[Congressional Record: July 8, 2009 (Senate)]
[Page S7222-S7224]
SOTOMAYOR NOMINATION
Mr. SPECTER. Mr. President, I have sought recognition to discuss,
first of all, the pending nomination of Judge Sonia Sotomayor for the
Supreme Court of the United States.
Judge Sotomayor comes to this nomination with impeccable credentials:
summa cum laude at Princeton; Yale Law School; was on the Yale Law
Journal; had a distinguished career in private practice; an assistant
district attorney with DA Morgenthau in Manhattan; service on a U.S.
District court, a trial court; and now serves on the Court of Appeals
for the Second Circuit.
The conventional wisdom is that Judge Sotomayor will be confirmed.
But notwithstanding the conventional wisdom, under the Constitution it
is the responsibility of the Senate, on its advice and consent
function, to question the nominee to determine how she would approach
important issues. It also presents a good opportunity to shed some
light on the operations of the Supreme Court of the United States in an
effort to improve those operations.
It has been my practice recently to write letters to the nominees in
advance, as I discussed it with Judge Sotomayor during the so-called
courtesy visit I had with her, and she graciously consented to respond
or to receive the letters and was appreciative of the opportunity to
know in advance the issues which would be raised.
Sometimes if an issue comes up fresh, the nominee does not know the
case or does not know the issue and may be compelled to say: Well, let
me consider that, and I will get back to you. So this enables us at the
hearings
[[Page S7223]]
to move right ahead into the substantive materials.
The first letter I wrote involved congressional power and the
adoption by the Supreme Court of a test on congruence and
proportionality, which Justice Scalia called the ``flabby test,'' which
enables the Court to, in effect, legislate.
The second letter involved the prospect of televising the Supreme
Court to grant greater access to the public to understand what the
Supreme Court does.
And the third letter, which I sent to Judge Sotomayor yesterday,
involves the issue of the Court's backlog and the opportunities for the
Court to take on more work.
Chief Justice Roberts, in his confirmation hearings, noted that the
Court ``could contribute more to the clarity and uniformity of the law
by taking more cases.''
The number of cases the Supreme Court decided in the 19th century
shows it is possible to take up more cases. In 1870, the Court had 636
cases on the docket, decided 280; in 1880, the Court had 1,202 cases on
the docket, decided 365; in 1886, the Court had 1,396 cases on the
docket, decided 451.
Notwithstanding what Chief Justice Roberts said in his confirmation
hearing, during his tenure the number of cases has continued to
decline. In the 1985 term, there were 161 signed opinions. In the 2007
term, with Chief Justice Roberts in charge, there were only 67 decided
cases.
The Court has what is called a ``cert. pool,'' where seven of the
nine Justices--excluding only Justice Stevens and Justice Alito--have
their clerks do the work, suggesting that the Justices spend little
time if any on the cert. petitions except to examine a memo in this
sort of a pool, raising questions as to whether that is adequate on
individualized justice with the individual Justices considering these
issues. The Justices can't consider the thousands of cases which are
filed, but there may be a better system, as Justice Stevens and Justice
Alito have it, with their taking their own individual responsibility.
There is another major problem in the Court and that is its failure
to take on cases where the courts of appeals for the circuits are
split. There are many such cases. In my letter to Judge Sotomayor, I
have identified some. Illustrative of the cases are important issues
such as mandatory minimums for the use of a gun in drug trafficking or
the propriety of a jury consulting the Bible during its deliberations.
Justice Scalia, in dissenting on one of the refusals to take up a case
with a circuit split, said this--dissenting, Justice Scalia wrote:
In light of the conflicts among the circuits, I would grant
the petition for certiorari and squarely confront both the
meaning and the constitutionality of the section involved.
He went on to say:
Indeed, it seems to me quite irresponsible to let the
current chaos prevail.
Well, that is the kind of chaos which prevails when two circuits
split. The case may come up in another circuit where the precedents are
divided, and it seems to me that the Court ought to take up the issues.
That could be ameliorated by a change in the rules. Four Justices must
agree to hear a case, and I intend to ask Judge Sotomayor her views on
this subject and on her willingness, perhaps, to be interested in
taking cases with only three Justices or perhaps two Justices.
The refusal of the Court to take up these major cases is very
serious, illustrated by its denial of consideration of perhaps the
major--or at least a major--conflict between the power of Congress
under article I of the Constitution to enact the Foreign Intelligence
Surveillance Act, which provided for the exclusive means to have
wiretap warrants issued, contrasted with President Bush's warrantless
wiretap procedures under the terrorist surveillance program. The
Detroit District Court found the terrorist surveillance program
unconstitutional. The Sixth Circuit decided it would not decide the
case by finding a lack of standing. In the letter to Judge Sotomayor, I
cite the reasoning of the dissenting judge, showing the flexibility of
the standing doctrine. Then the Supreme Court of the United States
decides not to decide the case. It so happens, in so many matters, what
the Court decides not to decide may well be more important than what
the Court actually does decide.
