With Senator Cardin on NAMUDNO:

CARDIN: In the Northwest Austin Municipal Utility District No. 1 v. Holder, one justice on the court in dictum challenged Congress’s authority to extend this civil rights case. Now, I say that knowing your view about giving due deference to Congress, particularly as it relates to expanding and extending civil rights protections.
So my question to you is, tell me a little bit about your passion for protecting the right of vote, to make sure that the laws are enforced as Congress intended to guarantee to every American the right to participate at the voting place.
SOTOMAYOR: When we speak about my passion, I don’t think that the issue of guaranteeing each citizen the right to vote is unique to me or that it’s different among any senator or among any group of people who are Americans. It is a fundamental right. And it is one that you’ve recognized, Congress has addressed for decades and has done an amazing job in passing a wide variety of statutes in an effort to protect that right.
The question that a court would face in any individual situation is whether an act of Congress conflicts with some right of either the state or an individual with respect to the issue of voting. There could be other challenges raised on a wide variety of different bases, but each case would present its own unique circumstance.
There is one case involving the Voting Rights Act where I address the issue of the right to vote. And in that case, I issued a dissent on an en banc ruling by my court. For the public who may not understand what en banc ruling means, when the whole court is considering an issue. In that case, if it wasn’t 13, it may have been 12 members of the court, or a complement of 13 judges, but I right now can’t remember if we were a full complement at the time of considering an issue.
The majority upheld a state regulation barring a group of people from voting. I dissented on a very short opinion, one paragraph opinion, saying, ‘These are the words of Congress in the statute it passed, and the words are that no state may impose a’ — and I’m paraphrasing it now. I’m not trying to read the statute, but no condition or restriction on voting that denies or abridges the right to vote on the basis of race.
I noted that, given the procedural posture of that case, that the plaintiff had alleged that that’s exactly what the state was doing. And I said, “That’s the allegation on the complaint.” That’s what a judge has to accept on the face of the complaint. We’ve got to give him a chance to prove that, and that to me was the end of the story.

Exchange with Senator Franken on NAMUDNO:

[Franken:] I want to talk about Northwest Austin utility district number one, the holder, the recent Voting Rights Act case. And Senator Cardin mentioned it, but he — he didn’t get out his pocket Constitution, as I — I am. The 15th Amendment was passed after the Civil War. It specifically gave Congress the authority to pass laws to protect all citizens’ right to vote.
And it said, Section 1, Amendment number 15, section one, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.” Section two — this one’s important. “The Congress shall have power to enforce this article by appropriate legislation,” — the Congress.
Well, Congress used that power to — the power vested in them under Section two — when it passed the Voting Rights Act of 1965. Now, the Voting Rights Act has an especially strong provision, section five, that requires states with a history of discrimination to get preapproval from the Justice Department on any changes that they make in their voting regulations.
Congress has reauthorized this four times as recently as — the last time was 2006. And the Senate supported it by a vote of 98 to zero. Every single senator from the state covered by Section 5 voted to reauthorize it. So now it’s 2009, and we have this case, the Northwest Austin Utility district number one. And Justice Thomas votes to hold Section 5 unconstitutional. He said it went beyond the mandate of the 15th Amendment because it wasn’t necessary any more. That’s what he said.
Now, when I read the 15th Amendment, it doesn’t say — it doesn’t contain any limits on Congress’ power. It just says that we have it. It doesn’t say if necessary the Congress shall have power to enforce this article. It just says that we have the power.
So it is my understanding that the 15th Amendment contains a very strong, very explicit and unambiguous grant of power to the Congress. And because of that, the courts should pay greater deference to it. And my question is is that your view?
SOTOMAYOR: As you know, some of the justices in that recent decision expressed the view that the court should take up the constitutionality of the Voting Rights Act and review of its continuing necessity. Justice Thomas expressed his view.
That very question, given the decision and the fact that it left that issue open is a very clear indication that that’s a question that the courts are going to be addressing, if not immediately the Supreme Court, certainly the lower courts. And so expressing a view — agreeing with one person in that decision or another, would suggest that I have made a prejudgment on this question.
FRANKEN: So that means you’re not going to tell us? (LAUGHTER) I didn’t mean to finish your sentence.
SOTOMAYOR: No, no, no, no. All I can say to you is I have one decision, among many, but one decision on the Voting Rights Act (inaudible) the recent reauthorization by Congress but a prior amendment where I suggested that these issues needed — issues of changes in the Voting Rights Act should be left to Congress in the first instance.
My jurisprudence shows the degree to which I give deference to Congress’ findings whether in a particular situation that compel or doesn’t or leads to a particular result is not something that I can opine on because, particularly, the issue you’re addressing right now is likely to be considered by the courts.
The ABA rule says no judge should make comments on the merits of any pending or impending case. And this clearly would be an impending case.
FRANKEN: OK. It’s fair to say, though, in your own decision, you gave deference to Congress just like you answered by neutrality thing saying it’s up to Congress.
SOTOMAYOR: Well…
FRANKEN: It feels like this is very explicitly up to Congress.
SOTOMAYOR: I gave deference to the exact language that Congress had used in the Voting Rights Act and how it applied to a challenge in that case.
To the extent that the majority believed that — and there was a lot of discussion among the variety of different opinions in the case as to whether this individual could or could not prove his allegation, and there was a suggestion by both sides that he might never be able to do it — my point was a legal one. These are Congress’ words. We have to take them at their word.
And if there’s an end result of this process that we don’t like, then we have to leave that to Congress to address that issue. We can’t fix it by ruling against what I viewed as the expressed words of Congress.

