Tuesday
Jul142009
Sotomayor Confirmation Liveblog Day 2 PM
Tuesday, July 14, 2009 at 2:47PM
14:00: Chairman Leahy has gaveled the hearing back into session. Senator Grassley is up. Going into property rights again. He asks for Sotomayor’s views on the Takings Clause after Kelo v. New London. Sotomayor summarizes the Kelo decision, then mentions a case where she ruled in favor of a property owner wanting to challenge the state process. Grassley asks what she thinks about Kelo: did the Supreme Court go too far? Sotomayor says she has to accept as precedent the Court’s ruling. Grassley asks what the limit of “public use” for takings is. Another question she won’t answer, since it’s hypothetical and might come before her. Grassley asks about Didden, a case where the government threatened a man with eminent domain. Sotomayor said that was OK at the time. Sotomayor says that the problem there was that the man filed his case after the statute of limitations had run out. Moreover, the man’s claim was extortion, not an improper taking or challenge to the proposed use of the land. Sotomayor explains the law of extortion and why it didn’t apply in Didden. Grassley asks why she didn’t discuss Kelo and why the opinion was unpublished. Sotomayor sasy the issue was statute of limitations, not takings (like Kelo was).
14:23: Grassley asks about the Entergy case, which held the EPA could not use cost-benefit analysis. He says this was against precedent, and the case was reversed by the Supreme Court. Sotomayor goes into a lengthly discussion of agency deference.
14:32: Senator Feingold’s turn. Feingold jokingly says he’s enjoying this so much he hopes they put cameras in the Court so he can see more. Feingold asks if the 9/11 terrorist attacks changed Sotomayor’s views on civil rights and individual liberties. Sotomayor says 9/11 had an impact on her; she was living in New York at the time, near the WTC. Sotomayor says the Constitution protects rights. Did it change her view of the Constitution? No, “the Constitution is a timeless document.” Feingold asks for her understanding of the Guantanamo detainee cases. Sotomayor: the Court is doing its task. The Court looks at the actions and applies constitutional review.
14:39: Feingold says they discussed with previous nominees the process for examining the scope of executive power. Feingold points out in Youngstown the Court approved President Truman’s actions. Sotomayor says the framework still stands. Feingold asks if she knows of any time presidential action has been invalidated as against Congress’s mandate. Sotomayor doesn’t give an example. Feingold brings up the torture memos written by the Department of Justice Office of Legal Counsel. Feingold asks if she thinks it odd that those memos didn’t mention Youngstown.
14:45: Feingold says he was “elated” when the Supreme Court ruled the Second Amendment protected an individual right, and he thinks she did the right thing in holding the Second Amendment was not yet incorporated against the states. Sotomayor agrees that she would recuse herself if her lower court decision were heard by the Supreme Court. She would not, however, necessarily recuse herself if a related case came up. Sotomayor won’t even say what test she would apply for deciding whether Second Amendment applies to states, since litigants will argue about what the standard should be.
14:52: Feingold asking about secret laws, like FISA rulings and OLC memos. These documents have the effect of law, but they’re not public. Does this concern you? Sotomayor points out Congress designed FISA that way, with their opinions being secret. That’s a legislative decision, not a judicial one.
14:57: Feingold asks about empathy. He says it’s important for judges to understand the real world implications of their actions. What about people who don’t live in big cities? How can you empathize with them? Sotomayor says she has visited and vacationed on farms, mountain tops, and other places. When she travels, she tries to stay with friends. She likes to try to experience other things.
15:00: Feingold asks about Supreme Court approval of detention of Japanese Americans. Sotomayor agrees it was a bad decision. “A judge should never rule from fear,” she says. To resist pressure, a judge must have wisdom.
