Sotomayor Hearings, Day 2

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So I guess I'll liveblog at least part of this today.

Senator Patrick Leahy (D-VT): Most of this seems to be about the best characteristics of judges and the role of the judge.

Sotomayor: As a judge, her role isn't to make law. Her role is to decide whether the law, as it exists, has principles that apply to new situations. That sounds pretty good to me, although people who say that might have a wide variety of how they carry it out, and some might see others as not doing that at all.

Leahy asks her about the Ricci case (the Connecticut firefighters who weren't promoted because not enough minorities did well enough on the test for promotion). He says it's "damned if you do, damned if you don't" case, but I didn't get the set of alternatives he presented. I suspect it's a false dilemma, but I need to look more closely at what he said to be sure.

She frames the issue as about the city certifying the test vs. finding a test that would measure effectiveness without the disparate impact. Was the decision of the city based on race or based on what its view of the law required it to do? Her panel concluded it was a lawful decision under established law and 2nd Circuit precedent. The Supreme Court applied a new standard and announced it as a new standard from a different law.

Now he asks about the "wise Latina" comment. She says she gave variants of the speech to several groups of young Latina lawyers to inspire them to believe their lives and experiences will enrich the legal system, because different backgrounds do. She wanted to inspire them to become anything they wanted, as she did. She thinks the words created a misunderstanding. She doesn't believe any ethnic, racial, or gender group has an advantage in sound judging. Every person has an equal opportunity to be a good and wise judge regardless of their background and life experiences. She says her words agree with the sentiment Justice O'Connor was trying to convey. Men and women are equally capable of being wise and fair judges. Judges disagree about legal outcomes in close cases. It can't be that one of them is unwise, despite the fact that some people think that. (Legal realism coming in?) She says her record shows that she first looks to what the law requires.

Leahy moves on to guns, making it clear that she recognizes the Supreme Court's Heller case establishing an individual right to bear arms when it comes to federal laws but not establishing anything about whether states can restrict gun ownership. (That is indeed what Justice Scalia's opinion says, and the circuit courts have split on that very issue, so it will face the Supreme Court soon enough.)

She says she has friends who hunt, and one godchild of hers is an NRA member. She recognizes the individual right under the 2nd Amendment as limiting the federal government rights to restrict firearm ownership. She does well explaining incorporation. The right doesn't apply to the states. Scalia didn't actually said that. He just said he's not commenting on that issue. She says she has an open mind on that issue. She'd follow Supreme Court precedent when it speaks directly on an issue, and she did in her Maloney decision where she took the view that [Second Circuit] precedent doesn't incorporate that right, but she'd hear the arguments open-mindedly if it came up on the Supreme Court [which doesn't have any precedent on the issue, but she didn't make that completely clear].

Senator Jeff Sessions (R-AL): Asks about applying vs. making law. She repeats that she decides what the law requires. Judges making policy? She made a remark in a law student dialogue. In context, she wasn't talking about policy reflected in law that Congress makes. That's their job. In that conversation with students, she focused on what district court and circuit court judges do. They find facts and apply them to individual cases. Their finding, their holding, doesn't bind anyone else. Appellate courts establish precedents, and those have policy ramifications by binding all litigants rather than just those particular litigants. It's very clear in the fuller context that she's talking about policy ramifications of precedent, not making policy that Congress makes.

He says he doesn't think it's that clear. I don't think her explanation is all that clear, actually. There are better ways to make this point. Judicial conservatives have done so. He shifts to allowing prejudices to affecting judging, and she says that's never ok. She's talking about the obligation to examine what they're feeling and to ensure that's not influencing the outcome. Life experiences have to influence you. We listen to evidence, but we have feelings. We have to put them aside. He says she said we must not deny the differences of experience influencing us, because sometimes they're appropriate. She says our experiences and feelings can lead us to believe those are appropriate, as long as we're open-minded to thinking they might not be, since they shouldn't determine the outcome. Experiences can be important because the law asks us to use those experiences. She's not explaining this well at all.

