Senator John Cornyn (R-TX) starts things off today. He's rehearsing the same worry about the different picture painted by her decisions as a judge and her public speeches, where the worry is that being less constrained on the Supreme Court would move her away from judging the way she has done on the Second Circuit and more like the picture she's presented in her speeches.
She says she stands by her words as she intended them but understands how people have taken them in a different way.
Cornyn moves on to the issue of the law being in flux. Why is the law indefinite? She says it's a matter of which legal cases apply. People bring cases because they believe precedents don't clearly answer the question at hand. They present facts that they say entitle them to relief under the law. Indefiniteness isn't about what the law is but how it's applied, and it leads people to believe it's unpredictable. Judges don't make law the way Congress does, but they apply law in new ways, as initiated by arguments of lawyers and not by judges themselves. Judges ensure the law applies to the facts, interpreted according to Congress's intent, being informed by precedents as applied to new facts.
A life experience as a prosecutor may help her understand things in a criminal case but not much in an anti-trust suit. Judges from a variety of backgrounds should increase public confidence because more issues will be addressed. It's not better addressed but it helps public confidence that all issues will be considered properly. She says in the particular paragraph she said we should ask the question as a possibility to think about. She wasn't answering it. She wasn't suggesting a difference in outcome, just a difference in process.
He keeps focusing on how physiological differences could do this. He's missing the point. She wasn't talking about physiological differences but different experiences. If he thinks men and women or whites and blacks have the same experiences, there's not much hope for her to convince him of this.
He asks if anyone asked her about views on abortion, and she says no one asked her anything about any specific issue. He asks why the White House would then assure abortion rights groups not to worry, and she says she knows no reason. She follows the law on all issues she addresses, and her record shows it.
He asks about the head partner of her firm saying she'd be clearly on the pro-choice side, and she says she never talked to him about that issue or any other social issue. She's upheld the law as it stands in every case she looked at. She upheld the Mexico City policy that prohibited federal funds for foreign abortions. She doesn't think he's read her 17-year judicial history, because he's a corporate litigator, and corporate litigators only read cases relevant to their current cases. He said she had liberal instincts, and she thinks he must be thinking equal opportunity is a liberal view, and she had pursued that as a board member of the Puerto Rican Legal Defense Fund.
He wants to know why the court's opinion in Ricci was unpublished, denying the firefighters' claims without discussing them. She says the briefs were available to the other judges when they considered whether to review it en banc, so Judge Cabranes had access to that. She can't speak for his reasons why he chose to reconsider the case. The issues of the case weren't hidden from the other judges, though. 75% of circuit court judgments are by summary order. (Right, but this is a much more major question than most.) She cites the district court's long opinion as a need not to repeat all that.
Senator Ben Cardin (D-MD) wants her to know that Baltimore Orioles fans should love her for allowing Cal Ripken to become the Iron Man of baseball. Whatever.
He comes back to the issue of the many anonymous reports of her as not having a judicial temperament. He reads off some positive comments from the same pool of data. She says she's very engaged. Some judges don't ask questions much or at all. Her style is to ask lots of questions.
Cardin has a lot to say about civil rights, but there doesn't seem to be any question in sight. Racial disparities in terms of long lines, problems with vote-counting, Congress extending the Civil Rights Act. He wants to know how she'll protect the enforcement of laws ensuring everyone the right to vote.
She says it's a fundamental right that Congress has addressed in a wide variety of ways. Courts would address whether an individual or state right conflicts with any voting right. Each case has unique circumstances. In one case she did address the right to vote, dissenting from an en banc ruling of the whole Second Circuit. She thinks it was 12 of the 13 judges who participated. New York barred a group of people from voting, and she dissented in a one-paragraph opinion. She said Congress didn't allow restrictions on voting on the basis of race. Given the procedure of that case, the plaintiff had alleged that to be going on. (She's talking about felon disenfranchisement, but she doesn't want to admit that apparently.) She says the plaintiff has to have a chance to argue that that's going on, and that's as far as she was going. If we don't like that result, Congress has to change their law. Cardin then says that it's judicial activism to uphold the law, not to dissent from it. (I have to say that it's not clear from her opinion that all she wanted to do was allow the claim to be made in court, but the majority opinion did only decide that it couldn't be, so it's consistent with her opinion that that's all she meant. Some smart law professors have taken her to hold that felon disenfranchisement actually is a violation of the law, not just that it's a case that has a right to be made.)
