[Day One of the Sotomayor hearings are here.]
9:30 a.m.: Judiciary Committee Chairman Leahy opened the second day of the hearings for Judge Sonia Sotomayor, with a 30-minute-per-member round of questions. Leahy begins.
9:37: Sotomayor, years later, recounts the case of Richard Maddicks, the “Tarzan burglar,” and goes through her prosecutorial strategy. Politico had discussed the case here.
Leahy raises Ricci.
Sotomayor says “established precedent” controlled the case. This was not a “quota case.” She went through the ways in which she, as a member of a panel, is obligated to follow other opinions.
Leahy raises the “wise Latina” remarks.
S: “No words I have ever given have received so much attention.” Sotomayor says that the speech was given to groups of women or, often, young Hispanic people and, then, “I was trying to inspire them to believe that different life experiences” add to the legal system. No group has “an advantage in sound judging.” Justice O’Connor’s comments — about a wise old man and a wise old woman reaching the same conclusion — meant that in both there is an “equal value of the capacity to be fair and impartial.”
Leahy raises Heller. Leahy says the Posner agreed with the Second Circuit’s ruling against incorporation. He’s rambling, raising his own cases as a prosecutor.
Sotomayor responds: “My decision on Maloney” (discussed at SCOTUSblog) is based on the fact that the Supreme Court had not rejected its precedent regarding the non-incorporation of the Second Amendment.
Interstate commerce raised but no real answer of note from Sotomayor.
10:04: It’s Ranking Member Sessions time.
10:07: Sotomayor says her record, “in every case I have decided,” the law controlled. She says that, in context, the comment makes perfect sense. As legal folks know, the “appellate court makes policy” comment was regarding the “policy ramifications of precedent” that an appellate decision has, as opposed to the fact-based inquiry of a trial court that has no precedential effect on other cases.
Sessions doesn’t think it’s that clear.
Sotomayor tries: “Life experiences have to effect you.” The bottom line is that Sessions just doesn’t “get it.” He doesn’t get that experience matters and that our experiences change people. He doesn’t get that what she is saying is that, unlike him, she knows that she needs to keep her differences front and center in her mind so as to avoid letting those influence her in ways that would be unfair.
Referring to Judge Cedarbaum, whose comments Sessions raised, says, “We both approach judging in the same way: looking at the facts in each case and applying the law to each case.”
Sessions won’t get past it, so he moves on to Ricci. Sessions: Why is “Adarand“ and “strict scrutiny” missing from your opinion?
Sotomayor, shorter: Um, wrong cases, buddy. “Two different standards, two different cases . . .”
10:40: Sen. Herb Kohl, a non-lawyer, is “rehabilitating” Sotomayor. But, well, since Sessions didn’t do much to un-habilitate her, this isn’t really necessary. Kohl asks a weird question about who on the current Court she admires.
Sotomayor thinks it’s weird, and wouldn’t answer. She turns to the past and names Justice Cardozo.
Kohl asks about affirmative action.
Sotomayor: Affirmative action is “always first a legislative, or government employer, determination.”
“Equality requires effort.”
Kohl: Bush v. Gore. Kelo. “I know the law stuff you all talk about.”
On Kelo, she says, “Kelo is now a precedent of the Court” — and notes that, if on the Supreme Court, she would give the opinion the deference it deserves under stare decisis. “The reach of Kelo,” though, continues to be applied on a case-by-case basis.
Kohl, proving he’s not a lawyer, asks about her view of the case if on the Supreme Court, as opposed to on the Second Circuit.
K: Is Roe settled law?
S: Casey reaffirmed the core holding of Roe.
K: Kohl then asks did Casey re-affirm the core holding of Roe?
Kohl goes on to antitrust, his true love. Raises Leegin.
Sotomayor calls the case Leggins. Repeatedly. Hmm. That was a non-answer answer. Roughly, “Precedent, stare decisis, etc.”
11:06: BREAK!
11:28: Hatch is up. What’s “settled law?”Specifically references Carhart.
It’s “settled subject to the limits of stare decisis” — which avoids the question of what is Sotomayor’s view of stare decisis.
A very interesting discussion of determination of “fundamental rights” ensues. Sotomayor is avoiding the discussion by going back to the specific Second Amendment incorporation cases. I get the impression that he can tell she’s avoiding answering his question.
This then went into a detailed discussion about the Privileges and Immunities Clause, versus the Due Process Clause, being used to explain incorporation of rights in the Bill of Rights to the states.
