. and not only will vote for her, i will do so with great pride. and finally, the supreme court justice initiative seven mainstream of legal reasoning and a firm commitment to the law. i have heard people say they don't believe she will follow the law. i sat during those four days of hearings. there was never an instance that i saw where she moved away with from legal precedents and the long. i said before and i would say
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today that i am somewhat concerned about the current supreme court to as i see it, conservative activists have succeeded in moving our courts to the right of mainstream american thought. let me give you an example. in just the last two years this has been abundantly clear. the justices of this return president at an alarming rate and they have written the law in ways that make clear that are not just calling balls and strikes. in 2007 alone the court held that a school district can never consider race when it did mine since to schools. even to ensure any amount of racial diversity. it held a that women who are paid less than men had to sue within 180 days even when they had no way of knowing they were
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paid less or then lost their right. >> pay. you are new to the senate and one of the first things we did was pass this lilly ledbetter a lot to overcome that supreme court decision. the court held for the first time since 1911 that manufacturers could fix minimum prices for their products. i cannot believe this. picks minimum prices for their products barry it held that indigenous species and to not apply to certain federal actions even though the court in 1978 said has no exceptions. and it held that congress could pass a law restricting access to obey and services for women without including an exception when a woman's health is at risk. now now that less decision is a
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dangerous not only to a woman's health, but it is also contrary to the court's opinion in a row in 1973, in ashcroft in 1983, in case the end of the on burn both and 1992, in carhart to one in 2000, and in io in 2006 para el so this corridor of conservative activists casts aside the president and super precedence to do essentially what they believed. no not the fall of president, a precedent that began in 1973 was just simply thrust aside. said the supreme for a shift to the right had discarded and president is not just an ivory tower issue, these decisions have real life impacts.
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just last week usa today report in that older white men in 55 years or older are losing jobs at the highest rate since the great depression. no now this is troubling. we have a long, the age discrimination in employment act that is supposed to protect workers from being laid off because of their age para el but just two months ago the supreme court changed the burden of proof under that law making it harder for older workers to get the protection when they are fired them into motives were not given the job because of their age so let me be clear in my view after 16 years on this committee, the justices on the supreme court on not umpires. they do not just call balls and strikes. there are not computers.
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it matters who sits on our supreme court it matters whether they will respect precedents and follow the law. judge sotomayor is a nominee with a 70 year record of, following the law. she has faithfully applied the law to the tax in case after case. now we have a research service here is, congressional research service, it is a neutral respected and chung to what we do in the senate and house and the carries out significant research. well, they took a look of a record. they examined it and this is what they said and i quote. when decisions do not fall along any ideological spectrum the most consistent characteristic of her approach as an appellate judge has been an inherent to the doctrine of a precedent, the
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upholding of a pass judicial precedents. so when her record and is subject to lead researched by the number one objective service to have, she has been found to abide by a poor precedent. they have essentially said she is not an activist. she follows legal precedents and when her confirmation hearing ended, even more incentive to who is now moving in against judge sotomayor and said this -- and i quote -- i actually agreed that you're judicial record of strikes me as pretty much in the mainstream of judicial decision making. judge sotomayor's mainstream record ninth, her respect for precedent, and her commitment to the law have earned her the support of groups that cut across party lines bear them from law-enforcement groups and
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the international association of chiefs of police, to civil-rights groups like the leadership conference for civil rights coming to business groups like the united states chamber of commerce. yes, they have endorsed term. two former officials from both parties including conservative lawyer kenneth starr. and legal groups like the american bar association. this is a nominee with a solid record with him on a federal and judicial experience than any nominee in a century and with the widespread support. now, there are those who oppose term because of one speech she made, one speech at and 29 in a half years of legal experience. secondly, there are those who oppose him because of one case. it is the ricci case, the new haven case involving firefighters here come.
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but judge sotomayor was squarely in the mainstream in this case. she followed established precedents. that is within this report said in a 50 page opinion, that is what her second circuit panel joined unanimously with her to agree. end about the same time let united states district court in tennessee, a judge held that in a nearly identical situation the memphis police department could replace a promotional exams that is feared was discriminatory. and last year a three jed chamois circuit panel on the sixth circuit including one appointed by president george w. bush agreed so there is precedent. now it is true that five
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justices in a 52 for an opinion on the supreme court disagreed and their decision is now the law of the land, but i was a mayor for nine years mr. president of a difficult city going through a number of affirmative action cases and i can tell you how bad in this room cities and one justice souter called and i quote a damned if you do it, and damned if you down situation. and i would agree with that. if a city has to prove that they would lose in court before replacing a civil service exam, it believes it is discriminatory, this jeopardize is virtually an exam they might choose and filing those heavenly there is the third point of opposition perry and that is the national rifle association. the and i am actively opposes
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judge sotomayor. web by saying there scarring, her confirmation vote, they will tell their members that any senator who opposed to confirming judge sotomayor as voters a chance in the and not a priority is so let's look at that. the nra says judge sotomayor year in the case of the united states vs sanchez. it is a to them as an for case. in this case an illegal immigrant named jose sanchez was con dealing crack cocaine and and carrying a handgun in new york city. those are the facts of the case. a jury convicted on an appeal of the defendant arguing, the fans that to prohibit him from carrying a gun in york city by late in the second amendment.
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judge sotomayor and her colleagues unanimously rejected his arguments and appel that the conviction. the nra is apparently up said that judge sotomayor and her colleagues did not agree with their second amendment but in 2004 when this case was decided, the law had been cleared for 65 years. the supreme court had said in 1939 that the second amendment only related to malicious service and hundreds of judges all across our country had fallen to that decision for decades. with the nra have preferred and that a judge sotomayor rule against 65 years of civil law and establish precedent find that an undocumented friend dealer has a constitutional right to carry a gun in new york city? do you want that mr. president?
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do i want that in my state? the insert is absolutely not. the nra also says senators should oppose judge sotomayor's nomination because of another case -- maloney versus cuomo. they eric judge sotomayor and her colleagues unanimously upheld the that new york law banning a particularly japanese martial arts weapons in call the new junk us that the unanimous decision said it the second eminence only the federal government, not the state's. now why would this be 10 and her colleagues say that? because it was binding supreme court law a pair of look of the decisions. in 1876 the supreme court held that the second amendment only applies to the federal government. that was this united states vs
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cook shane, 92 u.s. five, four to veneering is sending an indy 1986 in presser vs. illinois. 116 u.s. 252. in began in 1984 miller vs. texas, 153 u. s. 535. the fourth circuit follow that long and said in 1995 that the second amendment only applies to the federal government, that case was love at bruces pepper sack, 47 it had inherited 120. with the sixth circuit agreed in 1998 periods -- ricin organizations forces and the city of columbus. 152f35 youtube. end judge sotomayor who, her encore of the second circuit
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agreed in 2005. for a 08 federal the third 75. then last year justice scalia wrote in a footnote 23 of the famous heller opinion and i quote, our decisions in the presser vs. illinois in miller vs. texas reaffirm that the second amendment only applies to the letter of government. um and that case district of columbia the 20 needed and the supreme court. of pay, justice scalia is not exactly a liberal supreme court justice. and that is his view. press services delano language in miller vs. texas reaffirmed that the second to look amendment only applies to the letter of government.
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finally just two months ago, three republican appointees on the seventh circuit agreed and that the second amendment only applies to the federal government. they send anyone who doubts this need only read justice scalia's opinion in that case was the national rifle association immerses the city of chicago 567 federal after the 856. so once again judge sotomayor decision was squarely in the agreement with the court after port after a court. now some of my colleagues have said that the ninth circuit disagreed is and it is true that three of its judges didn't, but last week will ninth circuit voted to review these three judges decisions henry here it as a full court.