The system is strengthened when judges don't assume that they are impartial but test themselves to identify when their emotions or experiences are driving the result. Sessions agrees. But that doesn't sound like what she said earlier. (I agree.) She earlier did say that heritage does influence decision-making in a good way. Now she does admit that she said life experiences enrich us in good ways. It can affect what we see or how we feel. But it doesn't drive a result. Impartiality is recognizing that the law drives the result. The question is what we should be thinking about and considering in the process. Life experiences could make a difference. But that shouldn't drive the result. (She's not making this distinction the right way. It's that experiences can sometimes lead to a better understanding of the facts. She needs to say that.)

In every case where she's identified a sympathy, personal view, or prejudice she has explained it to the litigant and explained how it influences how she sees something. It's not about choosing to see some facts and not others. Our life experiences do enable us to see some facts more easily than others. We have several judges on panels for that reason. Judges do consider all the arguments of litigants. Opinions explain to parties why the law requires what it does. She doesn't think her experiences should allow her to ignore experiences she hasn't had. [The problem here is that her legal realism, recognizing legitimate interpretations of the facts and the law, is in conflict with her ideal of impartiality. It's not about her view that diversity of experience is valuable. He's not poking at the right thing here.]

She says she wasn't trying to disagree with Justice O'Connor but to play on her words. She doesn't think O'Connor thinks a judge is unwise for getting a different result from her, because reasonable judges can disagree. She just wanted to affirm to these Latino and Latina lawyers that their experiences could contribute for good.

Sessions points out that judicial philosophy is more likely to reach full flower on the Supreme Court. He's right about that.

On to Ricci. The test had a process of ensuring broad racial participation in the test. They went out of the way to ensure that it wasn't biased. But they threw out the results after they saw them, because not enough of one group did well. They rejected the results because they produced the wrong racial results. Now back to her background affecting the facts she chooses to see.

Judge Posner saw a similar case in the same way on the Sixth Circuit. A variety of different appellate judges saw her case as ok not to certify the test if it believed a different type of test would produce fair results without the racial discrepancy. (If that's so, why didn't they do that? They had more than a decade to make an attempt.)

He brings up the brief nature of the decision, not discussing the serious issues raised. When rehearing came up by the whole Second Circuit, it was up for debate. It can't be that she was bound by precedent at that point, because that situation doesn't require being bound by previous precedent. She must have had more argument than just following precedent at that point in the process. (He's right about that.)

He mentions her agreement in her earlier hearing for the appellate court appointment that she'd submit racial discrimination cases to strict scrutiny, according to Supreme Court precedent. Why didn't she raise such issues in her opinion? She says it's a different question. It's about how a city can decide whether a test needs to be redone, not about whether discrimination is allowed. He responds that lots of people did raise the issue that it was an important employment discrimination case, including Judge Cabranes.

She says her opinion relied on a long, thorough district court opinion. Judge Cabranes had a different view and wanted to rehear it, but she didn't think it needed to be reheard. No one disputed that the test had disparate impact. They had the right to bring a suit. The issue was whether the city was attempting to comply with the law by discounting the test results, not whether they were being discriminated against. (I'm not sure that distinction is correct, because it's because they were being discriminated against that so many people think the test results can't be discounted legally.)

Senator Herb Kohl (D-WI): Points out that the Supreme Court decision went 5-4 on this, so reasonable minds can disagree. (Tell that to the critics of the decision who didn't think the majority was reasonable.)

She's saying reasonable judges can disagree, but she's back to the Second Circuit precedent issue, and she was just applying it. Hasn't Sessions already explained why that's no longer relevant at the en banc stage when they consider arguments that would allow them to overturn their precedents?

We get to the issue of the Supreme Court overturning a high percentage of her decisions. She points out that those are just the cases they decided to hear. The overwhelming majority of her decisions were never considered for reevaluation by the Supreme Court.

He asks her which justices she'll agree with or admire most on the Supreme Court? She says she's not a clone of any of them. They each bring integrity, respect for the law, and their best efforts and hard work to come to what they think the law requires. She can't pick one justice and thereby seem to disagree with another. A better question would have been what past justices she admires most, and she does turn to that just as I'm writing this. She says Justice Cardozo is one she admires a lot. He wasn't on the Supreme Court long, but he was on the Court of Appeals for a long time. He was well-known for respecting precedent, deference to the legislative branch and respecting the other branches of the government.

