it means you have to look at their cases, and it means you have to look at the law and the facts and one of the things we learned in the hearings will sometimes judge sotomayor had to make difficult decisions. when she was a prosecutor she had to turn down cases although by all accounts aggressive than others taking on cases others wouldn't. as a judge she sometimes had to turn down cases, turn away dictums like the case involving the crash of a twa flight, and she actually disagreed with the number of other judges and said as much as she found the victim's family -- speeches from the senate floor from earlier today. we leave now as the senate is returning to continue debate on the sotomayor nomination to get the senator from oklahoma. a senator: thank you.

i ask unanimous consent that the republican time be allocated to the next hour -- the next hour be allocated as follows: myself 15 minutes. senator snowe 30 minutes. and senator brownback 15 minutes. the presiding officer: without objection, so ordered. mr. coburn: i also submit for the record and ask unanimous consent that my full statement be included in the record prior to my remarks. the presiding officer: without objection, so ordered. mr. coburn: this -- i'm pleased to come to the floor today to talk about our supreme court selection process judge sotomayor is the third supreme court candidate that i have had the privilege of getting to know, interviewing and asking rigorous questions during the hearing. she has a miraculous and wonderful personal story. she's very accomplished. she is to be admired for what

she has accomplished. when we look at supreme court nominees, we're actually charged to do two things. one is to look at the record of judicial behavior and assess it, and then also to look at the record that is out there besides their judicial appointments, judicial decisions. and we did a very thorough job in analyzing her 15-plus years as a federal judge and appellate judge. there were some very concerning cases that we encountered for which we questioned her, and the record will fully show her defense of that record and the reversal rate that she had at the u.s. supreme court. it's interesting for the

american public to know, is a supreme court justice is much different than an appellate judge or even a federal circuit judge, because they in fact are not bound by precedent. as an appellate judge, they have to follow precedent. and when they don't, they get reversed. and circuit judges, federal circuit judges have to follow precedent or they get reversed. but a supreme court justice has the freedom to change precedent, and that's why the inquiry into the candidacy and the qualifications of a supreme court nominee is so important. and it's also why our founders wrote extensively on what should be the qualifications of a supreme court justice. alexander hamilton stated in federalist paper number 78, the interpretation of the law is the proper and peculiar province of the courts.

he further stated, it is indispensable in the courts of justice that judges have an inflexible and uniformdherence to the rights of the constitution. a nominee who does not adhere to these standards necessarily rejects the role of a judge as dictated by the constitution and should not be confirmed. when we look at the constitution, we are told in the constitution how judges are to decide cases. they're given three strict parameters. one is they're to look at the constitution each and every time. and, number two, is they are to look at the statutes that have been passed by the people's representatives. and they are to look at the facts. and they're to look at the facts in a way that will show never a bias. in other words, blind justice

looking only at those critical factors are what are the facts of the case, what is the law, and what is the constitution -- what does the constitution say. you can be an appellate court justice for 50 years in this country and still not qualify to be a supreme court justice. it is tremendously important who goes on the supreme court. and the reason it is is because we've had a tendency in the last three decades to abandon those three principles and use other principles. and let me mention two of them. one is that we consider foreign law, that we can become enlightened with foreign law. i don't doubt that we can become enlightened what other people in the world think about law. but the fact is our founders

said this is our law. the constitution's our law, and we have a way of setting law which comes through the congress. and that is whaurb look -- what you shall look with one exception, and that's on trade and treaties where you have to consider the agreements in foreign law as related to those trade and treaties. the other tendency which has been espoused by our president is an empathy standard, that you can somehow other than look at the three main parameters of which our founders told us we must use in deciding cases at the supreme court. well, i would tell you a standard other than looking at the facts and looking at the law and looking at the constitution doesn't meet the test of our founders, nor does it meet the test of our constitution as it is spelled out in our constitution.

i want to talk again, and i want to say as an american citizen, i think we shall all be proud of this nomination. an hispanic female coming to the supreme court. but that's not a good enough reason to say that somebody should become a justice. and so i go back to those three founding principles of who should qualify. and who should qualify is somebody that is going to strictly adhere to what our founders said is the job of the supreme court justice, not with parameters that have been discussed as maybe be okay or parameters that fall outside of what our founders said. during my questioning and my visits with judge sotomayor, i found some very disturbing things. i asked her specifically in the

hearing: do individuals have a fundamental right to self-defense? and she wouldn't answer "yes" to that question. now a fundamental right to self-defense predates our constitution. that's what liberty is all about. that's one of the bedrocks of our liberty. and the fact that she will not agree that we as u.s. citizens have a fundamental right to self-defense is extremely troubling. and the reason that that fundamental right is so important, and it's guaranteed in the constitution, is that because on that rests the second amendment for which i find her somewhat less than comfortable in accepting what our founders said in the second amendment

adopted almost 200-some-odd years ago. the second area that i had concern with was on the area of property rights. it is very explicitly stated and it is clear except in two cases in this country in the supreme court which i hope that someday will be reversed that your right to property is a real right. and there was a kelo decision that has markedly limited american citizens' rights to property. and on both her cases and her comments and her written testimony, i believe that right of americans is at risk. i believe judges are going to decide you don't have that fundamental right. i believe that she feels based on what she has ruled and what she has written and what she has said that in fact there are times when judges can decide

whether or not you have that right or not. that is inherently wrong and 180 degrees against what our constitution guarantees us as individual citizens. the final area has to do with the use of foreign law. in her speeches and statements, she was highly critical of people who were critical of the use of foreign law. upon questioning in the committee, she retracted and moved away from those statements. i specifically asked her if she would assure the committee that she would in fact never use foreign law to decide u.s. cases, and i got her to say yes. the only problem with that is in the answer to questions following the hearing, she backtracked 180 degrees from that statement which matched her previous statements and speeches and writings which cause me --

