"Well, thank you. I've learned something already, the Schumer conservative standard. And we'll -- we'll see how that works.
No Republican would have chosen you, Judge; that's just the way it is. We would have picked Miguel Estrada. We would all have voted for him. And I don't think anybody on that side would have voted for Judge Estrada, who is a Honduran immigrant, who came to this country as a teenager, graduated from Columbia magna cum laude, Harvard, 1986, magna cum laude and Law Review editor, a stellar background like yours, and that's just the way it was.
He never had a chance to have this hearing. He was nominated by President Bush to the D.C. Circuit Court of Appeals, which I think most people agree is probably the second highest court in the land, and he never had this day.
So the Hispanic element of this hearing's important, but I don't want it to be lost that this is mostly about liberal and conservative politics more than it is anything else.
And having said that, there are some of my colleagues on the other side that voted for Judge Roberts and Alito, knowing they would not have chosen either one of those, and I will remember that.
Now, unless you have a complete meltdown, you're going to get confirmed. (LAUGHTER)
And I don't think you will, but, you know, the drama that's being created here is -- is -- is interesting.
And -- and my Republican colleagues who vote against you I assure you could vote for a Hispanic nominee. They just feel unnerved by your speeches and by some of the things that you've said and some of your cases.
Now, having said that, I don't know what I'm going to do yet, but I do believe that you, as an advocate with a Puerto Rican defense legal fund, that you took on some cases that I would have loved to have been on the other side, that your organization advocated taxpayer-funded abortion and said in a brief that to deny a poor black woman Medicaid funding for an abortion was equivalent to the Dred Scott case. Now, that's a pretty extreme thing to say, but I think it was heartfelt.
I would look at it the other way. To take my taxpayer dollars and provide an abortion to -- to pay for abortion I disagree with is pretty extreme. So there's two ways of looking at that.
You were a prosecutor, but your organization argued for the repeal of the death penalty because it was unfairly applied and discriminatory against minorities.
Your organization argued for quotas when it came to hiring. I just want my colleagues to understand that there can be no more liberal group, in my opinion, than the Puerto Rican defense legal fund when it came to advocacy.
What I hope is, if we ever get a conservative president and they nominate someone who has an equal passion on the other side, that we will not forget this moment, that you could be the NRA general counsel and still be a good lawyer.
My point is, I'm not going to hold it against you or the organization for advocating (inaudible) from which I disagree. That makes America a special place. I would have loved to have been in those cases on the other side. I hope that wouldn't have disqualified me.
Now, when it comes to your speeches, that is the most troubling thing to me, because that gives us an indication, when you're able to get outside the courtroom without the robe, an insight into how you think life works, and this wise Latino comment has been talked about a lot.
But I can just tell you one thing: If I had said anything remotely like that, my career would have been over. That's true of most people here. And you need to understand that, and I look forward to talking with you about that comment.
Does that mean that I think that you're racist? You've been called some pretty bad things. No. It just bothers me when somebody wearing a robe takes the robe off and says that their experience makes them better than someone else. I think your experience can add a lot to the court, but I don't think it makes you better than anyone else.
Now, when I look at your record, there is a lot of truth to what Senator Schumer said. I don't think you've taken the opportunity on the circuit to -- to be a cause-driven judge. But what we're talking about here today is, what will you do when it comes to making policy?
I'm pretty well convinced I know what you're going to do. You're probably going to decide cases differently than I would. So that brings me back to, what am I supposed to do knowing that?
I don't think anybody here worked harder for Senator McCain than I did, but we lost, and President Obama won. And that ought to matter. It does to me.
Now, what standard do I apply? I can assure you that if I applied Senator Obama's standard to your nomination, you -- I wouldn't vote for you, because the standard that he articulated would make it impossible for anybody with my view of the law and society to vote for someone with your activism and background when it comes to lawyering and judging.
He said something about the 5 percent of the cases that we're all driven by. He said something to the effect, in those difficult cases, the critical ingredient is applied by what is in the judge's heart. Well, I have no way of knowing what is in your heart any more than you have knowing what's in my heart. So that to me is an absurd, dangerous standard.
Maybe something good could come out of these hearings. If we start applying that to nominees, it will ruin the judiciary. I have no idea what's in your heart anymore than you have an idea what's in my heart, and I think it takes us down a very dangerous road as a country when we start doing that.
Now, there was a time when someone like Scalia and Ginsberg got 95-plus votes. If you were confused about where Scalia was coming down as a judge, you shouldn't be voting, anymore than if you were a mystery about what Justice Ginsberg was going to in these 5 percent of the cases. That is no mystery.
There's some aspect of you that I'm not sure about that gives me hope that you may not go down the -- Senator Feingold's road when it comes to the war on terror, and we'll talk about that later on.
But generally speaking, the president has nominated someone of good character, someone who has lived a very full and fruitful life, who is passionate. From day one, from the time you got a chance to showcase who you are, you've stood out and you've stood up and you've been a strong advocate and you will speak your mind.
The one thing I'm worried about is that if we keep doing what we're doing, we're going to deter people from speaking their mind. I don't want milquetoast judges. I want you to be able to speak your mind, but you've got to understand that when you gave these speeches as a sitting judge, that was disturbing to me.
I want lawyers who believe in something and are willing to fight for it and I don't want the young lawyers of this country feeling like there's certain clients they can't represent because when they come before the Senate, it will be the end of their career.
So I don't know how I'm going to vote, but my inclination is that elections matter. And I'm not going to be upset with any of my colleagues who find that you're a bridge too far, because in many ways, what you've done in your legal career and the speeches you've made give me great insight as to whether -- where you'll come out on these 5 percent of the cases.
But President Obama won the election and I will respect that. But when he was here, he set in motion a standard, I thought, that was more about seeking the presidency than being fair to the nominee.
When he said, "The critical ingredient is supplied by what is in the judge's heart," translated, that means, "I'm not going to vote against my base, because I'm running for president."
We've got a chance to start over. I hope we'll take that chance. You will be asked hard questions and I think you expect that, and my belief is that you will do well, because whether or not I agree with you on the big theme to live is not important.
The question for me is have you earned the right to be here and if I give you this robe to put you on the Supreme Court, do I believe, at the end of the day, that you will do what you think is best, that you have courage, and that you will be fair.
Come Thursday, I think I'll know more about that. Good luck."