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Key Excerpt: Cornyn and Sotomayor on Abortion

Courtesy of CQ Transcriptions

CORNYN: On what basis would George Pavia, who was apparently a senior partner in the law firm that hired you as a corporate litigator, on what basis would -- would he say that he thinks support of abortion rights would be in line with your generally liberal instincts?

He's -- he's quoted in his article saying, quote, "I can guarantee she'll be for abortion rights," close quote. On what basis would Mr. Pavia say that, if you know?

SOTOMAYOR:
I have no idea, since I know for a fact I never spoke to him about my views on abortion, frankly, on my views on any social issue. George was the -- was the head partner of my firm, but our contact was not on a daily basis.

I have no idea why he's drawing that conclusion, because if he looked at my record, I have ruled according to the law in all cases addressed to the issue of termination of abortion rights -- of women's right to terminate their pregnancy. And I voted in cases in which I upheld the application of the Mexico City policy, which was a policy in which the government was not funding certain abortion-related activities.

CORNYN: Do you agree -- do you agree with his statement that you have generally liberal instincts?

SOTOMAYOR: If he was talking about the fact that I served on a particular board that promoted equal opportunity for people, the Puerto Rican Legal Defense and Education Fund, then you could talk about that being a liberal instinct in the sense that I promote equal opportunity in America and the attempts to assure that.

But he has not read my jurisprudence for 17 years, I can assure you. He's a corporate litigator. And my experience with corporate litigators is that they only look at the law when it affects the case before them.

And in this case, there was a 78-page decision by the district court. It adequately explained the questions that the Supreme Court addressed and reviewed.

And so, to the extent that a particular panel considers that an issue has been decided by existing precedent, that's a question that the court above can obviously revisit, as it did in Ricci, where it looked at it and said, well, we understand what the circuit did, we understand what existing law is, but we should be looking at this question in a new way. That's the job of the Supreme Court.

CORNYN: But, Judge, even the district court admitted that a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations, because they knew that the exams -- they knew that, were the exams certified, the mayor would incur the wrath of Reverend Boise Kimber and other influential leaders of New Haven's African-American community.

So you decided that, based on their claim of potential disparate impact liability, that there's no recourse -- that the city was justified in disregarding the exams and thus denying these firefighters, many of whom suffered hardship in order to study and to prepare for these examinations and were successful, only to see that hard work and effort disregarded and not even acknowledged in the court's opinion.

And, ultimately, as you know, the Supreme Court said that you just can't claim potential disparate impact liability as a city and then deny someone a promotion based on the color of their skin. There has to be a strong basis in evidence.

But you didn't look to see whether there was a basis in evidence to the city's claim. Your summary opinion -- unpublished summary order didn't even discuss that. Don't you think that these firefighters and other litigants deserve a more detailed analysis of their claims and an explanation for why you ultimately deny their claim?

SOTOMAYOR: As you know, the court's opinion issued after discussions en banc recognize, as I do, the hardship that the firefighters experienced. That's not been naysaid by anyone.

The issue before the court was a different one, and the one that the district court addressed was what decision the decision-makers made, not what people behind the scenes wanted the decision-makers to make, but what they were considering. And what they were considering was the state of the law at the time and in an attempt to comply with what they believe the law said and what the panel recognized as what the Second Circuit precedent said, that they made a choice under that existing law.

The Supreme Court in its decision set a new standard by which an employer and lower court should review what the employer is doing by the substantial evidence test. That test was not discussed with the -- with the panel. It wasn't part of the arguments below. That was a decision by the court borrowing from other areas of the law and saying, "We think this would work better in this situation."

Read the entire exchange between Sen. Cornyn and Judge Sotomayor here.

By Washington Post editors  |  July 15, 2009; 10:38 AM ET
Categories:  Hearings , Supreme Court , Topics: Abortion  
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