My testimony at the Sotomayor confirmation hearings

Testimony Summary on National Security Issues:

The Senate’s performance of its duty to consent to the President’s judicial appointment must be informed by a proper respect for the principle of separation of powers. It would be inappropriate to try to obtain commitments from a judicial nominee as to how that person would rule on particular cases if confirmed. It is as important for the Senate to respect the Judiciary’s independence as it is for the courts to refrain from legislating from the bench.

Congress and the Executive Branch have been engaged in a debate about how to protect the Nation’s values and the lives of its citizens since the September 11 attacks. The Senate is therefore encouraged to probe Judge Sotomayor’s views on the proper judicial role in the handling of national security issues. This is of utmost importance for two reasons.

First, the United States remains engaged in a protracted global war against al Qaeda, the Taliban and other enemies, and its conduct has presented legal challenges. Second, despite Judge Sotomayor’s long and distinguished service, she has not considered many cases in the national security area. In the most significant of such cases heard by Judge Sotomayor, Arar v. Ashcroft, the Second Circuit has yet to issue a decision.

Recently, the Supreme Court has dramatically expanded its role in the areas of national defense and foreign policy. This has significant implications for the prevent ion of another devastating attack. The principles the Supreme Court has developed since Hamdi v. Rumsfeld make it far more difficult for the United States to defeat any enemy that resorts to unconventional warfare.

The Supreme Court has imposed an unworkable habeas corpus framework with regard to the detainees now held at Guantanamo Bay, Cuba. The government has lost 26 of the 31 habeas cases that have been fully litigated so far at the District Court level – which underscores the practical difficulties caused by applying this framework. Lower courts are already beginning the process of extending this habeas regime to individuals held by the United States in other parts of the world, including Afghanistan. This development threatens our ability to wage war and it is fundamentally inconsistent with the Constitution and established precedent.

Although individuals held as enemy combatants within the United States or in overseas areas were able to obtain judicial review in a handful of cases, that foreign combatants held overseas should have been able to seek judicial intervention was virtually unthinkable. The individuals detained by the United States at Guantanamo and elsewhere were not without legal protection. Abuses against detainees can and have been prosecuted under the Uniform Code of Military Justice (UCMJ).

The above legal architecture gave way to judicial activism in the Hamdi case. There, a divided Court ruled that detainees were entitled to challenge their classification as enemy combatants through administrative proceedings. In the 2005 Detainee Treatment Act (“DTA”), Congress provided for a carefully tailored form of unprecedented judicial review.

In its next major decision, Hamdan v. Rumsfeld, the Supreme Court struck down the system of military commissions to try captured al Qaeda operatives. By opening the courthouse doors to our enemies, Boumediene created both uncertainty for our warfighters and opportunities for al Qaeda. This judicial activism was not prompted by the previous Administration’s allegedly exaggerated view of executive power. The Supreme Court invaded the constitutional prerogatives of both political branches.

I am troubled by assumptions that undergird the ongoing wave of judicial activism in national security: that the courts are the best guardians of civil liberties; and that the extension of judicial jurisdiction over all national security issues would produce a superior overall policy for the Nation.

These concerns are now shared by both sides of the aisle. Despite criticizing President Bush’s wartime policies during last year’s campaign, President Obama has continued – in substance if not necessarily in name – virtually all of them. His Administration’s litigation strategy on all of the pending key national security issues is identical to that of his predecessor’s.

Please note that my testimony represents my own opinions, and not those of my firm or its clients.

For More Information, Read the full testimony at


One thought on “My testimony at the Sotomayor confirmation hearings

  1. Jason Smith

    Great Job on the testimony. I liked Sotomayor from the beginning but I appreciated your candor and intellectual debate


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