[Day One and Day Two of the confirmation hearings for Judge Sonia Sotomayor.]
It’s day three of the confirmation hearings, which Chairman Leahy began at 9:30 a.m.
9:33: Sen. Cornyn opens the morning’s questioning. The “two pictures” of Sotomayor: her bench history and “your speeches and other writings.”
“It is clear that my words failed.” The full speech, however, remains as standing for the principles that I have explained, that were similar to the comments of Justice Alito at his confirmation hearing and Justice O’Connor in her oft-repeated statement.
Cornyn quotes something about “change” from an article titled, “Returning Majesty to the Law” (pdf). Sotomayor said:
As these cases show, change–sometimes radical change–can and does occur in a legal system that serves a society whose social policy itself changes. It is our responsibility to explain to the public how an often un-predictable system of justice is one that serves a productive, civilized, but always evolving, society.
Sotomayor: People bring cases to court because they believe precedent doesn’t apply to their cases. “If law was always clear, we wouldn’t have judges.”
Cornyn raises a question about comments in Sotomayor’s Berkeley speech regarding possible “physiological differences” between men and women and other “differences.”
Sotomayor said that she was speaking about the possibility of differences in process, not in outcomes. She said that she thought it was right to “ask the question if there’s a difference. Ignoring it” isn’t the answer.
Creative, Ricci.
10:06: Sen. Cardin is up. He opened with yet another baseball reference.
Cardin talks about voting rights and asks for her views on voting rights.
She says that the question she asks is “Does an act of Congress conflict with a state’s or an individual’s right?”
As with his opening statement, Cardin is focused like a laser beam on civil rights, mentioning the murder of Lawrence King, among others. Cardin asks, also, about the right to privacy.
Sotomayor: In terms of the coming century, cases will be “guided by those precedents. . . . Precedents provide a framework.”
Cardin asks about pro bono work and access to justice.
10:37: Sen. Coburn is up. He reprimands the protesters. He says that he’s going to use words non-lawyers can understand. “What is the settled law in America on abortion?”
S: A woman has a constitutional right to terminate her pregnancy in certain circumstances. She describes Casey as adding in the “undue burden” test to the mix.
Does a state legislature have the right to determine “what is death”?
The law professor’s answer: It depends.
Coburn goes down an extraordinary line of question that ends up with him asking: “Do I have a right to self-defense of myself? Personal self-defense?”
Sotomayor is confounded and talks about how it’s “an abstract question” that has nothing to do with her work as a judge, then — treating Coburn like someone in her work as a prosecutor — explains New York’s self-defense law as it would apply to a “hypothetical” situation in which Sotomayor goes home and gets a gun and then comes back to the hearing room and shoots Coburn. She said that such a situation likely would not be covered by the self-defense law.
Coburn asks about the use of foreign law. Almost the same question asked on Tuesday.
11:08: It’s the Whitehouse show! He focused in at first on her work at the Puerto Rican Legal Defense and Education Fund.
He then talks about jury trials, and Sotomayor does too!
Whitehouse is enjoying just talking law dork-i-ness with Sotomayor. Talking about how technology is changing the view of warrants and the Fourth Amendment.
11:36: A 15-MINUTE BREAK!
As only Democrats remain, I’m holding off on the liveblogging, absent some unusual development.
Sen. Klobuchar went for it well, but there was really nothing of note to report. Sen. Kaufman, however, as Biden’s former chief of staff, knows what he’s doing. He went into a lot of interesting topics, but the most noteworthy was his focus on antitrust law and Leegin — an area in which she showed less than perfect expertise in yesterday. He asked about her experience in antitrust law, and Sotomayor reported that she had not done any antitrust work in practice and could only recall the baseball case off-hand as an antitrust case that she addressed at the trial-court level.
There was nothing of particular note from Senators Specter or Franken, other than the fact that . . . Al Franken . . .was asking questions about constitutional law . . . of a nominee for the U.S. Supreme Court! Weird stuff.
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Chris Geidner is the award-winning senior political editor at D.C.'s Metro Weekly and has written for The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. In 2011, he received the Excellence in News Writing Award from the National Lesbian and Gay Journalists Association for his coverage of "Don't Ask, Don't Tell" repeal. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
Seventh or eighth inning… and the Republicans have yet to score a run.
The fact that this woman doesn’t realize that her writings are now and will be once confirmed subject to review is astounding.
What one writes communicates what one thinks. That is the function of the job she wants on the Supreme Court – to articulate the nation’s intent.
There is no doubt about it – this woman doesn’t communicate well.
Her answer to Whitehouse’s final question in round one simply sets forth that this woman rambles more than the back roads of Iowa.
Patt,
Could you point to one of Sotomayor’s written opinions, either as a trial judge or on the 2d. Cir., that you consider to be an example of poor communication? As you say, such written opinions will be the work product of being a SCOTUS justice. I find it strange that you’re evaluating her based on something other than the written opinions she’s produced in 17 years on the bench.