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and that case is your diapers is converses 15763 appear unwilling ninth circuit july 29th 20009. and lost their health bois. the loss of one of three appointed judges. now let me just summarize. judge sotomayor has 29 in a half years of relevant legal experience. she has a 17 year record of bonneville of. she has of the experience, the temperament, and the knowledge. she will be in my view a fine supreme court just as profound mr. president, supreme for injustices don't merely call balls and strikes, they make decisions that determine whether
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axa of congress will stand or fall. they decide how far the law will go to protect the safety and rights of all of us. they have the power to limit or expanding civil-rights protection. they have great leeway to enter the laws protecting are limiting a woman's right to choose and they can expand our limit child pornography laws and campaign finance laws and so many more. i believe judge sotomayor is an exceptional person who brings a rich background as a prosecutor, a business lawyer, a trial judge in the appellate court judge and her 17 year record and judicial temperance shows the issue will playfully apply the law. i cannot tell you how proud i will been to vote to confirm her as an associate justice on the supreme court. note and i sincerely hope that
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endowment majority of my colleagues will do the same. i think the chair, i yield the floor. >> senator from new jersey. >> mr. president, riss i ask unanimous consent that chris and determined, actually became an joe sarks the disavowals of my office be granted floor privileges for the remainder of the confirmation of judge sotomayor. >> without objection. >> mr. president, i rise in the house support of a confirmation and of a judge sotomayor. we are not only about to cast a vote this week that all make history, but we aren't about to stand with this in some small way for the coming age of america. the great palace of this amount to a state built the nation on an idea of and an ideal, they divided the make experiment in the form of government build on tolerance coming it will rise, justice and a constitution
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that protected us from the mighty sword of tyrrany. they forced the committee from sharing values common principles that preserve the freedom of every citizen to pursue happiness and rich with the stars and mad of their position, the man in this circumstance that birth prairie it was a revolutionary notion that in america one is down by his or her economic social status when it is not bound by his american economic growth social status that if we were carted to reach further come in higher everything is possible. unlike other nations united by common history and common language in common culture, america prides itself on its model. the pluribus out of many one. in our blind rush to one side of political special of the other we too often forget those words. we too often forget that we are united in our differences in a
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vast melting pot foraged from common values and ideals of freedom that is the envy of the world. it today as we prepared to confirm judge sotomayor the awful realization of that ideal is closer than it has ever been. and now lives. i feel it. for i have lived it. i stand here someone who myself came from humble beginnings, raised in a tenement building in the neighborhood in union city, new jersey. the son of immigrants, riss and my family to go to college and now a nation of 300 million people one of 100 members of the united states sent it. i never dreamed growing up that one day i would have the distinct honor to come to the floor of the senate's to rise in favor of the confirmation of an eminently qualified hispanic woman who grew up in the bronx across the river from the old
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tenement and live dead in union city. i never gene that as a united states senator of hispanic heritage i would have the privileges of standing in the well of this chamber to cast an historic vote with the first hispanic woman on the highest court in the land. so for me personally my vote where judge sotomayor will be a proud moment, one i'll always remember as a highlight of my time. the senate's. when the judge sotomayor puts received on the u.s. supreme court america will have come of age. we will leave only to look at the portion of the justices of the new supreme court to see how far we have come as a nation. who we really aren't as a people, what we stand for and what our founders intended us to be. it will be a striking portrait, one of strength, diversity, spirits and wisdom. the portion of a nation united
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by common concerns it's still too often divided by deeply held individual beliefs. there are those in the paper hubei has of as a deeply held beliefs will vote for judge sotomayor and those who will not hear each for their own reasons, each in part because of who there are, where they grew up, how their perspective has been uniquely shaped by their individual circumstances and experiences. and their vote will be based on the on logic, that on reason to how they interpret the tax and the testimony before them. each of us will analyze in the bid as fast, on perspective and will hold to our own intellectual positions we will disagree, so find fault with judge sotomayor's choice awards. some will enter average misstatements or rulings differently than she may have clearly intended. now some will question her temperament, her judgment, the details of her decisions, but in
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this debate and ultimately in the final analysis none of us can deny the role our experience will play in nine decisions. none of us can deny our backgrounds, a brain, the seminal events that shaped our lives. we cannot deny who we are. all we can ask of ourselves, of any of us is that wisdom, intelligence, reason, and logic will always prevail in the decisions we make. those who say financing center him or injustice of the united states supreme court does not carry something with them for their experience are simply out of touch with reality. but let us remember that to we are is not a measure of how we judge. it is merely the prism through which we analyze the facts. the real test is how we think
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and what we do. and let's be clear. given to the tax, and given the evidence before us sonia sotomayor is one of the most qualified an exceptionally experienced nominees to come before the senate. no and i am proud to stand in favor of her confirmation not because of where she came from, not because we share a proud and ethnicity, but because of a judge sotomayor's experience in ms knowledge of the law. i am proud to stand in favor of her nomination, not because she is an hispanic woman, but because of repairman's to the rule of law in paris by for the constitution. not because of the death of her theoretical knowledge of respect for precedent but also because of poor practical experience fighting crimes. not because of one statement she
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may have years ago outside of the court room. but because of a career line piven rack. of dedication and to evil is justice under the law. nothing, i repeat nothing should be more important to any nominee then a dedication to the simple words chiseled above and the engines to the supreme court. equal justice under law. these other reasons that i am proud to stand in support of her confirmation and in these other reasons i believe judge sotomayor should in my view unanimously confirmed by the senate. but i know i'm that will not be the case. i know there will be few and the other side of the aisle who will cast their vote in support of her. i know some of my colleagues have suggested that the judge sotomayor may not have the
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judicial temperament necessary to serve on the supreme court. now into the savages to get up and say that i said watch the hearings in and year fell want them closely. listen to what was asked, watch your responses, take note of it the tenth, the dignity and clarity of ring answers. now be aware of the deference shown every senator on the committee, her tone, her tenure of her responses, rebuttals, and then tell me she does not have the proper judicial rubber. i think most americans who watched through, listen to her with respectfully disagree. most americans do not care about one specific statements out of hundreds of siemens. they care about the person, they care about the experience, they care about honor and decency and dignity and fairness.
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out of they care about who she is an image he has accomplished in her long judicial career but simply they care about the record. as in the record is clear coming shows that she has a deep and abiding respect the constitution. shows that the leaders of prominence legal and law-enforcement organizations to know her best, those who have actually seen her work say she is an exemplary, fair and highly qualified judge. and shows the crime fighter who has a prosecutor the tarzana murder behind bars. asia as a judge to is upheld the convictions of drug dealers, sexual predators and other violent criminals and it highlights a deep and abiding respect for the liberties and protections granted by the constitution. including and there's amendment rights of those with whom she
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strongly disagrees. with judge sotomayor's credentials are impeccable. set aside for a moment that that she graduated at the top of her class at princeton, set aside her tenure as editor of the yale law review, her work for rabin margin fell as the manhattan district attorney, whose successful prosecution of child abusers, mergers and white-collar criminals, set aside her program experience and practical hands-on knowledge of all sides of the legal system. even set aside for appointment by george hmd bush to the u.s. district court in new york and her appointment by bill clinton to the u.s. court of appeals. and that that too is confirmed by both a democratic majority and a republican majority senate which alone tells the sanitary and she was qualified then she must be qualified now.
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bessette all of us signed into i still left with someone who would bring more judicial experience to the supreme court than any justice in the last 70 years, more federal judicial experience than anyone nominated to the corridor in the last century mr. president, where record clearly shows the sun so experienced, skilled, so committed, so focused on the details of a long can be an impartial arbiter who follows the law. and still have a deep and profound understanding of the kfx decisions will have on that day to day lives of every eight people. with all due respect to my colleagues to plans to go against this nominee, which speaks volumes about judge sotomayor's temperament, which speaks volumes about her experience, which speaks volumes about her record is that the
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worst, the very worst her opponents can accuse her of is an accident of geography then gave her a of the unique ability to see the world from this review appear, from the cheap seats. i know that you very well. i grew up in it. i can tell you with certainty gives you a unique perspective on-line of. knitting generous compassion, it engenders, and focuses a clear struggling and his problems from afar deeper. yes mr. president i know who that you well and it remains with me today and it will remain with me all of my life. i daresay there may be no greater been disciplined for which two view the world coming to see the whole picture then a tenement in union city where
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housing project in the bronx. thomas jefferson and his first inaugural address said quote, i shall often go tarentum judgment when right i shall often been thought wrong by those whose positions will not command a view of the low ground. mr. president, judge sonia sotomayor kikkoman save zero why the expansive view of the whole ground. is a strength, not a weakness. it is who she is, not which you will do or how she will and judge. it is the long view and it gives her an end to where she may see what others cannot. no and that is a gift that will benefit this nation as a whole. i ask my colleagues to take the long view. it and see with this nomination means in the course of this nation's glorious history.
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fermium the ideal, the idea of america, the deep and abiding wisdom of our founders will have come of age when the judge sonia sotomayor aires is her right hand, places her hand on the bible and takes the solid oath of office. with the portrait of the injustices of the united states supreme court will more clearly with the two we are as a nation. while we have become and where we stand for as a fair to us 10 hopeful people. psr legacy. via our next supreme court justice. i am proud and honored to suppress the confirmation of judge sonia sotomayor as the
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next justice of the united states supreme court. and finally mr. president numerous civil rights latino and law-enforcement organizations joining me in supporting judge sotomayor's nomination so i ask unanimous consent that letters of support of the loan organizations be entered into the record. mexican-american legal events and education fund, the national hispanic leadership agenda, the national poetry collection, the national retail order of police, the nationalization of black law of horsemen executives, the federal hispanic congressman of this is association, the u.s. hispanic chamber of commerce, the arizona hispanic chamber of commerce with the fourth to name a few. >> objection to i thank you can with that high-yield will recommend mr. president, senator from long island to make mr. president, i am honored to join my distinguished colleague from new jersey here today, the
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senate floor to speak in support of the confirmation of it judge sonia sotomayor as in the next associate justice of and the united states supreme court. i have the privilege to sit on the judiciary committee for her confirmation hearing in and join all of my committee colleagues on both sides of the aisle who have complemented chairman leahy for a very well-run hearing. no i was proud to vote for a judge sotomayor in the judiciary committee in mlb proud to vote for her confirmation hearing on the senate floor sonia sotomayor remarkable education and professional qualifications, her commitment to public service, uncontroversial 17 a year record on the federal bench flung prevent any nominee in 100 years, responsiveness and patient judicial temperament and the hearings, all confirmed to me her pledge that she will respect the role of congress as residences of the american people, and as you will decide
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cases based on a long and wax it were her, that she will not prejudge any case but listen to every party that comes before her and that she will respect president and limit herself to the issues that the court must decide, that she will use the broad discretion of the supreme court justice wisely. i applied and those of my colleagues who have not alleged that judge sotomayor falls well within the mainstream of the american legal profession. at the same time is disappointing that so few republican colleagues have been willing to recognize her clear qualifications for our highest court and have been nearly unanimous party opposition offered by republicans in committee in here have the floor raises serious concern whether some of my colleagues would ever be willing to of where anyone outside of the federalist
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society. two my republican colleagues in opposition and ask, what it democratic nominee would you vote for blacks if not judge sotomayor. with her vast experience, her commitment to the rule of law proven indisputably over 17 years. her remarkable credentials and her extraordinary moving american life story. unfortunately judge sotomayor seems to be walking through that conservative political orthodoxy is now their confirmation test. as concerns about judicial activism. many of my republican colleagues and fairly ignore her long record to based criticisms on strained interpretations of a few routine and a professor to opinions and a few remarks taken have context. they feel quite frankly like the criticisms of someone who is determined to find fault with a
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nominee. take, for example new have fire fighters, the cases before was based on controlling second circuit in supreme court precedents. the sixth circuit in took the same approach in a similar case arising in memphis. the role of a circuit boards is to follow existing precedents of the supreme court and this report. that is what the ricci appear curium didn't. the supreme court may have it reversed benzes 0524 on the basis of an entirely new test that created to paula judge sotomayor and activists from upon written existing precedents. if you want a judicial conservative opinion the ends before epicurean is just that. the decision in maloney was conservative in a judicial sense. it approaches with caution in a
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newly minted and nearly enacted constitutional right whose extension to the states would upset generations of practice and experience by sovereign states regulating guns. a seventh circuit panel with two very prominent conservative judges on and correctly did exactly the same thing. in ninth circuit panel raised a different conclusion and then that decision was vacated by the circuit to reconsider that case in bank. brennan engaging in a serious inquiry into the witness for the supreme court many of my republican colleagues have made this nomination into a referendum on whether the newly minted individual right to bear arms to be incorporated against the states for the first time in the nation's history very this is doubly unfair. first judge sotomayor could not answer questions at her hearing
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that would suggest how she would ruin in later cases. that is inappropriate. second it is inappropriate to try to force on a giant a particular political view us of the price of admission to her judicial office. criticisms of effuse reliance in the various speeches are equally perplexing. judge sotomayor's long and noncontroversial 17 year judicial record and should have to allay any concerns about those remarks. but social the context of those features themselves. the wise latina, and we have heard so much about came in a speech that are you how important is for judges to guard against bias in to be aware of their own prejudices. is it not better to admit that we all have prejudices' we must management and to pretend that white males from some sort of
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ideal cultural base line that has no biases? centers by a senate well at the committee will, there is nothing wrong with a low ethnic pride and a desire to encourage her loss to an audience. maybe we should try to put ourselves in their shoes or perhaps with a little empathy ourselves it might be easier to understand how a profession and a judiciary dominated by white males might look to those young law students. and how important a little encouragement to them might be that their experiences might give them something valuable two contribute, that they are not the exception, they are well, and played a part of our society and giving something i able to the profession but one day perhaps even to the judiciary. in some my republican colleagues criticisms of judge sotomayor appear to be granted in conservative political ideology rather than legitimate concern
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that judge sotomayor is not it to serve on the supreme court, a grounded in a desire for more of the right-wing justices who in recent years have filled out the conservative wing of the supreme court to. that bring have marched the core deliberately to the ride in the last few years, completely discrediting the republicans claim that judges on mere umpires. jeffrey toobin is a well-respected legal commentator particularly focusing on the supreme court. he recently reported and i quote in every major case since he became the nation's 17th chief justice roberts has cited with the prosecution over the defendant, this data with the condemned, the executive branch of a legislative and the corporate defendants zero with an individual plaintiff in every major case. some of empire and is in a
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coincidence that this pattern to continue the quote has served the interests and reflected the values of the contemporary republican party. some four incidents. the phrase liberal judicial activism is no conservative speak for any out, the far right dislikes. they deny use it when a conservative lot of the court announced by the paris of 521 margins an individual right to bear arms that had gone unnoticed by the supreme court for the first 220 years of its history. that is not enacted this decision the term has no meaning. is the statism that conforms with a deliver republican strategy of many years' duration to pass on to america's courts proven conservative judges who will to live with a political goods leasing.
