Sotomayor Hearing Live-Blog, Day 4

This week, the Wonk Room will live blog Judge Sonia Sotomayor’s confirmation hearings.  Yesterday, Senate conservatives mostly repeated the same tired attacks that failed to gain traction earlier in the week, apparently thinking they could do the same thing over and over again and expect a different result.  As Sotomayor’s time in the hotseat comes to an end today, we’ll see if her opponents have actually figured out something new to say.  We will be updating this thread throughout the day.


6:37: Apparently, while your humble blogger was prepping for a radio interview, John McGinnis, a right-wing law professor railed against citing foreign law because it is just as unacceptable as citing the Bible or the Koran in an opinion.  Do we really need to make the same joke about Scalia, the Talmud and unelected Rabbis again?

4:07: Your humble blogger needs to step away for a moment.  Let him know what he misses.

4:01: Interesting exchange between Specter and the firefighters.  Specter asks the firefighters if they doubt Sotomayor’s good faith, both say that they are not lawyers and have no insight into that question, they simply testified because they were invited to tell their stories and they wanted to tell them.

3:58: Hatch is dwelling on the dead horse claim that all nine justices disagreed with Sotomayor in Ricci.

3:43: Klobuchar and Specter get in a politeness war over

3:40: Graham to Ricci: we are one generation removed from a time when the color of your skin and your last name were the only thing that mattered when you tried to get a job.  Now we are trying to find balance.

3:37: Lindsay Graham (!) pushes back against Chavez’s claim that Sotomayor has a record of racial politics, noting that the ABA reached a different conclusion.  Also notes that Republicans frequently pick people for political jobs because they are minorities, adding that doing so is just “good politics.”

3:32: Morgenthau (who is white) notes that he was a founding board member of PRLDEF.

3:24: CBS: “Sotomayor Confirmation a Done Deal

3:22: Sessions: “It’s not like anyone is opposed to the Voting Rights Act, I voted for it.”  Sessions hasn’t always felt that way.  He once called the VRA a “piece of intrusive legislation.”

3:21: Sessions: “We’re going to do that crack cocaine thing we talked about.”  After laughter breaks out, he corrects himself, saying that he meant that he will support reducing the crack/powder disparity.

3:09: Peter Kirsanow, who just testified as a Republican witness, has some interesting views about internment camps for Arab-Americans.

3:06: Linda Chavez, a leading opponent of civil rights laws and Fox News commentator, opens her testimony with “I testify today not as a wise Latina woman.”  Keep it classy, Ms. Chavez.

2:58: Ben Vargas, the other firefighter, is now testifying.  Like Ricci, he emphasizes the essential role that firefighters play in protecting people’s lives, and his belief that he was judged on the basis of his race.  Like Ricci, we agree that Vargas is an heroic man who was caught up in circumstances he could not control.  He lost his case because of a binding precedent, not because of any verdict on his character.

2:50: Ricci’s remarks focus on the great deal of specialized knowledge that firefighters must have, his belief that the test that he took did a fine job of testing this knowledge, and how hard he worked to pass the test.  To be clear, no one doubts that Ricci, a man who spent his entire career running into burning buildings to save people’s lives, is a dedicated and heroic firefighter.  As a judge, Sotomayor’s job was not to decide whether Frank Ricci is sympathetic–he would have won that case in a walk–the issue is what the law requires.  In this case, Second Circuit precedent simply wasn’t on Ricci’s side.

2:48: Ricci’s up.

2:41: NY District Attorney Robert Morgenthau notes that Sotomayor will be the only justice with experience as a state prosecutor.

2:35: Bloomberg reiterates his support for PRLDEF: “Only in Washington could someones many years of volunteer service to a highly regarded nonprofit organization that has done so much good for so many be twisted into a negative.”

2:32: Bloomberg cites Brennan Center study finding that “Sotomayor voted with the majority in 98.2 percent of the 217 constitutional cases in which she participated, dissenting only four times. Moreover, 94 percent of those rulings were unanimous decisions.”