Writing is writing, do you not agree? I’m referencing her speeches as a product of what the woman writes and believes. I see that you wish to separate her legal opinion writings from her speech writing. I’m sorry, I believe both are the whole body of her work.
Do you not notice that even within her oral arguments here she often chooses the wrong word, says so, and has to correct herself?
Patt,
No, not all writing is the same. I would hate to be evaluated for a job as, say, an advertising writer based on my writing as a lawyer. Different tasks require different types and styles of writing.
If you genuinely want to evaluate someone’s abilities at writing judicial opinions, the best way to do that is to look at her … past judicial opinions. And when she has been a judge for 17 years, that’s quite easy to do because there’s tons of opinions.
If you don’t genuinely care about Sotomayor’s likely work product as a SCOTUS justice, and can’t be bothered to make a serious evaluation, then certainly a few speeches make for a perfectly good substitute. They’re certainly much shorter and require much less knowledge for evaluation than judicial opinions.
And certainly writing is different from speaking; I tend to write in a much stronger tone than I generally would speak in person. (I’ve had people who met me after reading my writing be very surprised by this!) I wouldn’t want someone to evaluate how I would speak at a graduation based on how I write comments on this blog.
I am really curious about what your life is like if your speaking and writing are uniformly the same throughout.
PG: I am really curious about what your life is like if your speaking and writing are uniformly the same throughout.
Fabulous and genuine. I tend to speak and write what I feel and think. I guess, in short, I’m not pretentious.
It is “pretentious” to check one’s work for errors before publishing it? (FYI, “adheres” doesn’t have an apostrophe.) I certainly hope that your fabulous and genuine life doesn’t involve teaching writing or being a copy editor.
What’s with the snark? I don’t deserve that from you. A typo is hardly leaving an audience with the impression that you feel one way when you don’t. If you want me to judge her writing on typos alone – I’ll be happy to.
What was the snark? I meant what I said sincerely. I find your standards for writing and speaking quite bewildering:
When Sotomayor says something that results with some members of her audience having the impression that she believes something that she does not, that’s a sign that she’s in need of remedial writing classes.
When you refer to her as “this woman” and ilr interprets that to signify something about what you think of Sotomayor, you disclaim any such meaning.
When Sotomayor needs to correct her word choice while speaking live and without a prepared text on national TV before the Senate (these are not “oral arguments,” but rather confirmation hearings), that indicates that she’s a poor communicator.
When you submit comments with typos, that’s indicates you’re genuine and not pretentious.
As for what you should use to judge her writing, I’ve said several times that if you actually care about what her work product as a SCOTUS justice will be, you should look at what her work product as a trial and appellate judge was. That work product doesn’t include speeches. If you aren’t sufficiently interested to read her opinions, then you’ve shown how much you really care about her abilities as a judge (as opposed to a speech-maker or hearing-testifier, neither of which is a job she is seeking).
You are quite correct. You write in a harsh manner. I suppose that comes from your profession, although I can’t be sure of that. You have no reason to be as I am not in an adversarial position to you. I suppose you can’t help yourself. No matter.
I’ve stated I don’t have a problem with her being on the court but I’ve asked that she find a way to communicate her feelings and beliefs better. In doing so, you seem to believe that I have a problem with her legal ability. That is your assumption. Am I bothered by your snippy attitude regarding my desire? No, I can’t say that I am. But attacking me because I am commenting on her is rather silly, don’t you think? Neither of us will have a vote here.
Justices do not write legal opinions only and are not hidden within the walls of the court. Her work will not be within a vacuum. I believe you know that. If she has such a problem communicating what she actually believes to those she speaks to, how can you be so absolutely sure that her opinions will be accepted as they need to be by the parties before the Supreme Court? It is a role of a Justice to articulate the intent of the legal application of law to those matters before it. She must have the ability to be clear and concise. So far, by her own admission, her intent is far different than the words she has placed on paper.
But it’s not a judge’s job “to communicate her feelings and beliefs better.” You seem to have a fundamental misunderstanding of what a judge does. I suppose I should have realized that from your first comment, in which you said, “That is the function of the job she wants on the Supreme Court – to articulate the nation’s intent.” It is no part of a SCOTUS justice’s job “to articulate the nation’s intent.” (I don’t even know what “the nation’s intent” means or how an individual would articulate it.) It is a justice’s job to rule on the law.
A judge must be capable of communicating the facts of the case and her reasoning in coming to a particular decision. Communication of feelings is for artists; communication of beliefs is for politicians and evangelists.
If you’re saying that you’re not actually trying to evaluate her as a judge, merely as a communicator of feelings and beliefs (which, again, is a role irrelevant to good judging), then I apologize for misunderstanding you. I was assuming that what I consider important about Sotomayor in the context of her confirmation hearings — whether she will make a good Supreme Court justice — is also what anyone else would consider important.
“It is a role of a Justice to articulate the intent of the legal application of law to those matters before it. She must have the ability to be clear and concise.”
