Sotomayor Hearings, Day 4

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We start off with Senator Jon Kyl (R-AZ) today. The senators are going through their second round, limited to 20 minutes each instead of 30 (and most aren't using the full time either).

I'm only going to comment if anything new occurs. A lot of these second-round questions are simply rehashing what they've talked about before.

Kyl challenges her on Ricci. She says she decided the case based on Second Circuit precedent. That applies in the original hearing of the case. She voted on the case the same way in the en banc review, when the whole Second Circuit heard it. He wants to know why she voted not to hear it en banc, given that precedent wouldn't bind her at that point. The district court decision doesn't bind her, and the Second Circuit precedent doesn't apply. So he wants to know what bound her to decide the same way then.

She says the three-judge panel opinion she issued was now precedent, making the district court opinion precedent. He says the Supreme Court said there was no precedent. She says that was on whether the circuit court decision used the right standard. Two provisions of Title VII need to be assured to be consistent with each other. That issue was raised with them but not with her panel. The outcome she came to wasn't based on that. He's trying to get her to admit that she wasn't bound by precedent when it came to voting to hear the Ricci case en banc but did so vote, and he wants her to explain why in terms other than precedent, because precedent doesn't bind her at that point. She won't admit that, but as far as I can tell it's true.

He reads from Judge Cabranes saying that cases are not typically dismissed with summary judgments when they are of this import. She doesn't seem to have anything to say about that either. He says the nine Supreme Court justices all said it shouldn't have been a summary judgment. He says there were three tests: the one the appellate court used, the one the Supreme Court went with, and the one the dissent went with. But all nine of them said it shouldn't have been a summary judgment. She says she doesn't read the opinion that way.

Kyl turns to a speech discussed by Senator Hatch yesterday about justice for an individual in a district court and justice for society in an appeals court. But in the appeals court, it's still supposed to be about justice for the individual. It might have the effect of building reliance on rule of law and creating precedent, but the decision is supposed to evaluate based on the law on this case. She agrees. The legislature's contribution to policy is making law. When judges follow the rule of law, they create precedent that then have a policy impact, but it's not in the sense of making law the way Congress does.

Senator Dianne Feinstein (D-CA) has a lot of glowing remarks about Judge Sotomayor. She tries to defend the "wise Latina" comment as it's been interepreted (as opposed to how Sotomayor now says she meant it). There isn't much of substance from Sotomayor here.

After talking a while about unelected judges changing society, Senator Lindsey Graham (R-SC) wants to push her on fundamental rights. When the Supreme Court decides whether a right to bear arms is incorporated as a fundamental right, will she look at the cases, laws, and arguments? Yes. Will she decide based on what she thinks American is all about? No. Politicians want to put people on the Supreme Court who see the world the way they do. She's insisting that it's not a matter of seeing the world a certain way. The issue will be controlled by the Court's analysis of a case challenging a state regulation. They'll look at the older precedent as they did in Heller, consider whether it controls the issue, whether it should be revisited under the doctrine of stare decisis. It could then look at a variety of factors. Have there been changes in related areas of law that would question it? There was a lot of law after the issues of incorporation were discussed.

He says the 7th Circuit and 9th Circuit have given contrary opinions here. The 9th Circuit has a close analysis of the right to bear arms historically. They talked about who we are as a people, our history as a people. The Supreme Court matters because you won't find a law book telling you whether the 2nd Amendment is fundamental. You'll have to look at history. That's why these choices are so important. I believe that's what you and the other justices will do. I don't know how you'll come out on that issue, but you might embrace a right that others might want even if it doesn't matter to you individually. An activist would be chomping at the bit to use this wonderful opportunity to impose their view of life on the rest of us. I think you're broad-minded to understand that America is bigger than the Bronx or South Carolina.

What is identity politics? She says it's politics based simply on that person's characteristics, usually race, ethnicity, gender, religion. Do you embrace it personally? I don't as a judge. As a person, I believe groups should express views on social issues. Usually denigrated because it suggests individuals not considering what's best for America. I don't believe in that. Groups advocate for their interests and what they think it needs. I'd never endorse advocating what's contrary to some basic constitutional right as known at the time, but people do advocate changing the law all the time. Speeches? She thinks her speeches advocate what she just described. She doesn't describe it as identity politics. He says her left-of-center record is not radical, but he thinks her speeches are disturbing. It's not just a place for all of us. They suggest gender and racial affiliations in a way that make many wonder if she'll take those views to the Supreme Court.

He's discussing the Puerto Rican Legal Defense Fund. He says their views have all been left-of-center. (She only signed her name to one thing.) He recognizes the difference between arguing for a view as a lawyer and being a judge. Roberts and Alito recognized that. He credits the Democratic senators who recognized the difference in those hearings. Apparently he doesn't want to highlight those who didn't, but they were pretty unfair at the time, and Republicans haven't been anywhere near as pushy with her on this sort of thing.