Kohl asks about the moral justification of affirmative action, whether she thinks it's still justified/needed, and whether she thinks like Justice O'Connor that in 25 years it will no longer be needed. She says she has the firm hope of O'Connor that in 25 years race won't ever need to be considered in any decision. We've taken great strides in our society to achieve that hope. There are compelling state interests now, though, and the Supreme Court has recognized that in education. It's very narrowly-tailored decision, allowing race as one factor among many others without any presumption of admission because of just race. In other contexts, a more fixed use of race that doesn't consider the individual in any way is inappropriate. (This is the other Michigan case at the same time.) As for her own way to move forward, that would depend on a particular case coming before the Supreme Court, and she'd need to hear the arguments.

Kohl asks about Bush v. Gore. She says she can't comment as a sitting judge, whether she'd be inclined to disagree or not. She does think some good came of it, and the issue captivated the nation, so it was worth getting all three branches involved.

He asks about Kelo, the case that established government confiscation of private property for the building of a private enterprise. She thinks it's a complicated question about what counts as public use. She states what they decided without saying what she thinks about it. As an appellate judge, she can't comment, since it's precedent. As a future  Supreme Court justice, she could overturn it, but she can't comment, because she doesn't prejudge cases. [That's a dodge. She was happy to endorse the Michigan judgments on affirmative action. Kohl also hasn't mentioned her decision that extends the Kelo ruling significantly.

On to right to privacy and Roe. She says a right to privacy is recognized in the 4th Amendment and the due process clause of the 14th Amendment. She says Casey affirmed the holding of the Court. It's settled in that the holding is reaffirmed. That is its settled interpretation. [As with Roberts and Alito, this says nothing. Senators need to stop asking if it's settled precedent, because of course it is. That doesn't tell you anything about what they'll do if reconsidering it.]

She says she's open to cameras in the courtroom. She's had good experiences with them before. She says she wants to have collegial relationships with her colleagues. It's an issue where she's willing to be a new voice in the discussion among the justices. She was once a litigator.

Senator Kohl is on to term limits of federal judges and Supreme Court justices. She rightly responds that this is a question for Congress. She does think there was a purpose to the structure set up in the Constitution, so judges wouldn't be subject to whim and emotion. (But the Constitution as written by the founders doesn't discuss Supreme Court justices, just the Chief Justice of the United States and federal judges.) She mentions a judge colleague of hers who was 90 and learning the internet.

Kohl mentions that she's been pro-business when it comes to anti-trust law. The Supreme Court just overturned a 100-year-old precedent by judicial fiat. She says that's now settled precedent. There were reasons to question the precedent. She says she's upheld anti-trust laws. One was a VISA/Mastercard case, which was a major case. She thinks she's upheld precedent.

Senator Orrin Hatch (R-UT): What does it mean to be settled law? Gonzales v Carhart? (the partial-birth abortion case)

She says any Supreme Court decision is settled law and entitled to stare decisis. On the gun case, Justice Scalia recognized that the Supreme Court didn't decide the issue of incorporation.

Hatch asks: If Heller had been decided, would you have decided differently on this case? She says there are at least three circuit cases on this now, so the Supreme Court will likely be deciding that very question soon. It's an open question right now.

Hatch says Heller sees the right as fundamental and a natural right. She says her decisions were based on Second Circuit precedent. He wants to know what the Supreme Court has said in the past. He says it must be deeply-rooted in our tradition or an enduring American tradition for it to be a fundamental right. Does she agree?

She says the Supreme Court relies on old precedent, as in 19th Century. She's not sure she can affirm that description, but once there's Supreme Court precedent directly on a point and Second Circuit precedent directly on a point, then her panel has to go by that. Judge Easterbrook's panel on a different circuit decided the same way. Once two circuits conflict, the Supreme Court has to look at it. They will decide whether settled tradition and precedent will take them in a certain way.

