Judge Sonia Sotomayor Nomination

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July 16, 2009

Excerpts from Los Angeles Times transcripts of Day Four of the hearings:

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COBURN: I appreciate that, your honor. Thank you very much. Let me go back to an area that I know is -- not everybody wants to hear about, but I think it's important. I asked you about where we were in terms of settled law on Roe and Doe, and -- and today I only want to focus on Roe and Doe, not Casey.
What was the state the law, say, in 1974, one year after Roe? What was -- where did we stand in that issue?

SOTOMAYOR: That women have the right to terminate their pregnancy in some situations without government regulation, and in others there would be permissible government regulation.

COBURN: Let me -- did any of the...
SOTOMAYOR: That's generally, because the court did look at other questions in terms of government regulation.

COBURN: Then let me ask you this. Did any of the laws of the 50 states regulating abortion survive the decision in Roe?

SOTOMAYOR: I don't know that I could answer that question, because I don't...

COBURN: OK. That's -- that's fair. They didn't. Was there any limit to the right to abortion either in the age of the child in the womb or the reasons for electing that surgery? And if so, what are those limits, according to Roe and Doe?

SOTOMAYOR: I -- Senator, I don't actually remember the court addressing that, because my studies have been on the undue burden test established in Casey. So my experience in this area or my knowledge, really, has been most particularly concentrated on the Casey standard, which is...

COBURN: I understand that.

SOTOMAYOR: ... what Casey did was change the Roe standard.

COBURN: Which goes back to why I asked you those two hypothetical -- not abstract, but hypothetical cases yesterday, the 28-week and a 38-week infant, for the -- the truth is, ever since January 22, 1973, you can have an abortion for any reason you want in this country. And even though Carhart II has now been ruled, that's -- a procedure that will eliminate that pregnancy is still legal and viable everywhere in this country.

COBURN: And so what I was trying to draw out to you is, where do we stand in this country, when 80 percent of the rest of the world allows abortion only before 12 weeks, only before 12 weeks? And yet we allow it for any reason at any time for any inconvenience under the health-of-the-woman aspect.

And that's the other reason why I raised the viability because technology and the state's interest under the Supreme Court ruling starts with viability. That's when a state can have interest. It's guaranteed, and there's limited ability states can have to control that after that.

Is the Casey ruling, the undue burden ruling test, is that a policy choice? I know it's the supreme law of the land today, but in your mind, would that represent a policy choice?

SOTOMAYOR: I understood that that was the court's framework for addressing both the woman's right to terminate her pregnancy under the Constitution and the state's rights to legislate and regulate in areas within its jurisdiction. So it was the court's way of attempting to address those two interests.

COBURN: And Justice Ginsberg's not real happy with those tests and neither was -- neither are several other members on the court.
I want to end up. Our conversation, when we had a private conversation, I approached you about the importance of the cases that you decide to take if you're on the court. Let me ask you a few questions, and I just want your opinion, and I'm not trying -- this is not to put you in any box, and if you think it is, please say so -- you're trying to put me in a box.

Do you believe that the court's abortion rulings have ended the national controversy over this issue?

SOTOMAYOR: No.

COBURN: OK. You don't have to name them, but do you think there are other similarly divisive issues that could be decided by the court in the future?

SOTOMAYOR: That, I can't answer.

COBURN: I don't want you to name any. I'm just saying, as you think through your mind, do you think there are other similarly divisive issues that are -- that we could have that would divide the country so remarkably? You know, assisted suicide, euthanasia...

SOTOMAYOR: I can only answer what exists. People are very passionate about the issues they believe in. And so almost any issue could find an audience or a part of our population that's fervent about it.

COBURN: Which is a great answer because, on these divisive issues, is it better that the court decides them or elected representatives? If you find a preference, if you were king tomorrow and you said we're going to decide this either in the Supreme Court or make -- force Congress to make the decision, which would you think would be better for us?

SOTOMAYOR: In the first instance, it's always Congress or a state passing regulation that the court is reviewing and determining whether it complies with constitutional limits. So it's not a choice of either or.
It's always Congress' first interest or the state legislators' first interest with the non-veto of a...