Senator Feingold on Caperton and Citizens United:

FEINGOLD: Thank you, Mr. Chairman. Judge, again, of course, thanks for your tremendous patience.
I’d like to start by talking for a moment about the recent Supreme Court decision in Caperton versus Massey. I consider this a significant case that bears upon the flood of special interest money that threatens to undermine public confidence in our justice system.
The facts of this case are notorious. John Grisham used them as an inspiration for his novel “The Appeal.” A jury in West Virginia returned a $50 million verdict for a large coal company. And pending the appeal, the company’s CEO spent $3 million to elect an attorney named Brent Benjamin to the state supreme court.
That was a huge amount of money, relatively speaking, more than the amounts spent by all of Benjamin’s other financial supporters combined. Benjamin won the election, because a West Virginia Supreme Court justice, and lo and behold, he voted to overturn that $50 million verdict against his main campaign contributor.
Twice he refused to recuse himself in the case despite his obvious conflict of interest. And last month the Supreme Court held that Benjamin’s failure to recuse himself was intolerable under our Constitution’s guarantee of due process of law.
The court also noted approvingly that most states have adopted codes of judicial conduct that prevent this kind of conflict. And to that end, I commend the Wisconsin Supreme Court’s plan to revise its recusal rules to provide additional safeguards that protect judicial impartiality.
You’ve been a judge for many years and you many have seen examples when you thought a judge should have withdrawn, although hopefully none were as egregious as this case.
In your opinion, what additional steps should judges and legislators take to ensure that the judiciary is held to the highest ethical standards and that litigants can be confident that their cases will be handled impartially?
SOTOMAYOR: Senator, I would find it inappropriate to make suggestions to Congress about what standards it should hold judges to or litigants. That’s a policy choice that Congress will consider.
I note that the American Bar Association has a code of conduct that applies to litigants. The judicial code has a code of conduct for judges. And as you noted in the state system where judges are elected, many states are doing what I just spoke about, making — passing regulations.
Caperton was a case that was taken under the local rules of the Supreme Court presumably that exercises supervisory powers over the functions of the courts. And it presented obviously a significant issue because the court took it and decided the case.
At issue fundamentally is that judges, lawyers, all professionals must on their own abide by the highest standards of conduct. And I have given a speech on this topic to students at Yale at one point where I said, the law is only the minimum one must do, personally one must act in a way in cases to ensure that you’re acting consistent with your sense of meeting the highest standards of the profession.
FEINGOLD: Thank you, Judge. As I’m sure you know, on the last day of the term, the Supreme Court ordered that a pending case involving federal election law called Citizens United versus FEC be reargued in September.
It’s quite possible that you will be a member of the court by then. I do not intend to ask you how you’d rule in that case, but I do want to express my very deep concern about where the Supreme Court may be heading and then pose a general question to you.
In 2003, the court in a 5-4 ruling upheld the McCain-Feingold bill against constitutional challenge. I believe that ruling accurately applied the court’s previous precedents and recognized that Congress must have the power to regulate campaign finance to address serious problems of corruption and the appearance of corruption.
Since the arrival on the court of its two newest members, the court seems to have started in another direction on these issues, striking down or significantly narrowing two provisions of the law, the millionaires’ (ph) amendment to the Davis case and the issue ad provision in Wisconsin Right to Life.
Several justices have even argued that corporations and living persons should have the same constitutional rights to support their chosen candidates and that Austin v. Michigan Chamber of Commerce, a case rejecting that idea, should be overruled.
Austin is premised on what I believe is an absolutely reasonable conclusion that the political activities of corporations may be subjected to greater regulation because of the legal advantages given to them by the states that allow them to amass great wealth.
In scheduling rearguement in the Citizen United case, the court specifically asked the parties to address whether Austin should be overruled. If the court does that and depending on how exactly it rules, Judge, it may usher in an era of unlimited corporate spending on elections that the nation has not seen since the 19th century. Without addressing the specifics of the Citizen United case, I’d like to ask you what the Constitution and the Supreme Court’s precedents generally provide about the rights of corporations and what the current state of the law as far as corporate participation in elections is, as you understand it.
SOTOMAYOR: Senator, I have attempted to answer every question that’s been posed to me. You have noted that Citizens United is on the court’s docket for September. I think it’s September 9th. If I were confirmed for the court — to the court, it would be the first case that I would participate in.
Given that existence of that case, the very first one, I think it would be inappropriate for me to do anything to speak about that area of the law because it would suggest that I’m going into that process with some prejudgment about what precedent says and what it doesn’t say and how to apply it in the open question the court is considering. I appreciate what you have said to me. But this is a special circumstance, given the pendency of that particular case.
FEINGOLD: And, frankly, Judge, I — I probably would say the same thing if I were in your shoes, given — given — given the — the facts as — as they are. I appreciate the opportunity to express what I wanted to say about that. And with that, Mr. Chairman, I am going to use up less than half of my time.