Melissa Rogers: Senators' Reflections on Religion, Religious Liberty, and the Confirmation Process (Updated)

In addition to Chairman Leahy, some other Senators have made brief references to religion and/or religious liberty in their opening statements during the confirmation hearings of Judge Sonia Sotomayor. Relevant excerpts from the remarks of Senators Sessions, Kohl, Schumer, and Cardin appear below the fold.

Senator Jeff Sessions (R-AL):

In the American legal system, courts do not make the law or set policy, because allowing unelected officials to make laws would strike at the heart of our democracy.

Down the other path lies a Brave New World where words have no true meaning and judges are free to decide what facts they choose to see. In this world, a judge is free to push his or her own political and social agenda. I reject this view.

We have seen federal judges force their own political and social agenda on the nation, dictating that the words "under God" be removed from the Pledge of Allegiance[2] and barring students from even silent prayer in schools.[3] . . . .

I hope the American people will follow these hearings closely.

They should learn about the issues, and listen to both sides of the argument. And, at the end of the hearing, ask: 'If I must one day go to court, what kind of judge do I want to hear my case?

'Do I want a judge that allows his or her social, political, or religious views to change the outcome?

'Or, do I want a judge that impartially applies the law to the facts, and fairly rules on the merits, without bias or prejudice?' It is our job to determine on which side of that fundamental divide the nominee stands.

Senator Herb Kohl (D-WI):

That is why it is so important that over the course of the next few days, we gain a good understanding of what is in your heart and your mind. We don't have a right to know in advance how you will rule on cases which will come before you. But we need – and we deserve – to know what you think about fundamental issues such as civil rights, privacy, property rights, the separation of church and state, and civil liberties, to name a few.

Some believe that the confirmation process has become thoroughly scripted, and that nominees are far too careful in cloaking their answers to important questions in generalities and with caveats about future cases. I recognize this concern, but I also hope that you recognize our desire to have a frank discussion with you about substantive issues.

Senator Chuck Schumer (D-NY):

I would ask my colleagues to do this: examine a sampling of her cases in a variety of areas. In case after case after case, Judge Sotomayor rolls up her sleeves, learns the facts, applies the law to the facts, and comes to a decision irrespective of her inclinations or her personal experience.

- In a case involving a New York police officer who made white supremicist remarks, she upheld his right to make them;
- In a case brought by plaintiffs who claimed they had been bumped from a plane because of race, she dismissed their case because the law required it;
- And she upheld the First Amendment right of a prisoner to wear religious beads under his uniform.
And, in hot-button cases such as ones involving professional sports, she carefully adheres to the facts before her. She upheld the NFL's ability to maintain certain player restrictions, and she also ruled in favor of baseball players to end the Major League Baseball strike.

Update: From Schumer's subsequent introduction of Sotomayor:

As we become even more familiar with her incisive mind and balanced views, I am certain that this hearing will prove to all what is already clear to many: This is a moment in which all Americans can take great pride. Not just New Yorkers. Not just Puerto Ricans. Not just Hispanics. Not just women. But all Americans who believe in opportunity — and who want for themselves and their children a fair reading of the laws, by a judge who understands that while we are a nation of individuals, we are all governed by one law.

Mr. Chairman, people felt at the founding of America that we were “God’s noble experiment.” Judge Sotomayor’s personal story shows that today, 200 years later, we are still God’s noble experiment.

Senator Ben Cardin (D-MD):

Supreme Court decisions affect each and every person in our nation. I think of my own family history. My grandparents came to America more than 100 years ago. I am convinced that they came to America not only for greater economic opportunities, but because of the ideals expressed in our Constitution, especially the First Amendment guaranteeing religious freedom.

My grandparents wanted their children to grow up in a country where they would be able to practice their Jewish faith and fully participate in their community and government. My father, one of their sons, became a lawyer, state legislator, circuit court judge and President of his synagogue. And now his son serves in the U.S. Senate.

While our Founding Fathers made freedom of religion a priority, equal protection for all races took longer to achieve. I attended Liberty School No. 64, a public elementary school in Baltimore City. It was part of a segregated public school system that – under the law – denied every student in Baltimore the opportunity to learn in a classroom that represented the diversity of our community.

I remember with great sadness how discrimination was not only condoned but, more often than not, actually encouraged against Blacks, Jews, Catholics, and other minorities in the community. There were neighborhoods that my parents warned me to avoid for fear of my safety because I was Jewish. The local movie theater denied admission to African Americans.

Community swimming pools had signs that said "No Jews, No Blacks Allowed." Even Baltimore's amusement parks and sports clubs were segregated by race. Then came Brown vs. Board of Education, and, suddenly, my universe and community were changed forever.