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setting aside all this politics we should also never forget, never overlook the historic role of the judges play in protecting the less powerful ominous and we should always appreciate out the real world understanding of the real-life impact of decisions is a proper and necessary part of the process of judging. her wide experience i hope will bring her a sense of the difficult circumstances faced by the less powerful a --. the woman on the london shunted around the bank from voice mail for hours and she tries to find someone to helper avoid foreclosure were her home. the family struggling to get by in the neighborhood with a policewoman, jackets on, the couple of up late at night at the kitchen table after the concern in been sweating out how to make ends meet that month.
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when the man who believes a little different theme or looks a little differently and thinks things should be different if her wide experience gives him with a for those people said that she gives them a full and fair hearing and ceased to understand the real world impacts of their decisions she will be doing nothing from. nothing wrong by the measure of history, nothing wrong and a measure of justice. experience, judgment, why is he use some discretion, and a willingness to stand up against oppression have always been the historical months of a great judge. experience, justice oliver wendell holmes famously explain the likes of the law have not been logic, it has been experience. the necessity at that time, the prevalent moral and political
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theories come intuitions of public policy coming even the prejudices which justices share with their fellow men have had a good deal more to do than the determining rules by which man should be governor. as justice holmes continue the law embodies the story of a nation's development to many centuries and it cannot be dealt with pacific and contain only the axioms and corollaries of a book of mathematics. experience. judgment, and justice john paul stevens hassam's are half the work of federal judges from the days of john marshall to the present life the work of the english common law judges sometimes require the exercise of judgment, the faculty that inevitably calls into play notions of justice, fairness and concern about the future impact of a decision. wise use of discretion with,
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just as benjamin cardozo wrote the judge even when he is three is still not fully 30 not to innovate and pleasure, he is not in that era ruling in pursuing his own ideal of beauty your goodness, he is to draw his inspiration from, super-duper and symbols in his not feel to sentiment, too vague in unregulated benevolence, he is to exercise the discretion. informed by tradition, methodized by analogy with discipline the buy system and subordinated to the primordial necessity of learning in the social life. wide enough in all conscience is the field of discretion that remains. and as in the federalist papers courts were designed to be as guardians against what he called those ill humorous which they are as of designing men and the influence of particular
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conjuncture is sometimes disseminated among the people and which have a tendency to occasioned serious oppressions of the minor party in the community of. and nowadays those tend to fall on the poor and the voiceless but as hamilton and to continue his quote consider its a description on to prius with it ever will tend to be at or for the time that temper and a chorus is no man can be sure and that he may not be tomorrow the victim of a spears of injustice by which he may be a kenya today. we should not discard have the wisdom of centuries of experience of my judgment, wise use of discretion and pretension from oppression. the sandra for judges of alexander hamilton of justice holmes, justice cardoza and justice stevens. history stands with them and thought of people will know that
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empathy is a common thread in each of those characteristics. why my empathy matter? y minded make a difference? well, let's go back in history and take for example, the history of the colfax massacre para go back to sunday april april 13th 1873 when a gang of white men murdered more than a 16th black freedman in class louisiana. some were burned in a courthouse where they had taken refuge. others were shot as they fled the burning for house. others were taken prisoner and later that they executed. hinn out of says attorney james ross will back was determined to prosecute when citizens involved in the colfax massacre not a popular call in those days. the case was china before a
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united states district judge william b. was to determine that rule of law should prevail in his district. no predictably polite white society, was outraged birkenau and it's a global human empathy in that place in time to see the massacre of the black friedman as a crime. and to contemplate trying wightman for the murder of black men here come the case was brought as one of the first applications of the federal enforcement act implementing the constitution is brand new frattini amendment said there was wide room for judicial discretion and interning area of law, no balls and strikes, no phony empires here. no district judge was assured a fair trial but he was also preparing to honor congress's desire that outrages upon the black community should be published as crime. he has sufficient empathy with
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the widows and the children of this line friedman to take seriously their need for vindication. and he has sufficient courage to face this karma and anger of the white community to another judge who was involved. the nav is a supreme point justice joseph bradley who of the procedural rules of the time road circuit for louisiana and could sit in on giles parent and sit in he did. he had no sympathy for the former slaves and the low regard for congress intend to punish the abuse of friedman. disagreeing from the trial court bench with judge wood's justice bradley found repeated cycles within diamonds. took a restrictive view of the authorities of the 14th amendment dismiss the charges and released the defendants to fleeing on low bail pending an appeal. the u.s. supreme court upheld its calling bradley's opinions thereby getting the 14th
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amendment and the enforcement and two regeneration pernod and there upon a wave of murder and violence by klansman and wind league members emboldened by the phantom nancy from prosecution swept the south. reconstructionist was receding in those weeks. justice for the murder of a black man by a white coming apart and the sound of renewing a century. history and along both ultimately proved district court judge was correct. but how much turned on a character of two judges? one who handed the empathy to see black men as victims of crimes and the courage to average white opinion by allowing the child of white community leaders before a mixed jury no less. the other a chance to valued the status quo and recoiled from any
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sean to the rubber life opinion and the authority in the u.s. and the reflection of that proper opinion. no that is why we mean by empathy. and on the divisions in our society are less today there are still people who feel voiceless the voices the judge must be attuned to hear. there are still americans to come to current bearing disadvantages that have nothing to do with americans of their case. empathy to look through those disadvantages to see the real merits of the case even when it is unpopular or rough as the power structure as a hallmark of a great judge. the words of hamilton and stevens that i have quoted this plan that as history. the contrasting approaches of the two judges after the colfax massacre this play a desk just
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as. with my republican colleagues misunderstanding of judicial history have led today to amis' opportunity theory whereby persons approved of a highly qualified and moderate judge who falls well within the mainstream of american ming lafont. we could be celebrating the first 15 injustice of the supreme court as a great and, and five bredesen american achievement. instead here we are on the war having to defend the basic principles of american history from assault from the right there of is i hope that as the q2 looks back on this day it will be the historic nature of this nomination that will be remembered. though not the strange and strain in a reference to impose right-wing political orthodoxy. on the course that if an unconstitutional lines. i look over the two jet engine
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service as an excellent and historic supreme court justice. i will look proudly for her confirmation hearing mr. president, i ask unanimous consent that we added to the wreckage of these proceedings a letter of support of justice sotomayor from michael bloomberg to met without objection to mad thank you mr. president, manley also ask that we added to the record of the proceedings a letter of support poorer judge sotomayor from former fbi director louis fey is. >> without objection. >> i think of life and i yield the floor. i think the presiding officer, old habits die hard. i don't agree with him but he is a great colleague and we appreciate him. mr. president, i rise today to explain why i cannot support the nomination of judge sotomayor sonia sotomayojudge sotomayor te
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supreme court and i do this with regret because the prospect of a woman of puerto rican heritage serving on the supreme court says a lot about america. judge sonia sotomayor has achieved academic and professional success and i professional success and i creates too many conflicts with a metal principles about the did judiciary in which i deeply believe. i do not -- it did not have to be this way. president obama could have taken a very positive step for our country by choosing a hispanic nominee whom all senators could support. president obama could have done so, and i regret that he did not. i commend the distinguished chairman and ranking member of the judiciary committee, senators leahy and sessions for conducting a fair and thorough confirmation hearing.