caused me to ask the question in the first place. in the area of property rights, in the area of the second amendment and the fundamental right of self-defense and on the area of foreign law, i believe her viewpoint is something other than what i see in the constitution. and, regrettably, i believe that disqualifies her from being a justice of the supreme court. that when in fact you look at the constitutional basis of how judges are instructed to make law and to decide law, because every decision makes law, it sets precedent, that when you extract from that the fundamental right of self-defense, the written specific right to a second amendment, the written specific right of property ownership and

due process associated with that, and then you lay on top of that the idea that it's more important for us to look good in our decisions to foreign governments than it is to follow the oath, to follow the constitution of the united states. make no mistake, i believe this is a wonderful woman, and i think she's done a fairly good job as a judge on the appellate court. but she has been constrained. and as you measure her writings and her words with her decisions on cases, what you find is a conflict for those who would strictly follow what the constitution tells us. i want our grandchildren to endure and to accept and hold the same freedoms we have. the u.s. supreme court justice

will determine that. just one can determine that. and so i regretfully announce and state that i will not be able to vote for this very fine woman, but i would also state that we need to be very concerned and very vigilant as we see the supreme court make decisions, whether they're sitting justices today or justices to come out of the court, that violate both the intent, the instruction, and the spirit of the u.s. constitution. with that, i yield the floor.

mr. president, i'd notice the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

quorum call: a senator: mr. president? the presiding officer: the senator from maine. a senator: mr. president, i ask unanimous consent that the quorum call be dispensed with. the presiding officer: without objection, so ordered. ms. snowe: mr. president, i rise today to speak to the nomination of judge sonia sotomayor to be the next associate justice of the supreme court of the united states. after a careful an considered review of her testimony before the senate judiciary committee and her overall record, her distinguished judicial background and a personal meeting with her in june, i've concluded that judge sotomayor should be confirmed as the next associate justice of the supreme court. in the end ours is a government of both liberty and order. state and federal authority and checks and balances.

the remarkable challenge of calibrating these challenges points to us that the nine justices of the supreme court of the united states. to help meet these extraordinary challenges any nominee for the court must as i have stated during the confirmation of chief justice john roberts and sait justice sam alito, have a principle understanding of the court's role and sound commitment to judicial method. a nominee must have the capacity to engender respect among the other justices in order to facilitate the consensus of a majority. to warrant senate confirmation the nominee must have the keen understanding of and disciplined respect for the tremendous body of law that precedes her. it is with these high standards that we should evaluate the record of judge sotomayor. reviewing her professional credentials it is clear that the judge is well qualified. she has served for nearly 11

years on the united states court of appeals for the second circuit where she participated in over 3,100 cases. the judge served on the united states district court for the southern district of new york for six years where she decided over 400 additional cases. she has also worked for eight years in private practice and four years in the highly respected office of the district attorney for the county of new york. judge sotomayor would bring more judicial experience to the supreme court than any justice in 100 years. and moreover, more judicial experience than anyone confirmed for the court in the past 70 years. so i applaud the president for selecting an individual who clearly possesses the professional credentials to serve on the court. in reviewing her personal credentials, judge sotomayor's accomplishments are equally noteworthy. if confirmed, she'll become the first hispanic and only the

third woman ever to serve on you a nation's highest court. along the way, she ascended from modest means to excel in our country's most prestigious schools and our judiciary highest offices. in doing so she now stands as a model for others to follow in soup oning their -- summoning their own courage to pursue dreams. this brings us to the more particular factors when we provide our consent on the justice. methodology. with judicial temperment, we agree it is essential that a judge be fair, open mind and respectful. this issue has been rightly explored and certainly satisfily addressed with judge sotomayor. both the -- in -- the new york city and american bar association who reviewed the nominee and all key criteria

gave the judge the highest ratings. robert morgenthau the judge's form he employer and highly regarded district attorney judge since 1975 testified that the judge is fair, nonpolitical and highly qualified for any position in which a first-rate intellect, common sense, collegiality and good character would be good assets. end quote. former federal judge colleague and f.b.i. director louie freeh called judge sotomayor fair, neutral, nonpartisan and open-minded. end quote. we look next at the nominee's judicial methodology which directs her to the key areas of discipline and fairness. here the judge was very clear in directing our june meeting. her approach to all cases is to carefully identify the facts. what she characterized as a prize skill that she learned as a successful, young prosecutor. and then follow the law.

what it says, what end was meant to be accomplished, what legislative intent it was meant to advance and how, if at all, courts have answered those questions. as she testified at her hearing, her methodology so apply the law to the facts at hand and keep a rigorous commitment to interpreting the constitution according to its terms, interpreting statutes according to their terms. and huing faithfully to the precedent. the process of judging is enhanced when the arguments to the parties in litigation are understood and acknowledged. that is why, she explained, and i generally structure my opinions by setting out what the law requires and then by explaining why a contrary position sympathetic or not is accepted or rejected. that is how i seek to strengthen both the rule of law and faith and the impartiality of our

justice system. end quote. and the record supports that assertion, mr. president. the structure of her opinion showed consistent, methodical and specific approach to deciding cases. the integrity of the judge's methodology can be measured in a variety of ways. first the judge has a low reversal rate on the trial court she was overruled and only six of her 400 trial bench decisions. in 11 years on the appellate court, the judge participated in 3,100 cases and in those cases the judgment was reversed six times. three of the six circuit cases created 5-4 votes in the supreme court. one produced the unusual alignment of justices ginsburg and scalia together in the majority and justices breyer and alito in the dissent.

