Mr. President, I want to begin by thanking the members of the Judiciary Committee for conducting a thorough, fair, and respectful confirmation hearing.  Judge Sotomayor herself stated that the hearing was as gracious and fair as she could have hoped.  I consider that statement to be a tribute to Senators Leahy, Sessions, and the Committee members and their staffs, and I commend them.

Article II, Section, II of the Constitution states the President shall nominate – by and with the Advice and Consent of the Senate – Judges of the Supreme Court.  The Constitutional duty of “advice and consent” given to the Senate is of profound importance, particularly when considering a lifetime appointment to the nation’s highest court.  In reviewing Judge Sotomayor’s nomination, I have taken this obligation very seriously.

Following Judge Sotomayor’s nomination by the president, I – like nearly all of my colleagues in this chamber – had a private, one-on-one meeting with her.  We had a very cordial conversation – one in which I found Judge Sotomayor to be likeable and gracious.  I appreciated learning more about her background.  Make no mistake, Judge Sotomayor has a great personal and professional story to tell.  She is proud of it – and she certainly should be. 

But in the instance of a Supreme Court nominee, the Constitutional duty of “advice and consent” given to the Senate is not about personalities, likeability, or life stories.  It is about judicial philosophy, an adherence to impartiality, and fidelity to the law. 

After careful consideration of her record, I was left with a number of irreconcilable concerns.  I am deeply troubled by what I see as Judge Sotomayor’s aversion to impartiality.  The judicial oath requires judges to “administer justice without respect to persons, and do equal right to the poor and to the rich and faithfully and impartially discharge and perform all the duties incumbent upon them under the Constitution and laws of the United States.”  To be clear: the oath requires judges  to impartial – without respect to their social, moral, or political views – apply the law to the facts before them.  In other words, to provide Equal Justice under the Law.

Yet, Judge Sotomayor appears to believe in a legal system where decisions are based upon personal experiences and group preferences, not the letter of the law.  Judge Sotomayor has said on repeated occasions that she “willingly accepts that judges must not deny the differences resulting from experience and heritage but attempt, continuously to judge when those opinions, sympathies, and prejudices are appropriate.”  These are her own words.  She has stated many times during more than a decade that her background and personal experiences will affect the facts she chooses to see as a judge.  In our brief meeting in June, Judge Sotomayor stated this notion a slightly different way by saying her Latina heritage caused her to “listen a different way.”  Mr. President, I find these to be disconcerting statements which seem to conflict with the impartiality that I – and an overwhelming majority of Americans – believe is essential to our judicial system and even the very bedrock principles that our nation was founded upon.

In looking at her rulings, I noted that the Supreme Court has disagreed with Judge Sotomayor in nine out of ten cases it has reviewed, and affirmed her in the remaining case by a narrow 5-4 margin.  This record was demonstrated most recently in the Ricci case where a majority of justices on the Supreme Court rejected Judge Sotomayor’s panel decision.  This is a case in which a group of firefighters who had studied for months and passed a test were denied promotion because not enough minority firefighters had done as well.  In a one- paragraph, unsigned, and unpublished cursory opinion, Judge Sotomayor summarily – almost casually – dismissed the claims of these firefighters who had worked hard for a promotion.  

When discussing the qualifications he would look for in replacing Justice Souter, President Obama said, “I view the quality of empathy, of understanding and identifying with people’s homes and struggles as an essential ingredient for arriving at just decisions and outcomes.”  Empathy is a great personal virtue, but there is a difference between empathy as a person and empathy as a judge.  Judges should use the law and the law only – not their personal experiences or personal view or empathy.  Personal biases and empathy have no place in reaching a just conclusion under the law.   Ricci is an example of where Judge Sotomayor clearly failed this important test.  

In addition, I am deeply concerned about Judge Sotomayor’s decision in Maloney v. Cuomo, a Second Amendment case that could very easily be decided by the Supreme Court in the next year.  In last year’s Heller decision, the Supreme Court ruled that the Second Amendment guarantees an individual right to keep and bear arms.  Yet, in Maloney, Judge Sotomayor relied on Nineteenth Century cases  - arguably superseded after Heller -  to summarily hold that the Second Amendment does not apply to the States.   If Judge Sotomayor’s decision is allowed to stand, the states will be able to place strict prohibitions on the ownership of guns and other arms.  In refusing to confirm that the Second Amendment – a right clearly enumerated in the Bill of Rights – is a fundamental right that applies to all 50 states – and thus to all Americans – Judge Sotomayor shows an alarming hostility to law-abiding gun owners across the country.  That is a view that is certainly out of the mainstream in this nation. 

What is perhaps even more troubling is that Maloney is another example where Judge Sotomayor joined an unsigned, cursory panel decision.  If she is confirmed to the Supreme Court, Judge Sotomayor will routinely hear cases raising fundamental constitutional issues, such as Maloney.  Those are the types of cases the Supreme Court hears.  That is why issues of this nature make it to the Supreme Court.  And yet, Judge Sotomayor has a record of routinely dismissing such cases with difficult constitutional questions of exceptional importance to Americans with little or no analysis. 

As an Appeals Court judge, Judge Sotomayor and her rulings are subject to a safety net:  her cases can be reviewed by the Supreme Court.  In Ricci, the firefighters whose promotions were denied could appeal the decision and receive impartial justice.  There is no backstop to the Supreme Court.  Therefore, Judge Sotomayor’s elevation to our nation’s highest court takes on much more significance than her previous selection to the Appeals Court. 

Let me be clear:  I have tremendous respect for Judge Sotomayor’s life story and professional accomplishments.  I commend her for her achievements, and I wish her well in the future. 
However, I am not convinced that she understands the proper role of the courts in our legal system.  Her record and her pronouncements are those of someone who sees the court as a place to legislate and make policy.

I am not convinced that Judge Sotomayor truly believes in the bedrock of our judicial system – which is impartiality of the law.

Therefore, I must withhold my consent and vote “no” on her confirmation.