He lists a bunch of environmental cases and wants to be assured that she shows great deference to Congress. She says her record shows that.
He gives a long speech on the progress of women and then wants her assurance of the importance of different voices in schools, in Congress, and on the Supreme Court. She says having women on the Supreme Court makes women feel included at the highest levels of government. She says Congress makes laws on this. That's not judges' role. But she tallks about the Supreme Court affirmative action cases in Michigan and its nuanced approach deciding the two cases differently and therefore capturing two competing principles. At least I think that's the gist of what she was getting at. She repeats Justice O'Connor's claim that we'll no longer need affirmative action in 25 years (which is now more like 20 years). He lists a bunch of other cases, including a discrimination case she decided, but she doesn't say much. This is the opposite direction from what Senator Schumer was emphasizing yesterday.
Now on to privacy rights. She says there are a number of cases where it's been recognized, and those guide future cases. They set up a framework to look at how to consider any new challenge to any new law or situation. Precedents provide a framework. The Constitution remains the same. Society changes. Situations before the courts change. But how it's applied in past precedents can then provide a framework for how to look at the new situation.
Now he sounds like he's campaigning, listing all his accomplishments. He asks her what her role might be in equal justice in legal representation for those who can't afford lawyers. She says she's strongly supported pro bono and public service work for all lawyers as a crucial responsibility of being a lawyer. It's one of her most fundamental views of being a lawyer.
Senator Tom Coburn (R-OK) apologizes for the several pro-life outbursts that there have been. He says that's not helpful in changing minds.
As a non-lawyer (he's a physician), he wants to use terminology non-lawyers can understand.
He asks what the settled law on abortion is. She says she can speak to precedent. The Casey decision says abortion needs to be allowable if otherwise there would be an undue burden on the woman to prevent it. He asks a specific question about whether abortion would be allowed in a certain case, and she says it would depend on the state's laws. Is the state regulation making an undue burden? You can't decide that in the abstract. It depends on what laws there are. Also, it's an issue that might arise on the Supreme Court, so she couldn't answer even if they had a specific law to discuss in front of them.
He says viability has changed as technology has approved. It's now 21 weeks. Should that be considered as we look at what can and can't happen given a right to privacy under the precedents. She can say what the standard is. What facts the Court might look at depends on the case. He wants to know if technology should ever be considered, and she says the Court doesn't reach out to answer that. A state regulation or action may or may not, according to some claimant, place an undue burden on her. Courts don't make policy at that level. They apply principles to arguments on particular cases. This is a dodge. She should just say that it might be a relevant fact, depending on the case, and leave it at that. Why won't she even go that far?
Do states have a right to define death? She says it depends on the context in which they do it. He says they have a right to limit liability, and this is one way to do that. He points out that we define death by the presence or absence of heartbeat (14 days) or brain waves (39 days) but refuse to define life that way. This is a good question, but she can't comment on it. It's really a policy issue.
Gun rights now. She's back to defining 'fundamental' as meaning whether the right applies to states. (See Randy Barnett's contention that she's got it backwards.) He wants to know if he's got a fundamental, individual right to bear arms in Oklahoma. She only refers to precedent in the Second Circuit. She won't comment on precedent in other circuits. The Supreme Court hasn't ruled on this question. If they do, they'll look at a particular state law in a particular context.
He mentions that Southern states took away freed slaves' right to bear arms, and the 14th Amendment's equal protection clause was partly intended to restore that, which assumes incorporation because there has to be an individual right in the state for there to be an issue of equal protection. He said he's not a lawyer, but he has a very detailed understanding of these issues. She repeats some of the same stuff about how it depends on particular cases and state laws. Justice Scalia's opinion didn't comment on other laws, just the D.C. one.
He wants to know if he's got a right to personal self-defense. She doesn't know if the Supreme Court has addressed that. Most criminal law statutes are passed by states. She can't think of whether there's a federal law containing such a provision either. She doesn't have a meaning to the question if it's not a legal question, and on the legal question she's not sure. He wants to know her personal view, where that's not a legal view. I'm not sure what he's asking here. She was a criminal prosecutor in New York. If you're threatened with death or imminent injury, you can use force to repel that. That would be legal. Juries and judges have to decide how imminent the threat is. (She keeps saying "eminent", but I'm sure she means "imminent".) I couldn't have a self-defense defense if I shoot someone when I have other means to defend myself.
