Pasifikawv
Member
HATCH: I want to begin here today by looking at your cases in an area that is very important to -- to many of us, and that's the Second Amendment, the right to keep and bear arms, and your conclusion that the -- that the right is not fundamental.
Now, in the 2004 case entitled United States v. Sanchez Villar, you handled the Second Amendment issue in a short footnote. You cited the second circuit's decision in United States v. Toner for the proposition that the right to possess a gun is not a fundamental right.
Toner, in turn, relied on the Supreme Court's decision in United States v. Miller. Last year, in the District of Columbia v. Heller, the Supreme Court examined Miller and concluded that, quote, "The case did not even purport to be a thorough examination of the Second Amendment," unquote, and that Miller provided, quote, "no explanation of the content of the right," unquote.
You're familiar with that.
SOTOMAYOR: I am, sir.
HATCH: OK. So let me ask you, doesn't the Supreme Court's treatment of Miller at least cast doubts on whether relying on Miller, as the second circuit has done, for this proposition is proper?
SOTOMAYOR: The issue...
HATCH: Remember, I'm saying at least cast doubts.
SOTOMAYOR: Well, that is what I believe Justice Scalia implied in his footnote 23, but he acknowledged that the issue of whether the right, as understood in Supreme Court jurisprudence, was fundamental.
It's not that I considered it unfundamental, but that the Supreme Court didn't consider it fundamental so as to be incorporated against the state.
HATCH: Well, it didn't decide that point.
SOTOMAYOR: Well, it not only didn't decide it, but I understood Justice Scalia to be recognizing that the court's precedent had held it was not.
His opinion with respect to the application of the Second Amendment to government regulation was a different inquiry and a different inquiry as to the meaning of U.S. v. Miller with respect to that issue.
HATCH: Well, if Heller had already been decided, would you have addressed that issue differently than Heller or would you take the position that it -- that the doctrine of incorporation is inevitable with regard to state -- state issues?
SOTOMAYOR: That's the very question that the Supreme Court is more than likely to be...
HATCH: To decide.
SOTOMAYOR: ... considering. There are three cases addressing this issue, at least, I should say, three cases...
HATCH: Right.
SOTOMAYOR: ... addressing this issue in the circuit courts. And so it's not a question that I can address. As I said, I bring an open mind to every case.
HATCH: I accept that. In Sanchez Villar, you identified the premise that a right to possess a gun is not fundamental and the conclusion that New York's ban on gun possession was permissible under the Second Amendment, but there's not a word actually connecting the premise to the conclusion.
Without any analysis at all, that footnote that you wrote leaves the impression that unless the right to bear arms is considered fundamental, any gun restriction is necessarily permissible under the Second Amendment.
Is that what you believe?
SOTOMAYOR: No, sir, because that's not -- I'm not taking an opinion on that issue, because it's an open question.
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FEINGOLD: The question of whether the Second Amendment rights are incorporated in the 14th Amendment's guarantee of due process of law and, therefore, applicable to the states, as you pointed out, was not decided in Heller. And a Supreme Court decision in 1886 specifically held that the Second Amendment applies only to the federal government.
So, in my view, it is unremarkable that as a circuit court judge in the Maloney case you would follow applicable Supreme Court precedent that directly controlled the case rather than apply your own guess of where the court may be headed after Heller. In other words, I think that's -- would be an unfair criticism of a case that I think you needed to rule that way given the state of the law.
But let me move on that from because many of my constituents would like to know more about how you would make such a decision as a member of the highest courts. So I want to follow up on that.
First of all, am I right that if you're confirmed and the court grants cert in the Maloney case, you would have to recuse yourself from its consideration?
SOTOMAYOR: Yes, sir. My own judgment is that it would seem odd, indeed, if any justice would sit in review of a decision that they authored. I would think that the judicial code of ethics that govern recusals would suggest and command that that would be inappropriate.