2:31: Mayor Bloomberg: Sotomayor should be supported by Democrats, Republican and Independents, “and I should know because I’ve been all three.”

2:26: Now he’s wasting time reading a letter from the NRA.  Dead horse.  Sessions claims that, because Heller, the Supreme Court’s big Second Amendment decision, was 5-4, Sotomayor could cast the key vote to overrule Heller.  Of course Sotomoyor will replace Justice Souter, who dissented in Heller.

2:22: Sessions is still ranting about the summary order in Ricci.  His broken record is now a dead horse.

2:17: Arkansas’ AG joined a brief supporting Sotomayor’s panel decision in Ricci which was also joined by Alaska’s AG.  You betcha!

2:13: And we’re back, with the first panel witnesses.  Arkansas’ Attorney General is speaking, in support of Sotomayor’s panel decision in Ricci, noting that Sotomayor followed precedent and the Supreme Court created “new precedent.”

2:07: ABA panel breaks up.  Committee takes a 5 minute recess.  Your humble blogger is hungry.

2:00: Broken Record Watch:  now Sessions wants the ABA to discuss Ricci.  ABA witness points out that, of the 1482 cases the Second Circuit decided in a given year, 1081 of them were decided by unpublished order.

1:59: Contra claims from a few anonymous lawyers that Sotomayor is a “bully,” the ABA witnesses explain that they spoke to about 500 lawyers and found nearly universal belief that Sotomayor’s temperament is just fine.

1:56: Apparently, CJ Rehnquist and Justices Scalia and Thomas, all staunch conservatives, all joined an opinion citing foreign law.

1:40: And we’re back, for three panels of witnesses.  Panel #1 is the ABA, Panel #2 is Majority witnesses, Panel #3 is Minority witnesses. Here is the witness schedule.  One of the ABA witnesses is testifying that Sotomayor is “well qualified” for the Supreme Court, their highest possible rating.

1:25: Sotomayor is out of the hotseat.  Leahy calls a ten minute recess.  Your humble blogger wonders when he’ll get lunch.

1:16: Leahy asks a very good question about death penalty procedure.  It takes four justices to agree to hear a case but five to stay an execution, so in the 1980s a lot of death row inmates were executed while their case was still pending before the Supreme Court for want of a fifth vote to stay the execution.  Leahy wants to know if Sotomayor would cast the fifth vote if it were required to stay an execution.  Sotomayor agrees that there is “sensible basis” to cast that fifth vote.

1:13: Sotomayor has a very good answer: “I’m glad that you are doing your job and that I am doing mine.”

1:09: The American People’s line of questioning is actually quite shocking.  He appears to be arguing that the Supreme Court should declare many types of spending by Congress unconstitutional.  This is a shockingly radical theory–one that not even Clarence Thomas is likely to support.  After three days of listening to GOPers whine that judges have too much power, Coburn now apparently wants to transfer the power to write the federal budget from Congress to the Supreme Court.

1:07: Tom “The American People” Coburn wants to know about the national debt, thereby becoming the first senator to quiz Sotomayor on a topic that the Supreme Court has absolutely nothing whatsoever to do with.

1:02: Cornyn’s a broken record on foreign law.  Sotomayor explains that foreign law is treated exactly the same way as scholarly articles (and unelected Rabbis).

12:55: Graham has used his third round to speechify about why we should be able to detain terrorists indefinitely.  He’s beating a strawman.  It is settled law that known terrorists can be detained, the Bush Administration’s problem was its failure to even make an attempt to determine which detainees actually are terrorists and which ones are innocent.

12:43: In Maloney, Sotomayor’s Second Amendment case, the court included both a Second Amendment claim and an equal protection claim.  The court rejected both of them in two entirely different parts of the opinion.  Kyl is now apparently trying to claim that Sotomayor didn’t show enough respect for the Second Amendment because she rejected the equal protection claim.  But the fact that a judge should analyse each claim in a case independently is basic, first-year-of-law-school stuff.  Kyl is an attorney who spent several years in private practice; one can only assume that he is willfully pretending not to get the distinction between these two claims in order to score points against Sotomayor.