15:02: Senator Kyl is up. He asks if she would recuse herself if other state gun law challenges came up. Sotomayor says recusal is discretionary, and she’d decide recusals in discussion with colleagues. Kyl wants to know why she wouldn’t necessarily recuse herself in the other cases. Sotomayor says it depends on the circumstances. Sotomayor points out state statutes differ, however. Kyl says Alito and Roberts promised to recuse themselves in broader circumstances, but Sotomayor says she doesn’t think their promises were that broad.
15:10: Kyl asks about the role of “the heart” in making decisions. Sotomayor says it’s not the heart that decides the case, it’s the law. Kyl asks whether she’s been able to find a legal basis for every decision she’s made. Sotomayor describes how she decides cases.
15:16: Going to her speeches, Kyl asks about the “wise Latina” parts of her speeches. Reading substantial portions of her speech, Kyl says the clear inference is that she’s saying the influence of her background is a good thing. Sotomayor says to look at her record: 17 years show that she doesn’t make decisions on the basis of her biases. Sotomayor says the intent and structure of her speeches was to inspire them “to believe that life experiences enrich the legal system.”
15:36: 10-minute break.
15:53: Senator Schumer is up. Schumer says empathy is the opposite of indifference, not of neutrality. Schumer asks about the case coming out of TWA crash off Long Island. Sotomayor wrote a dissent in that case, suggesting the court should have rejected their claims. The legislature, she said, made that policy choice to not allow such claims. She said she felt regret, but she had to decide the way she did. Congress afterward changed the law to allow the suits. Schumer also asks about a case brought by black corrections officers, asking if Sotomayor could understand how they felt. Sotomayor says the result was compelled by law, though. Schumer also asks about a case where a woman was denied a home loan. Schumer then asks about a case about a police officer fired for offensive, racist speech. Sotomayor dissented in that case, saying offensiveness and racism were not grounds for dismissal. “The employee’s right to speech had to be respected,” she wrote.
16:16: Schumer asking about use of foreign law. Says she’s been quoted out of context. Asking for clarification. Sotomayor says it’s improper to use foreign law to interpret the Constitution. Sotomayor says that, except when interpreting treaties or conflicts of law, she’s never cited foreign law. Schumer laughs at Justice Scalia’s common citation of dictionaries, asks Sotomayor if dictionaries are binding law.
16:23: Senator Graham is up. Graham says her cases make her sound like Roberts, but he doesn’t know how to reconcile that with her speeches. “Don’t become a speechwriter,” Graham tells Sotomayor. Sotomayor says she’s not a disciple of the legal realism school. Asked if she’s a strict constructionist, she says she doesn’t use labels. Graham asks her to define strict constructionism, originalism. She refuses to say whether she’s either. “The Constitution is a document that’s immutable in the sense that it’s last us 200 years,” Sotomayor says.Graham asks if she thinks Roe v. Wade changed society. Sotomayor doesn’t really respond. Graham asks if anything in the Constitution says that states can’t regulate abortion. Sotomayor starts saying the Court has interpreted something and is cut off. Graham: a lot of us feel that the best way to change society is a the ballot box; a lot of us are concerned that unelected judges are very quick to change society in a way that is disturbing. Graham brings up the temperament issue, reading some evaluations by lawyers of Judge Sotomayor. Sotomayor: 2nd Circuit only gives 10 minutes each, so they pepper attorneys with questions, and some attorneys find that difficult. Graham: They find you difficult and challenging.
16:35: Graham brings back the “wise Latina” comment. Graham says there is hope in the middle east that they will have a court system that will judge people by what they did not who they are. Graham says he hopes there will be more women in the law, but he is concerned about her speeches.
16:42: Sotomayor: 9/11 “The most horrific experience of my personal life.” Graham asks about the people behind the attacks, the role of women in their world. Graham asks if Sotomayor believes we are at war, and Sotomayor says that we are, having soldiers on battlefields. Graham asks if she knows about military law. Graham: Do you believe there are people out there right now plotting our destruction? Sotomayor: Based on the statements I’ve seen, yes. Graham asks if there is a requirement to release a member of the enemy force while there is still a threat. Sotomayor wavers, says she’s not an expert. Graham says she should go back and look at that before second round of questions.