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HATCH: So let me ask you just about a few abortion cases in which the fund filed briefs. And I do believe you're going to answer these yes or no, but again, certainly qualify if you feel like it.

I'm not asking for your present views, either personal or legal, let's get that straight, on these issues, nor am I asking how you might rule on these issues in the future. I just want to make that clear.

I might say that -- like I say, these are important issues. In one case, Williams v. Zbaraz and Harris v. McRae, the fund joined an amicus brief asking the Supreme Court to overturn restrictions on taxpayer funding for abortions.

The brief compared refusing to use Medicaid funds to pay for abortions to the Dred Scott case, the Dred Scott v. Sandford decision that refused citizenship to black people in our society and -- and treated them terribly.  At the time, did you know that the fund was filing this brief? At the time, did you -- well, let me ask you each one. At the time, did you know the fund was filing this brief?

SOTOMAYOR: No, sir.

HATCH: OK. At the time, did you know that the brief made this argument?

SOTOMAYOR: No, sir.

HATCH: At the time, did you support the fund filing this brief that made this argument?

SOTOMAYOR: No.

HATCH: At the time, did you voice any concern, objection, disagreement or doubt about the fund filing this brief or making this argument?

SOTOMAYOR: I was not like Justice Ginsburg or Justice Marshall. I was not a lawyer on the fund as they were, with respect to the organizations they belonged to. I was a board member.

And it was not my practice and not that I know of, of any board member, although maybe one with civil rights experience would have. I didn't have any in this area, so I never reviewed the briefs.

HATCH: All right. In another case, Ohio v. Akron Center for Reproductive Health, the fund argued that the First Amendment right to freely exercise religion undermines laws requiring parental notification for minors getting abortions. Now, at the time, did you know that the fund was filing this brief?

SOTOMAYOR: No, no specific brief. Obviously, it was involved in litigation, so I knew generally they were filing briefs, but I wouldn't know until after the fact that a brief was actually filed. But I wouldn't review it.

HATCH: The same questions on this. At the time, did you know that the brief made this argument? At the time, did you support the fund filing this brief that made this argument? And at the time, did you voice any concern, objection, disagreement, or doubt about the fund filing this brief or making this argument?

SOTOMAYOR: No, because I never reviewed the brief.

HATCH: That's fine. I'm just going to establish this. In another case, Planned Parenthood v. Casey, the fund argued against a 24-hour waiting period for obtaining an abortion. So, again, those questions. At the time, did you know that the fund was filing this brief? Did you know that the brief made this argument? Did you support the fund filing this brief that made this argument? And did you voice any concern, objection, disagreement or doubt about the fund filing this brief or making this argument?

SOTOMAYOR: For the same reason, no.

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July 15, 2009

Excerpts from Los Angeles Times transcripts of Day Three of the hearings:

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CORNYN: As you can tell, I'm struggling a little bit to understand how your statement about physiological differences could affect the outcome or affect judging and your stated commitment to fidelity to the law as being your sole standard and how any litigant can -- can know where that will end.

But let me ask you on another topic. There was a Washington Post story on May the 29th, 2009, where — that starts out saying, "The White House scrambled yesterday to assuage worries from liberal groups about Judge Sonia Sotomayor's scant record on abortion rights." And White House -- it goes on to say, "White House press secretary said the president did not ask Sotomayor specifically about abortion rights during their interview." Is that correct?

SOTOMAYOR: Yes, it's absolutely correct. I was asked no questions by anyone, including the president, about my views on any specific legal issue.

CORNYN: Do you know then on what basis, if that's the case -- and I accept your statement -- on what basis that White House officials would subsequently send a message that abortion rights groups do not need to worry about how you might rule in a challenge to Roe v. Wade?

SOTOMAYOR: No, sir, because you just have to look at my record to know that, in the cases that I addressed on all issues, I follow the law.

CORNYN: On what basis would George Pavia, who was apparently a senior partner in the law firm that hired you as a corporate litigator, on what basis would -- would he say that he thinks support of abortion rights would be in line with your generally liberal instincts?

He's -- he's quoted in his article saying, quote, "I can guarantee she'll be for abortion rights," close quote. On what basis would Mr. Pavia say that, if you know?

