Confirmation Hearings Day Three

July 16, 2009

Senate confirmation hearings of Judge Sotomayor continued for a third day. Read the transcript of Wednesday’s live blog below and be sure to join us for the final day of testimony.

9:20 Good morning one and all!
9:20 welcome back to AAUW’s live blog of the supreme court confirmation hearings, for Judge Sonia Sotomayor
9:21 once again, I’m Adam Zimmerman, AAUW’s Regulatory Affairs Manager
9:21 and I’ll be taking you through Day Three’s proceedings
9:21 we should be underway in about 10 minutes
9:28 seven senators remain for the first round of questioning
9:28 on the GOP side: coburn, cornyn
9:29 on the Dem side: Klobuchar, Franken, Kaufman, Whitehouse, Specter
9:29 following the conclusion of the first round, where each senator was granted up to 30 minutes
9:29 a second round will commence, for anyone who wants additional questioning
9:29 up to 20 minutes for that round
9:30 so depending on how many second-rounders there are, we may finish today, or we may go into tomorrow
9:31 senator leahy has gaveled us into session
9:33 senator cornyn of texas is up first
9:34 cornyn just pledged that if he has anything to say about it, there will be an up-and-down vote on the senate floor
9:34 aka, no filibuster
9:35 cornyn heading back into the “wise latina” remark
9:36 that’s good, because this hasn’t been beaten into the ground yet
9:36 not at all
9:36 sotomayor once again comparing her remarks to similar ones made by justice o’connor
9:38 sotomayor again says her words “failed, didn’t work” because of how some have interpreted it
9:39 sotomayor just cited justice alito’s comments about his italian heritage during his confirmation hearings
9:39 that’s been a key democratic “talking point” in response to sotomayor’s critics…interesting to hear sotomayor use it as well
9:40 [Comment From Lauri]
there is as lot to be said for the “common sense” of a “wise woman”, latina or otherwise. too many men are afraid of a female perspective.
9:41 Indeed, Lauri…in a setting where 108 of 110 supreme court justices have been white males, sotomayor is breaking the mold, even in 2009
9:41 106, rather
9:42 sotomayor says her context for her remarks has been : “i made it, so can you”
9:45 sotomayor discussing how the court takes different directions as society evolves
9:45 sotomayor says she tells young lawyers not to give in to skepticism about the law
9:48 she says people bring cases to the court because they believe established precedents don’t necessarily cover their particular circumstances
9:48 “if law was always clear, we wouldn’t have judges”
9:50 cornyn keeps picking snippets from various speeches and asking her to explain comments
9:50 you’d think she was being nominated for obama’s chief speechwriter instead of a judge
9:54 cornyn into abortion now
9:54 sotomayor says she was not asked for any specific views on issues during his white house interviews
9:55 cornyn is citing other legal advocates who claim that she would be a reliable, pro-choice vote on the court
9:55 sotomayor simply insisting that she rules according to the law, on abortion and any other subject
9:56 she cites once case where she upheld the “mexico city policy”
9:57 in terms of the constitutionality of the government choosing to fund to pro-life side over the pro-choice side
9:57 from an AP article:In the case over aid to family planning groups, Sotomayor stuck squarely with precedents from the 2nd Circuit and the Supreme Court in ruling for Bush.The dispute stemmed from President Ronald Reagan’s decision in 1984 to institute the Mexico City Policy that bars U.S. financial help for international family planning groups that support abortion, even with their own money, through services, counseling or lobbying.President Bill Clinton rescinded the policy in 1993, but Bush reimposed it shortly after taking office.

“The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position,” she wrote for a three-judge panel in 2002. Obama lifted the so-called global gag rule in January.