these facts show the relative difficulty of and reasonable room for debate in these appellate cases. there is also the measurement of the judge's concurrence and dissent rates which demonstrate her method of deciding cases is consistent with that of her colleagues on the second circuit. for example, despite the thousands of appellate opinions, she only dissented in 21 cases and written separate concurring opinions in 22 others. i turn now to the third qualification, judicial integrity. here there are those who have suggested that the judge will use her office to engage in judicial activism and advance a certain social or political agenda that suits her personal preferences. principally these critics point to the new haven firefighters case and her berkley and duke speeches as examples of such activism. i believe this has warranted strict scrutiny. at the outset it bears noting

that in her 11 years on the second circuit, judge sotomayor has agreed with the result favored by republican appointees in 95% of the published panel decisions where the panel included one judge appointed by a republican president. this statistic is evidence of a nonpartisan and nonideological approach to judging. at the same time i have shared the concerns expressed specifically about the new haven firefighters case as many have voiced opposition to both her decision as well as the current and summary opinion that was used to dismiss the complaint. i sympathize with the plaintiffs who were told the rules for qualifying for a promotion, who believe they were participating in a fixed process for determining their future career advancement, who did what was asked of them and then when it was all over were informed that what they had done wasn't good enough. so i understand the frustration.

i approach judge sotomayor's handling of this case by looking above the merits. that is what was decided in the case as well as the process or how the case was decided. as regards to the process, as we all well knows the panel that included judge sotomayor wrote only a three-paragraph opinion concluding and i quote -- "we reaffirm for reasons stated in the thorough, thoughtful and well-reasoned opinion of the court below." end quote. it may well be the district judge's opinion was thorough, thoughtful and well reasoned. but the confidence of the litigants and public alike in any court relies on their opportunity to explore a judge's rationale. and the panel summary affirmation, albeit adoptinger verbatim the long opinion of court below simply failed to meet that expectation. when i asked judge sotomayor in our june conversation and she was with youried before the

judiciary -- quered before the judiciary committee, she stated that she and her colleagues gave the full and fair review. after that did they determine that their own written opinion was not necessary given the court's exhaustive court's opinion along with the eeoc regulations and the seemingly precedent settlement is a bushy line of cases. in reviewing a petition for a rehearing in ricci, six of the judge's own colleagues were not persuaded by that argument. another six of her colleagues were so persuaded. additionally the judge testified before the judiciary committee that the practice is that about 75% of circuit decisions are decided by summary order in part because we can't handle the volume of work if we were writing long decisions in every case. but more importantly, not every case requires a long opinion if a district court opinion has been clear and thorough on the

issue. end quote. yet the bottom line is, in my view, that this particular case was simply too complex and too sensitive with significant societal implications to lead to a summary order. therefore the three-judge panel should have issued its own comprehensive opinion and explanation. on the matter of the merits of the case, judge sotomayor ruled that the city acted lawfully in trying to meet its obligations under the federal employment discrimination law to avoid disparate impact discrimination when making certain employment promotions, and i understand some believe this decision invinces the judge's predisposition to rule for minority litigants. one d.c. law firm found that the judge decided 100 race-related cases in her 11 years on the second circuit and effectively rejected such race-related

claims by a margin of roughly 8-1. others have suggested that the supreme court's reversal of the second circuit raises questions of the judge's qualifications to serve. in evaluating that possibility, i've taken into account that supreme court took this action with a 5-4 vote. with four complex and nuaunced opinions as well as an admission from justice scalia that an under lying suggestion by the case when affirmative action becomes unlawful discrimination is not an easy one, he said. and i have considered that the high court reached its decision only by identifying and applying an entirely new standard. indeed the trial and sotomayor courts applied the then existing rule of the eeoc entitled seven regulations and the bushy line in cases in determining that a significant disparity of the result of an employment test is itself adequate evidence of

unlawful disparate impact discrimination. on appeal the supreme court changed the rule saying, in essence, that such a significant disparity in test results is no longer itself adequate evidence. importing from the 14th amendment jurisprudence the court said that the new rule for interpreting title 7 statute demands a stronger basis and evidence such as evidence that the test was not job related and consistent with business necessity or if there existed an equally valid less discriminatory alternative to serve the city's need, but the city refused to adopt. end quote. therefore based on the record it would appear that the district and circuit judge fulfilled their assigned job of applying existing precedent to the existing rule. in weighing all of the facts given the judge's assurances that she gave the case her full consideration given her

reputation for decision making and given the reality of the second circuit burgeoning loads, i cannot conclude that the decision ricci should itself disqualify this nominee. mr. president, i was also concerned, like many americans, by judge sotomayor's speech at berkley in 2001. and, specifically, by the following line that appears to suggest that the judge decides cases more by personal identity than adherence to the law and i quote and i would hope that a wise latino woman would more often than not reach a better conclusion than a white male, end quote. i agree her comments are disconcerting. in examining her speech and the committee testimony, i note that the judge in answering a question from the committee offered that it is the job of a judge to apply the law and that it is the law rather than one's own sympathies that compels

conclusions in cases. i recall the judge's response when i asked her specifically about the speech. the judge replied that those who had concerns should reach the whole speech. she now admits inartfully that judges are human beings and they necessarily will be affected by who they are. but this only makes them attune to certain case aspects. it does not replace following the law, she said. i also recall prominent judges in our history who also raise this issue. this is the subject justice frankford referred to when he said one of the greatest challenges for all judges because they're all human is to recognize their own personal views an develop the patient insights and discipline to compensate for them. when i raised justice frankfur frankfurt's comments with judge sotomayor, she agreed and asserted that was the point she