These are issues which I intend to take up with Judge Sotomayor. I
ask unanimous consent that the text of my letter to Judge Sotomayor be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, July 7, 2009.
Hon. Sonia Sotomayor,
c/o The Department of Justice,
Washington, DC.
Dear Judge Sotomayor: As noted in my letters of June 15 and
June 25, I am writing to alert you to subjects which I intend
to cover at your hearing. During our courtesy meeting you
noted your appreciation of this advance notice. This is the
third and final letter in this series.
The decisions by the Supreme Court not to hear cases may be
more important than the decisions actually deciding cases.
There are certainly more of them. They are hidden in single
sentence denials with no indication of what they involve or
why they are rejected. In some high profile cases, it is
apparent that there is good reason to challenge the Court's
refusal to decide.
The rejection of significant cases occurs at the same time
the Court's caseload has dramatically decreased, the number
of law clerks has quadrupled, and justices are observed
lecturing around the world during the traditional three-month
break from the end of June until the first Monday in October
while other Federal employees work 11 months a year.
During his Senate confirmation hearing, Chief Justice John
G. Roberts, Jr. said the Court ``could contribute more to the
clarity and uniformity of the law by taking more cases.''
i The number of cases decided by the Supreme Court
in the 19th century shows the capacity of the nine Justices
to decide more cases. According to Professor Edward A.
Hartnett: ``. . . in 1870, the Court had 636 cases on its
docket and decided 280; in 1880, the Court had 1,202 cases on
its docket and decided 365; and in 1886, the Court had 1,396
cases on its docket and decided 451.'' ii The
downward trend of decided case is noteworthy since 1985 and
has continued under Chief Justice Roberts' leadership. The
number of signed opinions decreased from 161 in the 1985 term
to 67 in the 2007 term.iii
It has been reported that seven of the nine justices,
excluding Justices Stevens and Alito, assign their clerks to
what is called a ``cert. pool'' to review the thousands of
petitions for certiorari. The clerk then writes and
circulates a summary of the case and its issues suggesting
justices' reading of cert. petitions is, at most, limited.
At a time of this declining caseload, the Supreme Court has
left undecided circuit court splits of authority on many
important cases such as: 1) The necessity for an agency head
to personally assert the deliberative process privilege;
iv
2) Mandatory minimums for use of a gun in drug
trafficking;v
3) Equitable tolling of the Federal Tort Claims Act's
statute of limitations period,vi
4) The standard for deciding whether a Chapter 11
bankruptcy may benefit from executory
contracts;vii
5) Construing the honest services provisions of fraud
law;viii and
6) The propriety of a jury consulting the Bible during
deliberations.ix
One procedural change for the Court to take more of these
cases would be to lower the number of justices required for
cert. from four to three or perhaps even to two.
Of perhaps greater significance are the high-profile, major
constitutional issues which the court refuses to decide
involving executive authority, congressional authority and
civil rights. A noteworthy denial of cert. occurred in the
Court's refusal to decide the constitutionality of the
Terrorist Surveillance Program which brought into sharp
conflict Congress' authority under Article I to establish the
exclusive basis for wiretaps under the Foreign Intelligence
Surveillance Act with the President's authority under Article
II as Commander in Chief to order warrantless wiretaps.
That program operated secretly from shortly after 9/11
until a New York Times article in December 2005. In August
2006, the United States District Court for the Eastern
District of Michigan found the program
unconstitutional.x In July 2007, the Sixth Circuit
reversed 2-1, finding lack of standing.xi The
Supreme Court then denied certiorari.xii
The dissenting opinion in the Sixth Circuit demonstrated
the flexibility of the standing requirement to provide the
basis for a decision on the merits. Judge Gilman noted, ``the
attorney-plaintiffs in the present case allege that the
government is listening in on private person-to-person
communications that are not open to the public. These are
communications that any reasonable person would understand to
be private.'' xiii After analyzing the standing
inquiry under a recent Supreme Court decision, Judge Gilman
would have held that, ``[t]he attorney-plaintiffs have thus
identified concrete harms to themselves flowing from their
reasonable fear that the TSP will intercept privileged
communications between themselves and their clients.''
xiv On a matter of such importance, the Supreme
Court could at least have granted certiorari and decided that
standing was a legitimate basis on which to reject the
decision on the merits.