9:59 back to Ricci
9:59 as we know, sotomayor was part of a three-judge panel which upheld the district court’s ruling in favor of new haven
10:00 that panel issued a once-page “summary order” upholding a 78-page district opinion
10:00 critics wonder why it was so short
10:00 sotomayor says about 75% of appellate court cases are decided by summary order
10:01 “not every case requires a long opinion…if a district court ruling has been clear and thorough”
10:03 a few firefighters involved in the Ricci case are in the hearing room
10:04 in fact, Frank Ricci will be testifying as a witness for the minority following sotomayor’s testimony
10:04 a full list of witnesses for both sides is here: http://judiciary.senate.gov
10:05 sen. cornyn has concluded
10:06 sen. sessions is entering into the record a letter of “serious concern” from the NRA over the sotomayor nomination
10:06 senator cardin of maryland is up next
10:07 who notes that thanks to the baseball strike ending, cal ripkin of the orioles was able to set the consecutive games played record in 1995
10:07 when he played in his 2,132 straight game
10:07 surpassing lou gherig
10:07 cardin has just invited her to an orioles game
10:07 sotomayor replies that she loves camden yards
10:08 this blogger agrees that camden is a beautiful stadium, but his heart is always with shea
10:08 back to the hearing
10:11 cardin moving into the realm of civil rights law
10:11 specifically the right to vote
10:12 cardin says that even when he ran for the senate in ’06, lines in black precincts were longer and slower-moving than lines in white precincts
10:18 sotomayor dissented in a second circuit case in which the circuit ruled that felon disenfranchisement laws are outside the scope of the voting rights act
10:18 from a summary of that case: As she wrote, “[i]t is plain to anyone reading the Voting Rights Act that it applies to all ‘voting qualification[s]’. And it is equally plain that [the New York statute] disqualifies a group of people from voting. These two propositions should constitute the entirety of our analysis. Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage.” Finding that felon disenfranchisement laws are not “immune from scrutiny under § 2 of the Act,” Judge Sotomayor would have reversed the dismissal of the plaintiffs’ complaint and given them the opportunity to prove their claim that the New York statute discriminatorily denied African Americans and Latinos of their right to vote.
10:19 full summary can be found at this link from the Constitutional Accountability Center: http://theusconstitution.org/blog.history/?p=787
10:21 cardin going into women’s rights
10:21 let’s see if he brings up Ledbetter
10:22 our Ledbetter question: In 2007, the Supreme Court decided the case of Ledbetter v. Goodyear Tire & Rubber Co. As you may know, Lilly Ledbetter worked for nearly two decades for Goodyear. Despite receiving top performance awards, she discovered that she had been paid significantly less than male co-workers with the same job. After her November 1998 retirement, she filed suit under Title VII of the Civil Rights Act of 1964 and was awarded back pay and other remedies in a jury trial. The verdict was appealed and eventually reached the Supreme Court. In a 5-4 decision, the Court not only erased Ledbetter’s award, but also left women, minorities, and others in Ledbetter’s situation with virtually no recourse to pay discrimination. Earlier this year, Congress passed and President Obama signed a law overturning this harmful decision, restoring the paycheck accrual rule and the ability of those who suffer from pay discrimination to have their day in court. Had you been a justice when the Supreme Court heard this case, how would you have ruled?
10:22 cardin talking about her admission to princeton during a time when not many women were admitted
10:23 cardin asks about the importance of “different voices in our school, Congress, Supreme Court…the importance of diversity”
10:24 sotomayor: “starts with the legislative branches and executive bodies…an employer who looks at their workforce, and makes policy decisions about what promotes full opportunity”
10:28 disappointed that no one has asked our Ledbetter question as yet
10:30 moving into privacy issues
10:31 yesterday she agreed that there’s a right to privacy in the constitution
10:33 today she discussed the myriad of different cases where the Court has recognized the right to privacy
10:33 justice brandeis has a famous quote that the right to privacy simply means “the right to be left alone”
10:35 a foray into pro bono work and community service
10:35 sotomayor says that of all her speeches, especially graduation speeches, this is the theme she discusses the most
10:35 notes that pro bono work is a requirement under the code of the american bar association
10:36 our friends at AFJ have the following to say about sen. cornyn’s line of questioning:
10:36

This morning, Senator John Cornyn repeatedly hammered Judge Sonya Sotomayor on speeches she has given and in particular, one case that she decided. Sadly, Senator Cornyn seems to think that it is appropriate to hold Judge Sotomayor to a different standard than he held Chief Justice Roberts and Justice Alito to.
Senator Cornyn did not ask either Roberts or Alito about a single speech either had given. Senator Cornyn did not ask either Roberts or Alito about a single case either had decided. However, he did ask tough, penetrating questions to both such as:

“I want to give you an opportunity, Judge Alito, to tell us whether you feel like you’re a clone of Judge Scalia, Judge Thomas, Judge Bork[?]“

“We keep asking the same question over and over and over again, but try to approach it from a slightly different way, to get you to answer a question that you don’t feel you can ethically answer, are you going to give us a different answer?” Senator Cornyn to John Roberts

Despite his opinion that it is fruitless to ask the same question over and over again, Senator Cornyn managed to ask the same questions about Judge Sotomayor’s speeches and about the Ricci decision that nearly every Republican Senator had asked. Hypocrisy much?

