Senator Leahy says death penalty cases take five votes to stay the execution. Four justices can choose to hear the case, but it can't be stayed without the fifth vote. Usually one of the other justices will agree to stay until the case can be heard if four justices want to hear the case. Roberts and Alito thought that rule was sensible, but it hasn't been adhered to. There have been cases where four justices wanted to hear but no fifth joined to stay. In one case, the person was executed before the case was heard.
She agrees with what they said in their hearings. The practice of the fifth vote has a sensible basis. If you don't stay, the execution can happen. Leahy thinks their minds were changed at some point after their hearing.
It seems as if they're done with that. Sessions and Leahy are wrapping up this part of the hearings, and then she'll go. Others will testify in ten minutes.
I'm not sure I'm going to say much about most of what remains. If anything interesting happens, I might comment. A lot of this is going to be just a rehash of what's already been going on on the internet since her nomination was announced.
Senator Sessions raises the question of judicial temperament with the ABA lawyers who considered judicial temperament. They talked to a lot of lawyers about a lot of cases, and the majority report is that she has exceptional judicial temperament.
Good. He's citing the study showing political bias to the left in ABA evaluations of judicial nominees. They say they're aware of that but stand by the process they've used.
The current Arkansas Attorney General testifies in her favor. He seems to think something can be both race-conscious and race-neutral at the same time. I'm not sure how he understands those terms, but it can't be the usual way. Much of this is rehashing what's already been discussed.
NYC Mayor Michael Bloomberg thinks she'll add diversity to the Supreme Court because there are already justices from Queens and Brooklyn, and she's from the Bronx.
Frank Ricci is reading a prepared speech. He's looking down and running his finger along the lines as he goes across, but other than that you wouldn't have any indication that he has any disability in reading. He probably went over this speech many times to be able to do it this well. His reading is very smooth. It's a well-written speech, organized well and very clear.
Both Ricci and Lt. Benjamin Vargas have talked about their families and how much time it took away from their families to prepare for this test. Vargas says he's Hispanic, but it shouldn't have been about that. He's upset mostly that he was penalized as a racial statistic for his hard work. (Not getting a promotion isn't getting penalized, since it changes nothing, but maybe the penalty he means is that he was made a racial statistic.) Vargas says he was denied the chance to testify in the lower courts. He felt as if the one-paragraph dismissal treated the case as if there was no important issue. He likes Alito's concurrence. They didn't ask for empathy or sympathy but even-handed treatment of the law.
Peter Kirsanow, a conservative civil rights specialist, has some good data on affirmative action and race-conscious vs. race-neutral criteria. He says hardly anyone is following the Michigan affirmative action Supreme Court decision. Affirmative action occurs all the time of the kind that was overturned there. Employers have to use race-neutral criteria if there isn't a compelling interest for using race-conscious methods, and yet that never works out that way.
Linda Chavez speaks "not as a wise Latina woman". She's arguing that Sotomayor has drunk deeply from the well of identity politics, and her words weren't misspoken. They were repeated at least seven times over several years, which is a fair point. But now she's giving the irrelevant argument that white men couldn't say an analogous thing. (That's because it wouldn't be analogous given actual social history and current social practice.) She's listing a lot of things here that she's said and done, some of which might be unfair, but some of it is a pretty clear sign that she's been well to the left even of the mainstream of the Democratic party on issues like this, at least at times and on particular issues.
Senator Cardin asks civil rights lawyer Wade Henderson if he thinks the Civil Rights Act is still necessary today. No surprises here, but I'm not sure what this has to do with Sotomayor. He surprisingly says that he's not disturbed by the fact that some of the Supreme Court disagree with him on this. This guy's voice sounds like Alan Keyes, but I'm sure they agree on very little.
Senator Sessions complains that Bloomberg said they were on the same side on gun issues. Bloomberg signed a brief taking D.C. side in the Heller case.
Sessions tells Manhattan Attorney General Robert Morgenthau, "We're going to do that crack cocaine thing we talked about." He then clarifies: "We're going to reduce the burden of penalties in some of the crack cocaine cases." I didn't mention Morgenthau before. He's the long-serving Attorney General in Manhattan. The Law and Order show based its first Attorney General on him. Fred Thompson's character on that show held the same position, and now Sam Waterston's character finally occupies it after many years in a lower position. Senator Thompson was on this committee.
Sessions says he voted for the extension of the Voting Rights Act, but he says some of them had some constitutional concerns, and he doesn't think it should have been extended as long as it was. Some portions might not have been needed to continue. He seeks Kirsanow's agreement and gets it.
Linda Chavez says Hispanics are overrepresented on the appeals courts as compared with lawyers. She says that doesn't bother her, though, because she thinks it should be based on qualifications, not race or ethnicity.
Senator Durbin asks Chavez if she thinks Sotomayor graduated top of her class at Princeton because of affirmative action. She gives evidence that she was admitted by affirmative action.
Durbin asks Morgenthau if he was in the market for a wise Latina woman. He lists her qualifications. Apparently Morgenthau was a founding member of the Puerto Rican Legal Defense Fund and was responsible for directing Sotomayor in that direction. Morgenthau is also part of the Anti-Defamation League. I guess he's really involved with some hard left groups. Is this supposed to help matters here the Republicans on the committee? Durbin asks if she treated minorities differently as a prosecutor, and he says no.
