Identity politics involves a sense of grievance against the majority, a feeling that racism permeates American society and its institutions and the belief that members of one's own group are victims in a perpetual power struggle with the majority.
[End of quote.]

Before I begin, I want to thank Chairman Leahy for his openness and willingness to work together on the procedures for this hearing

I hope it will be viewed as the best hearing this Committee has ever held.

Judge Sotomayor, I join Chairman Leahy in welcoming you here today.

This hearing marks an important milestone in your distinguished legal career. I know your family is proud, and rightfully so. It is a pleasure to have them with us today.

I expect this hearing and resulting debate to be characterized by a respectful tone, a discussion of serious issues, and a thoughtful dialogue, and I have worked hard to achieve that from day one.

I have been an active litigator in federal courts for the majority of my professional life. I have tried cases in private practice, as a federal prosecutor with the Department of Justice, and as Attorney General of the State of Alabama.

The Constitution and our great heritage of law are things I care deeply about—-they are the foundation of our liberty and prosperity.

This nomination hearing is critically important for two reasons.

First, Justices on the Supreme Court have great responsibility, hold enormous power, and have a lifetime appointment.

Just five members can declare the meaning of our Constitution, bending or changing its meaning from what the people intended.

Second, this hearing is important because I believe our legal system is at a dangerous crossroads.

Down one path is the traditional American legal system, so admired around the world, where judges impartially apply the law to the facts without regard to their own personal views.

This is the compassionate system because this is the fair system.

In the American legal system, courts do not make the law or set policy, because allowing unelected officials to make laws would strike at the heart of our democracy.

Here, judges take an oath to administer justice impartially, which reads:

"I...do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me...under the Constitution and laws of the United States. So help me God."

These principles give the traditional system its moral authority, which is why Americans respect and accept the rulings of courts—-even when they lose.

Indeed, our legal system is based on a firm belief in an ordered universe and objective truth. The trial is the process by which the impartial and wise judge guides us to the truth.

Down the other path lies a Brave New World where words have no true meaning and judges are free to decide what facts they choose to see. In this world, a judge is free to push his or her own political and social agenda. I reject this view.

We have seen federal judges force their own political and social agenda on the nation, dictating that the words "under God"be removed from the Pledge of Allegiance and barring students from even silent prayer in schools.

Judges have dismissed the people's right to their property, saying the government can take a person’s home for the purpose of developing a private shopping center.

Judges have—-contrary to the longstanding rules of war—created a right for terrorists, captured on a foreign battlefield, to sue the United States government in our own courts.

Judges have cited foreign laws, world opinion, and a United Nations resolution to determine that a state death penalty law was unconstitutional.

I'm afraid our system will only be further corrupted as a result of President Obama’s views that, in tough cases, the critical ingredient for a judge is the "depth and breadth of one's empathy," as well as "their broader vision of what America should be."

Like the American people, I have watched this for a number of years, and I fear this "empathy standard" is another step down the road to a liberal activist, results-oriented, and relativistic world where:

• Laws lose their fixed meaning,
• Unelected judges set policy,
• Americans are seen as members of separate groups rather than simply Americans, and,
• Where the constitutional limits on government power are ignored when politicians want to buy out private companies.

So, we have reached a fork in the road. And there are stark differences between the two paths.

I want to be clear:

I will not vote for—-no senator should vote for—-an individual nominated by any President who is not fully committed to fairness and impartiality towards every person who appears before them.

I will not vote for—-no senator should vote for—-an individual nominated by any President who believes it is acceptable for a judge to allow their own personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.

In my view, such a philosophy is disqualifying.

Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over the other.

Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is not law. In truth it is more akin to politics. And politics has no place in the courtroom.

Some will respond, "Judge Sotomayor would never say that it's acceptable for a judge to display prejudice in a case."

But, I regret to say, Judge Sotomayor has outlined such a view in many, many statements over the years.

Let's look at just a few examples:

We've all seen the video of the Duke University panel where Judge Sotomayor says "--it is [the] Court of Appeals where policy is made. And I know, and I know, that this is on tape, and I should never say that."

And during a speech 15 years ago, Judge Sotomayor said, "I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt...continuously to judge when those opinions, sympathies, and prejudices are appropriate."

And in the same speech, she said, "my experiences will affect the facts I choose to see as a judge."

Having tried cases for many years, these statements are shocking and offensive to me.

Judge Sotomayor, we will inquire into how your philosophy, which allows subjectivity into the courtroom, affects your rulings on issues like:

• Abortion, where an organization in which you were an active leader argued that the Constitution requires that taxpayer money be used for abortions;
• Gun control, where you recently ruled that it is "settled law" that the Second Amendment does not prevent a city or state from barring gun ownership;
• Private property, where you have already ruled that the government could take property from one pharmacy developer and give it to another; and
• Capital punishment, where you personally signed a statement opposing the reinstatement of the death penalty because of the "inhuman[e] psychological burden" it places on the offender and his or her family.

I hope the American people will follow these hearings closely.

They should learn about the issues, and listen to both sides of the argument. And, at the end of the hearing, ask: 'If I must one day go to court, what kind of judge do I want to hear my case?

'Do I want a judge that allows his or her social, political, or religious views to change the outcome?

'Or, do I want a judge that impartially applies the law to the facts, and fairly rules on the merits, without bias or prejudice?'

It is our job to determine on which side of that fundamental divide the nominee stands.
[End of quote.]