Foreign law. Outside of treaties, can you cite an authority in your oath or the Constitution allowing you to utilize laws outside this country to make decisions in this country. She says her record shows she's never used it to interpret American statutes. Her speech makes that clear too. Foreign law can't be used as a holding, precedent, to bind or influence the outcome of a legal decision interpreting the Constitution or an American law that doesn't direct you to that foreign law.
What about her quotes on considering ideas from foreign law? She says she pointed out repeatedly that the American legal system was structured not to use foreign law. There's a public misunderstanding of the word 'use'. What judges do (e.g. Justice Ginsburg) is educate themselves with knowledge about legal thinking, approaches one might consider. It's academic when thinking about ideas. It's not about citation of foreign law, which is how most people understand the use of foreign law. She doesn't think they usually use it to drive the opinion but simply to compare with the foreign law. He says certain 8th Amendment and 14th Amendment cases do use it to drive the outcome but changes the subject.
Is it more important to look good as a country or to follow the Constitution? She says we don't render decisions to please the home crowd or the foreign crowd. You rule to get the law right by its own terms.
Senator Sheldon Whitehouse (D-RI) butters her up a bit them asks her to decide cases on the facts before her, not prejudge cases, respect precedent, limit herself to issues before her, etc. He sure doesn't sound like a Rhode Islander. I guess he's not. He was born in Manhattan.
He uses the word 'disaggregate'. He's talking about the founders, checks and balances, and the worry of unchecked power. We're on juries somehow. Sophia is begging for food, so I don't know how we got here from separation of powers. She says the jurors she's worked with have done a good job of considering all the information. I guess the question has something to do with which cases should involve juries and which shouldn't. She thinks much of that is still up to states. She thinks the original purpose of juries in the Federalist Papers and other founders' sources has to do with limiting elected branches to make sure someone is prosecuted under the law, and he clarifies that the same is true of civil trials, which she agrees with.
Now he's on to unilateral or unchecked power by any of the three branches. She says the Constitution sets those limits. There are limits recognized in the Constitution. The Bill of Rights amendments are viewed as limits on government action. There are questions about the scope of those limits. Typical challenges come when the executive does something. She brings up Justice Jackson's Youngstown case. That framework looks at what Congress said but compares the powers of all branches. It's the lowest end of the president's powers if Congress prohibits it. It's the highest end if they haven't. There's a twilight zone in between. So there are presidential powers under the Constitution minus the limits Congress establishes. Congress makes laws. Presidents can veto them. What Congress has said does bear on it.
Search and seizures: Originally property was confiscated with a warrant and then returned. Then Xerox machines allowed photocopies, and you could find with some effort a copy of any document seized. Now we have electronic searchability, which Whitehouse thinks raises privacy concerns. Private information that originally would have been returned is now searchable forever.
She mentions a case of thermal energy readings to detect marijuana growth because of the lights they need to use. It's a much higher amount of energy than a home usually produces, and a flyover can detect it. Justice Scalia's opinion in Kyllo said that anything in your home that wouldn't normally allow intruding without a warrant requires a warrant. If you wouldn't know of the technology that's developed to detect your activity, then they need a warrant. That's how the courts have balanced expectations of privacy and reasonable searches and seizures with new technology.
Personal information available to the public as a byproduct of a criminal action or as a byproduct of participating in regulated activity by the government are very different. The government might make copies, put in a database, or use in another situation. Much of that is controlled by issues Congress is thinking about. What are our rights of privacy with personal information? Should Congress regulate that? Congress commands courts to look at some public disclosure information. Courts can't put social security numbers in publicly-available databases. Identity theft and other harms result. So what Congress has said is important. The Constitution may or may not say something, depending on the nature of the claim before the court.
Senator Amy Klobuchar (D-MN) agrees with the Heller case. She clarifies that the Puerto Rican Legal Defense Fund bars board members from participating in their litigation. No senator made the "wise Latina" quote an issue in her hearing for the appellate court. She asks about a quote about prosecutors not having a major role in changing the system. Sotomayor says criminal defendants have already been shaped. Early childhood is the key. Defendants need fair trials, and the government needs to have proven its case beyond reasonable doubt, but trials aren't about changing society. Legislatures can make changes, and courts can facilitate them.