FEINGOLD: Fair enough. What about if one of the other pending appeals comes to the Court such as the Seventh Circuit decision in NRA v. Chicago which took the same position as your position in Maloney, would you have to recuse yourself from that one as well?
SOTOMAYOR: There are many cases in which a justice, I understand, has decided cases as a circuit court judge that are not the subject of review that raise issues that the Supreme Court looks at later. What I would do in this situation, I would look at the practices of the justices to determine whether or not that would counsel to recuse myself.
I would just note that many legal issues, once they come before the Court, present a different series of questions than one addresses at the circuit court.
FEINGOLD: Well, let's assume you were able to sit to one of these cases or a future case that deals with this issue of incorporating the right to bear arms as applied to the states. How would you assess whether the Second Amendment or any other amendment that has not yet been incorporated through the 14th Amendment should be made applicable to the states? What's the test that the Supreme Court should apply?
SOTOMAYOR: That's always the issue that litigants are arguing in litigation. So to the extent that the Supreme Court has not addressed this question yet and there's a strong likelihood it may in the future, I can't say to you that I've prejudged the case and decided this is exactly how I'm going to approach it.
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KYL: Judge, could I return briefly to a series of questions that Senator Feingold asked at the very beginning relating to the Maloney decision relating to the Second Amendment.
You had indicated, of course, if that case were to come before the court, under the recusal statute, you would recuse yourself from participating in the decision.
SOTOMAYOR: In that case, yes.
KYL: Yes. And you're aware -- or maybe you're not -- but There are two other decisions both dealing with the same issue of incorporation, one in the Ninth Circuit, one in the Seventh Circuit. The Seventh Circuit decided the case similarly to your circuit; the Ninth Circuit has decided it differently, although that case is on rehearing.
If the court should take all three -- let's assume the Ninth Circuit stays with its decision, so you do have the conflict among the circuits, and the court were to take all three decisions at the same time, I take it the recusal issue would be the same. You would recuse yourself in that situation?
SOTOMAYOR: I haven't actually been responding to that question, and I think you're right for posing it. I clearly understand that recusing myself from Maloney would be appropriate. The impact of a joint hearing by the court would suggest that I would have to apply the same principle.
But as I indicated, issues of recusal are left to the discretion of justices because their participation in cases is so important. It is something that I would discuss with my colleagues and follow their practices...
KYL: Sure.
SOTOMAYOR: ... with respect to a question like this.
KYL: I -- I appreciate that. And I -- I agree with your reading of it. The law, 28 USC Section 455, provides, among other things, and I quote, "Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," end of quote.
And that, of course, raises the judge's desire to consult with others and ensure that impartiality is not questioned by participating in a decision. I would -- I would think -- and I would -- I would want your responses -- I would think that there would be no difference if the Maloney case is decided on its own or if it is decided as one of two or three other cases all considered by the court at the same time.
SOTOMAYOR: As I said, that's an issue that's different than the question that was posed earlier.
KYL: Would you not be willing to make an unequivocal commitment on that at this time?
SOTOMAYOR: It's impossible to say. I will recuse myself on any case involving Maloney. How the other cert is granted, and whether joint argument is presented or not, I would have to await to see what happens.
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LEAHY: Good.
Let me (ph) talk to you about another decision that's been talked about, District of Columbia v. Heller. In that one, the Supreme Court held that the Second Amendment guarantees to Americans the right to keep and bear arms, and that it's an individual right.
LEAHY: I've owned firearms since my early teen years. I suspect a large majority of Vermonters do. I enjoy target shooting on a very regular basis at our home in Vermont. So I watched that decision rather carefully and found it interesting.
Is it safe to say that you accept the Supreme Court's decision as establishing that the Second Amendment right is an individual right? Is that correct?
SOTOMAYOR: Yes, sir.
LEAHY: Thank you.
And in the Second Circuit decision, Maloney v. Cuomo, you, in fact, recognized the Supreme Court decided in Heller that the personal right to bear arms is guaranteed by the Second Amendment of the Constitution against federal law restrictions. Is that correct?