[[Page S7224]]
On June 29, 2009, the Supreme Court refused to consider the
case captioned In re Terrorist Attacks on September 11,
2001,xv in which the families of the 9/11 victims
sought damages from Saudi Arabian princes personally, not as
government actors, for financing Muslim charities knowing
those funds would be used to carry out Al Qaeda jihads
against the United States.xvi The plaintiffs
sought an exception to the sovereign immunity specified in
the Foreign Sovereign Immunities Act of 1976. Plaintiffs'
counsel had developed considerable evidence showing Saudi
complicity. Had the case gone forward, discovery proceedings
had the prospect of developing additional incriminating
evidence.
My questions are:
1) Do you agree with the testimony of Chief Justice Roberts
at his confirmation hearing that the Court ``could contribute
more to clarity and uniformity of the law by taking more
cases?''
2) If confirmed, would you favor reducing the number of
justices required to grant petitions for certiorari in
circuit split cases from four to three or even two?
3) If confirmed, would you join the cert. pool or follow
the practice of Justices Stevens and Alito in reviewing
petitions for cert. with the assistance of your clerks?
4) Would you have voted to grant certiorari in the case
captioned In re Terrorist Attacks on September 11, 2001?
5) Would you have voted to grant certiorari in A.C.L.U. v.
N.S.A.--the case challenging the constitutionality of the
Terrorist Surveillance Program?
Sincerely,
Arlen Specter.
ENDNOTES
i Confirmation Hearing on the Nomination of John
G. Roberts, Jr. to Be Chief Justice of the United States:
Hearing Before the S. Comm. on the Judiciary, 109th Cong. 337
(2005) (statement of John G. Roberts Jr.).
ii Edward A. Hartnett, ``Questioning Certiorari:
Some Reflections Seventy-Five Years After the Judges' Bill,''
100 Colum. L. Rev. 1643, 1650 (Nov. 2000).
iii See Kenneth W. Starr, The Supreme Court and
Its Shrinking Docket: The Ghost of William Howard Taft, 90
Minn. L. Rev. 1363, 1368 (May 2006); Supreme Court of the
United States, 2008 Year-End Report on the Federal Judiciary,
Dec. 31, 2008, available at http://www.supremecourtus.gov/
publicinfo/year-end/2008year-endreport.pdf.
iv See Dep't of Energy v. Brett, 659 F.2d 154,
156 (Temp. Emer. Ct. App. 1981) (holding that the trial court
erred in ruling the deliberative process privilege could only
be invoked by an Agency head); Marriott Int'l Resorts, L.P.,
v. United States, 437 F.3d 1302, 1306-08 (Fed. Cir. 2006)
(finding that it was proper for IRS Commissioner to delegate
responsibility for invoking deliberative process privilege to
Assistant Chief Counsel); Landry v. Fed. Deposit Ins. Corp.,
204 F.3d 1125, 1135-36 (D.C. Cir. 2000) (commenting that
lesser officials can invoke the deliberative process and law
enforcement privileges), cert. denied, 531 U.S. 924 (Oct. 10,
2000); Branch v. Phillips Petroleum Co., 638 F.2d 873, 882-83
(5th Cir. 1981) (commenting that, while United States v.
Reynolds, 345 U.S. 1 (1953), indicates that Agency head must
invoke, the EEOC sufficiently complied when the director of
its Houston office, a subordinate, invoked the privilege on
the EEOC's behalf). Contra United States v. O'Neill, 619 F.2d
222, 225 (3d Cir. 1980) (rejecting invocation of executive
privilege by an attorney rather than the department head).
v See United States v. Brown, 449 F.3d 154, 155
(D.C. Cir. 2006) (considering increasing progression of
penalties in the statute to imply an intent requirement in
provision penalizing discharge of a firearm during commission
of a crime of violence); United States v. Dare, 425 F.3d 634,
641 n. 3 (9th Cir. 2005) (noting that `` `discharge' requires
only a general intent''). Contra United States v. Dean, 517
F.3d 1224, 1230 (11th Cir. 2008) (finding Brown reasoning
unpersuasive ``because discharging a firearm, regardless of
intent, presents a greater risk of harm than simply
brandishing a weapon without discharging it''); United States
v. Nava-Sotelo, 354 F.3d 1202, 1204-05 (10th Cir. 2003)
(finding the plain language of the statute to require
mandatory minimum sentence even if discharge was accidental
or involuntary).
