Sotomayor Hearing Live-Blog, Day 2

This week, the Wonk Room will live blog Judge Sonia Sotomayor’s confirmation hearings. As expected, conservatives spent yesterday’s session claiming that Sotomayor is incapable of “impartiality,” especially in matters related to race. We’re still waiting for them to cite an actual case suggesting that this claim is true, however. We will be updating this thread throughout the day.

5:30: CAPAF’s statement on day two is up. Here is a taste:

Today, at Judge Sonia Sotomayor’s confirmation hearing, Sessions wondered aloud how Sotomayor could have voted differently than another judge of “Puerto Rican ancestry.”

So it is very odd that conservatives would choose Sessions as their point person on the Sotomayor nomination. At best this choice is laughably tone deaf. At worst it shows that Senate conservatives wholeheartedly embrace Sessions’ views on race.

It is crystal clear, however, that Sessions is the architect of the conservative strategy against Sotomayor. In a campaign that echoes Lee Atwater’s infamous Willie Horton ad and Jesse Helms’ “white hands” ad, today’s attacks on Sotomayor have focused almost exclusively on race. Nevermind that conservatives have only uncovered one case in Sotomayor’s record, Ricci v. DeStefano, which supposedly supports their claim that Sotomayor is biased against white men. And nevermind that Sotomayor simply followed a 1984 precedent which is nearly identical to Ricci when she decided that case. Apparently conservatives believe the facts must take a backseat to race-baiting.

5:27: Hearing now in recess until tomorrow @ 9:30.

5:24: Leahy announces that questions will resume in the morning. After every Senator has gone, the committee will go into a closed session to discuss Sotomayor’s FBI background check and similar information, and your humble blogger will take a much needed break.


5:11: Durbin quotes an unnamed SCOTUS justice who told him that “our system of correction and incarceration . . . has to be the worst” (Senator Webb has made similar statements about the need to fix America’s overincarceration problem). Also takes aim at the crack/powder disparity, which one federal judge said “makes the war on drugs look like a ‘war on minorities.’ “ As originally enacted, the crack/powder disparity causes 5 grams of crack to be punished exactly the same as 500 grams of powder cocaine.

5:03: Durbin highlights case where Sotomayor upheld the death penalty against a constitutional challenge. Apparently, even if she does disagree with the death penalty personally, as Graham claims, she also understands how to follow the law.

4:52: Graham hitting Sotomayor on a letter she signed in 1981. Does he want to ask her about her sixth grade book reports as well?

4:50: Shhhhhh . . . Senator Grassley is sleeping.

4:47: Graham is now playing guilt by association, asking her about briefs written by attorneys at an organization she was on the board of. Sotomayor responds, “I never read those briefs.” Her primary duty as a board member was fundraising; she did not supervise their attorneys.


4:41: Graham: America discriminates against the poor white man by not letting him claim that they are better than minorities.

4:33: Graham calls Sotomayor a “bully” on the bench, claiming that lawyers “find you difficult and challenging.” If Graham doesn’t like judges who bully, he must have voted against CJ Roberts, and he must hate Justice Scalia, right?

4:30: Graham: the existence of the Due Process Clause proves that your speeches are bad. Huh? Also claims that the Constitution contains “no written prohibition that you can’t pray in school.” Of course the Supreme Court has never said that children can’t pray in school. The Supreme Court has said that the government can’t tell them how to pray, and the “written prohibition” on official government prayer is the First Amendment, which bans laws “respecting an establishment of religion.”

4:27: Graham makes a funny: “Don’t become a speech writer if this law thing doesn’t work out.”4:19: Dissenting in the judge-for-sale case, Justice Scalia cited the Talmud. Why does Justice Scalia want us to be ruled by unelected Rabbis?

4:15: Sotomayor rebuffs conservative claims that she thinks that foreign law governs the U.S. Constitution. No one believes that it does, but that hasn’t stopped Sessions from spreading his made-up claim that Sotomayor wants to turn the U.S. courts over to France.