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judge sotomayor herself said the hearing was as gracious and fair as she could have asked for. i evaluate judicial nominees by focusing on qualifications which include not only legal experience, but more importantly judicial philosophy. judge sotomayor's approach to judging is more important to me and her reza may. i ask consent to put in the record following my remarks an article published earlier this year in the harvard review. it is entitled constitution of the book for gif it's all selection and explains more fully the principles i will make here. president obama has described kind of judge he intends to appoint. as a senator, he said judges decide cases based on there, quote, deepest values, core concerns, broad perspectives and the depth and breadth of their empathy, close quote. as a presidential candidate he chose to appoint judges who
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indeed have empathy for certain groups. and as president he has said a judge's personal empathy is and an essential ingredient in judicial decisions. this standard is seriously out of sync with mainstream america. by more than 3 - 1 americans believe judges should decide cases based on law as written rather than on their own sense of fairness or justice. the american people reject president obama standard for the kind we need on the federal bench. at the judiciary committee hearing judge sotomayor said her judicial philosophy is simply, quote, fidelity to the law, close quote. while some of my democratic committee colleagues said they wanted to avoid slogans, code words and phrases they apparently accepted this one at face value. unfortunately it begs rather than answers the important question. some senators on the other side
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of the i'll try to confine concerns about judge sotomayor's for eckert to a certain case and single phrase that political spin i will admit makes for sound bites but even a casual observer of this process notes this political spin is simply not true. ironically those who would merrily characterized the case against confirmation want us to confine examination of judge sotomayor's record only to her cases while ignoring her speeches and articles. impartial review however cannot provide a complete picture. the appeals court decision is bound by supreme court precedent are not the same as supreme court decisions freed from such constraints. taking judge sotomayor's entire eckert seriously not only gives more information we need, but also gives the respect she deserves. debate over judicial nominations are debates over judicial power. and america's founders gave a
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solid guidance about the proper role of judges in our system of government. judges interpret and apply written law to decide cases. while judges can now change the words of our laws they can still control statutes and the constitution by controlling the meaning of those words. that would result in the will of judges but nabil will fall. to borrow judge sotomayor's phrase, judges will not have fidelity to the law, but fidelity to themselves. september, 21, judge sotomayor introduced judge antonin scalia when he spoke at hofstra law school. she repeated a legend about it oliver wendell holmes and judge learned hand. like judge sotomayor, he served on the southern district of new york and the second circuit court of appeals. as they departed after having
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lunch, judge hand called out do justice, sir, do justice. justice holmes replied that is not my job. my job is to apply the law. it is the -- is it the judge's role to apply justice or the law? president obama says a judge's personal empathy is an essential ingredient for doing justice. at a hearing on judge sotomayor's nomination, one of my democratic colleagues invoked what he called, quote, america's common law inheritance, close quote, to describe federal judges with broad discretion to decide cases based on their personal notions of justice or fairness. that may be the judiciary some of my colleagues would prefer, but it is not the judiciary america's founders gave us. federal judges are not common law judges. they may not decide cases based on subjective feelings they find
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in sight themselves. but objective law defined outside themselves. thankfully the american people overwhelmingly said today that america's founders -- americans founder said that judges must follow all rather than personal empathy to decide cases. the question is which kind of a supreme court justice sonia sotomayor will be. and in one speech seagate several times over nearly a decade while she was on the bench, she spoke directly about how judges should approach deciding cases. in this speech, she said factors such as raising the gender affect how judges decide cases and as she put it, quote, the facts i choose to see, close quote. she embraced the notion that there is no object to the war neutrality in judging and that in partiality is merely an aspiration, which judges probably cannot achieve and perhaps should not even attempt.
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she said judges must decide when their personal sympathies and prejudices are appropriate to deciding cases. judge sotomayor and her advocates have tried unsuccessfully to the more controversy alleges. the queen she used the speech to inspire young lawyers or law students even if true is irrelevant because the speech is controversial for its content, not its audience. my concern only grew after discussing the speech with judge sotomayor. rather than defend or disavow these views she presented a different and contradictory picture. now i'm not the only one who noticed this. "the washington post" editorialized judge sotomayor's attempt to explain away or distance herself from past statements were, quote, and convincing or close to disingenuous, especially when she argued her reason for raising questions about gender or race was to warn against
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injecting personal odysseys into the judicial process. her repeated and lengthy speeches on the matter did not support that interpretation. that was the washington post. in another speech just a few months ago judge sotomayor at first whether judges may use for an law to interpret and apply american law in cases and the distinguished ranking member of the committee mentioned this as well. she said foreign law, quote, will be very important in the discussion how we think about the unsettled issues in our own legal system, close quote. she endorsed the idea judges may as the interpreter american law consider anything from any source that they can find persuasive. once again, senators discussed this issue with judge sotomayor at her hearing. and once again, she neither defendant more disavowed these controversy statements, that presented a different contradictory picture.
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in her speech she hoped judges would continue to consult what others have said, including the floor and wall, to quote, interpret the law of the best way we can, close quote. but in the hearing, she said i will not use for in all to interpret the constitution or american statutes, close quote. in her state she says judges may use ideas from any source of a find persuasive. but in the hearing, she said that the foreign law cannot be used to influence a legal decision. these differing versions are clearly at odds with each other. judge sotomayor took a different attack in answering post hearing questions. she said that the decisions of foreign courts may not serve as, quote, binding or controlling precedent, close quote, in deciding cases. the issue however isn't whether a decision by the supreme court of france literally binds the supreme court of the united states. of course it doesn't. the issue is whether that foreign decision may influence
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our supreme court determining what our statutes and the constitution mean. and in her answers to the post hearing questions, judge sotomayor once again said the decisions of foreign courts can indeed be, quote, source of ideas and forming our understanding of our own constitutional rights, and of quote. in these speeches, judge sotomayor describes how such things as race, gender, life experience, personal sympathies or prejudice affect judges and their decisions. that is certainly possible. but i waited for her to say that judges have an obligation to eliminate the influence of these factors. i wanted for her to say that because these things undermine a judge's impartiality judges must be vigilant to prevent their influence. that would have given me more solace about what judge
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sotomayor's phrase fidelity to the law really means. but she never said it. instead she endorsed the notion judges may look either inside themselves to their empathy or outside of the four and a small for ideas and notions to guide their decisions. turning to her cases, the supreme court has disagreed with judge sotomayor a mine of ten cases it has reviewed. three of them in the most recent supreme court term alone. that is nine of her ten cases that they have reviewed. and these were not close decisions either. the total vote in the cases reversing judge sotomayor happened to be lopsided 52 to 19. in one case judge sotomayor held that the environmental protection agency could not consider cost-benefit analysis when adopting regulation. the supreme court reversed her
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sliding its own precedents extending back more than 30 years and holding that the epa's use of cost-benefit analysis was well within the bounds of its statutory authority. in another case, judge sotomayor had reopened part of a bankruptcy proceeding that had closed more than 20 years ago resurrect a tort suit. justice souter whom judge sotomayor would replace wrote the opinion for the supreme court's seven through code to decision reversing her. in another case judge sotomayor declared unconstitutional a state law providing for political party election of judges because she felt the law did not give people what she called, quote, a fair shot, unquote. the supreme court unanimously reversed her singing that traditional electoral practice, quote, gives no hint even of the existence much less the content, unquote, of the kershaw
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standard. judge sotomayor had invented. in one case the supreme court affirmed judge sotomayor's results that reject her reasoning because her reading of the relevant statute, quote, fly is in the face of the statutory language, unquote. and in one case where the supreme court affirmed both judge sotomayor's results and reasoning it did so by the slimmest 5-4 margin. now this is a very shaky record on appeal. the ricci v. de stefano case is one in which the supreme court reversed judge sotomayor. the court reversed the result by a 5-4 vote, but unanimously rejected her reasoning. in this case, judge sotomayor affirmed the city of new haven's decision to throw out the results of a fairly designed and administered a firefighter promotion exam because too few
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racial minority past it. this case presents troubling questions of both process and substance. judge sotomayor initially used a summary order that did not have to be circulated to the full second circuit. that bothered me a great deal because judges know when the issue a summary order to arrest the judges probably are not going to see it. she then converted it once it was found by judge jose, and once he insisted the whole circuit look at it she then converted it to a procuring opinion that is permissible only when bill law is entirely settled. each was a mere symbol , each of these cases was a mere symbol paragraph and neither seems to be appropriate for challenging this case. on the merits, title vii of the
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1964 civil rights act prohibits the two kinds of discrimination is. if prohibits disparate treatment, which is intentional, and disparate impact which may be on intentional. disparate treatment focus is on the motivation of an employment decision while disparate impact focuses on its affect. weigel discrimination cases typically involve one or the other, the ricci case involved both. in this case the city claimed it had to engage in disparate treatment of those who passed the promotion exam because it feared a disparate impact lawsuit by those who failed the exam. to find this case involved disparate treatment and impact because judge sotomayor in her advocates claim her decision was based on civil and longstanding second circuit supreme court precedent. we have heard some of that on
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the floor here tonight. contrary to her statement to me at the hearing however her one paragraph opinion cited no precedent at all. the only case she cited was the district court opinion and that very case but the district court actually acknowledged this case was the opposite of the norm. rather than those failing an employment test challenging the results in this case those who pass the test challenged their refusal to use the results. none of the precedents cited by the district court involved this kind of case. for this reason six of judge sotomayor's second circuit colleagues believe the full circuit should have reviewed her decision arguing the case raised important questions of the first impression in the second circuit and the entire nation.