10:37 sen. coburn is up now
10:37 coburn starts by apologizing for the various pro-life outbursts that have occurred in the hearing room since monday
10:38 coburn notes that he’s not a lawyer, so he wants to use qorkds in his questions that “americans really understand”
10:38 words, not qorkds
10:38 back into abortion
10:39 sotomayor discussing the holdings in Roe and Casey without offering an opinion on either
10:40 coburn gives a hypothetical in which a 38-week pregnant woman discovers a medical condition in her baby
10:40 sotomayor says she can’t answer that hypothetical in the abstract, since she doesn’t know which state laws would apply
10:41 cobrun now talking about viability, discussing a report that a fetus at 21 weeks can survive outside the womb
10:41 asking if technology has any bearing on Roe
10:41 sotomayor again saying she can’t answer in the abstract
10:41 any comments on all of this from the peanut gallery?
10:43 seeing none
10:44 coburn moving into the “definition of death”
10:44 he asked very similar types of questions at the alio and roberts hearings
10:46 coburn says technology can now measure fetal heartbeats at 14 days, post conception, and brain waves at 39 days, post-conception
10:46 making the point that if death can be defined as the absence of those things, why isn’t life defined as the presence of those things
10:48 back into a second amendment discussion
10:51 coburn sticking to the incorporation debate that was discussed yesterday
10:51 whether, in light of Heller, the 2nd amendment applies to the states
10:52 coburn claiming that much of the debate over adoption of the 14th amendment came about over allowing freed slaves to bear arms
10:56 coburn arguing that he has a right to personal self-defense
10:58 and asking for her opinion on the same
10:59 sotomayor again stating that she can’t offer personal opinions
11:01 back into the foreign law breach
11:02 sotomayor: “i have agreed with justices scalia and thomas…even in being careful in using foreign law in areas american law permits you to”
11:03 sotomayor: “foreign law cannot be used as a holding or a precedent”
11:05 as opposed to, say, citing foreign law as a fact or an observation
11:06 [Comment From Guest]
I have never understood why at least consulting foreign law for an idea or a best practice is so bad….
11:06 [Comment From Guest]
sure, its not a precedent, but it can spur an idea
11:06 I tend to agree with that sentiment as well
11:07 sotomayor: “we don’t render decisions to please the home crowd, or any other crowd”
11:07 senator whitehouse’s turn
11:08 says her nomination gives him “goosebumps”
11:09 i think he just said goosebumps in spanish
11:09 interesting
11:10 whitehouse starting with her role at PRLDEF
11:11 a reminder from our friends at AFJ
11:11 Prior to joining the bench, Judge Sotomayor sat on the boards of directors of the Puerto Rican Legal Defense and Education Fund (“PRLDEF”) and the Maternity Center Association, both of which support access to reproductive health care. During her time on the PRLDEF board, the organization joined a series of amicus curiae briefs submitted to the Supreme Court defending the rights of poor women, and women of color, who were disproportionately affected by state laws restricting access to abortions and other reproductive health care. In each of these briefs, PRLDEF described its amicus interest as, among other things, “safeguarding the rights of Puerto Ricans of low economic status [and protecting] Puerto Rican women and other women of color [who] are particularly vulnerable to discrimination[.]” See, e.g., Brief Amici Curiae in Webster v. Reproductive Health Serv., 1989 U.S. S. Ct. Briefs LEXIS 1529, *88 (March 28, 1989); see also Brief Amici Curiae in Rust v. Sullivan, 1990 U.S. S. Ct. Briefs LEXIS 692, *55 (May 4, 1990) (“The Fund recognizes that restrictions or limitations on the provision of health services, including information concerning abortions, deny women access necessary to fully exercise their rights, and place Latinos at an even greater risk of inadequate and dangerous treatment and unwanted pregnancies.”). These briefs take the position that a woman has a right to safe and legal reproductive healthcare, but because Judge Sotomayor did not sign any of these briefs or appear in any of these cases, it is not known whether she was involved in these cases or agreed with PRLDEF’s position.