Agreed that this is the role, and that clarity is important. (I am not sure why you believe it is necessary to be concise; there’s no page limit for Supreme Court decisions, and complex ideas that involve dozens of fact-specific precedents will require lengthy explication.)
What I do not understand is why you refuse to look at Sotomayor’s legal opinions to evaluate whether she is capable of filling this role. The consensus among people who study hiring is that the best predictor of future performance of a task is past performance of the same or similar tasks. Sotomayor’s task as a justice is not to communicate feelings and beliefs, but to communicate facts and logical reasoning. We have a lengthy record of her ability to do so in the form of her past 17 years of opinion writing. Why would anyone would try to evaluate her abilities as a judge by ignoring that body of work?
@Patt: Certainly your repeated use of the term “this woman” is communicating your thinking quite clearly. You could have said, “the judge”, “the nominee”, her name, or some combination.
I meant nothing by it – at this very moment, I have no argument with her sitting on the court outside her need to take a writing class or three or maybe a gabazillion.
I’m not one who adhere’s to the PC dictum. Neither will I ever be.
Hmm, the Antitrust Review blog came up with several opinions she authored while on the 2d Cir. — the NFL one was pretty prominent.
PG: In Closing:
Your final sentence is one where we differ and it colors the back and forth we’ve engaged in today. I see her speeches as a part of the body of her life’s work. I am not looking at just her judicial opinions as the only criteria for a lifetime appointment to the SCOTUS, as you seem to be. To me, a lifetime appointment encompasses much more as she becomes one of a select few that is placed as an arbitrator between two houses of our government. To that end, her ability to state, in plane terms, the beliefs that guide her as she does this important work is paramount.
I would say, by her own admission, that it is her desire to educate the legal profession and the public in general as to the process of law. Please read her speech ‘Returning Majesty to The Law”.
http://judiciary.senate.gov/nominations/SupremeCourt/Sotomayor/upload/Question-12-a-No-5-Returning-Majesty-to-the-Law-and-Politi.pdf
The ability to write outside of the court is indeed important.
One of the problems with television is we have grown accustomed to seeing courtroom dramas where lawyers speak eloquently with never a mistake or stutter. Unfortunately the real world doesn’t work that way, if Sotomayor chooses a “wrong” word and then instantly corrects herself and that somehow invalidates her ability, then someone else has been watching too much Perry Mason.
This got so off topic — thank you, Patt — that some important parts of the hearing were missed. Grassley in his questioning seemed desperate for her to accept Baker v. Nelson as ’settled law’ and the type of precedent she would be bound by. (Has Grassley changed as strongly as it seems? He was never, afaik, a strong ’social conservative’ more a fiscal one, but between this and his ‘marijuana leads to meth’ idiocy, he seems to be adopting the worst inanities of the Republican bases as he visibly ages.)
For me, though, the most interesting part was the questioning — actually more of a colloquy — between Sen. Graham and Judge Sotomayor about whether a judge brings her personal experiences to her decisions on such questions as ‘fundamental right’ decisions.
And what bothered me was not just that Graham had the much stronger position, but that Sotomayor might truly believe her stated position, that it is not merely the ‘politically correct’ one to get her confirmed, but her real feelings.
Because her comments are not true about most Justices, nor should they be. Certainly Holmes’ service in the Union Army affected the way he saw things and voted — as did the fact that Emerson was a family friend during his youth. Black as well as Marshall had their views affected on civil rights cases by the racism they experienced — even though Black was not the direct victim of it — growing up. Can the anti-Semitism that Brandeis experienced in his confirmation — as well as every day he was on the court with McReynolds — have had no affect on him? Wasn’t Harlan’s dissent in Plessy affected by the fact he had been a slave-owner and knew how evil it was.
In fact, while I have pointed to Stone as the best example of the pure “Law Machine’ type of judge — warning, I know legal history better than the law, so I’m going to get obscure to many of you — were not the majority of those who tried to implement such a philosophy among the least remembered — or least highly recalled — of Justices. The Morrison Waites, the Pierce Butlers, the Sutherlands, even the Justice Storys are not the Justices who have been important to America. (Some would argue that even Frankfurter and Cardozo were less important than they could have been because of this.)
Of course, the over-politicized Justices have not always been successful (Frank Murphy, anyone, for the progressive ‘bad example’?) But the importance of the Supreme Court is that it need not be bound strictly by precedent and almost every important SCOTUS decision we remember, for good or bad, in some way overthrew existing precedent. The Justices can, do, and should take into account the meaning of their decision and how it affects society, and those who do not are rarely important members of the Court.
One last Sotomayor comment, but I had to pass this on. Cartoon reprinted in Saturday’s NY Daily NEWS — cant read the cartoonist’s name or where it is from. Two panels. Left hand side, a picture of Judge Sotomayor with three boxes below her, all checked, reading “Wise” “Latina” “Woman.”
Right hand panel, picture of Justice’s Scalia, Thomas, Roberts and Alito. One box — checked — “None of the Above.”