was attempting to communicate in her berkley speech. she asserted in our meeting and reconfirmed in the committee testimony and i quote that no racial or ethnic group has a market on sound judgment. she explained that some judges like many lay people have tin ears on certain matters and that's why the collegial decision making is so vital because sharing different perspectives and blending them into consensus opinion serves as both a filter and a spotlight. she spoke of how judges, like all people, are inescapably affect the by their own life's experiences but that only shows how attune judges are to certain cases. they do not replace the requirement to follow and apply the law consistent with a limited law and specific oath of that office. a review of judge sotomayor's decisions and her resulting affinity, dissent and reversal rates that i described earlier

bolstered the judge's statement that she understands this imperative and that she decides cases based not on personal identities or classifications but by commitment to the law. mr. president, a final question about the judge's judicial integrity has been raised from her remark in 2005 at duke university. and i quote -- "that court of appeals is where policy is made." end quote. this comment has understandably raised the specter of commitment to judicial activism and is therefore a legitimate cause for examination. when i raised this issue with the judge she responded that she was referring to the educational differences between trial and appellate court clerkships how a clerkship focuses on primarily limited factual disputes and an appellate clerkship focuses on cases involving broader questions of how the law ought to be interpreted. an essential component of weighing the competing

interpretations offered by appellate advocates is for the court to understand the practical effects of the advocates competing arguments. it is this understanding that defiance the scope and reach of the possible interpretations. i believe it is therefore legitimate to read and understand her comments within this context. it has often been argued that as the supreme court decides about 80 of the approximately 8,000 cases per year, federal circuit courts of appeals often do, as the judge noted in her testimony effectively, become the final decision-maker in what the law and by necessary extension the policy advances is. mr. president, given all of these factors again and considering the entirety of her record, it is fair to conclude that the duke university speech is not evidence that judge sotomayor would have practiced judicial activism on the scomplecourt.we have a fourth al

qualifications. a judge's sense of limits and horizons and great promises of our constitution and of the nominee's view of the proper role of the supreme court in deciding whether to take cases and once taken the underlying philosophy used to rule upon them. on this point, i note first the judge's answer when asked whether she subscribes to one or another school of constitutional interpretation, she said, "i don't use labels." i also recall the study by the new york university law school's vernon is center for justice which analyzed over 1,100 constitution cases decided during judge sotomayor's tenure on the second circuit and found that as an appellate judge she voted with the majority in over 98% of the constitutional cases and that 94% of constitutional decisions have been unanimous. such figures argue strongly that the judge's constitutional approach is squarely in the mainstreammainstream.

the inquiry ever inquiry into any judge's philosophy is significant for those of us who value the court's landmark rulings, decisions protecting the rights of privacy, civil rights and women seeking equoll protection, just to name a few, describe a few of the court's case law. entire generations of americans have come to live their lives and rely on the court's rulings and overruling these precedents would simply roll back decades of precedence. therefore, central to the question of thisee's judicial philosophy are her views on the corn stones of jurisprudence -- that is, judicial precedent. in our june meeting, i asked her whether she agreed with chief justice rehnquist's observation in dirkson v. united states which upheld the famous decision miranda v. arizona. there the chief justice wrote that there are situations where

constitutional precedence that a justice might believe had been wrongly decided should be upheld because the people have accepted the principle of the decision as an embedded part of our national culture. judge sotomayor agreed with that decision. in adherence to applying the precedent has achieved significance in many casually contested areas of the law such as the second amendment which brings plea to the concerns raised by judge sotomayor's decision in maloney v. cuomo. mr. president, i happen to be a strong, longtime defender of the second amendment rights, as evidenced by my amicus support for mr. heller in his recent case before the supreme court in district of columbia v. heller. accordingly, i am very well aware that the issue of whether second amendment protections are to be construed as incorporated against acts of a state government as opposed to the federal government has assumed renewed importance since the court's recent landmark decision

ruling in heller. i also understand that several long-standing court precedents have been widely construed by state and federal courts around the country, including the main supreme judicial court, not to incorporate the second amendment. judge sotomayor in maloney v. cuomo and her two panelists stated that those consistent interpretations of the supreme court's precedent were binding upon them and while a panel in the ninth circuit in nor dick v. king recently bypassed such precedent, a seventh circuit panel led by judge shackly criticized the senatordike decision for doing so and i instead they agreed with judge sotomayor's opinion because they, too, concluded that the supreme court's precedent was bientdzing upon them. and just last week the full ninth circuit itself agreed to reconsider its decision in the nordike decision. the supreme court may well revisit this issue soon. but the issue before us in the

senate right now is whether the judge has demonstrated, as she describes, fidelity to the law. and the precedent as we would expect. because several long-standing supreme court precedents had been widely construed by state and federal courts alike not to incorporate the second amendment and because the supreme court in footnote 3 of the heller majority opinion expressly said, the court was not deciding the incorporation in question. moreover, given her demonstrated adherence to star redesighs sis, while no one can predict the future with certainty, it is reasonable to conclude that she will continue to follow precedent, as also evidenced by her testimony to the judiciary committee when she stated, and i quote, "the supreme court did hold that there is in the second amendment on individual's right to bear arms and that is its holding and that is the court's decision. i fully accept that. " end quote.