SOTOMAYOR: It is.
Now, in the 2004 case entitled United States v. Sanchez Villar, you handled the Second Amendment issue in a short footnote. You cited the second circuit's decision in United States v. Toner for the proposition that the right to possess a gun is not a fundamental right.
Toner, in turn, relied on the Supreme Court's decision in United States v. Miller. Last year, in the District of Columbia v. Heller, the Supreme Court examined Miller and concluded that, quote, "The case did not even purport to be a thorough examination of the Second Amendment," unquote, and that Miller provided, quote, "no explanation of the content of the right," unquote.
You're familiar with that.
SOTOMAYOR: I am, sir.
HATCH: OK. So let me ask you, doesn't the Supreme Court's treatment of Miller at least cast doubts on whether relying on Miller, as the second circuit has done, for this proposition is proper?
SOTOMAYOR: The issue...
HATCH: Remember, I'm saying at least cast doubts.
SOTOMAYOR: Well, that is what I believe Justice Scalia implied in his footnote 23, but he acknowledged that the issue of whether the right, as understood in Supreme Court jurisprudence, was fundamental.
It's not that I considered it unfundamental, but that the Supreme Court didn't consider it fundamental so as to be incorporated against the state.
HATCH: Well, it didn't decide that point.
SOTOMAYOR: Well, it not only didn't decide it, but I understood Justice Scalia to be recognizing that the court's precedent had held it was not.
His opinion with respect to the application of the Second Amendment to government regulation was a different inquiry and a different inquiry as to the meaning of U.S. v. Miller with respect to that issue.
HATCH: Well, if Heller had already been decided, would you have addressed that issue differently than Heller or would you take the position that it -- that the doctrine of incorporation is inevitable with regard to state -- state issues?
SOTOMAYOR: That's the very question that the Supreme Court is more than likely to be...
HATCH: To decide.
SOTOMAYOR: ... considering. There are three cases addressing this issue, at least, I should say, three cases...
HATCH: Right.
SOTOMAYOR: ... addressing this issue in the circuit courts. And so it's not a question that I can address. As I said, I bring an open mind to every case.
HATCH: I accept that. In Sanchez Villar, you identified the premise that a right to possess a gun is not fundamental and the conclusion that New York's ban on gun possession was permissible under the Second Amendment, but there's not a word actually connecting the premise to the conclusion.
Without any analysis at all, that footnote that you wrote leaves the impression that unless the right to bear arms is considered fundamental, any gun restriction is necessarily permissible under the Second Amendment.
Is that what you believe?
SOTOMAYOR: No, sir, because that's not -- I'm not taking an opinion on that issue, because it's an open question.
--
FEINGOLD: The question of whether the Second Amendment rights are incorporated in the 14th Amendment's guarantee of due process of law and, therefore, applicable to the states, as you pointed out, was not decided in Heller. And a Supreme Court decision in 1886 specifically held that the Second Amendment applies only to the federal government.
So, in my view, it is unremarkable that as a circuit court judge in the Maloney case you would follow applicable Supreme Court precedent that directly controlled the case rather than apply your own guess of where the court may be headed after Heller. In other words, I think that's -- would be an unfair criticism of a case that I think you needed to rule that way given the state of the law.
But let me move on that from because many of my constituents would like to know more about how you would make such a decision as a member of the highest courts. So I want to follow up on that.
First of all, am I right that if you're confirmed and the court grants cert in the Maloney case, you would have to recuse yourself from its consideration?
SOTOMAYOR: Yes, sir. My own judgment is that it would seem odd, indeed, if any justice would sit in review of a decision that they authored. I would think that the judicial code of ethics that govern recusals would suggest and command that that would be inappropriate.
FEINGOLD: Fair enough. What about if one of the other pending appeals comes to the Court such as the Seventh Circuit decision in NRA v. Chicago which took the same position as your position in Maloney, would you have to recuse yourself from that one as well?