vi Compare Gonzalez v. United States, 284 F.3d
281, 288 (1st Cir. 2002) (noting that it ``has repeatedly
held that compliance with this statutory requirement is a
jurisdictional prerequisite to suit that cannot be waived'')
(citations omitted) with Valdez ex rel. Donely v. United
States, 518 F.3d 173, 185 (2d Cir. 2008) (declining to
determine whether to apply equitable tolling to the FTCA
statute of limitations); and Hughes v. United States, 263
F.3d 272, 277-78 (3d Cir. 2001) (holding that the FTCA's
statute of limitations is non-jurisdictional and applying
equitable tolling).
vii Compare N.C.P. Marketing Group, Inc. v. BG
Star Productions, Inc., 279 Fed.Appx. 561 (9th Cir. 2008),
cert. denied, N.C.P. Marketing Group, Inc. v BG Star
Productions, Inc., 129 S.Ct. 1577 (Mar. 23, 2009) (affirming
lower court decision, which used ``hypothetical test'' to
``examin[e] whether, hypothetically without looking to the
individual facts of the case, any executory contracts could
be assumed under applicable federal law,'' N.C.P. Marketing
Group, Inc. v. Blanks, 337 B.R. 230, 234 (D. Nev. 2005)); In
re James Cable Partners, L. P., 27 F.3d 534, 537-38 (11th
Cir. 1994) (using ``hypothetical test''); and In re West
Electronics, Inc., 852 F.2d 79, 83 (3rd Cir. 1988) (same);
with In re Sunterra Corp., 361 F.3d 257, 262 (4th Cir. 2004)
(using ``actual test,'' under which ``a court must make a
case-by-case inquiry into whether the nondebtor party would
be compelled to accept performance from someone other than
the party with whom it had originally contracted, and a
debtor would not be preclude from assuming a contract unless
it actually intended to assign the contract to a third
party'' (emphasis in original)).
viii Compare United States v. Sorich, 523 F.3d
702, 707 (7th Cir. 2008), cert denied Sorich v. United
States, 129 S.Ct. 1308 (Feb. 23, 2009) (``[m]isuse of office
(more broadly, misuse of position) for private gain is the
line that separates run-of-the-mill violations of state-law
fiduciary duty . . . from federal crime'' (quoting United
States v. Bloom, 459 F.3d 509, 520-21 (7th Cir. 1998); with
United States v. Brumley, 116 F.3d 728, 735 (5th Cir. 1997)
(concluding that the statute ``applies to deprivations of
honest services by state employees and that such services
must be owed under state law''); and United States v.
Panarella, 277 F.3d 678, 692 (3rd Cir. 2002) (rejecting
``personal gain'' as a requisite motivation of the crime).
Dissenting in the Sorich cert. denial, Justice Scalia
wrote, ``In light of the conflicts among the Circuits; the
longstanding confusion over the scope of the statute; and the
serious due process and federalism interests affected by the
expansion of criminal liability that this case exemplifies, I
would grant the petition for certiorari and squarely confront
both the meaning and the constitutionality of Sec. 1346.
Indeed, it seems to me quite irresponsible to let the current
chaos prevail.'' 129 S.Ct. at 1311.
ix Compare Oliver v. Quarterman, 541 F.3d 329,
340 (5th Cir. 2008), cert. denied, Oliver v. Quarterman, 129
S.Ct. 1985 (Apr. 20, 2009) (holding that jury consultation of
a Bible amounted to an unconstitutional outside influence on
its deliberations); and McNair v. Campbell, 416 F.3d 1291,
1307-09 (11th Cir. 2005) (noting that the use of a Bible
during jury deliberations was presumptively prejudicial but
that the state had ``easily carried its burden of rebutting
the presumption of prejudice.''); with Robinson v. Polk, 438
F.3d 350, 363-65 (4th Cir. 2006) (holding that the lower
court did not act unreasonably when it denied a defendant's
claim that he was prejudiced by the jury's reading of the
Bible during its deliberations, noting, ``Unlike [private
communications], which impose pressure upon a juror apart
from the juror himself, the reading of Bible passages invites
the listener to examine his or her own conscience from
within.'').
x American Civil Liberties Union v. National
Security Agency (``A.C.L.U v. N.S.A.''), 438 F.Supp.2d 754
(E.D.Mich. 2006) (Anna Diggs Taylor, J.).
xi A.C.L.U. v. N.S.A., 493 F.3d 644 (6th Cir.
2007).
xii i 128 S.Ct. 1334 (2008).
viii 493 F.3d at 697.
xiv Id.
xv 538 F.3d 71 (2d Cir. 2008).
xvi Federal Ins. Co. v. Kingdom of Saudi Arabia,
--S.Ct.--, 2009 WL 1835181 (Jun. 29, 2009).
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