Klobuchar mentions the difficulty in deciding whether to prosecute. Sometimes someone accidentally kills a family member, or public opinion is sure of the guilt of someone when there's not sufficient evidence to prosecute. Sotomayor is talking about how Perry Mason influenced her. The job of a prosecutor is to do justice, which is served when the guilty are convicted and the innocent are not. That's a lofty role. Sometimes justice means bringing the top charge. She says she did that often because it was appropriate. In another instance, she was asked to look at a case more closely because the kid involved had extenuating circumstances, and the victim of the crime hadn't actually seen the thief. She described a guy nearby, he was apprehended without the property, but he was the right profile (i.e. he wasn't white). She dismissed the charges. Other close cases are worth pursuing, though, and pursuing fully. Defense attorneys serve a noble purpose too.
She's reciting Senator Schumer's argument that she doesn't let her emotions decide her cases with very sympathetic plaintiffs who lost.
They're on the U.S. v. Falso case now. She ruled that the police didn't have probably cause but that the evidence should be allowed anyway, because the judge hadn't been misled knowingly. Of the three judges on the panel, one thought they had violated the Constitution in obtaining the evidence. She agreed. But the doctrine underlying unreasonable searches and seizures is about good-faith basis of probably cause, which requires a judge. Should the police be responsible for the judge's error? They gave all the information they had. The judge made a mistake. So she agreed with the other judge on the panel that the evidence could still be used, because there was a good-faith exception for errors in warrants. Klobuchar mentions a similar case where a clerical error led to an illegal warrant (U.S. v. Santa). She mentions the Supreme Court agreed. It was 5-4 but not on ideological lines.
I had to miss a bit, but here are some highlights from the Scotusblog liveblog of what I missed:
Senator Klobuchar asked about her reputation for sending more white collar criminals to prison. I'm not sure if this is white collar more than blue collar or prison more than some other punishment. Her response is that she was under different sentencing guidelines on the district court than what operate now. It was the amount of fraud then, not the amount of victims. I guess this means it's white collar vs. blue collar. She thinks it's good that the guidelines consider the number of victims now.
Senator Ted Kaufman (D-DE) asked why she left being a prosecutor for private practice. She said it was an economic opportunity, and she wanted to get more knowledge on different areas of law. They talked of her commercial practice for a bit. One thing she said is that in business-related law the predictability of law is most important. She said that her district court time made her more sensitive to facts. She's found cases where the district court didn't address a certain issue that appellate lawyers were raising, and she had to go back and look at the opinions and briefs to see why they didn't raise it and if the lawyers did raise it.
Kaufman is from Delaware, where there's a heavy commercial element. He wants assurance that the courts won't undermine Congressional regulation of business. She can't answer that, but she can assure him that there's a challenge every time Congress regulates business. Congress can regulate interstate commerce, but it depends entirely on the particular law. Deference is owed to Congress and to executive regulatory agencies. He asked a lot of business/finance/commerce/securities/anti-trust questions. The Second Circuit hears a lot of those, since it includes New York. Scotusblog isn't very helpful on this stuff. I suppose this is what you get with a senator from Delaware who has an M.B.A. and no law degree.
Senator Arlen Specter (D-PA) mentions that lots of nominees have emphasized their experience: Ginsburg, Alito, Thomas, Scalia. Specter says Scalia is a racial minority. Wow. People haven't considered Italian-Americans non-white probably since Specter was a baby. He's dissing Bork now. Empathy is ok with Specter.
He wants to look at cases the court has decided not to decide. The number of signed opinions by the Supreme Court has gone way down. Justice Roberts said in his hearings that the clarity of the law would be improved if the Supreme Court could hear more cases.
She doesn't think the Supreme Court should take more cases just to take them. Roberts was saying the Supreme Court needs to think about its processes. She doesn't want to say what she thinks the Court can do until she experiences the process.
Wireless surveillance now. The president didn't tell the Judiciary Committee chair (who was Specter), as required by law. The district court found it unconstitutional. The 6th Circuit decided 2-1 that there was no standing. The Supreme Court didn't even hear the case, not even considering the standing issue. He wants her to say the Supreme Court should have heard it. This case is ACLU v. NSA.
Sotomayor: If I say something now, am I making promises? He just wants to know what her standards are. How can it be justified not to take that case? She says she can't say anything this general. She'd have to hear the justices' reasons for not hearing a particular issue.