SOTOMAYOR: I have no idea, since I know for a fact I never spoke to him about my views on abortion, frankly, on my views on any social issue. George was the -- was the head partner of my firm, but our contact was not on a daily basis.

I have no idea why he's drawing that conclusion, because if he looked at my record, I have ruled according to the law in all cases addressed to the issue of termination of abortion rights -- of women's right to terminate their pregnancy. And I voted in cases in which I upheld the application of the Mexico City policy, which was a policy in which the government was not funding certain abortion-related activities.

CORNYN: Do you agree -- do you agree with his statement that you have generally liberal instincts?

SOTOMAYOR: If he was talking about the fact that I served on a particular board that promoted equal opportunity for people, the Puerto Rican Legal Defense and Education Fund, then you could talk about that being a liberal instinct in the sense that I promote equal opportunity in America and the attempts to assure that.

But he has not read my jurisprudence for 17 years, I can assure you. He's a corporate litigator. And my experience with corporate litigators is that they only look at the law when it affects the case before them. (LAUGHTER)

CORNYN: Well, I hope, as you suggested, not only liberals endorse the idea of equal opportunity in this country -- that's a -- that's a, I think, bedrock doctrine that undergirds all of our -- all of our law.
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CARDIN: Well, and I agree. I think you need to take a look at all the facts and the circumstances. And if you ignore race, you're ignoring an important point of the facts.

Let me talk a little bit about privacy, if I might. Justice Brandeis described privacy as the right to be left alone. In other words, if we must restrict this right, it must be minimal and protections must occur before any such action occurs.

The Supreme Court has advanced rights of privacy in the Meyer case, the Loving case, which established the fundamental rights of persons to raise families and to marry whom they please, regardless of race, the Lawrence case, that states could not criminalize homosexual conduct, Griswold, that allowed for family planning as a fundamental right, and, of course, Roe v. Wade, which gave women the right to control their own bodies.

I just would like to get your assessment of the role the court faces on privacy issues in the 21st century, recognizing that our Constitution was written in the 18th century and the challenges today are far different than they were when the Constitution was written as it relates to privacy. The technologies are different today, and the circumstances of life are different. How do you see privacy challenges being confronted in the 21st century in our Constitution and in the courts?

SOTOMAYOR: The right to privacy has been recognized, as you know, in a wide variety of circumstances for more than probably 90 years now, close to 100. That is a part of the court's precedents.

In applying the immutable principles of the Constitution, the liberty provision of the due process clause and recognizing that that provides a right to privacy in a variety of different settings, you've mentioned that line of cases, and there are many others in which the court has recognized that as a right.

In terms of the coming century, it's guided by those cases, because those cases provide the court's precedents and framework -- and with other cases -- to look at how we will consider a new challenge to a new law or to a new situation.

That's what precedents do. They provide a framework. The Constitution remains the same; society changes. The situations that brings before courts change, but the principles are in -- are the words of the Constitution, guided by how precedent gives or has applied those principles to each situation, and then you take that and you look at the new situation.

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TOM COBURN: Thank you, Mr. Chairman. I'd ask unanimous consent to put an article from the newspaper this morning, the Washington Times.

LEAHY: Without objection, it'll be placed in the record.

SOTOMAYOR: The law has answered a different question. It's talked about the constitutional right of women...

COBURN: I understand.

SOTOMAYOR: ... in certain circumstances. And as I indicated, the issue becomes one of, what's the state regulation in any particular circumstance?

COBURN: I understand. But all I'm asking is, should it have any bearing?

SOTOMAYOR: I can't answer that in the abstract, because the question, as it would come before me, wouldn't be in the way that you form it as a -- as a citizen. It would come to me as a judge in the context of some action that someone's taking, whether if it's the state, the state, if it's a private citizen being controlled by the state challenging that action. Those issues are...

COBURN: But viability is a portion of a lot of that. And a lot of the decisions have been made based on viability. If we now have viability at 21 weeks, why would that not be something that should be considered as we look at the status of what can and cannot happen, in terms of this right to privacy that's been granted under Roe v. Wade in cases?

