Sotomayor Hearing Live-Blog, Day 3

This week, the Wonk Room will live blog Judge Sonia Sotomayor’s confirmation hearings.  Yesterday, Jefferson Beauregard Sessions III attacked Sotomayor for not behaving like other Puerto Ricans, and the right-wing Committee for Justice released an ad claiming that Sotomayor led a terrorist organization.  This morning features questioning by Senators Cornyn and Coburn, we’ll see if they can clear the low bar set by Sessions and the CFJ.  We will be updating this thread throughout the day.


5:49: And that’s a wrap . . . for today.

5:45: Cardin highlights one of Sotomayor’s major religious liberty cases, Ford v. McGinnis, in which she held that a prison could not deny Muslim inmates their First Amendment right to participate in the traditional meal celebrating the conclusion of Ramadan merely because prison officials determine that this traditional celebration was not sufficiently important to Muslims.

5:38: Cardin’s up, then recess for the day.

5:36: Broken Record Watch: Grassley still thinks that land developers are immune from statutes of limitations.  And, for the record, Mr. Didden made an enormous profit on this land because it was seized by eminent domain.  The only question in Didden’s lawsuit was whether he would get a massive windfall, or an awesomely massive windfall.

5:27: Sotomayor says that she has “no quarrel” regarding certain principles governing judicial neutrality, then cuts herself off, says “no quarrel sounds equivocal,” and fully endorses the principles.  This may be a subtle dig at Roberts and Thomas, who routinely said that they have “no quarrel” with decisions that they stridently opposed once they were confirmed to the Court.

5:22: Ok, Grassley is making the utterly insane argument that a case called Baker v. Nelson is a Supreme Court precedent that forbids the Court from mandating marriage equality.  Here is the entire text of Baker v. Nelson:

Appeal from Sup. Ct. Minn. dismissed for want of substantial federal question.

5:20: Your humble blogger is back.  Just in time to get hit with a fistful of crazy by Chuck Grassley, it seems.

4:28: Your humble blogger has to duck into a meeting.  No one say anything crazy while he’s gone.

4:24: Sessions doesn’t remember the Roberts and Alito hearings very well:

4:18: SCOTUSBlog makes a funny.  Sotomayor references a British study on the use of precedent.  SCOTUSBlog: Sessions “probably not happy with the reference to international law.”

4:11: Sessions doesn’t know what a board of directors does.  He again claims that Sotomayor authorized an organization she sat on the board of to take positions that he disapproves of, but the New York Times reports that she had virtually no role in shaping the organization’s litigation, and ABA rules forbid the board members of legal organizations from supervising an attorney/client relationship.

4:09: Shorter Broken Record Watch: Foreign Law.  Talmud.  Scalia.  Unelected Rabbis.

4:04: Irony Watch: Sessions complains about people who try to “promote agendas through the law.”

4:01: Broken Record Watch, Part II: Now Sessions is attacking Sotomayor for following a binding Supreme Court precedent regarding the Second Amendment.  Federalist Society darling Judge Frank Easterbrook disagrees with with Sessions.

3:55: Broken Record Watch: Sessions goes right to “wise Latina.”

3:52: Leahy makes an important point, a right means nothing if it cannot be enforced.  Sotomayor agrees.  Sadly, many of her future colleagues do not.

3:44: Leahy begins by highlighting a Sotomayor dissent where she opposed strip searches of young girl’s without individual suspicion of wrongdoing, noting the similarity between Sotomayor’s dissent and another strip search case that was recently in front of the Supreme Court.  Leahy notes that this case highlights the importance of diversity on the Supreme Court.  Many of the male justices were initially ready to hold that school officials may strip search a 13 year-old girl simply because they think she may have Advil.

3:36: And we’re back!  Round two, fight!

3:07: Hearing in recess.  May resume this afternoon after a closed session.

3:02: Franken’s response to the right-wing claim that Roe is wrong because the word “abortion” does not appear in the Constitution.  “Do the words ‘birth control’ appear in the Constitution?”  Sotomayor responds by explaining that modern fundamental rights doctrine began with a case saying that parents have a right to decide how to educate their children.  The word “education” also doesn’t appear in the Constitution, a fact that segregationists have long cited to undermine Brown v. Board of Education.

2:56: Franken slams the Court’s recent Gross case, which stripped many older workers’ ability to be free from age discrimination.  Good job Al!  Gross is particularly egregious because it refused to follow a 1989 precedent, and Justice Thomas explained his decision to ignore this precedent simply by saying “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.”  Translation:  the right-wing controls the Court now, so we’ll do whatever we want.

2:50: Franken: there’s been too much “judicial activism” from the right.  Starts out with the conservative assault on the Voting Rights Act.