After some time, and, yes, reference to nunchuks, Hatch moves on to Ricci. He gets into a disparate impact/disparate treatment discussion.
Hatch, again, just wants to let Sessions know that he is a pale substitute for the wizened inquisitorial abilities and legal genius of himself.
12:01: Sen. Feinstein is up, and begins by giving Sotomayor an “A++” for her judicial temperament. She says that some of the attacks against Sotomayor would have prompted more of a response from her. She goes right into abortion.
Sotomayor says that the second Carhart case did not change precedent and that constitutional considerations must be given to the “health of the mother.”
Feinstein asks how a precedent should be overruled.
“Very cautiously.” She goes on: “Courts have looked at a variety of factors.”
Signing statements question.
“Not only is Congress grappling with this issue, but so are courts.” Seque to avoidance. But, generally, Sotomayor says, we look at Justice Jackson’s concurrence in Youngstown Sheet and Tube.
Commerce Clause question from Feinstein. She’s getting into one of my favorite areas, referencing the Rehnquist Court’s efforts on the Commerce Clause. Do you agree with the direction it’s going in?
“No, I don’t.”
Sotomayor explains the “substantial effects” test. Sotomayor notes Raich, which upheld a non-economic statute and “an attempt to regulate a market in illegal drugs.” Previously, I wrote for the Wonk Room at Think Progress on Sotomayor’s view of the Commerce Clause.
12:30: LUNCH! BACK AT 2 PM!
2:09: BACK! Grassley and Sotomayor are talking Kelo, which goes into Didden, a Sotomayor case that the Blog of LegalTimes reported on here.
A Chevron case of Sotomayor’s is mentioned. Sotomayor says, “You have to start with Congress’s intention.”
2:30: Feingold is up, and he turns to the aftermath of September 11th.
Sotomayor says, “In the end, the Constitution, by its terms, protects certain individual rights.” As to whether 9/11, specifically, changed her view of it: “No, sir, the Constitution is a timeless document.”
Judges don’t look at whether mistakes were made, “We look at whether actions were consistent with Constitutional limitations.”
Feingold asks about the torture memo and the absence of a discussion of the Youngstown Sheet and Tube opinion in that memo. Sotomayor responds that she can’t comment on the presidential advisory portion but that she would expect a court to consider that opinion in a determination about the authority of related presidential action.
Feingold asks what the incorporation test is. Sotomayor demurs.
Feingold asks in fourteen ways whether the Second Amendment will be incorporated. Sotomayor, in the same way each time, refuses to answer.
Feingold goes on to FISA/state secrets privilege. Sotomayor says that she’s never been a part of a FISA court and says, basically, there’s a lot of balancing that would need to go on before she reached a conclusion on this issue.
Feingold asked about her being a New Yorker. Would she understand his constituents in Wisconsin?
“I do think it’s important to know more than what I live.”
Feingold goes on to ask about Korematsu.
Sotomayor says, “A judge should never rule from fear” but should always rule from law.
How do you resist ruling from fear?
“Hopefully, by having the wisdom of a Harlan in Plessy.” She went on: “Our Constitution has held us in good stead for over 200 years,” and we would hope that it would continue.
3:02: Kyl is going through Maloney and incorporation. He pretends that the Ninth Circuit and Seventh Circuit decisions will be the same “matter” for recusal purposes. Sotomayor destroys him. He comes back for more.
Kyl, as if his first line of questioning wasn’t inane enough, spends the next 10 or 15 minutes proving Eugene Robinson wholely correct when he wrote:
Republicans’ outrage, both real and feigned, at Sotomayor’s musings about how her identity as a “wise Latina” might affect her judicial decisions is based on a flawed assumption: that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things. Any “identity” — black, brown, female, gay, whatever — has to be judged against this supposedly “objective” standard.
This is absurd and disgusting.
3:50: Sen. Schumer is up. He’s likely the biggest Sotomayor cheerleader.
He’s going through cases where Sotomayor ruled against sympathetic plaintiffs or defendants and ruled in favor of unsympathetic folks. It’s a little weird.
Foreign law is Schumer’s next topic. He establishes that she’s never used a foreign source as the interpreter of foreign law. A “duh” point, but one that needed to be hit.
Baseball. Well, not just any baseball — but the Sotomayor baseball case!
4:23: Senator Graham is up. Her speeches, he say, more than her cases, are “disturbing.”