We're skipping several senators apparently. Senator Amy Klobuchar (D-MN) is the next senator in the room who wants to ask questions, so she moves up in the lineup. She reads off a bunch of glowing remarks from law enforcement officials about Judge Sotomayor. Apparently cops love her as much as Senator Feinstein does.

They discuss a child pornography case. I'm not following as closely, so I didn't quite get what the issue is.

What would you like history to say about you when all is said and done? Sotomayor: I can't live my life to write history's story. I hope it will say I'm a fair judge, a caring person, and living to serve my country.

He never came back to the military law issues he told her yesterday to bone up on. Either he ran out of time, or he was satisfied with her ignorance of military law after all.

Senator John Cornyn (R-TX) is up. He says he agreed to treat her respectfully. He asks if she's been treated respectfully, and she says every senator who has made that pledge has kept it fully. I wonder if some didn't make it, and that's why she said "who has made that pledge". This has been a very respectful hearing compared to the last two.

He says her speeches and testimony now contradict each other on the issue of indefiniteness in the law. She now says she agrees with O'Connor when her earlier speech said she disagreed. She has agreed with Scalia and Thomas on foreign law now but has given speeches that disagree with them.

She says to look at her decisions for 17 years. In every one, she's done what she says she firmly believes in. She's faithful to the law, doesn't permit sympathies, prejudices, or personal views to influence the outcome. She's ruled against indisputably sympathetic plaintiffs. The speeches in context given the background issues don't disagree with the basic premise 
O'Connor was making. Being a man or woman doesn't affect the capacity to judge fairly, but she disagrees with her literal words, because O'Connor didn't mean them literally either. How she said it was easily misunderstood. He agrees that her judicial record is in the mainstream for district courts and appeals courts.

He recalls her statement that courts don't make law but interpret. He thinks there are decisions where courts do make the law. If the Supreme Court declared a constitutional right to same-sex marriage, is that an interpretation or making a law? She says taking a view on that would prejudge the arguments she hasn't even heard yet. Characterizing whatever the court may do would suggest prejudging the issue and coming with personal views suggesting an outcome. Neither is true. She'd look at it in the context of the arguments on the particular case with a completely open mind.

Is there a difference between making and interpreting the law? Laws are written by Congress. They make factual findings. The courts have to start with the Constitution, how precedent has interpreted those, principles governing any situation. How does that reconcile with courts of appeals making policy? She says this is legalese, like with the term 'fundamental'. In context, it's clear that it's about holdings becoming precedent. That was the kind of policy she meant, the ramifications of a precedent on all similar cases. Congress makes law with a completely different set of justifications behind it.

Campaign finance: what's the difference between a contribution and a bribe? Bribe: donating money in exchange for an agreement to vote a certain way. He wants to know if Obama's record amount of private campaign donation money counts as bribery, and she says no.

There was some discussion of the Latino firefighter involved in the Ricci case but I missed it due to my browser window freezing up, and the Scotusblog liveblog doesn't have anything other than that he named the guy and said he'd be testifying.

Senator Arlen Specter (D-PA) asks if she'd become a litigator on the Supreme Court, taking charge to pursue ideological battles? She says she doesn't decide based on ideology.

He's pushing on the Supreme Court taking more cases again. It's urgent that more circuit splits be resolved, because courts need to know what to do. She says there's capacity for more cases, because the docket has been getting smaller over time.

He asks about the Supreme Court cert pool. This is how the Supreme Court decides which cases to review. Most justices have their clerks look at cases and flag certain ones to have the justices review. Justice Stevens looks at all the cases himself. He wants to know if she'll participate in the cert pool, and she says she'll do what Alito did, which is to get on the Supreme Court and see how it works before deciding what to do. She can't decide if it's a good idea without trying it out.

Specter's back on cameras in the court room. He claims that Souter, who made the "over my dead body" comment, will not be on the court if she gets confirmed. Actually, he's off the court already, so if she doesn't get confirmed he'll still not be there. I suppose what he said is true, because Souter won't be there if she's confirmed, but the implicature of what he said is that Souter's absence depends on her confirmation, and that's not true. He's done and can't return unless a president nominates him to an open position and he gets confirmed.

He's asking her about lots of cases that she says she can't comment on. I'm not detecting anything interesting her except if you want to know what Specter's views are. Wow. He even tells her he doesn't want her to answer. He's telling her what he wants her to keep in mind. He's not asking questions for him to find out about her, which is the point of all this, isn't it? He goes off on the judiciary for giving itself too much power, and he invites her to reconsider separation of powers and resolve some circuit splits on those issues.

Senator Tom Coburn (R-OK) is back on foreign law. She said before that she basically agrees with Alito and Roberts on that issue. I'm not picking up on anything interesting here.

