Key Excerpt: Specter and Sotomayor on Article I
Courtesy of CQ Transcriptions
SEN. SPECTER: One case that the court did not (inaudible) involved a terrorist surveillance program which I think, arguably, posed the greatest conflict between congressional powers under Article I in enacting the Foreign Intelligence Surveillance Act, which provided for the exclusive way to get wiretaps.
The president disregarded that in a secret program called the Terrorist Surveillance Program, didn't even tell the chairman of the Judiciary Committee, which is the required practice, or accepted practice, didn't tell the Intelligence Committees, where the law mandates that they be told about such programs. It was only disclosed by the New York Times.
Those practices confront us this day, with reports about many other secret cases not disclosed. The Federal District Court in Detroit found the Terrorist Surveillance Program unconstitutional. Sixth Circuit, in a two-to-one opinion, said there was no standing. The dissent, I think, pretty conclusively had the much better of the -- on asserting standing (ph).
The Supreme Court of the United States denied certiorari, didn't even take up the case to the extent of deciding whether it shouldn't take it because of lack of standing. I wrote you a letter about this, wrote a series of letters, and gave you advance notice that I would ask you about this case. So I'm not asking you how you would decide the case, but would you agree that the Supreme Court should have taken that kind of a major conflict on separation of powers?
JUDGE SOTOMAYOR: I know it must be very frustrating to you to...
LEAHY: It sure is. I was the chairman who wasn't notified.
SOTOMAYOR: No. I'm sure...
LEAHY: And he (ph) was the ranking member who wasn't notified.
SOTOMAYOR: I can understand not only Congress's or your personal frustration, and sometimes the citizens when there are important issues that they would like the court to consider. The question becomes what do I do if you give me the honor to serve on the Court, if I say something today, is that going to make a statement about how I'm going to pre-judge someone else's...
LEAHY: I'm not asking you to pre-judge. I'd like to know your standards for taking the case. If you have that kind of a monumental historic conflict and the court is supposed to decide conflicts between the executive and legislative branches, how can it possibly be justified not to take that case?
SOTOMAYOR: There are often, from what I understand -- and that's from my review of Supreme Court actions and cases of situations in which they have or have not taken cases, and I've read some of their reasoning as to this. I know that with some important issues, they want to make sure that there isn't a procedural bar to the case of some type that would take away from whether they're, in fact, doing what they would want to do, which is to (inaudible)...
Read more of the exchange between Sen. Specter and Judge Sotomayor here.
Washington Post editors
July 15, 2009; 2:41 PM ET
Categories: Hearings , Supreme Court
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