Harkin statement on Sotomayor

U.S. Senator Tom Harkin (D-Iowa) voted "yes" to confirm Sonia Sotomayor as a justice on the U.S. Supreme Court.  Harkin's statement is below.


Washington, D.C. – Senator Tom Harkin (D-IA) entered the following remarks into the Congressional Record today on his vote for Judge Sonia Sotomayor to the U.S. Supreme Court. 

“Mr. President, I am proud to support the confirmation of Judge Sonia Sotomayor as the next Associate Justice of the United States Supreme Court. 

“Judge Sotomayor’s story is proof of the central American promise:  That any person, by sheer force of their talent, can rise from the humblest background to one of the highest offices in this country.  Born to a Puerto Rican family, Judge Sotomayor grew up in public housing in the South Bronx.  Her father, a tool-and-die worker with a third grade education, died when she was nine years old.  Due to her mother’s struggle and sacrifice, and Judge Sotomayor’s tremendous ability and perseverance, she graduated valedictorian of her high school in New York, then graduated summa cum laude from Princeton University. 

“She went on to earn her law degree from Yale Law School, where she was editor of the Yale Law Journal.  After law school, Judge Sotomayor served as an Assistant District Attorney in New York County for five years and then entered private practice as a corporate litigator.  For the past 17 years, she has served as a Federal district and appellate court judge. 

“Given her experiences and career, there is no doubt that Judge Sotomayor is immensely qualified to serve on our nation’s highest court.  What is clear from her 17-year judicial career, from my meeting with her, and from her confirmation hearing is that she is an unbiased, mainstream judge with a deep commitment to the rule of law and constitutional values.  She has an exemplary record during her tenure on the bench, and every independent analysis has made clear that she is a judge who faithfully applies the law.

“Given her record, I am saddened that many Republicans have chosen to grossly distort her record, and have spent so much time focusing on a few out-of-context quotes and less than a handful of decisions.  Putting rhetoric aside, she has participated in nearly 3,000 decisions and authored approximately 400 opinions.  Her 17-year record overwhelmingly demonstrates that she is anything but a “judicial activist.” 

“Considering her outstanding intellect, credentials and judicial record, there simply is no doubt Judge Sotomayor should be confirmed.  However, for me, there is another, equally important, consideration.  I also firmly believe that Judge Sotomayor will be an important and needed voice on the Court to ensure proper effect is given to our most important statutes, such as the Americans with Disabilities Act (ADA), the Civil Rights Act, and the Age Discrimination Employment Act (ADEA), so all Americans receive the fullest protections of the law. 

“This is illustrated in an area of the law that I care deeply about – disabilities rights.  Unfortunately, as many in Congress know, the Rehnquist Court repeatedly misread the ADA, ignored the intent of Congress and narrowed the scope of individuals deemed eligible for protection under the ADA.  The result of these decisions was to eliminate protection for countless thousands of Americans with disabilities.  These flawed, harmful decisions were reversed last year when Congress unanimously enacted the ADA Amendments Act.

“The contrast between the Rehnquist Court and Judge Sotomoyer is stark.  In Bartlett v. New York State Board of Bar Examiners, Marilyn Bartlett had a PhD in educational administration and a law degree from Vermont Law School.  She was also diagnosed with a disability that affected her reading speed and fluency.  After completing law school, Ms. Bartlett worked as an associate and received excellent reviews.  However, when she took the bar exam, she was denied accommodation for her reading impairment, such as extra time and permission to record her essays on tape.  She failed the exam.  The bar claimed that she did not have a disability because the examiners did not believe she was limited in the major life activities of reading or working. 