SOTOMAYOR: All I can say to you is what the court's done. And the standard that the court has applied -- what factors it may or may not look at within a particular factual situation -- can't be predicted in a way to say, yes, absolutely, that's going to be considered, no, this won't be considered.

COBURN: All I'm asking is whether it should.

SOTOMAYOR: That...

COBURN: Should viability, should technology at any time be considered as we discuss these very delicate issues that have such an impact on so many people? And your answer is that you can't answer it?

SOTOMAYOR: I can't, because that's not a question that the court reaches out to answer. That's a question that gets created by a state regulation of some sort or an action by the state that may or may not, according to some claimant, place an undue burden on her. We don't make policy choices in the court. We look at the case before us with the interests that are argued by the parties, look at our precedent, and try to apply its principles to the arguments parties are raising.

COBURN: I'm reminded of one of your quotes that says you do make policy, and I won't continue that. I'm -- I'm concerned, and I think many others are. Does a state legislature have the right under the Constitution to determine what is death? Have we statutory defined in -- and we have in 50 states and most of the territories -- what is the definition of death? You -- you think that's within the realm of the Constitution that states can do that?

SOTOMAYOR: Depends on what they're applying that definition to, and so there are situations in which they might and situations where that definition would or would not have applicability to the dispute before the court. All state action is looked at within the context of what the state is attempting to do and what liabilities it's imposing.

COBURN: But you would not deny the fact that states do have the right to set up statutes that define, to give guidance to their citizen what constitutes death?

SOTOMAYOR: As I said, it depends on -- in what context they're attempting to do that.

COBURN: They're doing it so they limit the liability of others with regard to that decision, which would inherently be the right of the state legislature, as I read the Constitution. You may have a different response to that. And -- which brings me back to technology again.

As recently as six months ago, we now record fetal heartbeats at 14 days post-conception. We record fetal brainwaves at 39 days post- conception. And I don't expect you to answer this, but I do expect you to pay attention to it as you contemplate these big issues is we have this schizophrenic rule of the law where we have defined death as the absence of those, but we refuse to define life as the presence of those.

And all of us are dependent at different levels on other people during all stages of our development from the very early in the womb, outside of the womb to the very late. And it concerns me that we are so inaccurate or -- inaccurate is an improper term -- inconsistent in terms of our application of the logic.

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SPECTER: Well, I can tell you're not going to answer. Let me move on. On a woman's right to choose, Circuit Judge Luttig, in the case of Richmond Medical Center, said that "Casey v. Planned Parenthood was super stare decisis." Do you agree with Judge Luttig?

SOTOMAYOR: I don't use the word "super." I don't know how to take that word. All precedent of the court is entitled to the respect of the doctrine of stare decisis.

SPECTER: Do you think that Roe v. Wade has added weight on stare decisis to protect a woman's right to choose? By virtue of Casey v. Planned Parenthood, as Judge Luttig said?

SOTOMAYOR: That is one of the factors that I believe courts have used to consider the issue of whether or not a new direction should be taken into law. There is a variety of different factors the court uses, not just one...

SPECTER: But that is one, which will give it extra weight. How about the fact that the Supreme Court of the United States has had 38 cases after Roe v. Wade where it could have reversed Roe v. Wade? Would that add weight to the impact of Roe v. Wade to stare decisis to guarantee a woman's right to choose?

SOTOMAYOR: The history of a particular holding of the court and how the court has dealt with it in subsequent cases would be among one of the factors as many that a court would likely consider. Each situation, however, is considered in a variety of different view points and arguments and -- but most importantly, factors of the court applies to this question of should precedence be altered in a way.

SPECTER: Well, wouldn't 38 cases lend a little extra support to the impact of Roe and Casey, where the court had the issue before it, could have overruled it?

SOTOMAYOR: In Casey itself...

SPECTER: Just a little extra impact?

SOTOMAYOR: Casey itself applied, or by opinion offered by Justice Souter, talked about the factors that a court thinks about in -- whether to change precedent. And among them were issues of whether or not or how much reliance society has placed in the prior precedents? What are the costs that would be occasioned by changing it? Was the rule workable or not? Have the -- either factual or doctrinal basis of the prior precedent altered, either from developments in related areas of law or not, to counsel a re- examination of the question.