2:42: Franken’s first question is Net Neutrality.  Franken’s concern is that Justice Thomas’ decision in Brand X may undermine Net Neutrality.

2:36: The Al Franken Decade resumes!

2:26: Specter zings Roberts for promising to be one kind of justice and then turning into something very different.  His question to Sotomayor: “Do you agree with what Chief Justice Roberts said when he was just Judge Roberts?”  His follow up after Sotomayor answers, “is there anything Congress can do if a Justice says one thing and then turns into something else?”

2:23: Specter is not happy with a series of Court decisions that have cut back Congress’ ability to remedy civil rights violations–effectively extending state’s sovereign immunity to civil rights laws.  The Court’s most conservative members are trying to kill an essential provision of the Voting Rights Act using the reasoning in these cases.

2:16: Oddly, Specter quotes Judge J. Michael Luttig’s description of the Court’s abortion cases as “super stare decisis.”  Luttig was one of the most right-wing members of the federal bench until he resigned in a huff after President Bush passed him over for Justice Alito’s seat on the Supreme Court.

2:10: Specter: “A woman might want to assert her competency in a country where women were denied the right to vote for decades”

2:06: Broken Record Watch: Grassley slams his GOP colleagues for “beating a dead horse to death” on Sotomayor’s “wise Latina” comment.  Specter opens up his remarks by saying people who have attack this speech are “making a mountain out of a molehill,” citing Alito, Thomas and other conservative justices who have made similar remarks.

2:03: And we’re back.  Your humble blogger, who is terribly lacking in creativity, had a lovely Greek pita again today for lunch.

1:01: Will Orrin Hatch, who headlined a $10,000-a-head fundraiser for the organization running ads claiming Sotomayor led a terrorist group, distance himself from that organization?

1:00: Recess!  Your humble blogger gets to eat!

12:54: Kaufman moves on to antitrust.  In Leegin Creative Leather Products v. PSKS the five conservative justices overruled a 95 year-old precedent which prevented price fixing.

12:50: Kaufman continues to ask very lawyerly questions, this time asking about Sotomayor’s views on private suits against people who commit securities fraud.  In Stoneridge Investment Partners v. Scientific-Atlanta, the five conservative justices held that business which enable Enron-style securities fraud are immune from accountability in private suits.

12:41: Kaufman express concern that the Supreme Court will immunize corporations from new financial regulation in the same way that they have given sweeping immunity to corporations in the past.

12:35: Kaufman’s questions have focused largely on Sotomayor’s experience representing businesses.  She says that this experience shaped her understanding that judges must be loyal to established law.  “In business, the predictability of law may be the most necessary.”

12:21: Klobuchar notes that Sotomayor was particularly tough on white collar criminals when she was a district judge.  Of course Sotomayor’s nomination has been enthusiastically supported by law enforcement.

12:16: Klobuchar and Sotomayor discuss a case where the judge reached the same result as the the supreme Court in Herring v. United States, a 5-4 decision which stripped away the traditional remedy for criminal defendants who are arrested because of errors in court databases.  We have criticized Herring in the past, but it is a good example of how Sotomayor is not easily pigeonholed ideologically.  Justice Souter, who she will replace, joined the dissent in Herring.

12:13: Lights flicker in Sotomayor’s room.  Leahy: “That was not a comment from above . . . I have certain powers as chairman, but not that one.”

12:03: Sotomayor says that she was inspired to become a prosecutor after hearing a statement made by a prosecutor on Perry Mason: “My job as a prosecutor is to do justice.  Justice is served when a guilty man is convicted or when an innocent man is not.”

11:58: Contra right-wing claims that Sotomayor directed PRLDEF’s litigation, Klobuchar notes that ABA rules forbid a legal organization’s board members from supervising attorney/client relationships.

11:55: And we’re back.  Klobuchar, Kaufman, then lunch.  Your humble blogger is trying to decide between Indian food or a quick sandwich.

11:52: Sessions attacked Sotomayor, claiming that she believes that the Constitution changes over time.  When Roberts was in the hotseat, however, Sessions loved the living constitution:

SESSIONS: Well, I’m of the view that the Constitution is a contract with the American people, that developments will occur that clearly fit within the ambit of a fair reading of that Constitution that were never contemplated by the founders.

Things do change and we have to apply new circumstances. But wouldn’t you agree a judge should never make an opinion that is beyond what a fair interpretation of the Constitution would call for?

11:42: Committee GOPers are holding a press conference.  Cornyn plays the race-baiting card by giving a shout-out to the firefighters in the audience.

11:37: 15 minute break.  Your humble blogger is excited to catch up on his e-mail.