“Judge Sotomoyer, however, ruled for Ms. Bartlett, holding that a student with learning disabilities was entitled to an accommodation while taking the bar exam.  Understanding the true purposes of the ADA, she noted:

“For those of us for whom words sing, sentences paint pictures, and paragraphs create panoramic views of the world, the inability to identify and process words with ease would be crippling.  Plaintiff, an obviously intelligent, highly articulate individual reads slowly, haltingly, and laboriously. She simply does not read in the manner of an average person. I reject the basic premise of defendants’ experts that a learning disability in reading can be identified solely by a person’s inability to decode, i.e., identify words, as measured by standardized tests, and I accept instead the basic premise of plaintiff’s experts that a learning disability in reading has to be identified in the context of an individual’s total processing difficulties.”

“As the Congressional Research Service noted, “She anticipated the legislative discussions surrounding the ADA Amendments Act by finding the use of self accommodations did not mean that the plaintiff was not an individual with a disability.”

“The contrast between Judge Sotomayor’s approach to judging – with her respect for congressional intent and for long-standing precedent – and the current Court’s activism is likewise illustrated by their respective treatment of so called “mixed motive” discrimination cases.

“In June of this year, the Supreme Court decided Gross v. FBL Financial, Inc.  In a case involving an Iowan, Jack Gross, the Court made it harder for those with legitimate age discrimination claims to prevail under the ADEA.  In doing so, it reversed a well established, 20- year-old standard, consistent with that under Title VII of the Civil Rights Act, that a plaintiff need only show that membership in a protected class was a “motivating factor” in an employer’s action.  Instead, the Court held that a plaintiff alleging age discrimination must prove that an employment action would not have been taken against him or her “but for” age.  In other words, the plaintiff must now prove that age discrimination was not a cause or a motivating factor, but must prove that it was the exclusive cause of an adverse employment action.  Proving “but for” cause is extremely difficult and will greatly limit potentially meritorious suits involving discrimination Congress sought to prevent.

“In doing so, the Court did not even address the question it granted certiorari on.  As Justice Stevens noted in dissent, “I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking.  The Court is unconcerned that the question it chooses to answer has not been briefed by the parties or uninterested amici curie.  Its failure to consider the views of the United States, which represents the agency charged with administering the [Age Discrimination Employment Act], is especially irresponsible.” 

“The contrast with Judge Sotomayor is telling.  In Parker v. Columbia Pictures, she addressed the very same question in the disabilities context – whether a plaintiff need show discrimination was a “motivating factor” or “but-for” cause under the ADA.   In contrast to Justice Thomas’s opinion in Gross, she carefully analyzed the statutory language, intent of Congress and precedents and noted that “Congress intended the statute . . . to cover situations in which discrimination on the basis of disability is one factor, but not the only factor, motivating an adverse employment action.”

“Unfortunately, the Supreme Court has transformed the legal landscape regarding the ability of Congress to protect our most vulnerable citizens.  In fact, since 1995, the Rehnquist and Roberts Courts have struck down 38 acts of Congress.  Until then, the Court had struck down an average of one statute every two years. 

“For example, in University of Alabama v. Garrett, a case I personally attended, the Court limited the rights of people with disabilities.  In doing so, it ignored numerous congressional hearings and a task force which collected evidence through 63 public forums around the country attended by more than 7,000 persons.  In United States v. Morrison and Kimel v. Flordia Board of Regents, the Court completely ignored extensive Congressional fact-finding and struck down parts of the Violence Against Women’s Act and Age Discrimination Employment Act, respectively.  In June, in Northwest Austin Municipal Utility District v. Holder, the Court suggested it was poised to strike down the Voting Rights Act, disregarding expansive congressional fact-finding, including 21 hearings and 16,000 pages of testimony.

“Given the current Court’s repeated disregard for Congress and for our efforts to expansively protect American citizens from discrimination, I believe it is imperative that the next justice be someone who respects precedent, strives to apply congressional intent and purpose, and understands the importance of this nation’s landmark civil rights protections.  Based on her long judicial record, I am confident Judge Sotomayor is precisely that type of jurist.

“Mr. President, confirmation of Judge Sotomayor will be historic.  She clearly has the intellect, experience and judgment to be an outstanding Justice.  I am proud to support her nomination.”


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About O.Kay Henderson

O. Kay Henderson is the news director of Radio Iowa.