SPECTER: I'm going to move off. Go ahead.

SOTOMAYOR: And the court has considered, in other cases, the number of times the issue has arisen and what actions the court has or not taken with respect to that. Roe is the -- Roe -- Casey did reaffirm the court holding of Roe and so my understanding would be that the issues would be addressed in light of Casey, on the stare decisis today.

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FRANKEN: OK. I got you. Let me jump ahead to something. Yesterday, a member of this committee asked you a few times whether the word "abortion" appears in the Constitution, and you agreed that, no, the word "abortion" is not in the Constitution. Are the words "birth control" in the Constitution?

SOTOMAYOR: No, sir.

FRANKEN: Are -- are you sure?

SOTOMAYOR: Yes.

FRANKEN: OK. (LAUGHTER) Are the words "privacy" in the Constitution or the word?

SOTOMAYOR: The word "privacy" is not.

FRANKEN: Senators Kohl, Feinstein, and Cardin all raised the issue of privacy, but I want to hit this head on. Do you believe that the Constitution contains a fundamental right to privacy?

SOTOMAYOR: It contains, as has been recognized by the courts for over 90 years, certain rights under the liberty provision of the due process clause that extend to the right to privacy in certain situations.

This line of cases started with a recognition that parents have a right to direct the education of their children and that the state could not force parents to send their children to public schools or to bar their children from being educated in ways a state found objectionable.

Obviously, states do regulate the content of education, at least in terms of requiring certain things with respect to education that I don't think the Supreme Court has considered, but the basic -- that basic right to privacy has been recognized and was recognized. And there have been other decisions.

FRANKEN: So the issue of whether a word actually appears in the Constitution is not really relevant, is it?

SOTOMAYOR: Certainly, there are very specific words in the Constitution that have to be given direct application. There are some direct commands by the Constitution. You know, senators have to be a certain age to be senators. And so you've got to do what those words say.

But the Constitution is written in broad terms. And what a court does is then look at how those terms apply to a particular factual setting before it.

FRANKEN: OK. In Roe v. Wade, the Supreme Court found that the fundamental right to privacy included the right to decide whether or not to have an abortion. And as Senator Specter said, that's been upheld or ruled on many times. Do you believe that this right to privacy includes the right to have an abortion?

SOTOMAYOR: The court has said in many cases -- and as I think has been repeated in the court's jurisprudence in Casey -- that there is a right to privacy that women have with respect to the termination of their pregnancies in certain situations.

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July 14, 2009

Excerpts from Los Angeles Times transcripts of Day Two of the hearings:

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KOHL: Is there a general constitutional right to privacy? And where is the right to privacy, in your opinion, found in the Constitution?

SOTOMAYOR: There is a right of privacy. The court has found it in various places in the Constitution, has recognized rights under those various provisions of the Constitution. It's found it in the Fourth Amendment's right and prohibition against unreasonable search and seizures.

Most commonly, it's considered -- I shouldn't say most commonly, because search and seizure cases are quite frequent before the court, but it's also found in the 14th Amendment of the Constitution when it is considered in the context of the liberty interests protected by the due process clause of the Constitution.

KOHL: All right. Judge, the court's ruling about the right to privacy in Griswold laid the foundation for Roe v. Wade. In your opinion, is Roe settled law?

SOTOMAYOR: The court's decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled, in terms of the holding of the court.

KOHL: Do you agree with Justices Souter, O'Connor, and Kennedy in their opinion in Casey, which reaffirmed the core holding in Roe?

SOTOMAYOR: As I said, I -- Casey reaffirmed the holding in Roe. That is the Supreme Court's settled interpretation of what the core holding is and its reaffirmance of it.

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HATCH: Well, thank you, Mr. Chairman. Welcome again and to your lovely family. We're -- we're grateful to have you all here. Now, let me ask you a question about settled law. If a holding in the Supreme Court means it is settled, do you believe that -- that Gonzales v. Carhart, upholding the partial-birth abortion ban, is settled law?