Specter moves to abortion. Super-precedent. He says "super-stare-decisis". She won't use the word 'super'. It's entitled to respect. Does Roe have added weight because of Casey? She says that's one factor the Court uses. He says 38 cases since Roe could have reversed Roe, and the Supreme Court didn't do it. Does that increase the weight of the precedent? She says the history of a holding and how the Court has dealt with it in subsequent cases is one factor among many. Each situation has a variety of viewpoints, arguments, factors to apply. Casey talked about what factors a court thinks about in changing precedent: how society has relied on it, cost of changing it, was the rule workable, whether factual or doctrinal basis of the prior precedent is altered by subsequent developments, the number of times its arisen and what actions the court has taken. Specter then tells her what he thinks she's saying and then changes the subject before she can respond. He's done that several times now, actually.
Specter is talking about disability cases. I don't know anything about this.He's talking about a new standard the Supreme Court applied, and I don't recognize these terms: congruence and proportionality. Justice Scalia calls it judicial legislation. He wants to know what she thinks of that. She won't say anything about that in terms of the next case. He wants to know about this case. There are two cases with the same factual record. The Supreme Court has this standard no one can understand. She says this test according to the Supreme Court is to ensure that Congress is legislating within its legislative powers. The form of remedy Congress can make is at issue. He changes the subject again without letting her talk.
Now he's on to voting rights. Chief Justice Roberts was very deferential to Congress at his hearings and then not so on the voting rights case the Supreme Court just decided. He said Congress finds facts, not judges, and then went against that. She says she values deference to Congress when it's within its constitutional power.
He asks if there's anything Congress can do if a nominee says something in a judicial nomination hearing and then does something else on the Supreme Court? She says there's separation of powers, and that's in the Constitution. He says her record is exemplary, and she'll be judged more on that than on her answers. He doesn't sound very happy about her answers. He says she is following precedent, though, very closely.
Now he's on to cameras in the courtroom. He's introduced several pieces of legislation. He indicates a few justices who have seemed conducive to it at times. He goes on for quite a while without asking anything. He seems to be pretty down on Bush v. Gore. He thinks the people need access to what the justices do on the Supreme Court.
She's had experiences with cameras in the courtroom. She's going to relay those positive experiences to her future colleagues if she joins the Supreme Court. It's an ongoing dialogue. They do make public transcripts available very quickly now, before the end of the day.
Senator Al Franken (D-MN) has been taking extensive notes throughout the hearings. I wonder if he's going to be doing a lot of followups on previous conversations.
He's talking about online information allowing anyone to publish opinions and reach a worldwide audience in seconds. The Supreme Court allowed ISPs to serve as gatekeepers to the internet in 2005, and that allows discrimination. It's a threat to this great tool of democracy. If they also provide content, they can speed up their website and slow down someone else's. He finds that frightening. He doesn't mention that giving small websites the power of Microsoft's website will slow down that connection for a much larger number of people, with devastating consequences to those who want to download updates from Microsoft, given how many people rely on that.
Sotomayor: Congress regulated the revolutionary development of television. The internet is certainly similar. The Brand X case was about which government agency can regulate the internet. Net neutrality is an important issue involving free speech, property rights, government regulation, and so on. The court can't choose the policy but has to interpret the statutes. Franken objects that there are rights to free speech here. She says there are competing rights here, and the issue is which go first or whether they can be balanced in a particular situation. Congress tries to balance them, and courts can judge if they did so unconstitutionally.
He turns to his odd view of judicial activism from his opening statement. He wants to know her definition. She says she doesn't use the term. She doesn't describe the work judges do in that way. She assumes good faith that they attempt to interpret the law according to principles of statutory construction and other legal interpretation principles. People often think of activism as the wrong conclusion in terms of policy, but judges don't impose policy choices.
He thinks it's commonly-enough used in political contexts, and he does thinks there's an ominous increase in judicial activism. He gets out his Constitution and reads the 15th Amendment that provides voting rights, and Congress can enforce it with appropriate regulation. Congress used that power with the 1965 Voting Rights Act. This was reauthorized four times, most recently in 2006. States with histories of slavery have to get their voting laws approved by the Justice Department. Every senator from affected states voted for the renewal. Justice Thomas said we no longer need this. He wants to know her view.