Are 1st Amendment rights fundamental? She says they're incorporated. States must comply. What about the 4th about unreasonable searches and seizures? She says yes, as far as the holding requires that. He thinks she's applied the wrong cases in her gun cases. He's wondering about rational basis as applied to guns. I'm not sure exactly what the argument is here. He calls her view of weapons bans too permissive. One case was about nunchaku, which can be dangerous if someone is near you when you swing them around. So a state government can have a rational basis to prohibit possession of this kind of instrument, a very narrow question. (This is a pretty permissive standard.)

He's on to Ricci. They're talking about disparate impact vs. disparate treatment. I'm not following the argument again. They're using several legalisms without explaining them. 

In response to his claim that Supreme Court all disagreed with aspects of her decision, she says the minority wanted to apply a different standard as the majority had, but the minority wanted to let the Second Circuit figure out how to apply that different standard, and the majority never gave them the opportunity. She says she'd never approve of the kind of smear campaign that People for the American Way have engaged in about Frank Ricci.

Senator Diane Feinstein (D-CA) talks about Miguel Estrada and how he didn't answer questions, but she does. I didn't hear his hearings, but Sotomayor has certainly refrained from answering certain kinds of questions.

On abortion, she goes back to her claim that the Roberts Court has overturned precedent without acknowledging doing so. In the partial-birth abortion case, she says they undermined the requirement for a health exception. Sotomayor says that, as she understood the case, they were talking about a different issue from the precedents. They saw there being other methods that were safer than the method that was banned. (She's right about this. There's no violation of the health exception in the partial-birth ban. The health-exception cases would be easily satisfied with other abortion methods.)

Feinstein wants to know what happens when there are conflicting precedents. Which do you go with? She doesn't really answer this question but seems to side with the conservative majority on the issue of whether they overturned precedent. She says they didn't. But she says justices should be very, very cautious about overturning precedent in cases where they really would be doing so. I think she's shown her hand on abortion. She'll be extremely unlikely to overturn Roe v. Wade or Casey v. Planned Parenthood. Roberts and Alito were certainly willing to say that precedents deserve some deference, and they were insistent that there's the possibility of overturning wrongly-decided precedent, but she's much more emphatic about how rare that should be than they were.

Senator Feinstein complains about Bush's signing statements, not acknowledging that Obama has done exactly the same thing (or that Clinton had done exactly the same thing). Sotomayor says this issue is being litigated, so she shouldn't say anything. Feinstein emphasizes how important it is to national security.

Feinstein now talks about the executive branch's expertise on national security issues and the legislative branch's role in checking the executive's power. Sotomayor says she'll talk about her own case on this (Mukasey v. Doe). This sounds like a fairly complex case. She explains why she invalidated aspects of a law while upholding others. The district court had invalidated the entire law. This is her way of giving some deference to the executive and to Congress while protecting the Constitution and the rights of individuals under it.

Feinstein lists a bunch of ways that the commerce clause has been used (many would say misused) to justify legislation on a lot of matters, and the Supreme Court has more recently interpreted congressional authority more narrowly. (This is not the Roberts Court. The Rehnquist Court was doing this long before Roberts and Alito.) Feinstein wants to know how she sees such matters. Sotomayor says that would be prejudging matters she might have to decide. That strikes me as a cop-out. This is as general a matter as the affirmative action issues that she was happy to talk about, and it's as general a matter as the issue of stare decisis that she commented on.

Feinstein gives a particular case about gun-free zones for schools. Sotomayor explains the Supreme Court's approach of considering whether the activity is economic (it is the commerce clause, after all), whether states traditionally regulate it, whether there is an interstate commerce provision, etc. She does mention one case that went beyond such matters, which involved federal drug laws being enforced in states with medical marijuana allowances.

Senators Leahy and Sessions both admit that they made errors in talking about Miguel Estrada yesterday but don't say what they got wrong.