SOTOMAYOR: All precedents of the Supreme Court I consider settled law, subject to the deference to doctrine of stare decisis would counsel.

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FEINSTEIN: And what we're talking about here is following precedent, so let me ask you in a difficult area of the law a question.

The Supreme Court has decided on more than seven occasions that the law cannot put a woman's health at risk. It said it in Roe in '73; in Danforth in '76; in Planned Parenthood in '83; in Thornburgh in '86; in Casey in '92; in Carhart in 2000; and in Ayotte in 2006.

With both Justices Roberts and Alito on the court, however, this rule seems to have changed, because, in 2007, in Carhart II, the court essentially removed this basic constitutional right from women.

Now, here's my question: When there are multiple precedents and a question arises, are all the previous decisions discarded, or should the court re-examine all the cases on point?

SOTOMAYOR: It's somewhat difficult to answer that question...

FEINSTEIN: I know.

SOTOMAYOR: ... because, before the court in any one case is this particular factual situation. And so how the court's precedent apply to that unique factual situation -- because often what comes before the court is something that's different than its prior decision, not always, but often.

In the Carhart case, the court looked to its precedents. And as I understood that case, it was deciding a different question, which was whether there were other means, safer means, and equally effective means for a woman to exercise her right than the procedure at issue in that case.

That was, I don't believe, a rejection of its prior precedents. Its prior precedents are still the precedents of the court. The health and welfare of a woman must be -- must be compelling consideration.

FEINSTEIN: So you believe that the health of the woman still exists...

SOTOMAYOR: It is a part...(CROSSTALK)

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GRAHAM: Do you believe the Constitution is a living, breathing, evolving document?

SOTOMAYOR: The Constitution is a document that is immutable to the sense that it's lasted 200 years. The Constitution has not changed except by amendment. It is a process -- an amendment process that is set forth in the document.

It doesn't live other than to be timeless by the expression of what it says. What changes is society. What changes is what facts a judge may get presented...

GRAHAM: What's the best way for society to change, generally speaking? What's the most legitimate way for a society to change?

SOTOMAYOR: I don't know if I can use the words "change." Society changes because there's been new development in technology, medicine, in -- in society growing.

GRAHAM: Do you think judges -- do you think judges have changed society by some of the landmark decisions in the last 40 years?

SOTOMAYOR: Well, in the last few years?

GRAHAM: 40 years.

SOTOMAYOR: I'm sorry. You said...

GRAHAM: 40, I'm sorry. 40. Do you think Roe v. Wade changed American society?

SOTOMAYOR: Roe v. Wade looked at the Constitution and decided that the Constitution, as applied to a claim's right, applied.

GRAHAM Is there anything in the Constitution that says a state legislator or the Congress cannot regulate abortion or the definition of life in the first trimester?

SOTOMAYOR: The holding of the Court as...

GRAHAM: I'm asking the Constitution. Does the Constitution, as written, prohibit a legislative body at state or federal level from defining life or relating the rights of the unborn or protecting the rights of the unborn in the first trimester?

SOTOMAYOR: The Constitution in the 14th Amendment, has a...

GRAHAM: I'm sorry. Is there anything in the document written about abortion?

SOTOMAYOR: The word "abortion" is not used in the Constitution, but the Constitution does have a broad provision concerning a liberty provision under the due process...

GRAHAM: And that gets us to the speeches. That broad provision of the Constitution that's taken us from no written prohibition protecting the unborn, no written statement that you can't voluntarily pray in school, and on and on and on and on, and that's what drives us here, quite frankly. That's my concern. And when we talk about balls and strikes, maybe that's not the right way to talk about it.

But a lot of us feel that the best way to change society is to go to the ballot box, elect someone, and if they are not doing it right, get rid of them through the electoral process. And a lot of us are concerned from the left and the right that unelected judges are very quick to change society in a way that's disturbing. Can you understand how people may feel that way?

SOTOMAYOR: Certainly, sir.

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GRAHAM: OK. Are you familiar with the position that the fund took regarding taxpayer-funded abortion? The briefs they filed?

SOTOMAYOR: No, I never reviewed those briefs.