11:12 sotomayor says board members were not asked to approve any briefs that were field
11:12 filed*
11:13 she says that no questions came up on her service to the board during her previous confirmation hearings for district and circuit court positions
11:13 she says it was an organization that simply promoted the civil rights of that particular community
11:13 similar to, say, the NAACP legal defense fund
11:16 discussion of the 6th amendment right to a trial by jury
11:16 sotomayor praising juries that she had experience with
11:17 including one juror who had a leg cast up to her hip, yet still managed to serve
11:19 [Comment From Guest]
sorry I am jumping in late… has klobachar gone?? I really want to see what she asks
11:19 Not yet…believe she is up next though
11:20 following sen. whitehouse
11:21 whitehouse discussing the separation of powers and checks and balances, both explicit and inherent in the constitution
11:22 in the context of unilateral power being harnassed by one branch…which most often arises on questions of executive branch power
11:22 sotomayor discussing the famous jackson concurrence in the youngstown case
11:23 Youngstown was a 1952 case where the issue was President Truman seizing of the steel mills during the Korean War
11:23 that Court struck down that action
11:24 the case is a famous example of an executive branch power case was notable for many reasons, one which of which justice jackson’s concurrence
11:25 that concurrence was actually joined by five other justices, and as such is often regarded as the controlling opinion in this case
11:25 Jackson divided Presidential authority vis a vis Congress into three categories, ranked in descending order of legitimacy: (1) those cases in which the President was acting with express or implied authority from Congress, (2) cases in which Congress had thus far been silent, and (3) cases in which the President was defying congressional orders. He classified this case as falling within the third category.
11:28 “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” – Justice Robert Jackson
11:31 another foray into search and seizure issues
11:31 including a talk about marijuana growing
11:32 sotomayor claims she has no experience with marijuana growing
11:32 fun fact: when judge robert bork’s nomination to the Court was rejected, president reagan first nominated judge douglas ginsburg to replace him
11:32 however judge ginsburg was forced to withdraw days later when evidence of his smoking marijuana during his younger days surfaced
11:33 eventually, anthony kennedy was nominated and confirmed, and he is still on the Court – often regarded as the key swing vote, in fact
11:35 [Comment From Guest]
I bet Kennedy does not smoke marijuana
11:35 I would concur
11:36 leahy announces a 15-minute break, starting now
11:38 [Comment From Guest]
so Klobachar and Franken go last?
11:39 the remaining senators: klobuchar, Kaufman, Specter, Franken…in that order
11:41 I’m thinking two more before lunch, then two more afterwards
11:41 if so, first round should conclude at around 3 pm
11:41 leahy said earlier that following the first round, they’ll have an hour’s worth of closed-door session with sotomayor
11:42 sticking to the sketched-out timeline, a second round should begin at around 4 for anyone who wants it
11:42 if that’s the case, i see this stretching into tomorrow
11:42 although probably not a full day for thursday
11:51 here’s the link to the NRA’s “serious concerns” over sotomayor: http://www.nraila.org/Legislation/Read.aspx?ID=5050
11:53 [Comment From Lisa]
Leahy’s got his camera out… taking pics of photogs taking pics of him… he loves that camera of his!! lol
11:53 almost as much as he loves being in the Batman movies
11:54 klobychar and kaufman doing questions before lunch
11:54 klobuchar
11:55 starting now
11:56 klobuchar beginning with running into sotomator’s mother in the restroom just now
12:00 sotomayor discussing her time as a NY prosecutor
12:00 in a discussion of ensuring fair trials for the defendants
12:03 [Comment From Lisa]
Love that Klobuchar points out that wise Latina comment was made in 1994 yet never came up during her circuit court appointment
12:03 yup, cardin made the same point earlier…the critics must have been saving all that outrage for something bigger
12:05 [Comment From Peggy]
B$ my time but love the reruns. RT @ProudOldLefty: Sotomayor citing Perry Mason!!! LOVE IT! Was one of my favorite shows growing up. Now THIS is a SCOTUS judge we can love!
12:05 this morning we’ve talked about perry mason and growing marijuana
12:06 and we wonder why some people say they have no patience for the hearings!
12:08 klobuchar going back to schumer’s questioning yesterday
12:09 talking about cases where sotomayor ruled against sympathetic parties to a case
12:10 [Comment From Guest]
Sounds like they’re getting a bit bored, too. Just trying to stretch out the hearings so they can avoid dealing with healthcare before moving on to their summer vacations.