Senator Chuck Grassley (R-IA) is up. He asks how she stands on government confiscation of private property. Actually, the discussion just seems to summarize current case law and doesn't indicate any of her own views. He asks if a taking requires compensation. She says yes, but what counts as a taking is a complicated question. She explains her vote in the Didden case because Didden didn't bring the case in a timely manner. But Ilya Somin argues otherwise. He thinks the issues of whether the person has standing to sue and how long the person has are intertwined with the issues on the merits, and the opinion did discuss the issues on the merits. So she's not exactly being honest here about what she decided.

He asks why the decision took a year, and she says they had to wait for the Supreme Court decision on takings (Kelo) that they knew was pending.

They get into the details of some environmental cases. I don't know anything about this. One of these cases took 45 months to decide, but she says it's because of a Supreme Court case on global warming that they were waiting for.

Senator Russ Feingold (D-MN) starts by indicating his agreement with other senators in wanting cameras in the Supreme Court.

He's interested in executive power issues since 9-11. She says 9-11 didn't change her view of the Constitution. It changed some of how she thinks, but the Constitution is a timeless document intended to apply to changing situations. That hasn't changed. Feingold says he appreciates that answer, but that's probably only because we're talking about this issue rather than one where it's liberals who have tended to weaken constitutional rights.

He asks a bunch of questions on 9-11 and civil liberties, and she doesn't really answer any of them.

Feingold likes the Heller decision. Wow. But he thinks the criticisms of her on gun rights are off-base, because she ruled as a lower court judge following precedent of lower courses. He asks about what she'd do on the Supreme Court. Would she recuse herself if her decisions were reviewed by the Supreme Court? She says she would. What about the Seventh Circuit case on the same issue? She doesn't sound as if she'd commit to recusing herself if it wasn't her case, even if it was the same issue. She'd look at other justices' practices on such things. He asks about the incorporation question, presenting several reasons toward his own position, and she says any answer would prejudge cases. She calls him an eloquent advocate, though.

She then asks about warrantless surveillance. He doesn't like the fact that they're reviewed in secret courts. She responds that Congress created FISA. This isn't really going anywhere.

He moves on to empathy. He wants to know how she'll empathize with his constituents from small towns and rural areas. She says she's visited with people who do all types of work, stayed at farms on vacations, on mountaintops. She tries to find a friend to stay with when she travels, not because she can't find a hotel but so she can stay connected to different people and different experiences. It's good to know more than where you live. Much better than her earlier distancing herself from her statements that experience can be relevant.

He asks about the WWII Korematsu case about Japanese detention. She says it was wrongly decided, based on fear, and that's something never to do. Now I think she's going too far in wanting to be unbiased. I wonder if there really is a tension in her thought on that question. She's not sure what she'd do. She'd have to discuss it with her colleagues. She doesn't say it, but she wants to be open to them taking the cases but not hearing them together, in which case she might want to be involved. She says if one of the other cases gets resolved on the Supreme Court but not hers, she might hear it.

Senator Jon Kyl (R-TX): Somehow my first comments on his time got deleted, but he spent his time first by questioning her on recusals. She said she'd recuse herself from her own case on gun control and incorporation to the states. He wants her to agree to recuse herself if the same issue comes to the Supreme Court via a different case, and he wants to know if the recusal would apply if the case she heard got heard alongside one of the other cases on the same issue. He's taking "any issue I ruled on" to mean not just the same cases but any time the issue even comes up.

She says it depends on what the Court decides to do, what issues they decide to hear, what other questions from other state statutes might be involved, and so on. If it's just the issue of incorporation, he wants her to agree to recuse herself. [For the record, I think it's crazy that she should have to recuse herself even on the case where her judgment has already been rendered. A judge can always change her mind when presented with further arguments. By this logic, a justice can never hear a case where a previous case they sat on could overturned, and that's a ridiculous result.] She says Roberts and Alito have heard cases very similar to ones they'd heard on the appellate courts but recused themselves from cases they'd heard themselves.

She expressly denies President Obama's view of how judges make their decisions. She doesn't decide by the heart the way he advocates on hard cases. It's nice to hear this from a leftward judge of his own appointment. The judge applies the law. The judge figures out what the law says. It's not the heart that compels conclusions in cases.