12:38: Broken Record Watch, Part II: Now he’s dwelling on the Second Amendment again.

12:37: Broken Record Watch: Kyl goes to Ricci again.

12:29: Grassley returns to his fringe theory that Baker v. Nelson prevents marriage equality.  Once again, here is the entire text of Baker:

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

12:27: Strange exchange between Sotomayor and Hatch in which he claims whether the original understanding of the Constitution or precedents should control.  Only Justice Thomas, who also thinks that the New Deal is unconstitutional, thinks that precedents don’t matter.  Sotomayor answers with a safe response indicating that she believes that the Constitution has primacy.

12:20: Hatch appears to be using his third round to speechify about some briefs that PRLDEF filed that he doesn’t like.  Sotomayor explains that she was “not a lawyer on the fund . . . and it was not my practice” to review briefs.

12:15: Broken Record Watch: Sessions claims that Sotomayor should have written a lengthy published opinion in Ricci, even though such opinions are only used for opinions that are not controlled by a prior binding precedent.

12:13: Sessions: “I will not support a filibuster.”

12:08: Leahy schedules the committee vote on Sotomayor for July 21.  Because the minority can obstruct a vote for one week as a matter of right, the actual vote will likely take place on July 28.

12:07: Sotomayor grows emotional explaining her desire to serve her country by serving on the Supreme Court.

12:03: The Al Franken Decade begins again!

12:02: Nice zinger from Leahy after Sessions whines that states may pass restrictive gun laws.  “Vermont has decided not to pass the restrictive laws that you have in Alabama.”

11:59: Republicans want a third round of questions (10 minutes each), apparently they would like to repeat themselves a little bit longer.  Leahy gives it to them.

11:57: The American People want to rewrite the Constitution to give Congress final jurisdiction over Constitutional matters.

11:52: The Weekly Standard picks up right-wing attack dog Ed Whelan’s claim that Sotomayor has poor English skills because she is a Latina.

11:49: The American People think that the primary purpose of the Fourteenth Amendment was to provide guns to slaves.  Your humble blogger can’t figure out if he is race-baiting or not.

11:40: And we’re back.  The American People want to know about the Second Amendment and “fundamental rights” first.

11:22: 10 minute break.  Senator Tom “The American People” Coburn is up next.

11:20: Clever zinger by Specter: even though the Constitution made Congress Article I and the Judiciary Article III, the Supreme Court has tried to reverse the order.

11:10: An exchange with Lindsay Graham that we missed the first time, but which seems awful significant:

Finally, he returns to the “wise Latina” comment, asking “to those who may be bothered, what do you say”? She responds: “I believe that my life demonstrates it was not my intent to leave the impression that some have taken from my words.”

“You know what judge,” Senator Graham says, “I agree.”

11:05: Broken Record Watch, Newly-Minted Democrat Edition: Specter asks Sotomayor about whether the Court should take more cases, again.

10:59: Cornyn asks Sotomayor to endorse CJ’s Roberts’ statement that ““The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  Sotomayor’s response: best way to be a judge is to follow the Constitution and uphold it’s promise of “equal opportunity.”

10:57: Broken Record Watch: Cornyn still thinks he has something new to say about Ricci.

10:53: Cornyn is outraged about a Sotomayor speech which says that campaign contributions can be bribes; asks what the difference is between a “political contribution and a bribe.”  Sotomayor responds that it depends on whether the person making the contribution expects something in return.

10:49: Cornyn tries to trick Sotomayor with a question about whether a pro-marriage equality SCOTUS decision would be “making the law” or “interpreting the law.”  Sotomayor doesn’t take the bait, noting that her answer would reveal how she feels about the constitutionality of marriage discrimination.

10:47: Cornyn: “Your judicial record is very much in the mainstream.”  Maybe there’s hope.

10:44: Broken Record Watch: Cornyn is reciting all of her speeches that he disagrees with.  Was he not in the room during Lindsay Graham’s statement that Sotomayor’s record does not match Cornyn’s view of those speeches?

