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 President Bill Clinton rescinded the policy in 1993, but Bush reimposed it shortly after taking office.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

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. 

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

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

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. 

“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

[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

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

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