She mistakes his question. He asks if there's always some legal basis for all her decisions.  She interprets that as wanting a result and finding some way to get there. Not what he means. He means there's a factual legal question, and the answer is found in what the law says, but it might not come right out of the statute or Constitution. It might come from case law or something. He wants to distance the legal concepts from empathy. She says we apply law to facts. We don't apply feelings to facts. He frames this as a criticism of Obama's claim that a small percentage of cases can't be decided by the law and have to be decided by feelings, so empathy is important so those cases will be decided justly.

Kyl moves on to her speeches about gender, race, and national origin having an impact on the development of the law. She said enough judges of these different groups will have an effect on the outcome of cases. This is a developed theme over the course of the speech. But that doesn't endorse whether this is good. The much-quoted section then endorses that as a good thing, talking about reaching a better conclusion. This isn't quite the point to press her on. She's right about the general point that more experience will lead to more balance in understanding, which will affect things for the better. She's not wrong about this all being a good thing. She's wrong that individuals will be better judges for being Latina in specific, not that having more Latina judges will have a good effect. He's not distinguishing between those things. He's more interested in picking up on her earlier claim that she seeks the ideal of being unbiased despite these claims (which I do think needs some explanation, because it seems inconsistent). I should say that I don't think he's being unfair. He's just not posing the criticism that I think is most central to the worry.

Her response: She has a record showing that she doesn't base her decisions on feelings or biases. The structure of the speech was to inspire them to believe as she does, as she thinks everyone does, that life experiences enrich the legal system. Backgrounds of judges matter. Have they an understanding of constitutional questions? What experience as judges do they have? (But that's not the kind of experience that we're talking about here.)

Kyl steps in again. He says the key is that you want to send a message that they can make it. But you don't want to send the message that they can make different decisions because of their ethnicity or gender. She didn't have a comment about that in the speech, maybe one oblique reference. The rest of the speech makes it sound as if she's powerless to resist that.

She says there are two issues. Good, maybe she'll make the right distinction. Two issues are tied together that the speech wasn't tying together. There's an academic question about whether there is a difference and why/how. She wanted the students to think about that. You can't make the judgment of whether gender determines judgments of judges unless you look at what the law says.

He says these questions are worth exploring (i.e. whether these categories influence judges) but that we should always set it aside (i.e. they shouldn't influence judges, and we should resist it). This is too bad. He's making the wrong criticism, and she's again not making the right distinction to respond to the worry. She's distancing herself from her language about wise people. She doesn't think O'Connor really thought the correct side was wiser than the incorrect side. Justice Alito said at his hearing that he thought about his Italian ancestors coming to this country when he decided certain cases, but he never said and no one thought he was saying that the outcome of the cases was determined by that. That's how she understood the speech. The words she chose were a bad idea. (This is a much better response than anything she said earlier.) She repeats that no ethnic, gender, or racial group has an advantage in better judging.

Senator Leahy interrupts Senator Kyl to read Alito's statement and then calls a 10-minute break.

Senator Chuck Schumer (D-NY) is up now. I guess Leahy doesn't want to let Kyl finish. He says he thinks the Republican questioning has been strong but respectful. I note that the Republicans couldn't make the same observation about the questioning of Roberts and Alito. Some of it was respectful. Some of it was decidedly not.

He says there's no case in her record where she's attempted to change existing law. I could name a few. How about overturning laws that disenfranchise incarcerated felons? How about expanding takings rights of the government to allow for confiscating the property of a victim of extortion merely for not paying the extortion money?

He says she might have sympathy to the people before her, but she judges by the rule of law instead of empathy. Obama must be shuddering at Schumer's betrayal.

TWA plane crash. She said she had sympathy for the families, as everyone in America did. But she followed existing law in deaths off the U.S. coast. It's a legislative policy issue and shouldn't be made by the courts. Schumer says this should satisfy Kyl's concern. These people included poor people and minorities. It's not empathy deciding the case. He's right to make this argument, but Obama must not be liking this. Schumer moves through a bunch of cases where it would seem sympathy would go one way but the law the other, and she went with the law. Tom Goldstein of Scotusblog on this line of questioning: "I think that CS might have thought of that case a little differently if he were questioning Sam Alito." Amen.