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contrary to her assertions and very critical of the summer in order she had given and the procuring of opinion. when he reversed judge sotomayor the supreme court similarly observed there were few if any precedence in any court even discussing the issue in this case. in a column published today in the national journal the respected legal analyst stuart taylor carefully analyzed whether judge sotomayor's decision in the suma cum ricc -e of the most precious commentators and journalists with regard to the law. he concludes, quote, the bottom line is the second circuit precedent did not make sotomayor rule as she did. supreme court precedent favored the firefighters.
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sotomayor's ruling was her own, unquote. i ask consent mr. taylor's column appears in the record following my remarks. >> without objection. >> i thank the chair. in addition claiming her decision in ricci was grounded the second circuit was supreme court precedent, judge sotomayor offered at the hearing that the sixth circuit had addressed a similar issue in the same way. i can only assume that she did so to imply that if the sixth circuit independently came to the same conclusion in a parallel case then it would be difficult to say that judge sotomayor's decision in ricci as controversy all. well, i would first note that and oakley versus the city of memphis, the sixth circuit actually analyzed case, applied the law to the facts, and issued a real opinion. i wish judge sotomayor had done that in her case.
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it was an important case, a lot of lives depended on it. people worked hard to pass that test. more important judge sotomayor failed to mention that the sixth circuit case was issued three months after hers, and in fact relied upon her decision as persuasive authority. there is no evidence that her decision was procedurally or substantively sound. in fact every evidence to the contrary. neither or her decisions on the second amendment right to keep and bear arms. last year the district of columbia versus heller the supreme court clearly identified the proper analysis for deciding whether the second amendment bonds states as well as the federal government. several months leader judge sotomayor ignored the directive and it clung to her previous insistence following a different
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analysis, the supreme court had discarded that the right to bear arms does not apply to the states. she also held the right to bear arms is so insignificant that virtually any conceivable reason is sufficient to justify weapons restriction. when asked about this decisions upheaving she refused to acknowledge the supreme court's so-called rational basis test is its most permissive legal standard yet this is practically a self-evident truth into law one that judge sotomayor herself site and applied just last fall to uphold weapons restriction and maloney versus cuomo. she likewise gave short threat to them right to private property. this is an expressed right in the constitution. and didn't versus the village of port chester and judge sotomayor affirmed the dismissal of property owner lawsuit after the felch condemned its property
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back to the developer. the supreme court and correctly in my view previously held in kilo versus the city of new london that development can constitute public use for the fifth amendment allows the taking of private property. didn't however the village had only announced the general plan for economic development. no taking of anyone's property have occurred. he sued only after the village of jolie tickets property. yet in another opinion, but for some reason took more than a year to produce judge sotomayor denied even the chance to argue his case. she said the three-year period filing suit began not with the diligently tickets property, but when the village earlier merely announced general development plan. in other words he should have sued over the taking of his
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property before his property had been taken. but had he done so he would certainly have been denied his day in court because his rights had not yet been violated. this catch-22 amounts to a case of dismissed if he did and dismissed if he did not. once again judge sotomayor gave an adequate protection to a fundamental constitutional right. this is important stuff. in another effort to blunt the impact of these and other controversial decisions, judge sotomayor supporters attempt to portray her as moderate by observing that on the second circuit she agreed with republican appointed colleagues 95% of the time. on the other hand this is one of several misguided attempts to defend her by suggesting that a calculator is all that it takes properly to evaluate a judicial record with pity on the other hand however this claim comes from the same democratic
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senators that voted against justice samuel alito just a few years ago. on the third circuit he had agreed with his democratic appointed colleagues 99% of the time over a much longer tenure. that shows how specious some of the arguments are. let me return to where i began. i believe judge sotomayor is a good person. i respect her achievements and applaud her service to her community and the judiciary and the country. while appointment of the first quarter we can justices a lot about america, however, i believe that appointing a justice with her judicial philosophy is the wrong thing about the power and the role of judges in the system of government. i might add i was very concerned with her answer when i asked questions about abortion and about the amicus briefs in the porter rican briefs filed.
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she said she knew nothing about and even though she had 11 different positions, if i recall correctly on that trust. and at one time headed the litigation department. that bothered me a great deal. the nominees approach to judging is more important than her resume especially on the supreme court where justice is operate with fewer arrest constraints. judge sotomayor has expressed particular admiration for justice benjamin cardoza. often mentions one of the premier justices in history of the supreme court. his book on the judicial process contains a chapter titled "the judge as a legislator," in which he compares judges to legislators to decide difficult cases on personal reflections and life considerations.
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that sounds very much like president obama's appointment standard and judge sotomayor's expressed judicial philosophy. i believe it is inconsistent with the limited role of america's founders prescribed for judges in our system of government. my colleagues know that i take a generous approach to the confirmation process and i believe some deference to the president of the united states and his choice is is appropriate. i have rarely voted against any judicial nominee and took very seriously the question of whether to do so now. to that and i studied her speeches, articles and cases. i spoke with experts and advocates from different perspectives. i participated in all three question announced during the judiciary committee hearings. but in the and neither general deference to the president nor a specific desire to support a hispanic nominee to overcome
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serious conflict between judge sotomayor's record and principals about the judiciary and liberty on which i deeply believe. i was the one who started the republican senatorial hispanic task force and for and for many years bringing democrat, independent and republicans together. in the best interest of the hispanic committee to try to give them more of a voice. so i feel pretty deeply about hispanic people as i do all people all i just want everybody to know that this took a lot of consideration on my part to come to the conclusion that i have come to. i wish president obama had taken a different course, but this is -- this is a decision on have to make in this case.
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like i say i like judge sotomayor and like her life story, her mother, brother, other members of the family that were there. the last thing on earth i wanted to do is vote against her. but i think i have given just a few of the thoughts on have on this matter tonight and i think these are serious and important things. she is going to be confirmed i am sure by this body and i will wish her well and nothing would make me happier, nothing would make me happier than to see her become a great justice on the united states supreme court. i hope she proves me wrong. and i'm going to pre-that she does. mr. president, all i yield the floor.
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>> mr. president. >> senator from oklahoma. >> mr. president, first of all let me confess i feel totally inadequate standing here tonight talking about the subject of the confirmation of judge sotomayor. i am not a lawyer and i am amidst these lawyers i listen to senator hatch and senator sessions. they have the kind of background they can get into this and look constitutionally and legally and evaluate and i am not in the position to do that. but like to speak on this nomination and for the following reasons, to reaffirm my opposition to a confirmation i think i was the first member of the united states senate on the day she was nominated i announced i would not be supporting her. and i recognize senator hatch just said she will be confirmed.
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we know that. i remember what senator schumer, a senior senator of new york said shortly after she was first nominated. he made the statement republicans are going to have to vote because they didn't want to vote against a woman or hispanic. and he was right, i'm sure. but i would suggest after the hearings that statement isn't nearly as true as it was before the hearings because some of the extreme positions that she has taken. so i have to say that from a monolayer perspective, on a look at it perhaps differently than my colleagues who are learned scholars and the legal profession. a lifetime appointment to the supreme court requires not only respect for will fall but also for the separation of powers and acknowledgment the court is not a place where policy is made in this country. the court is about the application of all and is not
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where the judges get to make the world a place that they want it to be. and i see that. i see that all throughout the hearings i have watched with. in may 2005 judge sotomayor asserted that, quote, the court of appeals is where policy is made. she also wrote a 1996 law review article that, quote, change sometimes radical change can and does occur in a legal system that serves as society whose social policy itself changes. the constitution is absolutely clear, mr. president, policy is made and the halls of congress right here. that's what we do for a living. not in the courtroom and legislators liked the laws and judges interpret. we understand that even all the
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way through school and judge sotomayor is correct society has changed but the policies made to reflect these are done through members of congress elected to represent the will of the people. and obviously the judges -- we are talking about a lifetime appointment, no accountability after this point. jurisdiction and their constitutional duty. allowing judges who are not directly elected by the people and who serve lifelong terms to rewrite laws from the bench is dangerous to the vitality of the representative democracy. simply put, judicial activism places too much power in the hands of those who are not directly accountable. -- accountable to the people. and that's what we're talking about, lifetime appointments. judge sonia sotomayor has overcome significant adversity to achieve great success, and i agree with senator hatch and his
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comments that we admire her for her great accomplishments under very adverse conditions. however, while her experiences as a latina woman have shaped who she is as a person, they should not be used as she affirms to effect her judicial impartiality and significantly impartiality and significantly for impartiality and significantly influence how she determines the law and the constitution. in 2001 judge sotomayor gave a speech at the university of california berkeley in which she stated and i am quoting i would hope that a wise latino woman with a richness of her experiences with more often than not reach a better conclusion and then a white male who has a live that life. two has on several occasions conveyed the same idea between 1994 and 2003 to deliver a speech is using similar language as seen hall university, women's
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bar association and the state of new york, yale university, the city university of new york school of law, it is not a slip of the tongue once but a statement reaffirmed and reaffirm a. and quite frankly that is the reason for my opposition back in 1998 when she was nominated the on the circuit board of appeals because of the statements that she made a showing that a very biased opinion is that someone who is not any lawyer's fees and banks should disqualify someone for the appointment. issue further stated in 1994 and this is a presentation in puerto rico that justice o'connor has often been cited as saying that a wise old man in there was no one beats the same conclusion in deciding cases however i'm also not sure that i agree with that statement here well, i would hope that a wise woman with a rich as this occur in spears for more often than not reach a
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conclusion and that is pretty emphatic. there's no other way to interpret that. she thinks that a woman with her experience can make a better conclusion that a white male in to me i consider that racist. she's not only suggesting the possibility of judicial impartiality but also the gender and ethnicity should and gender and ethnicity should influence the judge's decision. now for the more president obama said that in choosing the mexican renominate he would use an end of the standard and all judges may and should be empathetic people, they must be impartial judges first. and apathy was the guiding standard with whom to judge empathize? should marra empathy be shown to one race, when gender, one religion, one life style? true judges justice does not see race, gender are traded were all able in the eyes of a lot and