finally, what are powerful and profound message it will send to have judge sonia sotomayor join with justice ruth bader ginsburg on the highest court in the land. the fact is it does make a difference who women and girls see at the pinnacles of government, just as it matters in all fields of endeavor. as justice ginsburg has said recently, "my basic concern above being all alone was the public got the wrong perception of the court. it just doesn't look right in the year 2009." it matters for women to be there at the conference table to be doing everything that the court does. women belong in all places where decisions are being made." end quote. mr. president, given the totality of the record before us, i have concluded from judge sonia sotomayor's testimony regarding both her judicial methodology and her judicial philosophy that she is not predisposed to overturning the precedent. obviously none of us can know

with certainty how judge sotomayor would vote on any particular case. but we can assess her methodology, herrage in approaching cases by reviewing her responses to the committee and to other members throughout this process. in that light, mr. president, aninevaluating the essential qualifications as i have outlined them and in reviewing the entire judicial record of judge sotomayor, i find a fair-minded judge with a deep respect for the rule of law and the independence of the courts and the judicial method committed to stability in the law enforcement it is therefore my conclusion that based on the totality of the record and her distinctive qualifications, judge sotomayor has earned the distinction of serving as the next justice of the supreme court. thank you, mr. president. i yield the floor. a senator: mr. president? the presiding officer: the senator from kansas. mr. brownback: thank you very

much. mr. president, i ask the presiding officer to inform me when two minutes is left of my time. mr. president, i rise today to discuss the nomination of judge sonia sotomayor to be a justice on the supreme court, ultimately the core of this debate, i believe, is over the proper role of the court. our side tendings to believe that the court does not make policy and must stay within the written text of the constitution the other side sees the constitution more often as a liflg document and its meaning changes along with the attitudes of society. when the courts improperly assume the power to decide issues more political than legal in nature, the people naturally focus less on the law and more on the lawyers who are chosen to administer it. some are keen to impose their policy agendas through the judicial process, some judges are. 0 others want judges who will stick to interpreting the law rather than making it. it is beyond dispute that the constitution and its framers

intended for judges to satisfy the latter criteria; that is, to stay within the law rather than making it. now, president obama has voiced his support for judges looking at the constitution -- looking to the constitution as a living document for moleable to the times. he has said that he will pick judges that will look to empathy rather than written law when deciding cases. when then-senator obama voted against the confirmation of chief justice john roberts, he said -- quote -- "while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95% of the cases that come before a court, so that both a scalia and a ginsburg will arrive at the same place most of the time on these 95 cases -- 95% of the cases, what matters on the supreme court is those 5% of cases that are truly difficult. in those cases, adherence to precedent and rules of construction and interpretation

will only get you through the 25th mile of the mayor a on this. that last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy." end of quote from then-senator obama. i don't dispute that there are a small prafnlg cases that are truly difficult, but the question is, do we want these cases decided by what the law says or by a judge's own personal empa thinks? -- empathies? i reject the idea that these cases cannot be resolved by staying faithful to the text of the constitution, and it's dangerous to the rule of law to suggest otherwise. in june i came to the floor and stated my opposition to judge sotomayor's nomination based on numerous past statements she made embracing an active i have judiciary and endorsing the idea that judges should look to areas

outside of the law when deciding cases. however, when judge sotomayor appeared before the judiciary committee last month, she consistently took positions contrary to her past writings and in many cases did a complete 180. this leads me to ask, which sotomayor are we voting to confirm, the liberal activist or the modest judge who believes in strictly applying the law as written? judge sotomayor attempted to assure senators that the real sotomayor is reflected in her 17-year record on the bench. now, i find this argument interesting but unpersuasive because, as a judge on the court of appeals, judge sotomayor has been constrained by supreme court precedent. that's the position she held. her judicial record tells us very little about who the real sotomayor is when on the supreme court. using her speeches and writings where she is unrestrained, we find her real views on the fundamental questions that will

decide, as a justice, that she will -- that she will decide as a justice on the supreme court. when asked at her confirmation hearings to summarize her judicial philosophy she said "fidelity to the law." i agree with this philosophy but i have difficulty reconciling the words she chose at her confirmation hearing with the statement she made in 1996 at a law school when she stated "the law the lawyers practice is judges declare is not a definitive capital l law that many would like to exist," but the reasonable interpretation to that is she pledged fidelity to whatever she says the law is. in 2001 famous speech she gave at berkeley law school later published in the berkeley la raza law jownl she dismissed the said judges must aspire to greater fairness and integrity

based on the reason of law by saying that "ignoring our differences as women or men of color we do a disservice to the law and society." certainly that doesn't sound like a judge who believes in fidelity to the law. in the same speech judge sotomayor said "justice o'connor has been cited as saying a rise man and wise man would reach the same conclusion in deciding cases and i am not sure i would agree. i would hope a wise latina woman would more often reach a better conclusion than a white male who hasn't lived that life." when asked about the statement at her hearing judge sotomayor said "the words i used i used agreeing with the sentiment that judge sandra day o'connor was attempting to convey." really? are we supposed to believe each time judge sotomayor said "i'm not so sure i agree with that statement," she meant "i agree with that statement."

judge sotomayor's explanation requires some suspension of disbelief. also at berkeley judge sotomayor said "whether born from experience or inherent physician logical or cultural differences our gender will make a difference in judging." at the hearing she said "i do not believe that any ethnic, racial, or gender group has an advantage in sound judging." again, we are asked to believe judge sotomayor is either a very poor communicator or statements are taken out of context and misinterpreted. i don't think she's a bad communicator at all. in the writings judge sotomayor has repeatedly rejected the principle of impartiality and embraced the novel idea that a judge's personal life story should come into play in the courtroom. but when she was in front of the united states judiciary committee the nation watching, she suddenly embraced the

judicial philosophy of chief justice robs. the past position cannot be reconciled with what she said. we do not know what she tale --e believes. she has said "the court of appeals is where policy is made." during the confirmation hearing she said "judges don't make law." and "they look at the constitution and see what it says." some of judge sotomayor's defenders have criticized flip-flopping on her views. george town law center professor, a liberal constitution scholar said "i was completely disgusted by her testimony today. if she was not perjuring herself she is not qualified to serve on the supreme court." there was never any doubt if this president would nominate liberal judges that share his