He then goes to cases where her vote went for a particular unsympathetic side, starting with a racist police officer who was on the right side of the law despite engaging in racist behavior and statements. The First Amendment guarantees his right to engage in hateful speech. He's giving a good argument in her defense, but it's extremely hard to fit this argument with how he treated Roberts and Alito, because he did exactly the same thing to them that he's complaining about the Republicans doing to her.

He points to asylum cases, where the law is murky, allowing room for judicial activism if you're going to favor people based on empathy, but her rate of denying asylum is pretty much the median rate for the Second Circuit, 80-some percent, out of 850-some cases, and she would have sympathy for immigrants. Is she treating Puerto Ricans in New York as immigrants?

Foreign law now. She says foreign law shouldn't influence our interpretation of the Constitution, but we might look at foreign law to interpret treaties. A contract to be observed in another country may require looking at the law of that country. Judges read law review articles, but some judges see that negatively. Judges Scalia and Thomas say you have to think about this issue carefully, because there are big differences between foreign law and American law. In 17 years, she hasn't done anything to cite foreign law except in treaty situations.

Schumer points to Justice Scalia's use of dictionary definitions, sometimes citing as many as five dictionaries. Are dictionaries binding on American judges? Sotomayor: They're a tool to help interpret what the words of Congress mean. Foreign law isn't even binding in treat situations. It's American structures that are binding.

1995 baseball strike case. Jewel isn't letting me hear any of this.

Senator Lindsey Graham (R-SC) begins by giving his usual speech about how people disagree on cases but can be within the mainstream. That's true of her judicial record, but her speeches throw him for a loop. He doesn't see how they fit.

He asks about judicial realism. She says it's reaching decisions by the realism of the situation. He says, "touchy-feely stuff". She says that's not how she'd describe it, but she says she's not a disciple of that school. He asks what strict constructionism means. She says it means applying the Constitution or statutes exactly by the words. Originalism is someone who looks at what the founding fathers intended. (That's Justice Thomas' originalism, but it's not Justice Scalia's originalism.) She doesn't accept such terms.

The Constitution hasn't changed. It's lasted 200 years. It doesn't live other than by being timeless in its expression of what it says. Society changes. Technology changes. Society grows.

Has Roe changed society? She says it determined what the Constitution requires. The Constitution has a broad provision for liberty under the due process clause. Graham says that brings us back to the speeches. No written provision about the unborn or preventing prayer in schools. The best way to change society is to go to the ballot box, not for unelected judges to change society in ways that are disturbing.

Now he's going to the anonymous ratings of her as not very judicial, not having the temperament of a judge, being a bully, etc. She stands out among Second Circuit judges on this issue. She says she does ask tough questions, but she's not alone in that. She's giving lawyers on both sides an opportunity to persuade her that they're right. Litigants only get ten minutes on the Second Circuit, which isn't the same for the other circuit courts. Some lawyers see the whole Second Circuit as especially tough because they get peppered with questions. Graham says the ratings do single her out even on the Second Circuit. The right answer is probably that a man of her personality and temperament would be viewed very differently, but she can't say that (and it would be morally wrong for her to assume that).

Now back to the "wise Latina" comment. He wants to include more people from different backgrounds in the judicial setting, but her speeches seem to him to say that this will change the law for the better. The right thing to say here is that it will change for the better with more representation but that you shouldn't assume individuals will be better judges. He wants her to see that she can say those things and have a chance to get on the Supreme Court, while others couldn't say an analogous thing and have a remote chance. He says some people deserve a second chance when they misspeak, and you look at the person's whole record. If people can see that from these hearings, then they're entirely worth it.

He's asking her about al Qaeda's views of women. She says some of them don't see women as equal to men. He says that's a pretty charitable statement. Are we at war? We have troops in combat. He asks how familiar with military law she is. She's never practiced it, but she's read Supreme Court cases bearing on it and some of the cases they've relied on. He asks if she believes there are people plotting our destruction, and she says yes. He warns her to brush up on military law before his second round. For the record, Graham is a former JAG officer. He knows military law better than probably anyone else in the room.