4:04: Now Schumer is highlighting her dissent in Pappas v. Giuliani, where she held that “the First Amendment commands that we respect people’s right to engage in hateful speech.” In Pappas, Sotomayor ruled in favor of a racist cop who distributed white supremacist literature.


4:00: There’s an unusual exchange going on between Schumer and Sotomayor where Schumer is highlighting cases where Sotomayor ruled against sympathetic plaintiffs, like air crash victims and alleged victims of race discrimination. How bizarre that, because conservatives have so savagely attacked Sotomayor for not being callous and cold-hearted, the response is to emphasize her capacity to rule against likeable people.

3:54: Schumer is strong. “No [senator] has pointed to a single case in which you’ve tried to change existing law.” Strange idea, actually wanting to base this inquiry on facts.

3:52: Hearings resume. Schumer’s up.

3:35: Sotomayor just brought up her agreement with Alito. Leahy announces a ten minute recess after he reads Alito’s endorsement of Sotomayor’s view.

3:30: Kyl is still hitting Sotomayor for her statement that judge’s decision-making may be shaped by their experience. Broken Record Watch: Alito said the exact same thing.

3:23: Kyl just gave a six-minute long speech claiming that Sotomayor lacks impartiality, without citing a single case from Sotomayor’s record. Sotomayor’s response: “I have a seventeen-year record,” how about you look at that?

3:11: Kyl claims that the President wants judges who make decisions “from the heart.” Sotomayor says that she does not believe that judges should decide cases in this way. Either President Obama made a big mistake in nominating Sotomayor, or Kyl is misrepresenting Obama’s beliefs.

3:07: Kyl is trying to get Sotomayor to promise that she would recuse herself from any Second Amendment case that raised the same legal question as a different case that she has already decided. But this is not the standard for recusal. Justice Scalia, for example, has written multiple opinions calling for Roe to be overruled, but he is not required to recuse himself from all abortion cases.

3:01: Sotomayor on Korematsu: “A judge should never rule from fear.” She unambiguously states that Korematsu was wrongly decided, adding that “our survival depends on upholding” the Constitution.

2:58: Lillian Rodriguez- Lopez, president of the Hispanic Federation, blasts Sessions for his claim that all Puerto Ricans should think alike:

“Sen. Sessions’s comment on Puerto Rican ancestry is baffling. First, he focuses on the need to uphold the law based on the Constitution and legal precedent and then he expects our judges to think exactly alike based on a shared ethnicity. Sonia Sotomayor is a brilliant jurist, as is Judge Cabranes. They share a heritage but are highly capable of varied, intelligent analysis of the law. Sen. Sessions should re focus his attention on her 17-year legal career as a judge and allow Judge Sotomayor to respond to valid issues at the hearing.”

2:54: Look up, we’ve got a new picture of Sotomayor. Thanks to Pat Garofalo for putting it up.

2:40: Sam Stein: “The confirmation hearings for Sonia Sotomayor have become, in a small but significant way, a referendum on the ranking member of the Senate Judiciary Committee.” To be fair, Stein also quotes some jerk named “Ian Millhiser,” so take what he has to say with a grain of salt.

2:36: Sotomayor emphasizes that 9/11 has not changed her view of the Constitution, which she says is a “timeless document.”

2:34: Feingold asks how 9/11 shapes her view of Executive power and national security. National security is actually an area where she has taken stands to the right of Justice Souter, who she will replace. Although Sotomayor’s views are well-within the legal mainstream and do not embrace the virtually limitless theory of executive power shared by justices like Roberts and Thomas.

2:24: Grassley attacks Sotomayor for her decision in Riverkeeper, which the Supreme Court reversed. Here’s what actually happened in this complex environmental case:

Power plants’ cooling systems collectively remove more than 214 billion gallons of water from the nation’s waterways every day, in the process killing over 3.4 billion aquatic organisms per year. The Clean Water Act requires that EPA regulate these cooling systems based on “the best technology available for minimizing adverse environmental impact.” During the Bush administration, however, EPA ignored this direction and instead employed a skewed cost-benefit analysis in deciding how to regulate. As a result, power plants were allowed to forgo the advanced technology required by the plain language of the law in favor of cheaper but far less protective measures.