Senator Graham asks Chavez if Republicans ever put minorities in a position to help the party. Republicans want everyone to know that we're not just white guys. That's not a bad thing. (I like Lindsey Graham. I don't think I've said that today.)
He asks Vargas if people called him an Uncle Tom and thought he was disloyal to the Hispanic community. Vargas says yes. Graham says he thinks Vargas has done a great service to the Hispanic community.
Bloomberg says there's a similar case in NYC. His position is different from New Haven's. He thinks their test's written portions are job-related and consistent with business necessity, but the other side says the written portion isn't relevant. He wants to try to get more minorities to apply to be firefighters. They did revise their test and have had an increase in minority applicants. That's a better way to solve the diversity problem than throwing out tests and penalizing those who pass them. The Democrats might be regretting asking him now. (I think he's exactly right on that, but that's a policy issue and doesn't get to the legal dispute in the case.) Both Bloomberg and Morgenthau have disavowed racial preferences, and they're the two big star witnesses for the Democrats on this panel.
Senator Hatch gets Kirsanow to say that there was no precedent for the Ricci case. It was an issue of balancing disparate treatment and disparate impact in Title VII. It's think the idea is that it's disparate treatment to throw out a test because it gives the wrong racial results for one racial group but disparate impact to use the test given such results. All nine justices on the Supreme Court agree that the appropriate law wasn't followed. Five of them chose one way to sort it out, and four would have chosen a different way.
He asks Vargas how it will affect his kids, and he says it will help them not to be judged by their race.
Hatch goes on to say that the minority said New Haven was wrong. That's not true. They said New Haven should prevail if the Supreme Court has to decide the merits of the case. They just didn't think the Supreme Court should do that. So they would have preferred remanding (sending it back to the circuit court to make a further determination based on a different standard). They did disagree with the lower court but not in terms of who should have won.
Senator Specter asks Ricci and Vargas if they think Judge Sotomayor acted in good faith in their case. They say they can't speak to that, since they're not legal scholars. I wonder if a lawyer warned them not to comment on legal questions but just to stick with telling their story and their view of what they have a right to. If so, it was a wise move. If not, they're showing good sense.
Specter is complaining about too much focus on a few issues and cases, with a lot of other cases needing more discussion, including wireless surveillance and some other issues where the different circuit courts have contradictory precedents.
Seems like that's the end of this panel. Three more panels to go.
I might not make it very far into the this panel. Ethan has a piano lesson in a little over an hour, and it starts in five minutes. Two Volokh Conspirators are on this panel, David Kopel and Ilya Somin. Orin Kerr has also been in the room for a lot of this, since he's been helping the Republican senators put together their side of things.
David Cone thinks baseball lovers owe Sotomayor for the very existence of the game since 1995. What about those of us who think sports are evil? He's the Frank Ricci for the Democrats' side, in terms of being the emotional trump card witness.
Charmaine Yoest thinks Sotomayor is going to prohibit parental notification on abortion.
David Kopel says the nunchaku ban is a xenophobic ban initiated after the opening of U.S. doors to China in the early 1970s. He says her application of rational basis is shallow and poorly-reasoned. She based it on a few statements by prejudiced people. He says Sotomayor's testimony got Heller wrong, saying it applied a weaker standard of review from the dissent, not the stronger one from the majority. He says the Seventh Circuit judges who argued a similar conclusion to Maloney were using policy arguments, not legal ones, so the fact that they're right-leaning doesn't mean conservatives should accept that judgment as correct (and thereby also her opinion).
Ilya Somin is talking about property rights, but I've missed most of it. The boys just arrived home. He says if the Didden case is public use, then there's no protection in any case where a powerful person wants to take property from any individual.
I'm going to have to leave in a few minutes, so this may be it for me.
As I'm looking through the liveblog of what I missed, I'm not seeing much that I have any comment on. One witness berated the absent senators for not listening to their testimony. Only two senators of the 19-member committee were in the room at the time.
Someone from the NRA claims that they're the oldest civil rights organization in the U.S. Someone from the NAACP claims the same thing of them. The NRA is much older, something like three decades. I think minority civil rights activists tend to think of minority civil rights as the only civil rights. People do often use the term 'civil rights' as shorthand for leftward politics about minorities.
Lawyer Stephen Hallbrook says by the standard she used to allow banning of nunchaku, you could also ban baseball bats, which can be just as dangerous. (I think he's right. Her argument was simply that it could be rational to ban nunchakus on the ground that they could be dangerous even if someone was using them for fun. I haven't looked at the opinion, but I'm trusting that her description of her reasoning in this hearing was accurate. That's pretty much how she justified it.)
Senator Whitehouse complains that they're doing unseemly lobbying by trying to get her to agree with a view on an issue the Supreme Court has never decided (whether the 2nd Amendment is incorporated). Senator Sessions responds that they're evaluating an opinion she actually decided. (In other words, it's not unseemly lobbying, since it's not lobbying.) Whitehouse repeats his claim without responding to that point.
OK, hearing is adjourned.