He asks about the Puerto Rican legal advocacy group whose board she was on. They said denial of government funds to pay for abortion was morally as bad as slavery. She knew they were working on public health issues that affect Latinos, but that's as much as she knew. They challenged parental consent as cruel. The death penalty should be stricken as racial discrimination. She says she wasn't involved with that. She upheld the death penalty when it was challenged. The Supreme Court has upheld it. She says she never litigated a death penalty case. She signed a memorandum for the board to take the issue into consideration to decide whether to reinstate the death penalty in terms of how that would affect Latinos. This is a policy issue. Why is he asking about her policy views?

Senator Dick Durbin (D-IL): Durbin thinks it's not in the DNA of white men to go very far in the direction of favoring people who aren't white men. I sure hope that just came out wrong.

He thinks the questions have been fair, even after he's just criticized the other side for questioning whether she'd favor women or minorities.

He points out that white men have been on both sides on discrimination cases, but there was a time not too long ago when the Supreme Court had never upheld a gender discrimination claim. Brown v. Board was nine white men.

He asks about the death penalty. She says she was willing to discuss that when it was about whether New York State should re-implement the penalty. The Supreme Court has ruled on the death penalty a lot now. Things have changed since Justice Blackmun first opposed the death penalty, and she'll decide particular cases on their particular issues.

Durbin asks about the disproportionate racial effects of the death penalty. He rightly notes that the disproportion is in the race of the victim, not the race of the criminal. At least I think that's what he said. I've been pulled away from being able to listen carefully through Durbin's entire questioning, and I think I missed what led up to the point about the victim's race. She sees this as a legislative issue. He says it's a due process issue that the Supreme Court can rule on. She says the Supreme Court does have the role of declaring certain laws unconstitutional, but she can't make broad policy decisions on that. She has to wait for a case and then decide that particular case.

Now he's talking about sentencing differences between crack cocaine and powder cocaine. He says he was part of it, but Congress made a mistake on that. He points to one of her decisions where she told a criminal he didn't deserve the penalty he was getting. She had no choice but to give him the longer sentence she gave him. She says her role as a judge is very different from their role as legislators. Congress has since put a safety valve for crack cocaine allowing lower penalties for a first offense, and the Supreme Court has made the guidelines no longer mandatory over the last ten years. She names several cases. She says she can't say more than to summarize what current Supreme Court doctrine is on the issue, since some of this is still being litigated.

They're talking about some comment by Judge Posner about streamlining immigration cases, but I'm following the discussion very well. The boys just got home. She says there were problems with how immigration was handled. She won't endorse Posner's views. That's as much as I could pick up.

Senator Leahy is calling it a day. (Senator Cornyn is supposed to be next, but he walked out of the room a few minutes before Senator Durbin was done.) They'll start up at 9:30 tomorrow with Senator Cornyn, followed by the rest of the senators' first rounds of 30 minutes each (seven senators remain). Then each senator will get 20 minutes followup if they want, and then they'll do their closed-door session with the nominee before turning to other witnesses.


Earlier on, when discussing certain rights being fundamental she said she meant "fundamental" in its legal sense. Why did she have to clarify that? I'm guessing it had to do with the realm of ethics and the realm of law, but I'm not sure and am left wondering.

In ordinary English, if you say a right is fundamental then you mean that it is a basic right. But the legal sense means that it's a right that applies to states as well as to the federal government. She wasn't commenting on whether the right on the federal level is fundamental in the ordinary sense of being a very basic right. She was declaring that it's not been declared fundamental in the sense of applying to states as well.

Got it, thanks.

According to Randy Barnett, Sotomayor has it backwards. The reason for taking rights to be incorporated is that they're seen as fundamental rights, and that apparently does have its ordinary meaning. See here. If that's right, then she's either making something up to make her opinion sound more moderate, or she simply doesn't know what she's talking about.

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