10:40: Conan O’Brien: Sonia Sotomayor “said that she felt out of place attending Princeton. … Sotomayor says there were so many white males in Princeton, she felt like she was testifying in front of the Senate Judiciary Committee.”  Cornyn is next.

10:30: Klobuchar is reading Sotomayor’s long list of law enforcement endorsements.  Tom Goldstein: “I believe that SS was just made a police officer on the basis of all the law enforcement endorsements.”

10:26: Graham puts Ken Starr’s endorsement of Sotomayor into the record.  He looks like a virtually certain “yes” vote.

10:23: Graham hits Sotomayor for PRLDEF’s record, then admits that he “has not seen in her judging” any evidence of advocacy.

10:20: More honesty from Graham: “Your record as a judge has not been radical . . . but your speeches are disturbing” to conservatives.  Also says that Sotomayor’s testimony has been “very reassuring.”

10:17: Wow: Graham on Sotomayor & the Second Amendment:  “I don’t know how you will come down on this case because you are able to embrace a right that you would not want for yourself.”  He also says that he does not believe that Sotomayor is an “activist.”  Graham looks a whole lot like a “yes” vote.

10:08: An interesting admission from Graham: “I would be amazed if I would have had the courage” to decide Brown v. Board of Education the way it came down had he been alive back then.  Graham then launches into some revisionist history, claiming that Brown was right, in part, because it was accepted by the country.  Apparently, he’s never heard of massive resistance.

10:06: Yup.  “I hope you understand the difference between petitioning your government” and laws being made by “nine elected judges.”

10:06: Graham is up.  Will he lecture Sotomayor again?

10:00: Feinstein brings up Oakley v. Memphis, the decision (joined by Judge Griffin) which agreed with Sotomayor in Ricci.  Feinstein also notes that Oakley was an unpublished decision.  Why was Judge Griffin trying to bury his hatred of white men where no one would see it?

9:53: Kyl hits Sotomayor with the right-wing claim that all nine justices disagreed with her in Sotomayor.  Sotomayor’s correct response: the four justice dissent said that “no matter how you look at the case, it should be affirmed.”  Kyl hits back by noting that right-wing columnist Stuart Taylor disagrees with Sotomayor.  No doubt Rush Limbaugh disagrees with her too.  Will Kyl cite Limbaugh as a legal authority next?

9:48: Kyl and Sotomayor just completed a long exchange about whether Sotomayor could have voted to reconsider Ricci en banc, an extraordinary procedure that allows a circuit court to toss out one of its own precedents.  Kyl is technically correct that the Second Circuit could have en banced Ricci, but he is ignoring the fact that this court has a decades-old tradition of avoiding en banc review at all costs.  (Your humble blogger is unable to find a hyperlink explaining this, but our readers with access to Lexis or Westlaw can read a former chief judge of the Second Circuit’s explanation of this tradition at 14 Hofstra l. Rev. 297 or 53 Fordham L. Rev. 369.)

9:44: It’s also worth noting that Richard Allen Griffin, a right-wing George W. Bush appointee, agreed with Sotomayor’s decision in Ricci.  Kyl’s grasping at straws.

9:40: Kyl has apparently decided that if he keeps interupting Sotomayor, he can somehow make her look bad.  He also keeps making the claim that Sotomayor didn’t have to follow precedent in Ricci because there are “few” Second Circuit precedents on point.  Memo to Kyl: you only need one.

9:33: And we’re back!  Kyl is up first.

9:25: From SCOTUSBlog: “Yesterday , we got through Round 2 of questioning by 10 senators in about 2.5 hours. There are four Republican senators left and five Democrats left with 20 minutes each, so it stands to reason that we may get through all of Round 2 by lunch.”

8:39: To be fair to Senate Republicans, a few of them did make some novel claims yesterday, including Coburn’s claim that the state’s authority to issue death certificates also enables them to ban abortions, and Grassley’s claim that a one-sentence SCOTUS decision, which refused to consider the question of marriage equality, somehow prevents marriage equality.  It will be interesting to see if senators imagine any more fringe theories of constitutional law today.