16:46: Graham asks about Puerto Rican Legal Defense Fund. Sotomayor says she was a board member, not involved in litigation. Sotomayor says she never reviewed their briefs. Graham says they argued for taxpayer funds for abortion. Graham asks if she agrees with statements in briefs. Sotomayor offers to explain function of board members as opposed to staff. Sotomayor says board spent most of its time fundraising. Any review of legal work was to ensure it went along with broad mission of fund. Graham: did mission statement include taxpayer funded abortion? Sotomayor: mission statement was broad like the Constitution. Graham: would it bother you if they advocated for taxpayer funded abortion? Sotomayor: they lobbied for public health issues. Graham: is abortion a public health issue in your mind? Graham says PRLDF also tried to abolish death penalty, asks Sotomayor for her opinion of it. Sotomayor says SCOTUS has said death penalty appropriate under some circumstances.
16:54: Durbin up. Describing the number of speeches, cases in Sotomayor’s record. Durbin discusses Justice Blackmun’s change of mind on the death penalty, saying it had been mishandled. Sotomayor says she’s hesitant to express a view. Durbin reads some statistics about the disparate racial impact of the death penalty. Sotomayor had a case before her where defendant challenged application of death penalty. She rejected the challenge. Sotomayor said questions about applications of the death penalty are a legislative policy concern. Durbin asks about the recent Supreme Court case regarding access to DNA evidence, asking if the Court can use Due Process to make changes to death penalty policy. Sotomayor says the Court doesn’t make broad policies. Durbin says an unnamed Justice told him to look into our corrections system, saying it has to be the worst in the world. Durbin speaking about the racial differences in incarceration rates and the impact that has on what people think of the court system. Sotomayor says she knows these issues are important to Durbin, and she knows it must be frustrating when nominees don’t engage. But, Sotomayor says, that’s not her role as a judge. She has to follow the law as passed by Congress.
17:18: Finally, Durbin asks about immigration courts, referring to a “scathing” opinion by Judge Posner. Sotomayor says some things have changed with immigration courts since Judge Posner’s 2005 opinion. Sotomayor refers to Ashcroft’s “streamlining” of immigration courts, saying it was imperfect. Sotomayor says there is more cooperation b/t courts and immigration authorities on process. Durbin asks if Sotomayor thinks it has changed since 2005. She says in last 2-3 years, the number of cases questioning the processes has decreased.
17:24: Leahy announces we’re about to break for today and will return at 9:30 tomorrow. Will finish first round, then go to closed session.
14:23: Grassley asks about the Entergy case, which held the EPA could not use cost-benefit analysis. He says this was against precedent, and the case was reversed by the Supreme Court. Sotomayor goes into a lengthly discussion of agency deference.
14:32: Senator Feingold’s turn. Feingold jokingly says he’s enjoying this so much he hopes they put cameras in the Court so he can see more. Feingold asks if the 9/11 terrorist attacks changed Sotomayor’s views on civil rights and individual liberties. Sotomayor says 9/11 had an impact on her; she was living in New York at the time, near the WTC. Sotomayor says the Constitution protects rights. Did it change her view of the Constitution? No, “the Constitution is a timeless document.” Feingold asks for her understanding of the Guantanamo detainee cases. Sotomayor: the Court is doing its task. The Court looks at the actions and applies constitutional review.
14:39: Feingold says they discussed with previous nominees the process for examining the scope of executive power. Feingold points out in Youngstown the Court approved President Truman’s actions. Sotomayor says the framework still stands. Feingold asks if she knows of any time presidential action has been invalidated as against Congress’s mandate. Sotomayor doesn’t give an example. Feingold brings up the torture memos written by the Department of Justice Office of Legal Counsel. Feingold asks if she thinks it odd that those memos didn’t mention Youngstown.
