[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 

[[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 
  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; 
       2) Mandatory minimums for use of a gun in drug 
       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 
       5) Construing the honest services provisions of fraud 
     law;viii and
       6) The propriety of a jury consulting the Bible during 
       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 
       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 
       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?
                                                    Arlen Specter.


       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/
       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 
       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. 
       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).