12:11 speaking of the summer break, harry reid and democratic leadership have a goal of a confirmation vote prior to august 7
12:11 which is when the senate recesses through labor day, according to the current schedule
12:12 i think the lights just went off in the hearing room for a second
12:12 leahy claims it was not ‘a sign from above’
12:15 klobuchar, like sotomayor – and many members of the committee – is a former prosecutor
12:15 leahy and specter are also included in that group
12:16 AP article on the earlier abortion line of questioning this morning: http://www.nytimes.com/aponline/2009/07/15/us/politics/AP-US-Sotomayor-Senate.html
12:19 btw, here’s the transcript of yesterday’s liveblog sessions: http://blog-aauw.org/2009/07/15/confirmation-hearings-day-two/
12:22 klobuchar has talked about sotomayor’s sentencing trends
12:23 sotomayor discussing her fidelity to various sentencing guidelines
12:23 partiocularly for white-collar criminals
12:25 klobuchar just asked if sotomayor watched the baseball all-star game last night
12:26 from the sublime to the absurd
12:26 yours truly watched the game, but he’s not a scotus nominee
12:26 senator kaufman up next
12:27 the man who holds joe biden’s seat
12:30 sotomayor discussing her time as a commercial litigator
12:30 she did such litigating between her time in the Manhattan DA office and her nomination to the federal district court
12:33 describing the kinds of issues she worked on at that time
12:34 she’s discussing how that experience helped her in her role as a trial judge
12:36 kaufman points out that the role of trial judges is often times to help broker settlements to avoid trials in the first place
12:36 [Comment From Lisa]
did I hear right… the air conditioning is not working in the hearing room??? ugh
12:36 Yes, leahy says it went out and they’re trying to fix it
12:37 where’s Batman when you need him?
12:39 [Comment From Peggy]
MacGyver is more like it.
12:40 personally, i’d vote for Encyclopedia Brown…he charges only 25 cents a day (plus expenses) and no case is too small
12:42 kaufman asks how judges should react to laws pased by congress
12:42 in terms of their rulings
12:43 senators on both sides of the aisle often express the view that judges should be more deferential to congressional statutes
12:44 of course, deference is like precedent is like judicial activism is like restraint – definitions often in the eye of the beholder
12:49 heavy discussion of commercial litigation here
12:50 now moving to antitrust law
12:56 can’t say i’m too familiar with the antitrust side of the ledger
12:56 all about ensuring competitiveness in the marketplace
12:57 Robert Bork is regarded as a key scholar in the field of antitrust law
12:57 one of his major fields
12:57 ironically enough
12:57 leahy announces a lunch break
12:57 at 2 pm, senator specter will resume questioning
12:58 at 3 pm, the closed session will take place
12:58 we’ll leave the forum open for any comments or questions
1:42 should be getting underway in about 15-20 minutes
2:00 should be back in the next few minutes
2:00 hearing room filling back up
2:01 anyone have comments about the morning session?
2:01 coburn always makes things a little interesting
2:02 we’ve got ourselves a very disciplined nominee, folks
2:02 anyone claiming she is a person who lets her emotions get the better of her would have a hard time proving that point while watching these hearings
2:04 we have returned
2:04 senator specter will kick things off
2:04 let’s see if he talks about “super-duper” precedents again
2:06 he’s praising her for her “intellect, humor and charm”
2:07 he’s talking about various scotus nominees who have all shared their background and experiences
2:09 including judge bork
2:10 specter, notably, opposed bork’s nomination
2:10 Bork was rejected 9-5 in committee and 58-42 by the full senate
2:12 specter asked if she agrees with what john roberts said during his hearings, that the Court needs to decide more cases each year
2:13 she doesn’t want to make statements about what the court can do until she potentially gets there
2:13 specter cut her off there and moved on
2:13 now discussing wireless wiretaps
2:15 [Comment From Lisa]
Specter is looking pretty healthy… that’s good news
2:15 [Comment From Guest]
Spector opposed Bork but didn’t he support Clarence Thomas… he got a big challenge as a result as I recall, Year of the Woman stuff….
2:15 Specter did indeed vote for Thomas
2:15 Thomas received a tie vote in committee, but the nomination was sent to the full senate
2:16 he was confirmed 52-48, which was the closest vote ever for a successful supreme court confirmation
2:16 one interesting note about sotomayor: every time she declines to offer a personal view on a topic, when asked to by a senator
2:17 she tends to commence her answer with some variation of how she understands how frustrating it must be for them to hear that she won’t answer the question
2:17 in other words, she sounds pretty empathetic :)
2:18 specter asks if Roe has “added weight”, or a kind of special precedent, since Casey upheld its core holding
2:18 and that 38 cases since Roe have declined to overturn Roe
2:18 [Comment From Lisa]
Things are getting a bit testy here with Mr Specter
2:18 yes, he cuts her off pretty regularly
2:19 specter is asking about “super-duper precedents” without using the term
2:19 sotomayor sticking to her stock answer on the value of precedent
2:20 sotomayor, as it custom for nominees, is saying a lot without saying much at all
2:20 talking about what the Court ruled, rather than how she feels about it
2:23 specter talking about the standards under which the Court reviews congressional legislation
2:24 he believes the “congruence and proportionality” test that has been promulgated is “flabby” and allows the court to act as a super-legislature
2:24 sotomayor refusing to offer her views on the applicability of that standard
2:24 [Comment From Lauri]
specter just talked about how the SC ruled in two different ways in two cases on the same point of law. he wants Sotomayor to answer for it tomorrow. why should she be responsible for what a prior court determined?