Ignoring the law’s plain language, Justice Scalia’s decision in Riverkeeper upheld the Bush administration’s action. As Justice Stevens explained in dissent, Congress determined that the costs of requiring power plants to pay for environmentally friendly technology “are outweighed by the benefits of minimizing adverse environmental impact” when it enacted the Clean Water Act, but the Court substituted the Bush Administration’s judgment for that of the law.

2:12: Today’s first “abortion is murder” protestor just started screaming. He was promptly removed.

2:11: Nevermind, Grassley just hit Sotomayor on Didden, a case where she held that a land developer who filed his eminent domain case two years after the statute of limitations has run (two George W. Bush appointees joined her opinion in that case). Apparently, Grassley believes that the law does not apply to land developers.

2:07: Grassley is being surprisingly tame. So far, his questions have focused largely on how Sotomayor feels about the Supreme Court’s Kelo eminent domain decision. To his credit, Grassley has not, so far, brought up the right’s false claims that Sotomayor is hostile to property rights.

2:01: Senator Chuck “Empathy is fine if you’re Sam Alito” Grassley is now up.

2:00: The hearing resumes. Your humble blogger had a lovely Greek pita with chicken and tzatziki sauce.

12:31: Leahy calls a recess. Your humble blogger goes to find lunch.

12:30: Sessions brings up Miguel Estrada yet again, Leahy has to remind him that Estrada is not the nominee. Finish your beers!

12:30: Feinstein and Sotomayor complete a long exchange about whether the Supreme Court should strike down acts of Congress. The Justice who most often votes to second-guess Congress is Thomas, followed by Reagan appointees Kennedy and Scalia. The two Justices who are the most respectful to Congress are Clinton appointees Ginsburg and Breyer.

12:22: Sessions claims that Judge Miriam Cedarbaum thinks Sotomayor is biased. Judge Cedarbaum immediately disagrees. Note to Sessions: before you put words in a federal judge’s mouth, make sure that she isn’t in the hearing room to hear your false claim.

12:11: Sotomayor emphasizes that the Supreme Court should be “very, very cautious” before it overrules precedent. To be fair, CJ Roberts said similar things when he was in the hotseat, but he wasn’t telling the truth.

12:01: Sessions brings up Miguel Estrada again. Everyone take a drink!

12:01: Sessions cites bizarre Washington Post study which claimed that Sotomayor is too meticulous. Strangely, Sessions ignores the New York Times’ reporting that “several studies have found, Judge Sotomayor is a mainstream jurist.”

11:54: Hatch claims that Ricci raises an “issue of first impression” for the entire nation, meaning that no court had ever considered the same issue before. Except for Bushey, of course, and the Sixth Circuit’s decision in Oakley, which was joined by a George W. Bush appointee. And yes, we know that we are repeating ourselves. We will stop when conservatives stop repeating the same tired attacks.

11:52: Jason Mattera, the “surprisingly fresh face of conservatism,” doubles down on his previous statement that Sotomayor will “shank” Scalia because she is from the “ghetto” Says Mattera: “Sotomayor will not ‘shank’ Scalia on the bench. What I meant to say is that she’ll shoot him up in a drive-by. Watch out, brother Antonin!”

11:46: Hatch repeats the smear that all nine justices disagreed with Sotomayor’s decision in Ricci. Sotomayor reminds Hatch that she had to decided the way she did because of her court’s binding precedent in Bushey. The conservative attacks are becoming a broken record.

11:42: The Washington Post calls right-wing extremist Randall Terry a “winner” because his supporters repeatedly disrupted his hearings yesterday.

11:38: Federalist Society darling Judge Frank Easterbrook agreed with Sotomayor that lower court judges have to follow Presser. Easterbrook wrote an opinion agreeing with Sotomayor that the Second Amendment doesn’t not apply to the states.

11:31: Hatch admits that the Supreme Court “didn’t decide” whether the Second Amendment applies to the states. That question, of course, was addressed by the Supreme Court’s decision in Presser v. Illinois which said that it does not. Why do conservatives think that Sotomayor doesn’t have to follow Presser just like she’d have to follow any other precedent?