14:45: Feingold says he was “elated” when the Supreme Court ruled the Second Amendment protected an individual right, and he thinks she did the right thing in holding the Second Amendment was not yet incorporated against the states. Sotomayor agrees that she would recuse herself if her lower court decision were heard by the Supreme Court. She would not, however, necessarily recuse herself if a related case came up. Sotomayor won’t even say what test she would apply for deciding whether Second Amendment applies to states, since litigants will argue about what the standard should be.
14:52: Feingold asking about secret laws, like FISA rulings and OLC memos. These documents have the effect of law, but they’re not public. Does this concern you? Sotomayor points out Congress designed FISA that way, with their opinions being secret. That’s a legislative decision, not a judicial one.
14:57: Feingold asks about empathy. He says it’s important for judges to understand the real world implications of their actions. What about people who don’t live in big cities? How can you empathize with them? Sotomayor says she has visited and vacationed on farms, mountain tops, and other places. When she travels, she tries to stay with friends. She likes to try to experience other things.
15:00: Feingold asks about Supreme Court approval of detention of Japanese Americans. Sotomayor agrees it was a bad decision. “A judge should never rule from fear,” she says. To resist pressure, a judge must have wisdom.
15:02: Senator Kyl is up. He asks if she would recuse herself if other state gun law challenges came up. Sotomayor says recusal is discretionary, and she’d decide recusals in discussion with colleagues. Kyl wants to know why she wouldn’t necessarily recuse herself in the other cases. Sotomayor says it depends on the circumstances. Sotomayor points out state statutes differ, however. Kyl says Alito and Roberts promised to recuse themselves in broader circumstances, but Sotomayor says she doesn’t think their promises were that broad.
15:10: Kyl asks about the role of “the heart” in making decisions. Sotomayor says it’s not the heart that decides the case, it’s the law. Kyl asks whether she’s been able to find a legal basis for every decision she’s made. Sotomayor describes how she decides cases.
15:16: Going to her speeches, Kyl asks about the “wise Latina” parts of her speeches. Reading substantial portions of her speech, Kyl says the clear inference is that she’s saying the influence of her background is a good thing. Sotomayor says to look at her record: 17 years show that she doesn’t make decisions on the basis of her biases. Sotomayor says the intent and structure of her speeches was to inspire them “to believe that life experiences enrich the legal system.”
15:36: 10-minute break.
15:53: Senator Schumer is up. Schumer says empathy is the opposite of indifference, not of neutrality. Schumer asks about the case coming out of TWA crash off Long Island. Sotomayor wrote a dissent in that case, suggesting the court should have rejected their claims. The legislature, she said, made that policy choice to not allow such claims. She said she felt regret, but she had to decide the way she did. Congress afterward changed the law to allow the suits. Schumer also asks about a case brought by black corrections officers, asking if Sotomayor could understand how they felt. Sotomayor says the result was compelled by law, though. Schumer also asks about a case where a woman was denied a home loan. Schumer then asks about a case about a police officer fired for offensive, racist speech. Sotomayor dissented in that case, saying offensiveness and racism were not grounds for dismissal. “The employee’s right to speech had to be respected,” she wrote.
16:16: Schumer asking about use of foreign law. Says she’s been quoted out of context. Asking for clarification. Sotomayor says it’s improper to use foreign law to interpret the Constitution. Sotomayor says that, except when interpreting treaties or conflicts of law, she’s never cited foreign law. Schumer laughs at Justice Scalia’s common citation of dictionaries, asks Sotomayor if dictionaries are binding law.