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the law must be applied equally. that is why she wears a blindfold. it is supposed to be blind justice. rather than looking to factors beyond the law judges must solely examine the tax of a case of law itself. their ability to eclipse by justice of the law is the standard by which we should select judges. so we have to grant standards that i agree with. one is that judges should make policy and secondly that gender and ethnicity to influence decisions. another play on which the judge sotomayor and i fundamentally disagree is that american judges to consider for a long when deciding cases. this probably concerns me more than any of the rest of them, the fact that we have this obsession in these halls that the u.s. sense that nothing is good unless it is somehow comes
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from some multinational or jann. in 2007 and a 42 votes among the book was titled the international giants. judge sotomayor wrote in quote, the question of how we have to learn from for a long and the international committee aide interpreted our constitution is not only the only one with closing. this frame and gave an alarming speech and the aclu which address this talk, she said to suggest to anyone that you can outlaw the use of foreign doing international law is a sentiment to open until misunderstanding but to be asking the american justice is to close the mine too bad is pitino, judge sotomayor, it is sovereignty that we're talking about. statements like these make it clear that president obama has,
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if a judge to our highest court in place a portion rely on foreign decisions when interpreting our constitution and that have to say whenever some of his obsession with the multinational lesson has got to come to an end and i believe america will reject this have been thought. americans do not want the rest of of interpreting our loss ended in july and finally the judge sotomayor's record on the second amendment is constitutionally outrages. maybe it is becoming i come from the oklahoma. and i know believe that judge sotomayor can be trusted to uphold the individual freedom to keep and bear arms in future second mmi cases coming before her. i received no assurances from her passes as is our public testimony that she will be willing to fairly consider the question of whether the second amendment is a fundamental right and thus restrict same action as
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it relates to the second amendment. and is incomprehensible to me that our founding fathers could have intended the right to keep and bear arms as a nonbinding of one states and instead of the right to be held down by state and local laws and regulation. history in common-sense don't support this. imad to tell you that this is been more of a concern in my state of oklahoma and i guess in nominee who believes that the second amendment is something of the senate in a fundamental right and in century city as a second-class a moment to the constitution. i know what the second class amended to is and this is not an line with my beliefs and a majority of americans from my city of oklahoma. to say i am persuaded that the confirmation hearing served only to highlight many of my concerns and the numerous inconsistencies of her testimony with the record
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have persuaded not only mean by the american people that judge sotomayor is not qualified to assess justice, high scores of the u.s. supreme court and i say that because the recent zogby poll and several other polls have also consistently confirmed following the confirmation hearings revealed that only 49 percent of americans support judge sotomayor's confirmation within equant number opposing. this is a significant thing here because to pin the race card all the way through this thing and was talking about the hispanic and of the same poll showed that among hispanic voters only 47 percent say they are in favor of her confirmation. another reason there are fewer people in the hispanic amazing who are favoring her confirmation then in the non-hispanic and these numbers are evidence, in fact, his ninth game of the approval touring her
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confirmation and not in mine. i was of the first member of the senate to come up with an ounce opposition to it judge sotomayor after her nomination to the supreme court on may 26th hearing on that date i stated that i could not confirm her. in addition to all the above, there is another reason. and while i don't often agree with vice president biden, i do agree with the same and that once you oppose a federal court nominee you cannot support that nominee for entire court because the bar is higher. i the that is very significant to point have here because there are several russell serving today as i am opposed fair to the circuit for it in 1998 and i think that vice president biden is correct. as the standard goes up, once again to the u.s. supreme court that is the and so that's to be the highest anna. so it is inconceivable anyone
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who would have opposed in 98 could turn around and support him now. i have to say that there are a lot of reasons that i point out is judges making policy and i find that offensive. gender and ethnicity should be a consideration that is wrong. international thing that we have to go to the international committee to see that we are doing the right thing and interpreting our constitution is our intent is to appear at the second amendment is a concern so even though judge sotomayor will be confirmed it will be without my vote and a half to seven the sake of my 20 kids and grandkids that i will oppose judge sotomayor's nomination to the u.s. supreme court. i yield the floor and suggests the absence -- suggest the absence of a cormack to matlin and 80 senators have already committed to how they will vote on the nomination of judge sotomayor 10 that supreme court.
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next hearing on chances system funding specifically public rail transportation. members of the senate subcommittee hear from the head of the federal transit administration and local officials from washington d.c., chicago and atlanta. this is a little more than an hour. [inaudible conversations] >> good afternoon, this hearing will be in order. in the me say that we take very seriously our responsibility in the subcommittee over the
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jurisdiction that we have over transit issues because certainly in my home state of new jersey and believe that we are in tweens and later. new jersey investor and a percent of our transportation capital and transit and as a result of the only state where 10 percent of workers to commute by transit. and i have worked hard this congress to show how increased federal investment in transit could result in the continued expansion of public transportation options and inter and facilitate economic growth and increase jobs improve energy security lower greenhouse gas emissions and from our system will committees and alleviate traffic. but today a -- two with an investment that as they did to keep our existing transit systems driving. in april the federal transit administration released a report, investment and that just the seventh largest transit agencies there is a $15 billion
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backlog and projects needed to maintain a state of repair to address this matt fong over 12 years this same report estimated that spending on these days we still have to almost double from 5.4 billion that was spent in 2006 to over 10 billion per year. in short the report says that if we did not increase our investment in upgrading and maintaining trances system soon will inevitably face a crisis. april 2009 fda report gave us the facts and figures. but i think we can all agree that the real wake-up call about the condition of the nation's transit equipment was of the tragic events of june 22nd of this year. on that day just after 5:00 p.m. washington metro train plowed into another train that had sought on the same track. nine people including a train operator were killed and 80 were injured. our thoughts and prayers are
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with all of those affected by this terrible accident and one of the most important things with the federal government can do to honor the memories of those who died in this tragedy is to provide the agency's resources needed to keep this from happening again. investigation of a cause of the crashes on going but one of the factors the national transportation safety board is looking closely is the the computer a signal an operation system and other aging equipment. going forward we need to make sure this tragedy is not repeated now want to be clear that i believe that the washington metro system is safe and that will not working with the safety board will learn from this tragedy and make sure it is not repeated but as the federal government we need to ensure that we are adequately monitoring and providing resources to keep these systems running sufficiently and saving. we will hear testimony from the transit agencies around the
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nation about how we can do better but there are a few areas i hope i can give each of you to touch upon. it is clear that we need more funding for the rail modernization program and i believe the committees to consider whether we need a temporary funding regime to get to the state of repair backlog and perhaps even explore emergency spending authority to situations arise in that are particularly urgent for a cute. online to high. is about funding needs and how ben to stretch of those investments. in addition to the additional funding that may be needed i think the fda should work with agencies to my affectively use the resources they already have. the abolition develop a program to provide technical assistance to help these agencies manage to maintain their assets. i also know there is a lot of interesting and quite different views on whether and how to modify the existing fixed guide for a modernization funds. i know of this hearing to become
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a squabble between chances systems but nevertheless still like to have input on the topic. the recital is his wish to participate today but cannot and welcome them to provide their input and riding on this or any other topic. leslie i think we need a better understanding of what the definition of state of repair is so that the fta on the same. two. also need to develop a system to report the condition of transit assets. two no one's chances systems to be bogged down in red tape having to report the condition of every not involved but it does appear that we need more inflammation and transparency. so i'll look for into hearing from all of you in our to palace starting off with our distinguished administrator of the federal transit administration into thing together how we can ensure that our nation's fixed and voice systems continue to serve our committees as safely and as smoothly as possible. before i turn to the
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administrator i know my distinguished colleague from hawaii senator akaka and there's a 71 to make it this time franks teenine thank you very much mr. chairman, want to thank you for completing this subcommittee on housing transportation and committed to development and to welcome our witnesses. mr. chairman an essential component of an event next service transportation reauthorization of obey increasing the availability of resources for repair, upgrade and expand real chances systems. although it is important to repair and modernize the nation's existing friel infrastructure, we must also continue to deliver in various without existing systems to improve the mobility of residence and promotes smother growth and the city of honolulu continues to develop its rail
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system. the local constitution for the project will likely been 70 percent of the project cost but it will still in need significant federal support. i think the witnesses for appearing to end a look for to working with the members of committee and administration to increase of the resources available for transit. and then thank you were conducting this hearing mr. chairman and kim i think he senator akaka. we will start with our first panel. we're going to have two panels and of first is our distinguished minister of the federal transit administration peter rogoff. this is his first appearance before the subcommittee and i have to say it's been a pleasure to work with a administrator will understand the senate as well as a national transportation issues so we look for a two long-term relationship and particularly your thoughts today on the critical issue of what is the heart of the pledge
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in its ability to operate in the 21st century so with that mr. administrator the floor is yours can i thank you, let me say it is quite warren to return to the senate and be among old friends again. and we're pleased to have the opportunity to discuss the state ever peregrinations public transportation systems today and in inches above the safety and reliability of our transportation system it is imperative that we aggressively address and stay on top of their aging conditions here deferred maintenance items into for a long enough or left undetected the can into become critical safety risks. as such the issue of the condition of our transit infrastructure and the safety of our systems are inextricably linked. kate fta role in the safety oversight is extremely limited as a matter of federal law. we are steadily prohibited from establishing national safety said is for large assignment of the nation's transit systems or any of the bus transit systems.
