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Statement of Michael B. Enzi
August 5, 2009

Mr. President, I rise today to discuss the nomination of Judge Sonia Sotomayor to serve as an Associate Justice of the United States Supreme Court.  Judge Sotomayor has a long career as a jurist with many cases for Senators to review and determine how she may address cases brought before the Supreme Court.  Judge Sotomayor is clearly an accomplished attorney and intelligent person who overcame many obstacles and came from a humble beginning to rise to this nomination.  However, in that long record I’ve found a tendency to at times place more emphasis on personal experience than the most fundamental parts of our Constitution.

I must oppose Judge Sotomayor’s nomination.

I am concerned about Judge Sotomayor’s past rulings and statements during the Senate Judiciary Committee hearings about the Second Amendment as a fundamental right.  The Supreme Court’s ruling in 2008 in the Heller case confirmed that the Second Amendment's right to keep and bear arms includes the right of American citizens to have weapons for personal self defense.  The Supreme Court has not yet reviewed an incorporation case involving the Second Amendment, but its Second Amendment opinion last year noted that a due process analysis is now required.  Earlier this year, when Judge Sotomayor and the Second Circuit Court of Appeals ruled on a Maloney v. Cuomo determining that the Second Amendment is not a fundamental right, they relied on rulings from the 1800s rather than following the 2008 Supreme Court ruling.

The Second Amendment of our Constitution guarantees the fundamental right of an individual to keep and bear arms.  This is clear to me and a clear legal precedent set by the Supreme Court.

As a father and grandfather, who strongly believes in the rights of the unborn, I am also troubled by Judge Sotomayor’s past affiliation and leadership of an organization, the Puerto Rican Defense and Education Fund, which has taken positions on abortion that I find unsettling.  Judge Sotomayor’s case record does not include direct rulings on abortion issues so we must look at her history with this organization.  The Fund, while Judge Sotomayor served in a leadership capacity, filed briefs with the Supreme Court not only supporting abortion rights, but in support of federal funds for abortion services.  I could not disagree more with these positions and I cannot help but wonder how Judge Sotomayor would use her experiences with the Fund to rule on a possible case before the Supreme Court.  Unfortunately, she would not provide a satisfactory answer or position when my colleague from Oklahoma, Senator Coburn, asked her direct questions during the Judiciary Committee process.

The issue of international law is another area of concern.  Judge Sotomayor has stated that ideas have no boundaries, but we must remember that nations do have boundaries as well as laws that govern actions within those boundaries.  The U.S. Constitution is the highest law of our land and the basis of our nation’s sovereignty.  It may be good and well for academics to discuss international laws, or even domestic laws of other countries, as they compare to the United States, but when making a ruling, a member of the United States Judicial Branch must rely on the laws of this nation.

Finally, I would like to address the issue of judicial impartiality.  Judge Sotomayor’s statements about her ability to judge cases better than others based on her background are certainly troublesome.  These statements have been vetted in the Judiciary Committee and certainly through the media.  The statements warrant further discussion, however.  As public figures, I, and the rest of my colleagues, may be faced with situations where a comment can be taken out of context.  A comment that is repeatedly used in prepared remarks, however, should be interpreted as showing the true thoughts and beliefs of the speaker.

I believe the United States is a great nation because of the foundation of our government, one element of which is an independent Judicial Branch where we believe that Justice is blind.  This is a critical element of our system and a part of the judicial oath.  I can agree that our personal backgrounds lead us to look at situations differently, but I cannot agree that judges should allow their backgrounds to determine a case.  Judicial decisions must be based on facts.  When the facts or the Constitution come into conflict with Judge Sotomayor’s feelings and past experiences, I’m not confident which side she will ultimately take.

I voted against Judge Sotomayor’s nomination in 1998 to the Second Court of Appeals.  At that time, I shared the concern of many of my colleagues about Judge Sotomayor’s positions and her view of the role of the Judiciary.  While I hold Judge Sotomayor in the highest respect, I believe my concerns then are borne out by her record now.  I have no reason to believe anything will change in the future.

I understand that Judge Sotomayor has support from many of my colleagues and I hope they will listen to the concerns I and others are raising.  I hope they will take the time to fully consider the impact of Judge Sotomayor’s positions on future decisions of the Supreme Court as the Court’s decisions will affect our entire nation.

I yield the floor.