views. he won the election. judge sotomayor's record on the bench has been fairly typical of a liberal judge. however there have been some notable exceptions. after the supreme court ruled that individuals have a constitutionally protected right to gun ownership in the case of district of columbia v. heller, maloney v. cuomo, another was argued and in pro-consumer opinioin the opinion theysaid te federal government seeks to impose and they said "legislative acts that do not interfere with fundamental rights or single out suspect classifications carry a strong constitutionality and must be held if related to state interest." in other words, the second amendment does not protect the fundamental right. i believe the second amendment protects the fundamental right just as the first amendment

protects the fundamental right. the supreme court agrees it protects a fundamental right and the founders believed there's a fundamental right to keep and bear arms. in a high profile racial discrimination case judge sotomayor's panel issued an unpublished summary order denying a group of firefighters the promotion they earned because the promotion exam has a disparate impact on minorities. judge sotomayor and the colleagues' actions were troubling because but issuing pun published order they avoided bringing the case to the attention of the other judges on the second circuit and only after another judge on the circuit read about the case in the newspaper and requested that the full second circuit rehear the case that the actions came to light. the case was appealed to the supreme court in a 5-4 opinion the court was reversed and more importantly, the court was

unanimous -- unanimous -- in rejecting judge sotomayor's opinion that having a disparate available impact was justification to void the test. the dissenters at the supreme court believed a jury trial should have been granted to examine the evidence and determine whether the test was job-related. judge sotomayor clearly erred in her decision. judge sotomayor was nominated by a president who said judges should have "the empathy to recognize what it's like to be a young teenage mom, to understand what it's like to be poor, african-american, gay, disabled or old, and the difficult cases should be died by what's in a justice's heart." when asked about president obama's empathy standard by senator kyl judge sotomayor said "i wouldn't approach the issue of judging in the way the president does. he has to slain what he membership by judge -- he has to explain what he meant by judging and i can only say that judges

can't rely on what's in their heart." are we to believe that the president chose a nominee who outright rejects his view of justice? i'll concerned the president has, in fact, nominated an individual that shares his view that the constitution is a living document and that's why i will be voting against her confirmation. after watching her performance in front of the judiciary committee last month, and observing that performance, i learned something i have long suspected: judge sotomayor had no choice but to reverse many of her past statements. a judge openly embraces an activist judiciary using empathy to pick winners and losers and using his or her own race and gender to decide the outcome of cases using foreign law does not believe the second amendment is a fundamental right, and sees judges as policy-makers -- all of those things, that sort of judge cannot be confirmed by

this body spite 60 members belonging to the party of the president. i hope president obama has learned that important lesson, as well. that the people of the country want a judge on the supreme court, a justice, to be a justice and not a policy-maker; to be a judge and not somebody that goes with the sympathies in their heart, one that sticks with the constitution, not trying to rewrite it. that if the president realizes -- if the president realizes that will be a victory for the rule of law and that is what this is about. mr. president, i yield the floor. i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

prequorum prequorum

quorum call:

the presiding officer: the senator from maryland. mr. cardin: mr. president, i ask unanimous consent that the time in this hour be divided in the following manner -- the presiding officer: senator, w we're in a quorum ca. mr. cardin: i ask that it be dispensed with. officer without objection, so ordered. mr. cardin: i ask that the time in this hour be divided as follows: senator cardin 15 minutes, senator baucus 15 minutes, senator merkley 10 minuted, senator akaka 10 minutes and

senator lieberman 10 minutes. the presiding officer: without objection, so ordered. mr. cardin: thank you, mr. president. mr. president, the confirmation of judge sonia sotomayor to be an associate justice of the united states supreme court will be my first supreme court justice confirmation vote as a senator. it is an honor for me to represent the people of maryland in the united states and to serve on the judiciary committee. i particularly want to thank chairman leahy and ranking member sessions for the dignified manner in which the committee handled the nomination process of judge sotomayor. each senator on our committee had ample time to review judge sotomayor's background and ask questions of the nominee. her answers were as responsive as possible and gave me confidence that she understood the appropriate role of a judge in applying the law. the supreme court, our nation's highest court, holds a tremendous responsibility in deciding cases of fundamental issues that have real impacts on

the lives of americans. in recent years we have seen less of a consensus on the court with many 5-4 decisions. regrettably, too many of these decisions have been at times when the court has ignored congressional intent and precedent to instead move forward with its own agenda. it has been the so-called conservative justices that have been the most active in ignoring the intent of congress and protecting individual rights. for example, the lilly ledbetter decision, the court denied women in pay equity cases thus eliminating protection intended by congress. in the riverkeeper decision, the rapanos decision, the supreme court narrowed the congressional protections for clean water. in the northwest municipal utility decision, the court challenged congressional authority to the voting rights act itself.