• This is the compassionate system because this is the fair system. [Sessions]
• Indeed, our legal system is based on a firm belief in an ordered universe and objective truth. The trial is the process by which the impartial and wise judge guides us to the truth. [Sessions]
• Of course, every person should have empathy, and in certain situations, such as sentencing, it may not be wrong for judges to be empathetic. The problem arises when empathy and other biases or prejudices that are 'in the judge's heart' become 'the critical ingredient' to deciding cases. As Judge Paez explained, a judge's prejudices, biases, and passions should not be embraced—-they must be 'set aside' so that a judge can render an impartial decision as required by the judicial oath and as parties before the court expect. [Kyl]

I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.
[End of quote.]

SENATOR KYL: Do you agree with him [President Obama], that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what is in the judge's heart?

JUDGE SOTOMAYOR: No, sir. That's--I don't--wouldn't approach the issue of judging in the way the President does.

>><<<>>><<

SENATOR KYL: Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?

JUDGE SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts.

>><<<>>><<

JUDGE SOTOMAYOR: I can state what I believe very simply. Life experiences help the process of listening and understanding an argument. The law always directs the results of the case. A judge cannot decide cases on the basis of personal feelings, biases or sympathy.

SENATOR HATCH: Is judicial impartiality a duty or an aspiration?

JUDGE SOTOMAYOR: It's absolutely a duty, senator.
[End of quotes.]

Americans have the right to go into our federal courts and have their cases judged based on the Constitution and our laws, not on politics or personal feelings.

The lower court's belief that citizens should be reduced to racial statistics is flawed. It only divides people who don't wish to be divided along racial lines. The very reason we have civil service rules is to root out politics, discrimination and nepotism.

Our case demonstrates that these ills will exist if the rules of merit and the law are not followed.

Our courts are the last resorts for Americans whose rights are violated. Making decisions on who should have command positions solely based on statistics and politics, where the outcome of the decision could result in injury or death, is contrary to sound public policy.

The more attention our case got, the more some people tried to distort it. It bothered us greatly that some perceived this case as involving a testing process that resulted in minorities being completely excluded from promotions.

That was entirely false, as minority firefighters were victimized by the city's decision as well. As a result of our case, they should now enjoy the career advancement that they've earned and deserve.

Enduring over five years of court proceedings took its toll on us and our families. That case was longer--was no longer just about as, but about so many Americans who have lost faith in the court system. [This paragraph is awkward, but that is how it appears in the transcript-njg.]

When we finally won our case and saw the messages we received from every corner of the country, we understood that we did something important together. We sought basic fairness and evenhanded enforcement of the laws, something all Americans believe in.

>><<>><<

In our profession, we do not have the luxury of being wrong or having long debates. We must be correct the first time and make quick decisions under the pressure of time and rapidly unfolding events. Those who make these decisions must have the knowledge necessary to get it right the first time.

Unlike the judicial system, there are no continuances, motions or appeals. Errors and delays can cost people their lives. In our profession, the racial and ethnic makeup of my crew is the least important thing to us and to the public we serve. I believe the countless Americans who had something to say about our case understand that now.

Firefighters and their leaders stand between their fellow citizens and catastrophe. Americans want those who are the most knowledgeable and qualified to do the task. I am willing to risk and even lay down my life for fellow citizens, but I was not willing to go along with those who place racial identity over these more critical considerations.

I am not a lawyer, but I quickly learned about the law as it applies to this case. Studying it as much I studied for my exam, I thought it clear that we were denied our fundamental civil rights. I expected Lady Justice with the blindfold on, and a reasoned court from a federal court of appeals telling me, my fellow plaintiffs and the public that the court's view on the law--what the court's view on the law was and do it in an open and transparent way.

Instead, we were devastated to see a one paragraph unpublished order summarily dismissing our case, and indeed even the notion that we had presented important legal issues to that court of appeals. I expected the judges who heard my case along the way to make the right decisions, the ones required by the rule of law.

Of all that has been written about our case, it was Justice Alito who best captured our own feelings. We did not ask for sympathy or empathy. We asked only for even-handed enforcement of the law and prior to the majority justice opinion in our case, we were denied just that.
[End of quotes.]

Senators of both parties have noted the importance of this proceeding, because decisions of the United States Supreme Court greatly impact the everyday lives of ordinary Americans. I suppose that I and my fellow plaintiffs have shown how true that is. I never envisioned being a plaintiff in a Supreme Court case, much less one that generated so much media and public interest. I am Hispanic and proud of their heritage and background that Judge Sotomayor and I share. And I congratulate Judge Sotomayor on her nomination.

But the focus should not have been on me being Hispanic. The focus should have been on what I did to our new promotion to captain and how my own government and some courts responded to that. In short, they didn't care. I think it important for you to know what I did, that I played by the rules and then endured a long process of asking the courts to enforce those rules.

I am the proud father of three young sons. For them I sought to better my life, and so I spent three months in daily study, preparing for an exam that was unquestionably job-related. My wife, a special education teacher, took time off from work to see me and our children through this process.

I knew we would see little of my sons during these months, when I studied every day at a desk in our basement, so I placed photographs of my boys in front of me. When I would get tired and wanted to stop--wanted to stop, I would look at the pictures, realize that their own future depended on mine, and I would keep going. At one point I packed up and went to a hotel for a day to avoid any distractions, and those pictures came with me.

I was shocked when I was not rewarded for this hard work and sacrifice, but I actually was penalized for it. I became not Ben Vargas, the fire lieutenant who proved themselves qualified to be captain, but a racist statistic. I had to make decisions whether to join those who wanted promotions to be based on race and ethnicity or join those who would insist on being judged solely on their qualifications and the content of their character.
[End of quote.]

• I expected Lady Justice with the blindfold on... [Ricci]
• We did not ask for sympathy or empathy. We asked only for even-handed enforcement of the law... [Ricci]
• But the focus should not have been on me being Hispanic. The focus should have been on what I did... [Vargas]
• I was shocked when I was not rewarded for this hard work and sacrifice, but I actually was penalized for it. [Vargas]

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