11:29: Hatch opens with abortion and the Second Amendment. Jefferson Beauregard Sessions III must have insisted that he gets to be the point person on race.

11:23: The leader of the Republican Party calls Sotomayor “worse than Macaca.”

10:58: Sotomayor unsurprisingly refuses to promise that she would uphold or overrule Roe. CJ Roberts and Justice Thomas took a different tack in their hearings, deceiving the Senate about their anti-choice views.

10:42: Kohl highlights Sotomayor’s very low reversal rate. Says she has authored 230 majority opinions and only three have been reversed. Sotomayor points out that she has also sat on thousands of other cases, but only a handful of those have been reversed by the Supreme Court. Indeed, the justices have reversed only a fraction of 1% of her decisions.

10:38: Sessions ends by insulting the Justices of the Supreme Court and their clerks by claiming that they never would have noticed Ricci if Judge Cabranes hadn’t raised a stink about the case. But Ricci’s lawyers would have filed a petition with the Supreme Court anyway, and the Justices and their clerks are perfectly capable of understanding the issues presented by such a petition even without Cabranes’ help.

10:33: Sessions repeats the false claim that Sotomayor handled Ricci in a “cursory manner.” But the Second Circuit only releases opinions in cases that raise new issues which aren’t governed by binding precedent, unlike Ricci. Apparently, Sessions not only wants Sotomayor to ignore laws that he doesn’t like, he also wants her to ignore her court’s rules if he doesn’t like them.

10:28: Sessions: Sotomayor should have decided a case in the exact same way as conservative Judge José A. Cabranes because Cabranes is also “of Puerto Rican ancestry.” But remember, it is Sotomayor who judges people based solely on their race.

10:26: George W. Bush appointee Richard Allen Griffin ruled the same way that Sotomayor ruled in Ricci.

10:22: Sotomayor is so biased in favor of minorities claiming discrimination that she rules against them 8 out of 9 times.

10:19: It’s too bad that Jefferson Beauregard Sessions III lacks the self-awareness to consider his own prejudices before he attacks Judge Sotomayor.

10:15: Sotomayor’s response: “”We’re not robots. . . . We have to recognize our feelings and put them aside.”

10:12: Sessions is attacking Sotomayor for saying that minority judges must not “ignor[e] our differences as women or men of color” because turning a blind eye to personal views would preven her from “checking my 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.” In Jeff Sessions’ world, self-awareness is the enemy.

10:04: Sessions takes the mic. Let the fun begin! He opens by attacking Sotomayor for saying that her decisions are shaped by her own experiences. Remind us again whether Sessions voted for Justice Alito after he said the exact same thing.

10:00: Getting another obvious line of questioning out of the way earlier, Sotomayor explains that she followed a binding Supreme Court precedent when she held that the Second Amendment does not apply to the states.

9:52: Sotomayor says the sentence we all knew she would say: “I do not believe that any racial or ethnic group has an advantage in judging.” Later, she says that her 17 year record as a judge proves that she has consistently followed the law regardless of whether or not she finds a party’s claim “sympathetic.” She is telling the truth.

9:50: Leahy calls out Limbaugh as “one of the leaders of the Republican Party.” Nice.

9:46: Sotomayor addresses the Ricci case, explaining something that is obvious to anyone who has actually read the Ricci decisions — she was following a binding precedent that she is required, as a lower court judge, to comply with.

9:38: Sotomayor’s first long answer is the story of how she won a difficult prosecution against the “Tarzan Murderer,” a serial killer who would swing from building to building on ropes in order to break into his victims apartments, where he would rob and shoot anyone he found there. Sotomayor says that this experience taught her how crime “destroys families” even years after the perpetrator is locked up.

9:32: First soundbite of the day from Sotomayor: “The process of judging is the process of keeping an open mind.”

9:29: Leahy begins the hearing “one minute early.” Announces that the questioning will take place in “30 minute rounds” alternating between Democratic and Republican senators. First question: how will your experience shape your actions on the Supreme Court?