16:23: Senator Graham is up. Graham says her cases make her sound like Roberts, but he doesn’t know how to reconcile that with her speeches. “Don’t become a speechwriter,” Graham tells Sotomayor. Sotomayor says she’s not a disciple of the legal realism school. Asked if she’s a strict constructionist, she says she doesn’t use labels. Graham asks her to define strict constructionism, originalism. She refuses to say whether she’s either. “The Constitution is a document that’s immutable in the sense that it’s last us 200 years,” Sotomayor says.Graham asks if she thinks Roe v. Wade changed society. Sotomayor doesn’t really respond. Graham asks if anything in the Constitution says that states can’t regulate abortion. Sotomayor starts saying the Court has interpreted something and is cut off. Graham: a lot of us feel that the best way to change society is a the ballot box; a lot of us are concerned that unelected judges are very quick to change society in a way that is disturbing. Graham brings up the temperament issue, reading some evaluations by lawyers of Judge Sotomayor. Sotomayor: 2nd Circuit only gives 10 minutes each, so they pepper attorneys with questions, and some attorneys find that difficult. Graham: They find you difficult and challenging.
16:35: Graham brings back the “wise Latina” comment. Graham says there is hope in the middle east that they will have a court system that will judge people by what they did not who they are. Graham says he hopes there will be more women in the law, but he is concerned about her speeches.
16:42: Sotomayor: 9/11 “The most horrific experience of my personal life.” Graham asks about the people behind the attacks, the role of women in their world. Graham asks if Sotomayor believes we are at war, and Sotomayor says that we are, having soldiers on battlefields. Graham asks if she knows about military law. Graham: Do you believe there are people out there right now plotting our destruction? Sotomayor: Based on the statements I’ve seen, yes. Graham asks if there is a requirement to release a member of the enemy force while there is still a threat. Sotomayor wavers, says she’s not an expert. Graham says she should go back and look at that before second round of questions.
16:46: Graham asks about Puerto Rican Legal Defense Fund. Sotomayor says she was a board member, not involved in litigation. Sotomayor says she never reviewed their briefs. Graham says they argued for taxpayer funds for abortion. Graham asks if she agrees with statements in briefs. Sotomayor offers to explain function of board members as opposed to staff. Sotomayor says board spent most of its time fundraising. Any review of legal work was to ensure it went along with broad mission of fund. Graham: did mission statement include taxpayer funded abortion? Sotomayor: mission statement was broad like the Constitution. Graham: would it bother you if they advocated for taxpayer funded abortion? Sotomayor: they lobbied for public health issues. Graham: is abortion a public health issue in your mind? Graham says PRLDF also tried to abolish death penalty, asks Sotomayor for her opinion of it. Sotomayor says SCOTUS has said death penalty appropriate under some circumstances.
16:54: Durbin up. Describing the number of speeches, cases in Sotomayor’s record. Durbin discusses Justice Blackmun’s change of mind on the death penalty, saying it had been mishandled. Sotomayor says she’s hesitant to express a view. Durbin reads some statistics about the disparate racial impact of the death penalty. Sotomayor had a case before her where defendant challenged application of death penalty. She rejected the challenge. Sotomayor said questions about applications of the death penalty are a legislative policy concern. Durbin asks about the recent Supreme Court case regarding access to DNA evidence, asking if the Court can use Due Process to make changes to death penalty policy. Sotomayor says the Court doesn’t make broad policies. Durbin says an unnamed Justice told him to look into our corrections system, saying it has to be the worst in the world. Durbin speaking about the racial differences in incarceration rates and the impact that has on what people think of the court system. Sotomayor says she knows these issues are important to Durbin, and she knows it must be frustrating when nominees don’t engage. But, Sotomayor says, that’s not her role as a judge. She has to follow the law as passed by Congress.
17:18: Finally, Durbin asks about immigration courts, referring to a “scathing” opinion by Judge Posner. Sotomayor says some things have changed with immigration courts since Judge Posner’s 2005 opinion. Sotomayor refers to Ashcroft’s “streamlining” of immigration courts, saying it was imperfect. Sotomayor says there is more cooperation b/t courts and immigration authorities on process. Durbin asks if Sotomayor thinks it has changed since 2005. She says in last 2-3 years, the number of cases questioning the processes has decreased.
17:24: Leahy announces we’re about to break for today and will return at 9:30 tomorrow. Will finish first round, then go to closed session.
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