GRAHAM: Well, in their briefs, they argued, and I will submit the quotes to you, that if you deny a low-income woman Medicaid funding, taxpayer funds, to have an abortion, if you deny her that, that's a form of slavery. And I can get the quotes. Do you agree with that?

SOTOMAYOR: I wasn't aware of what was said in those briefs. Perhaps it might be helpful if I explained what the function of a board member is and what the function of the staff would be in an organization like the fund.

GRAHAM: OK.

SOTOMAYOR: In a small organization as the Puerto Rican Legal Defense Fund was back then, it wasn't the size of other legal defense funds, like the NAACP Legal Defense Fund, or the Mexican-American Legal Defense Fund, which are organizations that undertook very similar work to PRLDF.

In an organization like PRLDF, a board member's main responsible is to fundraise. And I'm sure that a review of the board meetings would show that that's what we spent most of our time on. To the extent that we looked at the organization's legal work, it was to ensure that it was consistent with the broad mission statement of the fund.

GRAHAM: Did the mission statement of the fund to include taxpayer-funded abortion?

SOTOMAYOR: Our mission...

GRAHAM: Was that one of the goals?

SOTOMAYOR: Our mission statement was broad, like the Constitution.

GRAHAM: Yes.

SOTOMAYOR: Which meant that its focus was on promoting the equal opportunities of Hispanics in the United States.

GRAHAM: Well, Judge, I've got -- and I'll share them with you, and we'll talk about this more, a host of briefs for a 12-year period, where the fund is advocating to the state court and the federal courts, that to deny a woman taxpayer funds, a low-income woman taxpayer assistance in having an abortion, is a form of slavery, it's an unspeakable cruelty to the life and health of a poor woman. Was it or was it not the position of the fund to advocate taxpayer-funded abortions to low-income women?

SOTOMAYOR: I wasn't -- and I didn't, as a board member, review those briefs. Our lawyers were charged...

GRAHAM: Would it bother you if that's what they did?

SOTOMAYOR: Well, I know that the fund, during the years I was there, was involved in public health issues as it affected the Latino community. It was involved...

GRAHAM: Is abortion a public health issue?

SOTOMAYOR: Well, it was certainly viewed that way generally by a number of...

GRAHAM: Do you...

SOTOMAYOR: ... civil rights organizations at the time.

GRAHAM: Do you personally view it that way?

SOTOMAYOR: It wasn't a question of whether I personally viewed it that way or not. The issue was whether the law was settled on what issues the fund was advocating on behalf of the community it represented.
And...

GRAHAM: Well, the fund -- oh, I'm sorry. Go ahead.

SOTOMAYOR: And so, the question would become, was there a good faith basis for whatever arguments they were making, as the fund's lawyers were lawyers...

GRAHAM: Well, yes...

SOTOMAYOR: ... who had an ethical obligation...

GRAHAM: And quite frankly, that's, you know -- lawyers are lawyers. And people who have causes that they believe in have every right to pursue those causes.

And the fund, when you look -- you may have been a board member, but I am here to tell you, that file briefs constantly for the idea that taxpayer-funded abortion was necessary, and to deny it would be a form of slavery, challenged parental consent as being cruel.

...

GRAHAM: We'll give you a chance to look at some of the things I'm talking about, because I want you to be aware of what I'm talking about.

Let me ask you this. I've got 30 seconds left. If a lawyer on the on the other side filed a brief in support of the idea that abortion is the unnecessary and unlawful taking of an innocent life and public money should never be used for such a heinous purpose, would that disqualify them, in your opinion, from being a judge?

SOTOMAYOR: An advocate advocates on behalf of the client they have. And so that's a different situation than how a judge has acted in the cases before him or her.

...

July 13, 2009

Senate Judiciary Committee begins hearings and questioning of Judge Sotomayor.  Hearings are expected to last until Thursday (7/16).

July 1, 2009

A pro-abortion Hispanic advocacy group delivered over 350 pages of documents to the U.S. Senate committee tasked with review of Judge Sotomayor.  The documents date from when Sotomayor was a board member of the group between 1980 and 1982.  During that time period, the group opposed Supreme Court nominee Robert Bork as well as filed pro-abortion briefs in five abortion-related cases that came before the court.  Several of the briefs took positions even more extreme than Roe vs. Wade.  It is unknown how much involvement Sotomayor had in the day to day running of the organization.