11:36: Ed Whelan channels Jeff Sessions: “Does the fact that she is a Latina immunize her from attention” to the fact that she sometimes trips over her words.

11:07: Broken Record Watch, John Roberts Edition:  When Roberts was in the hotseat, Cornyn thought it was very, very, bad for senators to ask him the same question over and over again:

CORNYN: If 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? Or are you going to give us the same answer?

ROBERTS: I hope my answer would be the same, Senator.

CORNYN: Well, I’m sure that’s the case.

11:02: “The American people” now think that it is dangerous for judges to cite foreign law, because foreign law is not U.S. law.  The Talmud also isn’t U.S. law either, but Justice Scalia cited the Talmud in his dissent in the judge-for-sale case.  How do “the American people” feels about judges citing unelected Rabbis?

11:00: “The American people” want to know if they have a constitutional right to self-defense.  Sotomayor explains that it depends on the circumstances.  If someone punches you, you probably can’t pull out a gun.  If someone draws a gun and walks away, you can’t go home, get your gun, hunt them down, and shoot them.

10:58: Coburn prefaces his questions by saying that they come from “the American people.”  Glad to know that he speaks for all of us.  He’s also dropped the fact that he is a doctor at least three times.

10:55: My colleague Jess points out that if states have limitless authority to define “death” because of their power to issue death certificates, doesn’t that also mean that DOMA is unconstitutional?

10:48: Broken Record Watch: Coburn brings up the Second Amendment.  Apparently, he didn’t understand her the three or four times she has already explained that she followed a binding Supreme Court precedent in interpreting this Amendment.  Kyl and Hatch have already attacked Sotomayor for following the law in this way.

10:45: Now Coburn seems to be arguing that, because states can create a legal definition of “death” for the purposes of death certificates and the like, they should also be able to regulate abortion.  Huh?

10:43: Coburn keeps trying to get Sotomayor to reveal her views on abortion.  Sotomayor refuses to prejudge the question.

10:37: Coburn takes the mic.  Immediately distances himself from the “abortion is murder” protestors who have disrupted the hearing at least four times.

10:34: Cardin brings up the serious problem on inadequate legal services for the poor.  Laws protecting the disadvantaged and courts presided over by impartial judges are wonderful things, but they mean nothing if only one side of the case has adequate representation.  Blame Ronald Reagan for the embarrassing state of legal representation for the poor.

10:27: Cardin highlights Sotomayor’s Gant dissent.  One of her best, where she stood up for the same basic principle announced in Brown v. Board of Education: “Ray [Gant] was entitled to an equal opportunity to learn.”

10:26: SCOTUSBlog notes that there has not been a single question on marriage equality.  More evidence that the culture wars are dying?

10:12: Cardin asks whether Sotomayor will join the right-wing justices’ crusade against the Voting Rights Act.  Sotomayor says that the right to vote is a “fundamental right,” which is actually pretty significant.  In Crawford v. Marion County Election Board, the Court held that laws which disenfranchise low-income and elderly voters is a-ok.

10:03: Looking back at Cornyn’s questions, it’s interesting just how much he plagiarized them from Sessions’ questions yesterday.  To his credit, Cornyn did not claim that all Puerto Ricans should be exactly alike.

9:58: Cornyn, a former state supreme court justice, pretends not to know that courts routinely use brief, unpublished orders to dispose of cases that are controlled by a binding precedent, such as Ricci.  Also claims that Sotomayor tried to “bury” the case, because Cornyn apparently believes that Supreme Court justices are too lazy to review cases that aren’t handled in a published opinion.

9:57: Cornyn gives a shout-out to the firefighters in the room.  Jesse Helms would be so proud.

9:52: Cornyn claims, falsely, that Sotomayor endorsed the view that judges’ decision making is determined by their “physiology.”  In truth, Sotomayor said that “[w]hether born from experience or inherent physiological or cultural differences . . . our gender and national origins may and will make a difference in our judging,” in a speech about how judges have to be self-aware so that they check their “assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.”  Apparently, Cornyn shares Sessions’ disdain for self-awareness.

9:42: Now Cornyn is attacking Sotomayor for endorsing the view that judges can bring about “radical change” in society.  Why does Cornyn oppose Brown v. Board of Education?

9:35: Looks like race-baiting will be the item du jour.  Cornyn leads with the “wise Latina” speech.  Sotomayor responds (for the second time) that Justice Alito has endorsed the exact same view.

9:33: Cornyn: “You will get that upperdown vote on the Senate floor.”  Good news!  Now how about President Obama’s other nominees?

9:31: And we’re off!

9:27: After conservatives spent much of yesterday engaging in race baiting, they are apparently doubling down today.  Tom Goldstein reports that a row of firefighters will be sitting in the audience today.