SOTOMAYOR: There are many cases in which a justice, I understand, has decided cases as a circuit court judge that are not the subject of review that raise issues that the Supreme Court looks at later. What I would do in this situation, I would look at the practices of the justices to determine whether or not that would counsel to recuse myself.
I would just note that many legal issues, once they come before the Court, present a different series of questions than one addresses at the circuit court.
FEINGOLD: Well, let's assume you were able to sit to one of these cases or a future case that deals with this issue of incorporating the right to bear arms as applied to the states. How would you assess whether the Second Amendment or any other amendment that has not yet been incorporated through the 14th Amendment should be made applicable to the states? What's the test that the Supreme Court should apply?
SOTOMAYOR: That's always the issue that litigants are arguing in litigation. So to the extent that the Supreme Court has not addressed this question yet and there's a strong likelihood it may in the future, I can't say to you that I've prejudged the case and decided this is exactly how I'm going to approach it.
--
KYL: Judge, could I return briefly to a series of questions that Senator Feingold asked at the very beginning relating to the Maloney decision relating to the Second Amendment.
You had indicated, of course, if that case were to come before the court, under the recusal statute, you would recuse yourself from participating in the decision.
SOTOMAYOR: In that case, yes.
KYL: Yes. And you're aware -- or maybe you're not -- but There are two other decisions both dealing with the same issue of incorporation, one in the Ninth Circuit, one in the Seventh Circuit. The Seventh Circuit decided the case similarly to your circuit; the Ninth Circuit has decided it differently, although that case is on rehearing.
If the court should take all three -- let's assume the Ninth Circuit stays with its decision, so you do have the conflict among the circuits, and the court were to take all three decisions at the same time, I take it the recusal issue would be the same. You would recuse yourself in that situation?
SOTOMAYOR: I haven't actually been responding to that question, and I think you're right for posing it. I clearly understand that recusing myself from Maloney would be appropriate. The impact of a joint hearing by the court would suggest that I would have to apply the same principle.
But as I indicated, issues of recusal are left to the discretion of justices because their participation in cases is so important. It is something that I would discuss with my colleagues and follow their practices...
KYL: Sure.
SOTOMAYOR: ... with respect to a question like this.
KYL: I -- I appreciate that. And I -- I agree with your reading of it. The law, 28 USC Section 455, provides, among other things, and I quote, "Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," end of quote.
And that, of course, raises the judge's desire to consult with others and ensure that impartiality is not questioned by participating in a decision. I would -- I would think -- and I would -- I would want your responses -- I would think that there would be no difference if the Maloney case is decided on its own or if it is decided as one of two or three other cases all considered by the court at the same time.
SOTOMAYOR: As I said, that's an issue that's different than the question that was posed earlier.
KYL: Would you not be willing to make an unequivocal commitment on that at this time?
SOTOMAYOR: It's impossible to say. I will recuse myself on any case involving Maloney. How the other cert is granted, and whether joint argument is presented or not, I would have to await to see what happens.
--
LEAHY: Good.
Let me (ph) talk to you about another decision that's been talked about, District of Columbia v. Heller. In that one, the Supreme Court held that the Second Amendment guarantees to Americans the right to keep and bear arms, and that it's an individual right.
LEAHY: I've owned firearms since my early teen years. I suspect a large majority of Vermonters do. I enjoy target shooting on a very regular basis at our home in Vermont. So I watched that decision rather carefully and found it interesting.
Is it safe to say that you accept the Supreme Court's decision as establishing that the Second Amendment right is an individual right? Is that correct?
SOTOMAYOR: Yes, sir.
LEAHY: Thank you.
And in the Second Circuit decision, Maloney v. Cuomo, you, in fact, recognized the Supreme Court decided in Heller that the personal right to bear arms is guaranteed by the Second Amendment of the Constitution against federal law restrictions. Is that correct?
SOTOMAYOR: It is.