2:24 [Comment From Lisa]
Hmmmm… yes, well, the Congress does get testy about their separation of powers
2:25 senators have different levels of attempting to get court nominees to offer views on past cases
2:26 some really want to hear those views, some don’t want to at all…while for others, it depends on who is sitting in the witness chair and the party of the president who put him or her there :)
2:28 sotomayor says she has upheld statutes due to her deference to congressional findings
2:29 sotomayor says her record demonstrates her deference to the legislative branch
2:29 specter says her record is exemplary, “if not her answers”
2:30 specter moving to televised supreme court proceedings
2:30 which was covered yesterday, but he’s a major proponent of this and has written bills to this effect
2:30 [Comment From Lisa]
if not her answers… lol … wow
2:31 “snarlin’ arlen”
2:31 specter getting into all the televised speeches and appearances of the various justices
2:32 notes that even when Bush v. Gore came down, the Court still wouldn’t allow cameras in
2:34 “shouldn’t the american people have access to what is happening in the supreme court?”
2:35 sotomayor giving the same answer she gave yesterday
2:35 that she’d had good experiences with cameras in her court room
2:35 but would need to discuss with her colleagues on the Court if she makes it there
2:36 [Comment From Lisa]
Many Sens have asked Sotomayor abt cameras in Sup Ct during oral argument. What do U think? Is it diff than C-Span?
2:36 C-SPAN has pledged, if given the opportunity, to cover the Court in the same way it does the House and Senate
2:36 gavel-to-gavel coverage
2:36 no commentary
2:37 I would be the first to get behind that
2:37 here comes Franken
2:37 starting with perry mason
2:37 noting that the prosecutor always lost on that show
2:38 gotta say, awfully surreal to see al franken getting to question a supreme court nominee
2:38 “Live, from DC, it’s Wednesday afternoon!”
2:39 franken starting with the internet’s transformation of information dissemination
2:40 and cases dealing with government regulation of the internet
2:40 as well as with internet service providers who censor certain content
2:41 says supreme court decision from 2005 allows ISPs to put a premium on the content they provide versus content provided by others
2:42 “doesn’t the american public have a first amendment interest…in seeing the internet stay open?”
2:43 sotomayor: “role of the court is never to make policy…but to wait until congress acts”
2:44 she acknowledges that as a citizen, she understands fully the power of the internet, but declining to offer a personal view on the case Franken described
2:44 here’s a good summary of the so-called Brand X case: http://news.zdnet.com/2100-6005_22-143450.html
2:46 franken spending a good amount of time on this issue…interesting
2:47 now turning to “judicial activism”
2:48 says it’s simply a code word for judges someone doesn’t like
2:48 asks for her definition of judicial activism
2:48 she says she doesn’t have one, because she doesn’t use the term
2:48 says each judge attempts to interpret the law “in good faith”
2:49 “hopefully judges are no imposing policy choices…or their views of the world. that would be judicial activism in my sense” of the term
2:49 so she does have a definition for it
2:50 franken says a few cases have lately are, to him, examples of activism
2:50 he starts with the voting rights act case from this past term
2:51 leading up to this decision, there was real feeling that the Court would strike down section 5 of the voting rights act
2:52 section five is an enforcement mechanism whereby the justice department reviews or “preclears” changes to voting rights law in jurisdictions which have historically seen voting rights discrimination take place
2:53 the Court surprised some viewers by instead ruling narrowly in that case, and not reaching a conclusion about the constitutionality of section five
2:53 8 of the 9 justices, in fact, agreed with that holding…the lone holdout being justice thomas
2:54 sotomayor declining again to offer her view
2:55 [Comment From Lisa]
love that Franken pulled out his pocket constitution… is he a Robert Byrd in the making??
2:55 maybe he borrowed byrd’s copy
2:56 moving onto an age discrimination suit also decided by the Court last term
2:56 [Comment From Lisa]
no way… Bryd would never let that thing go
2:56 good point…sort of how charlton heston felt about his gun
2:57 Gross v. FBL Financial Services: http://topics.law.cornell.edu/supct/cert/08-441
2:59 franken says this ruling will make it harder for older workers to present evidence of age discrimination in employment
3:02 onto abortion
3:02 franken noting that words like birth control and privacy, in addition to abortion, are not included in the constitution
3:02 sotomayor again affirming that there is a right to privacy, and the courts have ruled as such for more than 90 years
3:04 franken describing Roe
3:04 franken asks if she believes the right to privacy included the right to an abortion
3:05 she said Roe found just that…as usual, not giving an opinion
3:07 first round is over
3:07 leahy just announced the start of the closed session, which should take about an hour
3:08 thoughts? comments? reactions?