in each of these cases, the supreme court actively ruled to restrict laws passed by congress to protect individual rights. i want the just justice to protect congressional intent, not restrict individual rights. in determining whether or not to support judge sotomayor for this lifetime appointment, i looked at several factors. first, i believe judicial nominees must have an appreciation for the constitution and the protections it provides to each and every american. i also believe each nominee must embrace the judicial philosophy that reflects mainstream american values, not narrow ideological interests. i believe a judicial nominee must respect the role and responsibility of each branch of government. i look for a strong commitment and passion for the continued progress in civil rights protections. i understand that there is a careful balance to be found he here. our next justicehould advance the protections found in the

constitution but not disregard important precedence that has made our society stronger by embracing our civil liberties. i believe judge sotomayor understands this balance and will apply these principles appropriately. during the hearing, we all learned more about judge sotomayor's approach to the law and to judging. she clearly outlined for us her fidelity to the law, respect for precedent and due deference to the intent of congress. with each question, our committee and the americanpublir appreciation of judge sotomayor's knowledge of and commitment to the rule of law. her command of legal precedent and her ability to challenge attorneys in their arguments will bode well for reaching the right decisions in the supreme court of the united states. she is mainstream in her judicial decisions and opinions, and she possesses a correct sets of the role of a judge in deciding a case based on sound

legal precedent and the facts, giving due deference to congressional intent. over the past few months, our committee has had time to thoroughly review judge sotomayor's record. from the moment she was nominated by president obama, we knew that judge sotomayor had a strong background, including extensive experience as a prosecutor, trial judge, and appellate judge. she grew up in a modest circumstances, worked hard to to attend two of our nation's most prestigious universities, princeton and yale law school, and she excelled at the highest levels at each institution. judge sotomayor's lifelong work ethic has been recognized by both democratic and republican presidents who nominated her for senate-confirmed judicial appointments. in 17 years, she has served as a distinguished jurist. judge sotomayor is an example of a highly competent and experienced nominee. she has more federal judicial experience than any supreme court nominee in the last hundred years.

she was rated well qualified by the american bar association, which is the highest rating given by the a.b.a. and has been supported by the national fraternal order of police, the naacp, united states chamber of commerce, the national association of women legislators, the brennan center for justice, the lawyers committees for civil rights under law, and many, many more. the nine justices of the united states supreme court have the tremendous responsibility of safeguarding the framers' intent and the fundamental values of our constitution while ensuring the protections and rights they have in that very constitution are applied and are relevant to the issues of the day. it is my belief that the constitution and bill of rights were created to be timeless documents that stand together as the foundation for the rule of law in our nation. were it not possible for the supreme court to apply the basic tenets of the constitution in

changing times, moving beyond popular sentiment, our nation would never have made the progress it has: improving society for the better. when the constitution was written, african-americans were considered property and counted only at three-fifths of a person. nonwhites and women were not allowed to vote. individuals restricted by race as to who they could marry. decisions by the supreme court undeniably have moved our country forward, continuing the progression of constitutional protections. i believe judge sotomayor's record and background demonstrates that she understand thesunderstands these principled that she will apply sound legal precedent to contemporary challenges advancing individual rights. during the confirmation hearing, i spent the majority of my time questioning judge sotomayor on the topic of civil rights. we discussed the right to vote, women's rights, minority rights, including race and gender issues, the environment, and the importance of diversity of the courts and throughout our

society. while difficult questions continue to come before the court for me, it bears repeating just how important it is to have justices on the supreme court who will apply established precedence and are not tempted to turn back the clock on landmark court decisions that protect individual constitutional rights. i gained great confidence in judge sotomayor after listening to her answers to questions that i posed. i want to mention a few of the key cases decided by judge sotomayor that we discussed at the hearing. judge sotomayor has protected the civil rights of all americans, advanced equal opportunity and promoted racial justice. in the gamp case, she protected the rights of a young african-american student who was treated differently than his fellow white classmates. in the boykin case, she looked at the facts presented and then reversed or remanded the case because the facts did present a plausible case of different treatment in a housing application process.

judge sotomayor has also shown an understanding of privacy rights. while we do not have dieses review that she -- cases to review that she participated in, her responses to questions gave me great confidence that she will respect legal precedent while applying privacy protections to the challenges in the 21st century. i have confidence that judge sotomayor understands the importance of protecting the freedom of speech based on the decision she reached in the pappas case, where an off-duty police officer used speech that was repugnant. but her ruling showed an understanding and the importance of the constitutional protections even when the speech is unpopular and hateful. i have confidence that judge sotomayor will protect religious freedom based on her decision in the ford case, where she protected the rights of a muslim prison inmate. i was particularly impressed by judge sotomayor's record on voting rights. in the hayden case, she wrote a dissent -- and i quote -- "the duty of a you is to follow the law, not to question its plain

terms. i do not believe that congress wishes us to disregard the plain language of the statute or to invent exceptions in the statutes it has created." her commitment on voting rights were reinforced at the hearing when she responded to the question i posed, she acknowledged unequivocally that the right to vote is a fundamental right for all americans. with current justices on the court ready to question congress's right to extend the basic voting protections in the voting rights act, it's refreshing to hear judge sotomayor say in the hayden case -- and i quote -- "i trust that congress would prefer to make any needed changes itself rather than have the court do so for it." i have great confidence that judge sotomayor understands the importance of civil rights in our country and the importance of protecting those rights for the american people. i believe that judge sotomayor will defend congress's intent with the passage of the clean water act, the clean air act and many others based on her decision in the river keeper

case. in this case, she wrote for a unanimously panel and held that under the clean water act, the e.p.a. could not engage in cost-benefit analysis, allowing cost-benefit analysis would undermine congressional protections when determining what constitutes best technology available for minimizing the adverse environmental impacts. she concluded instead the test for compliance should consider what technology can be reasonably borne by the industry and could engage in cost-effectiveness analysis in determining the best technology available. fad to her yesin addition to hee legal background, judge sotomayor is on the verge of becoming the first latino and only the third woman to serve on the supreme court. her story of personal success is an inspiration for young latinos, women, and for all americans. she is prepared and ready to serve our nation on the supreme court, where i'm confident she will continue to build upon the outstanding record she has already achieved as a

distinguished jurist. for all of these reasons and many more, i will vote to confirm judge sotomayor to be the next associate justice of the united states supreme court. i urge my colleagues to join in the support of her confirmation. and, mr. president, i would ask unanimouunanimous consent to ine following letters in support into the record: the lawyers committee for civil rights under the law, a joint letter with more than 25 disability rights organizations in support of judge sotomayor's confirmation; and letters of support signed by more than 80 civil rights and labor organizations in support of her nomination to be the next supreme court justice. the presiding officer: without objection, so ordered. mr. ca cardin: mr. president, wh that, i would yield the floor. the presiding officer: the senator from montana.