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that find it in that to this status quo to be an example and we expect to propose reforms is establishing an all-time low committed to identify alternative approaches to enter us what we consider a gap in chances safety oversight and love for to proposing reforms to congress soon. but even with their limited safety authority please know that fta continues to regulate this as transit and as roger and disseminating and tankers best practices by the laws we address this by the senate and repair in the related issue it is essential that we regularly remind ourselves that real chance remains mr. nearly safely to traveled far safer than traveling on our highways. two of the transit agency's you hear on the next panel have endured 14 and 13 on board fatalities' respectively in the last 33 years. will each of those fatalities represent a tragedy the fact is
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that highway accidents in the metropolitan areas planned release and that many lives every month. despite the overall san record of the industry that have been called in to investigate several transit related accidents in the recent past and the ntsb and as stated in chicago transit authority do rahman on the blue line in july 2006. that accident resulted from the failure of a track structure and resulted in one has a 52 fatalities -- injuries. this landis' crew served as one of thousands holding cta rails ties in the area of the blue line derailment. as you can see it is grown in the form the timing could pull screws like this right out of the rail with your bare hand. this equipment dating back to the original installation in 1951 and was never replace until after the accident. importantly that ntsb insisted that you really should serve as a wake-up call to all transit
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agencies with equipment and infrastructure that agents with its passing day. the ntsb finding space very core of our challenge. the of the shelter is aging with each passing day but in fostering safety and and saying good repair rican women are focused just to the age of transit systems or to any single piece of equipment. as heavy real agencies go the washington metro system is a very young ages tiberi many of any real systems are using new technologies for which we do not yet have a lot of experience in the field especially true in some of the kneuer deployments and in the washington metros have required to belong and replaced facsimile equipment well before the end of its expected service life. so for some systems to the biggest risk factor may be a 56 year-old lives grew like this one but four of the systems the be a safety risk could be in the programming of a circuit board that may only be one or two years old.
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for these reasons to ensure safety and the state of repair must take a comprehensive safety management approach that identifies and analyzes and controls all potential risk. we must have systems wish to make continuous improvements for all employees from the ceo to the wayside worker are held accountable for safety. there's also a vital human factor to safety that cannot be ignored. import ministerial are different and sends a very negative message to employees must work in the to creating conditions. employees and a report critical maintenance needs and see little or no response by management face are to wonder whether they should continue to report the problems. the burly our chances systems are busier than ever have been before and we registered a regular 10.2 billion transit trips in the u.s. last year. murchison agencies are working their government long and hard to keep up with demand. and that pace of activity takes its toll on people and
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equipment. down all of these factors point to the need for each and every transit agency to have a system of safety and asset management program in place and they point up the need for adequate and reliable funding from all while also government. it marginal to poor transit infrastructure conditions persist despite increasing financial support to the fixed and we were real program as it is known as well as increasing support to the urban and syria over mg program. a local level we find the systems that are adequately pronounced of the d.c. the local funding service that provides predictable revenue stream that allows for long-term capital investment commitments so for example luge is a chance it has benefited from substantial investment from there on transportation trust fund. other agencies are authorized to draw a designated amount from sales tax or property tax or other taxes and other agencies like ramada have no dedicated funding source. the solution to batter
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consisting transit of research at investment is not going to be now solely a federal state or local level. the key will be to make priority at all levels. and to insist that in issuing their investments into that addresses their most critical safety phone abilities first. two foster this fta has been stayed of good repair agency priorities as you pointed out in april 2009. we published a set of good repair study that supported other members of this committee including yourself and junior center of illinois obama and that assess the capital to maintain in this statement of good repair this seven largest real systems and those carry 80 percent of the nation's rail transit rider ship and revealed an amending recapitalization made a $50 billion. in order to assist agencies and correcting this backlog fta is developing a training course in
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conducting a review of u.s. international agency asset management practices. we're also expanding on a steady intake in a brown university transit agencies and going to look not just at the same definition of state of good repair but are going to try to solve what is one of the more vexing problems to identify that portion of deferred maintenance that is to lease a critical. and we will be working with industry on trying to better define was a critical infrastructure composes. with that i want to thank you for the opportunity to testify and am happy to take questions king and thank you, let me ask you you have spoken to your testimony about how commuter rail systems are regulated by the federal where road administration and other systems like light rail systems are
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overseen by safety oversights agency's permission this safety of all braley and then the federal railroad and administration commission will enhance fta powers, should we keep the search of the same, what is your view on that? >> mr. chairman secretary lahood has gone to the heart of is just that and when i tell you at this point the secretary not having signed off on the recommendations they give an update of our work the other day. what is more fta dozen or the fra is that someone doesn't who has a set teeth and the authority in the funding and the personnel to really compel the attention of the transit agencies and that is the concern we have with caris system. we have got i think a total of 28 of them. the average of strains, the average personal strength of these agencies is 1.1 ft per
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agency per year. these are largely -- basically is larger than one person. if you take california out of the mix which has a 12 person agency you actually have a less than one person on average for the rating agencies and what that tells us is this is being treated as a collateral to be within state departments of transportation where many of the state department's have set up to a bare minimum to comply with the federal regulation that it exists when i testified on this issue in the house and testify next representative and they too were testifying on behalf of additional authority so they could have i think the only other way to describe in some teeth in order to compel the attention of agencies they oversee. we also have a concern about the independence of these organizations. some of them for their
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funding of the very transit systems that they regulate. this is not a situation that we have allowed a other area of the transportation enforcement of the federal level. >> when you expect the secretary to report? >> we are going to be working to august on this. we hope to get it out as early in the fall as possible and we had several meetings already and will be having enough in meeting shortly to met with a firm to hearing from new as soon as possible. >> i got a poster here that one of washington post cartoonist vincent might be a good idea to create instead of a cash for clunkers but a cash for railcars and i don't know if that is a good idea or not, but i do wonder even in the recovery at paribas of hundred $50 million
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which is a nice given authority in real modernization but it really the new look and $50 billion this having much of a dent. what is your view as to how we meet some of these very significant means? we are talking about, we want to move people increasingly to transit. we live with a spike in gas prices at the consequences of not doing so and that americans increasingly move the some of the greatest writer ship levels we have seen in quite some time and they have stayed there because most of these systems are efficient and effective in increasing leaming of save her. safety is an incredible part of what we need to promote at the end of the day. but as we drive people to the systems that we want them to participate to get off the roads and have high-speed non polluting system that often leads them to their opportunities for work or entertainment or even go to a doctor's visit whenever a the
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end of the day we can't guarantee that we will have the type of systems that we want to attract that writer shipped into all of the positive things that flow from that if we're looking at $50 billion in costs that your agencies and documented so what is your sense of this? should we have a large timber program, should increase funding for existing programs and finally as part of that answer if you can talk to me about i have heard two basic arguments about how to reform real modernization funding and some worry that the only sensible way to find it is finding another is to argue that that gives a perverse incentive for local agencies and is said the agency should be rewarded for performing well. and are either of those strategies workable or should we be funding based on objective criteria like age and size of the system?
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honda we meet the challenges that we have of $50 billion venture agency's determination to work to be done, how should we go about that and then what is the policy decisions to be made about as we meet the financial challenge, how does that give the spurs? >> mr. chairman, you spoke to one of the solutions in you're opening statement. are more resources needed from all levels of government, i think so. we also need to get agencies to do a better job of turning those of the most vulnerable assets and there are two elements to that. i talk to my opening statement about safety critical assets but it is important to point out that certain assets we don't u.s. safety good will actually have a very real impact on transit rider ship and the reliability of chances service over example fattah platforms, disabled air-conditioner is coming escalators that are
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inoperable, those might not be viewed as a but they can move people out of the transit service and back on the highways in and shooting with the program is a buy to a high voice you have to agree to safety because based on the reason numbers for the times more likely to die from an accident on a passenger mile basis on the highways than enchanted so i think it becomes a safety critical issue. on the overall issue of what kind of program should be set up and made the following observations. i thank you want to do a link with initial funding to better asset management and that is not to say that the best definition will come out of the beltway from within the beltway of washington dc. in this is something we have been working with our grantees on for some time and plan to continue to work on them to run tables and dialogue. there is a very vigorous and
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aggressive practices out there among the transit agencies on how best to attack not only identify with the most critical for maintenances but also to address that. i hate to sit relates to the formula on just made this observation when an official ties to opine on a formula but i would say that the current formula is clearly a bit of a hodgepodge period it is hard to divine precisely what the strategic goal of it is because you have seven different tiers of funding, seven different this additions when different agencies come into funding. i thank you do want to define what the goal is and then build a formula around it and i think temporarily as part of that goal you talked about perverse incentives, you do want to do something about in level of a mandate of everett on the part of the state and local government because we clearly
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have examples of certain ages use fell into merger magic disrepair due to the absence of attention on the part of state and local government if you really take a snapshot of who is in the worse shape now you do run the risk of not appropriately rewarding state and local governments to do the right thing. >> senator akaka. >> thank you very much mr. chairman. and gannett well, coming administrator peter rogoff. i know you are quite familiar with the honolulu transit project and that they do say that the project as a no completed its the fta of his analysis study. more than two 1/2 years and has
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been awaiting the approval to enter preliminary engineering since then and in the meantime the city has been collecting dedicated local tax revenues amounting to more than $300 million to fund its overmatch share of the project and before your arrival there honolulu's somewhat protracted process of getting to pt seems to be similar to challenges that other cities that face recognizing the administration will have recommendations for a statutory changes as a part of reauthorization and this is my question -- there are other actions that you can take in the short-term debt to not require
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legislation that could help expedite the mba project approval process. kim and there are and we have just begun to take some and delivered to taking more, there are three universes discreet universes' of changes and what it is just a change to agency guidance on it is published and that federal register last week a series of changes that are oriented toward eliminating paperwork burden that frankly haven't been this is their late impact multiprocessing and we hope to do more by goodrich changes something we're working up rarely involves a more time but some of these involve eliminating steps in the process that are either a duplicative are not necessary in don't necessarily influence the final outcome and decision by the agency on whether to participate or not.
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so for example and on and say that we have endorsed are not in the of days but among the things talked about you pointed out of the alternatives analysis they went to. there is an offensive analysis process for the chance of administration and a separate analysis process for compliance and we're thinking long and hard about why we need to have both and whether we can eliminate its separate their and we're also looking at various where especially from our experience transit agency is that might not need as much technical assistance from the agency in the early stages and perhaps they can come in for a funding determination by presenting in whole package later in the process rather than having to go through the ap final design grant approval process so these are finally things are looking at another area we hope to come. with something in the near-term.