He asks about how judges consider legislative intent. She says it can be considered when it's clear.

He says she hasn't described the process of determining whether a right is fundamental in her sense (of being incorporated) but has given a detailed explanation of the process of stare decisis. Why not with an incorporation right? She doesn't think that specific question was asked of her.

Sotomayor: Senator, would you want a nominee who came in here and said "I agree, this is unconstitutional," before I had a case in front of me?

Coburn seems to think the main issue behind the 14th Amendment was because guns had been taken away from freed slaves. Exaggeration?

He says no state regulation survived Roe. She says she knows more about Casey, which has been the precedent in cases she might have had to consider. She's not answering pretty basic questions about Roe. He says 80% of the rest of the world bans all but early abortions. This is an interesting part of foreign law that those on the left who like foreign law comparisons don't tend to make very much.Senator Al Franken (D-MN) had little of interest. Senator Patrick Leahy (D-VT) says he's a passionate gun owner and user and doesn't feel threatened by her opinions. (I note that Vermont is in the Second Circuit.)

Senator Jeff Sessions (R-AL) had another go and spent most of the time explaining his worries about her, not covering a lot of new ground. He spends a lot of time affirming Attorney General Eric Holder's statement that we need to be more courageous in discussing race publicly. He thinks the Supreme Court has been good at making sure the use of race needs the highest standard of scrutiny. He wonders if her summary dismissal, given the opposition of so many other Second Circuit judges, meets their criteria for dismissal in such a summary way, and he asks her if she's not being as courageous on race as Holder has called for. I was wondering where he was going to go with that.

He says as ranking member on the committee that he won't support and doesn't think anyone else on his side will support a filibuster or an attempt to block her nomination. He doesn't say how he'll vote, though.

Senator Hatch brings up the Puerto Rican Legal Defense Fund. He asks her if she knew the positions and content of briefs and cases they argued. She says she wasn't working for them as a lawyer, as Justices Marshall and Ginsburg were for groups they worked for. She was a board member, and board members don't do that sort of thing.

He asks if the courts are an instrument to pursue social justice, and she says that's not its role. Decisions might have that effect, but that's not the court's role.

She says the words of the founders in the Constitution are most important when compared with newer precedent. 

He asks about Souter's claim that courts fill vacuums in the law. She says she doesn't see things that way, and she thinks it's bad to use metaphors in such contexts, since they easily lead to mistaken interpretations.

She says the words of the founders in the Constitution are most important when compared with newer precedent. 

Senator Grassley spends some more time on precedent and the precedent of the Baker decision. She now thinks she probably hadn't ever read it before, but she now has. She doesn't seem to go on to say anything interesting about it. It does count as a precedent. She thinks the issues that come up in that are currently under litigation.

He asks about Justice Souter's claim that courts fill vacuums in law. She disagrees. She also doesn't like metaphors in such statements, since they easily lead to misunderstandings.

Senator Kyl asks some things she can't answer. He asks what basis of review there is for limiting gun ownership in the Second and Seventh Circuits, and she ends up after a long time saying it's rational basis review. He says that's the easiest standard to meet (which means it's the easiest to limit ownership).

He mentions that foreign law was used in the Kennedy v. Louisiana case in a way that she doesn't say judges use foreign law.

Senator Lindsey Graham (R-SC) thinks his agreement with Senator Feingold on gun rights is a pretty good sign that they're right. They don't agree on much.

He points out the difference between civilian law and military law on detention. Military combatants who become prisoners of war don't go to civilian courts. He wants detainees to have their day in court. This enemy wears no uniform, follows no rules, and will kill any of us they get their hands on. This is an unprecedented threat. We need to find a way to try them that doesn't have all the civilian restrictions. He's not asking her any questions but asking her to consider what he has to say. He's pretty moderate for a Republican on some of these issues, but several Democratic senators in the room (at least Whitehouse and Franken) are thinking he's advocating fascism.

Senator John Cornyn (R-TX) asks what she meant when she said judges can't be neutral.  She said there's choice in judging, not that there's no obligation to neutrality in the sense of being unbiased. (A better way to respond would be to say that open-mindedness is essential, but that's consistent with having views, as long as you're willing to consider reasons for opposing views.)

More on foreign law. Nothing at all new here. She says judges don't use foreign law to drive the outcome. She's open to there being an exception, but in her review that's not what judges do.

Senator Tom Coburn (R-OK) finally gets into the economic issues related to the current financial crisis, I believe for the second time in the entire hearings. He says we might not be able to continue paying her salary. He's questioning the use of the commerce clause by Congress, which Senator Feinstein had spent a lot of time insisting on doing yesterday. Sotomayor doesn't say a whole lot more now than she did then, which is to repeat her refrain about looking at particular questions in particular cases when laws are passed and someone exercises a right to challenge a law.

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.

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