mr. baucus: mr. president, i ask unanimous consent that the following individuals on my staff be granted floor privileges during consideration of the confirmation of judge sotomayor: indicate lynn cohen, emily yeska, andrew dusek, dan huffman, rayful graybel, phillip feldman, josh gardner and marie wildman. the presiding officer: without objection. mr. baucus: mr. president, i ask consent that lori safdi, aaron gyle and kathleen roberts, law clerks on senator leahy's judiciary committee, be granted floor privileges for the remainder of the debate on the nomination of sonia sotomayor. the presiding officer: without objection.

for the red sox. rick, what have you seen from penny when you've watched him this season? >> well, he's a different guy. he's not the 97mph guy anymore. talking with john ferrell the pitching coach of the red sox, i said, what's the key for him tonight? what do you look for? he said, south, he's got to be down in the zone. we're going to use our k zone and highlight the 92, 93mph fastball. if it's above the kneecaps, he could be in a lot of trouble. if it's down, there he could be in there for six or s test anybody, but it's hard for us not to look towards this red

sox-yankees series this weekend. how important is tonight's game for boston? >> you know, it's kind of interesting. i thought when i got in the club house, i was there for probably 45 minutes with the red sox. i thought i might hear something about that. you know, we got a big series coming up. i did not. i was with terry francona for ten minutes. all he talked about with they need to win this ball game tonight. >> ignoring the yankees. that's interesting. we will... >> i don't know if they ignored them. they did not want to overlook the rays. >> good point there. rick sutcliffe on the call of red sox-rays. 7:08 east everybody tonight on espn. rick, enjoy the game. >> thank you. my pleasure. >> still ahead, with all the focus on what the vikings have rather than who they don't have, what are minnesota's expectations for the upcoming season? mort's training camp trip undefeated professional boxer floyd "money" mayweather has the fastest hands boxing has ever seen. so i've come to this ring to see who's faster... on the internet.

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>> we update you on braves and padres. bottom of the ninth, atlanta a 6-2 lead. jumped out the a 6-0 lead. will venables has made it palatable for the folks in san diego with a two-run home run. the braves in control. highlights on espnews once this game goes final. >> ah, the chris mortensen training camp tour continues. mort is now in mankato, minnesota, visiting the with

vikings. mort, tarvaris jackson on the field today after suffering a mild mcl sprain. how did he look? >> he's got a brace on his left knee. but the fact he got out here this soon tells you that when they said it wasn't serious, it wasn't serious. he even was catching a few passes from sage rosenfels, his competitor for the starting quarterback job, during the early morning practice. the bottom line is he got in there, got some reps, and he's... they are very comfortable with the thought that he will be ready to certainly compete for this job. >> and speaking of competing, how much of a setback did he have as far has the competition with sage? >> you know, it's interesting because i had heard from the off season that maybe jackson had a better off season than sage, but then they went after brett favre, which suggested that neither guy was satisfying the coaching staff, but coaches have tried the assure me that, hey, look, you got a chance at brett favre, he knows your offense, you go for it, but sage clearly

got an advantage when tarvaris was injured. that's what tarvaris has to do, stay healthy. early on in his career he has not stayed healthy. brad childress wants to make it clear he wants a guy to line up under center every sunday. that's one thing brett favre always did. tarvaris has to prove he can do that, too, otherwise rosenfels will be the quarterback. >> vikings' running game is their bread and butter. adrian peterson tried to put on some weight to be even stronger. how has he looked in camp so far? >> i did shake hands with adrian. i can verify, there is nothing wrong with his strength. he will crush your hand. he looks great. he's excited. he and chester taylor, they're very excited to have percy harvin, the rookie, in camp. they believe those eight-man fronts and sometimes nine-man fronts they were seeing on offense will disappear with having fast guy like percy harvin running around the formation and what have you. so adrian peterson told me he's got two goals, win a super bowl

and win an m.v.p. he thinks he can get them both. he should be fun and definitely see what they'll be able to pull all. defensively, that's going to have to get straight as well. vikings rely heavily on their big pair of defensive tackles, pat and kevin williams. both players have suspension looming over their heads after testing positive for banned substance. what's the latest on their status? >> well, the state court said we'll wait until the federal court makes a ruling. the federal appeals court makes a ruling. that ruling comes on august 18th. if the federal court says, you know what, we're going to let the state decide this case, then the williams tackles will be playing. no question about it. they'll be playing when the season opens. if on august 18th they learn that it's not going their way, they'll miss the first four games of the season. if you look at the schedule, first four aren't that tough. they like their depth there. it would hurt them, but they get e.j. henderson, their middle linebacker back this year. they feel good about their defense. they feel even better about their offense regardless of who

is under center. >> with so much hype surrounding the brett favre situation this off season, the focus has been more on what they could have had rather than what they actually do have. how is this team approaching this season now? >> you know, maybe they're just good actors. that could be appropriate because of the soap opera that took place this summer. just an episode where there was main character like brett. i think there were some people kind of in the organization that truly were surprised when brett decided not to play. as far as the players go, hey, they look at what happened last year. they went and won the division with tarvaris jackson and gus frerotte. i think they feel very good that jackson will be better. he's got another year under his belt. they really like sage rosenfels, and oh by the way, they