3:18 sotomayor is as disciplined a nominee as you’ll ever get, in my estimation
3:19 aside from the typical outcomes we’ve come to expect from all nominees – agreeing that there is a right to privacy, for instance – she really kept her personal views close to the vest
3:27 [Comment From Lauri]
many pf the questioners have argued against “judicial activism”. in that vein, it makes sense that she is not giving her personal opinions, since they are asking her to adhere to the standard of deciding cases based on law, not opinion
3:27 i agree that she is sticking to that strict standard
3:28 in my view, though, no matter who the nominee is, i like being able to learn about judicial ideology
3:28 but it looks like we’ll have to wait for her case decisions to bear that out
3:29 i wonder if the second round will produce any fireworks
3:37 [Comment From Guest]
When does round two begin if Sotomayor is supposed to be sworn in by early fall?
3:37 immediately, it now appears
3:37 surprised they came back this quickly
3:37 looks like there’s a microphone issue, though
3:37 some technical difficulties
3:38 they’re gonna try to get that fixed
3:40 leahy is sitting in a junior member’s chair at the end of the dais for a working microphone
3:40 franken got a few laughs by working towards the chairman’s seat to switch places
3:40 nice to see he still like to crack a joke or two
3:41 leahy referencing letters the committee has received in support of the nomination
3:43 leahy starting a second round
3:43 he’s talking about ledbetter
3:44 said fives justices “struck a blow” against women’s rights in that case
3:44 well said, senator
3:44 now ask how she would have voted in that case
3:44 also discussed her dissents in ruling upholding strip searches of young women
3:45 which the supreme court also ruled on this past term (different case, but similar issue)
3:46 leahy says these cases underscore the need for diversity
3:46 and judges with different experiences to be on the bench
3:46 asks how she feels young women are affected by having only one female justice currently on the court
3:47 sotomayor: “it’s why every president over the last 20, 25 years has attempted to promote diversity”
3:47 [Comment From Lisa]
Leahy: Over 1,200 law professors signed onto a letter endorsing Sotomayor… wow
3:47 [Comment From Lisa]
Concerned Women for America has opposed her
3:50 leahy talking now about gideon v. wainwright, a 1963 case which guaranteed counsel to defendants who could not afford it
3:51 [Comment From Lisa]
Do you think the closed door session will minimize questions in the second round?
3:52 My guess is no…it was rather short, and a number of senators on both sides said earlier that they were looking forward to a second round
3:53 sen. sessions back up
3:53 starting with more talk of judicial activism
3:54 sessions says it breaks his heart to see judicial systems in other countries that don’t match ours
3:55 sessions says he is still “concerned” after the first round and reviewing transcripts
3:55 “wise latina” quote time!
3:56 let’s remind the viewers at home that sen. sessions was rejected by the judiciary committee for a district court slot in 1986 for making racist comments
3:56 sotomayor: “i want to give you complete assurance…that i agree with senator hatch’s definition of activism”
3:57 “to the extent that my words have led some to believe that i believe a particular group is better than another…my rhetorical device failed.”
3:57 “it left an impression that I believe something that I don’t”
3:57 [Comment From Lisa]
Specter said they were making a mountain out of a mole hill on this issue… if this is really all they dig up on her… they might as well vote Friday.
3:57 seriously
4:03 more talk of second amendment rights and Heller
4:04 [Comment From Lisa]
Okay, just got this twitter that ws too good not to share….
4:04 [Comment From Lisa]
RT @joanwalsh @pourmecoffee Sessions digs deeper: “Would U be more or less likely 2C Half Blood Prince if it was abt *Geraldo* Potter?”
4:04 hahaha that is funny
4:10 [Comment From Lisa]
She clearly knows caselaw chapter and verse. I don’t mind if they quiz her. That’s right and proper. But this seems spurious.
4:11 It’s a retread of ground already well-covered during the opening round
4:14 sessions seems a bit flustered that he can’t, well, fluster her
4:15 herb kohl back up
4:16 noting that some landmark Court rulings actually overturned supreme court precedent
4:16 i.e. Brown v. Board of Education
4:16 [Comment From Carrie]
Guess her “temperament” is keeping her from having a “meltdown.”