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there are many other elements that are going to have to open on our ideas as we bring them forward and obviously the overall level of resources will a matter to how many prius we can bring in this system. >> with respect to the administration's proposed 18 month extension of existing highway and transit programs, can you explain how they 18 month expansion might impact projects seeking the execution of the full funding grant agreement during the 18 month extension time and also will of the fda have a sufficient funding authority during that 18 months to enter into full funding grant agreements with those projects that will be ready to begin construction
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during that time? the issue of what we call to contingent commitment authority will depend on at the duration of the reauthorization and at present the amount of contingent of our doing get is dictated by a three year snapshot of resources and programs menaced and there is legislation being considered in the senate that might expand that too five years but embrittling the wider the snapshot of resources we have. one of the reasons why we did put for the in 18 months reauthorization package was to provide some stability to the program not just for a transit nuisance but perchance it from a funding so the transit agency's know they should be expected to receive and that matter on the highway side of our highway agency is it to the elevation
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receive so obviously we will use a different rehab and the short answer is there'll be some that would be potentially ready to go to construction that would receive no contingence authority and could be slowed down. >> thank you very much. my time has expired mr. chairman and kenneth thank you senator akaka, let me ask one more question, is there willis of the definition of what is a good state of repair with blacks is the fta of the transit agencies on the same page on this point? >> i don't think is a matter of living in different patients in the transit agencies, there are probably somewhere between 8012 the unpaid is out there but even and that major transit agencies don't necessarily see to capture the same definition. some put business on the age of assets and some of focus on of age and recapitalization of
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those assets. some have a more robust an effort to china and capture what the backlog is and some say to try to get to a saban they show no backlogs in some recognize it will always have a backlog and it should be at a certain time a certain number of years that they should ensure itself. we have been working with a transit agency purvis to try to coalesce around a single definition and sometimes of those of driven a little bit about the resources on a look the agency has to work with so i think there is room for improvement and plenty of opportunities primer done to coalesce around a single definition especially when you start thinking about phasing in a federal formulas where federal mandates around it. >> maybe we can find a way to incentivize that. >> we have had continual meetings, we had a state of good repair round table with a bunch of agencies that was hosted by
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mr. k to edgar motta and the fta a few days ago and that was not a single event. we will continue to have that dialogue going ford. >> thank-you very much, we look for to hearing from you again and. thank you very much fear civism with athletic hall of the second panel is a very outstanding group of some of the nation's local transit agencies and as a call you up unappreciated, carol browner his fifth the chairwoman of the secondo chants of authority. she represents one of the most active agencies in the country. the private sector is pierces through helpful as of the chicago jazz authority meets escalating challenges and we look for to learning about the unique needs and how is utilizing existing funding.
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john keogh who is the general manager of the washington metropolitan area the system that a new place harris the federal government and has recently suffered some tragedy and the subcommittee appreciate you taking the time to appear before us during these challenging times and we look for to your testimony. as well as please except the subcommittee is condolences for the tragedy that happened in june and our willingness to work constructively with due to halt moving toward parity the executive director of issues a transit as a compelling story to tell about its success and the state of repair efforts and as it my home state system has lessons to share and will afford to will. those and the two beverly scott who is the chief executive officer of the metropolitan
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atlanta rapid transit authority in order in chair of the american public transportation association in have to hats so she will bring in the perspective of an agency that was not in the april 2009 will modernizations steady but has substantial means and we readily recognize that the national rail modernization as exceeded those that are sitting in a study into will also give us some thoughts as the terror of the american public transportation association. so i wanted to get to all up, we're going to sure and may be having votes so we will move along as far as we can will and recess when we are compelled to go to the of war and have three votes which will mean that when we recessed we're going to be about a half hour in recess as we do those three votes, but i
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would ask you to try to limit your testimony to five minutes so we get to questions. orval statements will be included in the record. and with that when we start with you? >> thank-you for the opportunity to testify today and talk about the days of chicago's chances system. as you stated i am the chairman of the board of chicago transit authority. earlier this second-largest transit agency in the country. kerry 1.7 million riders a day which is 242 miles of track in 154 bus routes throughout the planning and doing other primary transit agency in northeastern illinois. kerry 80% of the writers in the region and we operate the l which is a elevated transit which has become an icon and symbol of chicago. sadly that is aging as is the
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ninth subsystem. are all less elevated rail was built between 1999 and 1900 there all the subway was built in for over two and all this will turn this in 1969. it has 1.7 million miles on it and all this bus garage was built in 1907. we have a $6.8 billion of five-year and policy of the repair and this is in addition to our curley fully funded five-year $3 billion capital plan and it does not include expansion projects that total over $4 billion. 6.8 billion is the shortfall needed to bring your system to save a good repair. a larger maintenance needs about $4 billion and is in the category of real discuss today including real stations, basic rail structures, track work, power substations, contact drills and cables. we need 1.2 billion to repair and replace our rail fleet, then
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travels to hundred 25,000 miles per day. we use 1200 railcars to operator system, 20 percent of our live 32 years old. the standard is 25 years. our real average age is 24 years. so we need to replace that system and with $1.2 billion we could replace two-thirds of our aging fleet. so we are very thankful for the federal rail modernization and other funds we receive. the have barred against those in the past two years to reduce our 15 minute premiere of close sons of our blue line to 7%. we completed disrepair work in 2008 just as reddish upon a system had increased by 5% to part to a spike in gas prices and at the same time as we've seen to the rest of the country field, a child on the region's roads have to decline. the good news is even after gas prices were cut, in fact, those
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people who switch from try to chance it honor system continues to rise the bus is whether the return to drive. had we not did that those people have been become frustrated with low and efficient and unreliable service and quickly return so the whole point of my being here is a distress the transit system and my counterparts and i believe that a healthy chances system helps alleviate congestion on roads and sustain investment is critical to our nation's well-being. that is why i'm so pleased that all members of the senate including you and others asked by the report on the nation's rail modernization. the share of the state of repair name highlighted in this report is over $4 billion which in real terms means this bill nah railcars haven't we did to increase in real close to ensure state for the system. so we are in dire need of
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modernization. your leadership for chicago and the old rails were going to fix this problem. the fta provides a blueprint for modernizing the nation's bad with systems by the modernization program and funds are allocated based on age, type of rail system and maintenance chances systems. realignment of the program will likely lead to an increase of one new jersey transit and ramada inn mta so i thank you for your leadership on this issue and as we're members of the committee to consider the recommendations is to deliver the transportation bill in the coming months. with that i thank you again for the opportunity to testify in of like to answer questions you might have kenneth a. gary much. >> thank you for the opportunity to testify today and also like
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to thank you for your leadership on transit issue. this best the legislation arrangements and climate change here it is sometimes we are called american's chances of our american subway. metro is the largest public transit rider in the national capital region and nationally we aren't the synovitis of the system and the sixth largest bus system in the united states. we provide in a reserve of 1.80 million customers per day. and we provide tipson with hundreds of millions of riders each year rose to resign within the washington metropolitan area as well as visitors all over at the u.s. and from across the world. but my show is now beginning to fill its age. to use a comparison and that any house owner would understand or
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relate to our credit house is now 33 years old and earnings go far beyond the screen facing in a fresh coat paint. we have a web based and, thus deprived of a cracked tiles, all the electrical wiring and equipment of a 1976 model car and 100 year old for raunch. in fact, our capital needs of a the next 10 years polk more than $11.4 billion. these needs include replacing our oldest real cars including those that were involved in the tragic accident on june 22nd. we need monies to replace the leaking tunnels and the platforms and operating on tracks in associate infrastructure. best colleges and escalators and to replace about 100 buses each year. replacing very robust facilities is also in need especially the
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ones that are over 100 years old. and we need to update critical software. also need power and control system upgrades and additional rail cars someone to run of overcrowding here and as you stated in your comments metro experienced tragic accident on june 22nd 1 to redline cars collided else i never metro rail station. i in all metro employees are terribly saddened by the loss of life and injuries that occurred on monday. while the national transportation safety board has not yet to determine the root cause of this accident it has refocused attention on the stage every all-star chairman and around the country there is clearly ample demand for many chances systems for additional
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federal support to sustain in the safety and reliability of their system. the word that we have done to keep transit systems in the sake of good repair minor be exciting and times to hear about, but without service and safety will suffer. there'll be more delays due to failing infrastructure and that means lost time for our customers and lost productivity for our region in the nation. the funding provided by the federal government is critical to our ability to keep our systems running safely and reliable. if we do not receive a sufficient funding now service as well as a will decline. i want to raise one additional issue before i conclude. it is where people are writing public transit, which already reaching capacity on many parts of the have stated on several
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occasions when this region and all of this nation with this on inauguration day january 20th 1.5 million people crowded into our system will become a daily event in the very near future. we need to make investments to expand the capacity of the system to accommodate the ridership such as purchasing additional rail cars and making sure they power and maintenance facilities to accommodate them. as we consider ways to meet the infrastructure and use of transit systems i encourage you to develop the source of funding of the order level for projects to expand capacity on existing systems so that we may meet future reddish a command. in conclusion i appreciate this of committees interest in the same america's heavy rail infrastructure. we're committed to doing what every case to ensure our systems
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possess a candy and provide the best possible service now and the future. >> the new jersey transit is the largest a wide transit system providing 9,000 tipson 2,000 buses, three light rail lines and 12 commuter rail lines. new jersey transit also operates hundreds of trains daily over the amtrak northeast corridor. i want to thank you for providing me the opportunity testified the necessary capital funding former transportation agencies. as you know the real modernization with. to provide funding for this abbas to visit agencies for the purposes of existing systems and purchase and rehabilitation that role is on track structure is in communications. passenger station centrals maintenance facilities and for capacity expansion.
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