Confirmation Hearing Day Two: Senator Schumer comments on Judge Sotomayor's moderate record on asylum cases (in terms of being statistically average) and asks Sotomayor to explain her approach to immigration cases.
SCHUMER: Now, this one--my office conducted an analysis of your record in immigration cases, as well as the record of your colleagues. And in conducting this analysis, I came across a case entitled Jian v. Board of Immigration Appeals (ph), where your colleague said something very interesting. This was Judge Jon Newman. He's a very respected judge on your circuit.
He said something very interesting when discussing asylum cases. Specifically, he said the following. This is Judge Newman. Quote, "We know of no way to apply precise calibers to all asylum cases so that any particular finding would be viewed by any -- any 3 of the 23 judges of this court as either sustainable or not sustainable. Panels will have to do what judges always do in similar circumstances: apply their best judgment, guided by the statutory standard governing review and the holdings of our precedents, to the administrative decision and the record assembled to support it."
In effect, what Judge Newman is saying is these cases would entertain more subjectivity, let's say, because, as he said, you could -- you could side many of them as sustainable or not sustainable.
So given the subjectivity that exists in the asylum cases, it's clear that if you wanted to be, quote, "an activist judge," you could certainly have found ways to rule in favor of sympathetic asylum-seekers even when the rule of law might have been more murky and not have dictated an exact result.
Yet, in the nearly 850 cases you have decided in the Second Circuit, you ruled in favor of the government--that is, against the petitioner seeking asylum, the immigrant seeking asylum--83 percent of the time.
That happens to be the exact statistical median rate for your court. It's not one way or the other. This means that, with regard to immigration, you are neither more liberal nor more conservative than your colleagues. You simply did what Judge Newman said. You applied your best judgment to the record at hand.
Now, can you discuss your approach to immigration cases, explain to this panel and the American people the flexibility that judges have in this context, and your use of this flexibility in a very moderate manner?
SOTOMAYOR: Reasonable judges look at the same set of facts and may disagree on what those facts should result in. It hearkens back to the question of wise men and wise women being judges.
Reasonable people disagree. That was my understanding of Judge Newman's comment in the quotation you made.
In immigration cases, we have a different level of review, because it's not the judge making the decision whether to grant or not grant asylum. It's an administrative body.
And I know that I will -- I'm being a little inexact, but I think using old terminology is better than using new terminology. And by that I mean, the agency that most people know as the Bureau of Immigration has a new name now, but that it's more descriptive than its new name.
SCHUMER: ICE. Some people think the new name's descriptive, but that's...(LAUGHTER)
SOTOMAYOR: In immigration cases, an asylum seeker has an opportunity to present his or her case before an immigration judge. They then can appeal to the Bureau of Immigration and argue that there was some procedural default (ph) below (ph), or that the immigration judge or the bureau itself has committed some error of law.
They then are entitled by law to appeal directly to the 2nd Circuit. In those cases, because they are administrative decisions, we are required under the Chevron doctrine, and other tests in administrative law, to give deference to those decisions.
But like with all processes, there are occasions when processes are not followed, and an appellate court has to ensure that the rights of the asylum seeker have been -- whatever those rights may be -- have been given. There are other situations in which an administrative body hasn't adequately explained its reasoning. There are other situations where administrative bodies have actually applied erroneous law.
No institution is perfect. And so, that accounts for why, given the deference -- and I'm assuming your statistic is right, senator, because I don't add up the numbers. OK?
SOTOMAYOR: But I do know that in immigration cases, the vast majority of the Bureau of Investigation cases are -- the petitions for review are denied. So, that means that...