4:16 Sums it up well, Carrie!
4:18 sotomayor agrees that precedents are “not immutable”
4:18 a number of different factors go into whether and how a Court should decide to do away with one
4:18 have circumstances changed? does it provide enough guidance?
4:19 should court revisit in light of new facts?
4:19 these are the types of questions she thinks judges should ask themselves when weighing this option
4:20 Brown, she says, fit a lot of these circumstances vis-a-vis the Plessy ruling from 1896
4:21 she also says courts look at the number of times a case has been reaffirmed
4:22 which brings to mind how specter speaks about Roe, and the Court declining on 38 separate occasions to overturn it
4:24 [Comment From Lisa]
aside from Carhart II, has the Roberts Court had any opps to overturn Roe as of yet?
4:24 Nope, that was the only one
4:25 I found it interesting that Thomas and Scalia wrote in a separate concurrence in Carhart II that Roe should be overturned
4:25 Roberts and Alito did not join
4:25 why not?
we can only guess
4:27 kohl pointing out that the Court has the basically sole discretion over the cases it hears
4:28 the Rule of 4 applies: if 4 justices agrees to grant cert, the case will get heard
4:28 [Comment From Lisa]
Sup Court only hears 70-80 cases a year, or 1% of appeals it received… wow…
4:28 pretty startling figure when you think about it
4:28 especially when you consider it heard double that amount in the not too distant past
4:29 Roberts said during his confirmation hearings that the Court should hear more cases
4:29 but in fact, the average has dropped during his tenure as chief
4:31 [Comment From Lisa]
I want them to be thorough, but you’d think they could do more… I cannot imagine there are not important questions that go unanswered in that other 99%
4:31 no question about it
4:31 senator hatch is up
4:32 former judiciary committee chairman, of course
4:37 sotomayor talking more about the right to privacy, and how it exists in different provisions
4:38 sotomayor: “a court cant ignore the words [in the constitution] or change them”
4:40 she says the court is only infallible in the sense that it is final – in other words, the court of last resort
4:41 “judge’s role is to interpret the constitution and laws on their terms”
4:45 hatch is drawing distinctions between the quality of human empathy and the duty of judicial impartiality
4:46 sotomayor says she can’t speak for a president’s choice of the word empathy
4:46 (hatch noted that in introducing clarence thomas as his nominee, president george h.w. bush referred to his empathy as well)
4:49 hatch is again in the weeds with her comments and public statements
4:50 she once said that impartiality is an “aspiration” and he has a problem with that
4:50 come on, orrin, you’re better than this
4:50 she makes no bones here that impartiality is a judicial duty
4:52 15-minute break announced
5:09 and we’re back
5:09 senator feingold is now up
5:14 he’s talking about the mccain-feingold bill, the campaign finance bill that of course includes his name
5:16 certain sections of that bill have appeared before the Court, and may well again
5:16 feingold was quick
5:16 senator grassley’s turn
5:17 asking whether marriage is a question for states to decide
5:17 something new!
5:18 sotomayor declining, of course, as this issue is pending in a number of courts and legislatures
5:22 now bringing up the defense of marriage act
5:22 which was signed by president clinton in 1996
5:23 which defined marriage as between one man and one woman
5:23 at the federal level
5:23 sotomayor says ABA rules do not permit her to comment on the merits
5:25 since the Court may one day rule on the constitutionality of that statute
5:26 back to public statements and speeches
5:26 more discussion of a judge’s need for impartiality
5:29 everyone is partial to impartiality
5:33 “what judges do…is look at court precedents, what a statute says, understand the principles at issue, and apply them to what society is doing”
5:38 senator cardin is up
5:38 final questioner of the day
5:38 once again, we will begin at 9:30 tomorrow morning
5:38 for the remainder of round 2
5:40 we will, of course, be back tomorrow for what should be sotomayor’s final day at the hearing
5:40 cardin getting into matters pertaining to fair housing laws
5:41 for an amusing look at how much total time sotomayor has talked versus the amount of time senators have talked, check out this link: http://www.slate.com/id/2222859/
5:42 sotomayor is winning today, amazingly, but the senators have a huge lead overall
5:42 to no one’s great surprise
5:46 sotomayor discussing general freedoms of speech, expresison religion…says they’re central to the constitution
5:48 cardin has wrapped up
5:48 the committee is in recess until 9:30 tomorrow morning
5:48 thanks again to everyone for watching today – looking forward to seeing everybody again tomorrow morning at 9:30!
By:   |   July 16, 2009

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