June 9, 2009

Senator Jim DeMint (R-S.C.) meets with Judge Sotomayor regarding her nomination.  DeMint asked her if she thought the unborn had any rights.  She replied that she had never thought about that before.

May 28, 2009

In response to press inquiries regarding what questions President Obama asked Judge Sotomayor before she was nominated, White Press Secretary Robert Gibbs replies that the President is "very confortable" regarding her views on the Constitution and the "right to privacy."

Pro-Life observers remember then-Senator Obama's oft-repeated promises during the presidential campaign that he would only appoint someone to the Supreme Court that supported Roe vs. Wade.

May 26, 2009

National Right to Life responds to Judge Sotomayor's nomination:

What we have seen of Judge Sotomayor's record so far sheds little light on her views regarding how the Constitution bears on the powers of elected lawmakers to protect the right to life of unborn children.

Members of the Senate should not be pressured to act on this nomination with undue haste.  We believe it is critical that senators thoroughly explore whether Judge Sotomayor believes that Supreme Court justices have the right to override the decisions of elected lawmakers on such issues as partial-birth abortion, tax funding of abortion, and parental notification for abortion. 

Moreover, in the years ahead debates will intensify on other public policy issues bearing on the right to life –for example, the status of humans who are created by human cloning, or the permissibility of abortion as a method of preventing the birth of a child of an undesired sex.  Does Judge Sotomayor believe that Supreme Court justices have the right to declare that the Constitution empowers them to impose their own opinions on all such matters, or is she willing to allow the decisions of elected lawmakers to stand except where they violate a clear and explicit prohibition in the actual Constitution?

There are currently four justices on the U.S. Supreme Court who apparently believe that their strong pro-abortion opinions should override the judgments of elected lawmakers, despite the complete lack of support for their position in the text and history of the Constitution.  In its most recent ruling dealing with abortion and the rights of unborn children, Gonzales v. Carhart, on April 18, 2007, a five-justice majority upheld the Partial-Birth Abortion Ban Act.  On that occasion, four justices dissented – including Justice David Souter – and argued for a constitutional doctrine that would have invalidated the ban on partial-birth abortions and also, by implication, condemned virtually any other law or government policy intended to discourage abortion.   If the dissenters’ position became the position of the majority of the Supreme Court, various types of laws that have been deemed permissible under Roe v. Wade could be invalidated by judicial decree, perhaps including the Hyde Amendment (restricting government funding of abortion) and parental notification laws.

It is, then, very appropriate for senators to press for Judge Sotomayor's views on the analysis adopted by the dissenters in Gonzales, an analysis that could bar virtually all limitations on abortion.

Pro-life concerns are reinforced by the knowledge that Judge Sotomayor has been nominated to the Supreme Court by a president who himself criticized the Supreme Court majority for upholding the ban on partial-birth abortion, who previously had opposed a bill to recognize all babies born alive during abortions as fully protected by law, and who endorsed a proposed federal law (the "Freedom of Choice Act") that has as its major purpose the invalidation of virtually all of the types of abortion regulations that have been upheld by the Supreme Court as consistent with Roe v. Wade.

-- NRLC Legislative Director Douglas Johnson

May 26, 2009

Emily's List, the nation's largest pro-abortion political action committee, announces their support for Judge Sotomayor's nomination:

"I strongly commend President Obama's nomination of Judge Sonia Sotomayor to the Supreme Court of the United States...Judge Sotomayor will help add balance to the court and her unique perspective will help ensure that women's rights are protected and that their experiences continue to play a role in the highest court in the land..."

May 26, 2009

Cecile Richards, President of Planned Parenthood, the nation's largest abortion provider, announces the organization's support for Judge Sotomayor's nomination.

May 26, 2009

President Barack Obama nominates Judge Sonia Sotomayor to replace Justice David Souter on the United States Supreme Court.

May 1, 2009

Supreme Court Justice David Souter announces he will retire from the court at the end of the current session in June 2009.