She says there's an open question here that the courts will be addressing. The lower courts certainly will, even if the Supreme Court doesn't immediately. She can't prejudge this question. She points out that she did defer to Congress in a Voting Rights case (she's referring to the felony disenfranchisement case).
He's interested in how often she's decided cases on issues where the parties weren't briefed by the lawyers. She says the general practice is to give each party a chance to argue any issue. considered. In the case he's pushing her on, the issue was what Congress intended to do.
The word 'abortion' isn't in the Constitution. The words 'birth control' aren't. The word 'privacy' is not. Does it contain a fundamental right to privacy? She says it contains certain rights, as the courts have recognized for over 90 years, that certain rights extend to privacy under certain cases. Parents have a right to direct their child's education, e.g. not being forced to send kids to public schools and so on. Certain freedom is allowed in their education is allowed with regard to content. Does the right to privacy extend to abortion? She says the court has said there is. That was kind of lame (not on her part, on his).
I missed the entire second round after they came back from looking at the FBI report. I'm looking over the Scotusblog liveblog of the remainder of today's questions. I don't see anything especially interesting from Senator Patrick Leahy (D-VT). He points to a strip search case as indicative of what being a woman might add. As Justice Ginsburg said, the men on the Supreme Court have never been a 13-year-old girl, and they don't understand what it is to be a 13-year-old girl who is strip-searched. Sotomayor apparently dissented in a case very similar to the one the Supreme Court recently decided and for similar reasons to the majority reasoning in the Supreme Court case.
Senator Jeff Sessions (R-AL) breaks no new ground on the "wise Latina" quote. He asks an interesting question about guns. He asks her if her opinion if extended to every state implies that there's no right to bear arms in any state. She says no, because there might be state laws or constitutions that absolutely prevent a given state from banning weapons. It also depends on what government interest there is in passing the law (rational basis). Sessions thinks that test is too low a test for this issue. (Meaning it's too easy to ban weapons?) Sotomayor says laws have been struck down for all the standards that have ever been applied (rational basis, strict scrutiny, etc.).
Sessions visits no new ground on the question of fundamental rights. He's skeptical that she was unaware of the litigation of the Puerto Rican Legal Defense Fund while a board member. She said they had a retreat and discussed a direction to litigation but didn't come to a firm decision with her involvement.
I don't see anything especially interesting from Senator Herb Kohl's (D-WI) questions. There's a lot of repetition here, and she even tells him that she already answered one question when he was out of the room during Senator Specter's questioning.
With Senator Orrin Hatch (R-UT), she clarifies the right to privacy. She thinks it's a misnomer to speak of a right to privacy. There are liberty rights, and privacy issues involve liberty rights sometimes. Sometimes the liberty clause of the due process provision in the 14th Amendment protects our in a way that a privacy-limiting regulation is unconstitutional. (I very much prefer this way of putting it, for the record.)
Hatch asks about her comments regarding appellate courts making policy and doing justice. She says appellate courts have a broader impact, because they create precedent. District courts affect only the parties in the courtroom. [Is that really true? Wasn't it a district court that declared philosophical arguments about design unconstitutional in public high school classrooms, and hasn't everyone been taking that case to apply much more broadly than just to the particular school district that was involved in the case? I thought it applied to the whole U.S. court district that the judge serves in (which I believe is all or part of Pennsylvania).] At any rate, this distinction is supposed to justify seeing policy implications and justice as outcomes from appellate decisions that aren't present for district court decisions.
Hatch points out that two presidents who have nominated her to different positions have used the word 'empathy'. George H.W. Bush used it of Clarence Thomas but then said he'd decide cases by what the law says. Barack Obama said his appointees would decide based on empathy. Sotomayor: They used the same word and meant different things by it. He wants to know if transcending personal sympathies is a duty or an aspiration, and she says it's absolutely a duty.
Senator Russ Feingold (D-WI) is up next. He gives her a lecture on his campaign-finance legislation that he wants her to uphold when the Supreme Court considers tossing much of it out the window in the fall. She says if she's confirmed it would be the first case she participates in. She's right. It's scheduled to be reheard before the next term starts, on Sept 9. She's likely to be confirmed before then, and Souter is off already (it isn't dependent on his replacement's confirmation, as O'Connor's resignation was), so the Democrats are going to want to confirm her as soon as possible.