She’s over the “labels” for judicial philosophy. I’ve gone from liking the nominee to liking the person over the past two days. I really want this woman on the Supreme Court.
He says she sticks out like a sore thumb in terms of “your temperament.” He is wrong, it’s in terms of her temperament as reported by one group of anonymously reported lawyers’ views.
Graham then goes into a whole bit on the whole “wise Latina comment.”
Now, he’s moved on to the War on Terror.
Then, he went on to briefs filed by the Hispanic group with which she was involved, including abortion and death penalty cases.
4:54: Sen. Durbin is up, and repetitive.
5:25: Leahy says for Senators to try and keep things interesting! And, they’re done for the day.
5:26: RECESS! Cornyn and Coburn, on the GOP side, remain. Hearings start at 9:30 a.m. Wednesday.
Popularity: 22% [?]
Chris Geidner is a lawyer in Washington, D.C., who writes at Law Dork, is the senior political writer at Metro Weekly and has written for The Atlantic Online, Advocate.com, Salon and other publications. An extended biography can be found
Re: Heller. Should’ve just said “East-er-brook.” His opinion in 7th Cir. case declining to decide the incorporation question is a gem. And who wouldn’t want to be in that company?
Sessions doesn’t understand antidiscrimination law. Surprised?
shocker!
Does Sessions know how dumb he sounds? Well, the good thing is this kind of stuff keeps the Repubs in the 22% tile.
I am surprised that she picked Cardozo, since she continues to remind me of Harlan Fiske Stone. Cardozo was similar, yes, but was a little too deferential where Stone followed the law and realized that even legal reality has a ‘liberal bias.’
I am splitting my attention between the live tv broadcast and the radio coverage on WNYC — the local NPR station. Brian Lehrer is the host, and has already pointed out Sessions’ racist history and, during a break, has discussed William Brennan — I had forgotten that Sotomayor was taking the seat that once was his. If you get a chance to hear some of his coverage — I think it only goes until 12:00 — I would advise it.
I see that Neomi Rao, a law prof and former J. Thomas clerk who spoke at the Ohio State Law Journal Symposium on J. Ginsburg, is on the minority witness list. Interesting…. Maybe her testimony here will be sharper than her Symposium commentary, in which she channeled/parroted J. Thomas and did little more than recite the litany supposed harms affirmative action inflicts upon racial minorities.
An interesting thought that was menioned during the discussion on the Lehrer show — by, I think, Jamie Floyd. “Don’t you think gthat Justice Scalia has benefitted by having the perspecticve of a Clarence Thomas on the court’ — referring specifically to the difference his ‘life experince’ has brought.
(Oops, Floyd also said the ‘Founders wanted nine Justices’ but they didn’t. The number was originally five, I believe, was as low as four, and went to ten briefly during the post-Civil War period.)
Interesting point, Souter had the exact opposite ‘life experience’ than Sotomayor but became so prominent a liberal that we only hope she matches him.
I guess Sotomayor isn’t big on antitrust? Disappointing to me personally, but it’s hardly a prerequisite. I assume the reason Leegin was raised is that it was on the one hand the rare instance of an overt repudiation of a long-standing precedent, but on the other hand it represented the academic consensus and what the Court had been creeping toward for the last 30 years anyway. I’m less interested in questioning Sotomayor about it than Kennedy and his goofy “so long as we share the same ultimate goal as the Congressional legislation on this subject, we can rule in a way that completely contradicts that legislation.”
I wonder if you got Hatch’s motivation right. He’s a skilled and knowledgable politician — the fact that I disagree with him on almost everything doesn’t keep me from admiring his skills. And I wonder if he’s noticed how frequently people have been digging into Sessions’ background. The worst thing for the Republicans would be to have the newspapers run the story with a ’sidebar’ on Sessions’ racist history.
So in his questioning he did challenge Sotomayor, but on technical issues — and expressed them so technically — that he may have basically discouraged reporters from covering anything in depth — because even if they understood the points he was making, they knew they could never explain them.
Some Republicans realize how their opposition to Sotomayor has hurt them. They know the political necessity of ‘putting up a noble, doomed fight for principles’ but they’d rather not have this being the story of the week — given how those principles come across to non-Republican ears.
A friend’s away message: ‘for people who have no jobs and are playing the “wise latina” drinking game to CNN’s coverage, are you still alive? Because Wolf Blitzer is trying to kill you.’