Wednesday
Jul152009
Sotomayor Confirmation Liveblog Day 3 AM
Wednesday, July 15, 2009 at 10:20AM
The Senate Judiciary Committee is scheduled to resume its hearing at 9:30 AM EDT. Today we will continue the first round of questions from senators, followed by the committee going into closed session to consider Sotomayor’s FBI file, followed by the second round of questions.
9:31: And we’re back. Leahy summarizing yesterday’s events in a very rosy tone.
9:33: Senator Cornyn is up. Cornyn express concern about her speeches, since as a Justice there won’t be any courts reviewing her decisions. Goes back to the “wise latina” comments. Sotomayor again says that she was playing off Justice O’Connor’s words. She says that O’Connor didn’t literally mean a wise man and a wise woman would reach the same conclusion, as she didn’t literally mean that a wise latina woman would make a better decision. Sotomayor is trying to walk a fine line: she stands by her words but doesn’t agree with the way they’ve been understood by others. Cornyn now reading from a law review article where he says Sotomayor implies she approves of judiciary-led social change. Sotomayor says she was referring to Congress passing new laws, so the courts get to apply new laws. Additionally, technology means they get to apply laws to new facts. Cornyn asks if she believes judges ever change the law. Sotomayor says they change their interpretations of the law, looking at whether an interpretation has been workable and what other courts have done. Cornyn asks about another article, where Sotomayor said the law is constantly in flux. Sotomayor says people bring new cases with new facts. New cases bring uncertainty, Sotomayor says, so there is indefiniteness “not in what the law is, but it’s application to new facts.”
9:49: In another speech read by Cornyn, Sotomayor said that her “gender and national origins will make a difference in our judging.” Sotomayor says it’s good to have people from all backgrounds on the bench. Sotomayor says that speech was asking a hypothetical question about whether there is a difference in judging due to physiological differences.
9:53: Cornyn reads Washington Post article about White House trying to assure liberal groups about abortion. Sotomayor says Obama never asked her about abortion. Article quoted a partner from her old law firm saying she would be liberal on abortion, Cornyn asks why he would think that. Sotomayor doesn’t know, since she never discussed abortion with him. Cornyn asks about statement that she has generally liberal instincts. Sotomayor says PRLDEF supported equal opportunity in America. Sotomayor says that quoted partner probably hasn’t read her cases, since corporate litigators only look at law that affects their cases.
9:57: On New Haven firefighter case, Cornyn says he was “shocked” at treatment of 2nd Circuit panel of firefighters’ case. Cornyn asks why Sotomayor and other judges treated case with short order and opinion. Sotomayor says that when parties are dissatisfied by a decision, they can ask for rehearing. Her, the firefighters did, and the full court voted to not rehear. Then they appealed to the Supreme Court. Sotomayor says about 75% of circuit decisions are by summary order, partly because of workload and partly because lower court opinions are sometimes sufficient. Not every case requires a lengthy opinion. Cornyn asks whether the firefighters deserved a more lengthy discussion of the firefighters’ claims and efforts. Sotomayor says she made the Ricci decision under existing precedent, and then the Supreme Court changed the standard.
10:05: Leahy and Sessions each offering letters of support and criticism. Sessions has a letter from the NRA.
10:06: Cardin is up. Begins talking about baseball. Cardin reads some positive evaluations from judges of Sotomayor, contrasting with Graham’s critical evaluations from lawyers yesterday. But Cardin brings up Voting Rights Act case in SCOTUS, asking what she thinks. She won’t answer, since this is a case that will come. But Sotomayor does talk about passion about right to vote. “It is a fundamental right.” Sotomayor mentions a case where she addressed voting. Majority allowed state to keep some people from voting. She dissented citing statute of Congress saying no discrimination on basis of race, and in this case plaintiff had alleged racial discrimination by the state.
10:18: Cardin goes to the environment, brings up recent decisions where Supreme Court has forced EPA to drop cases against polluters, going against longstanding interpretations of Clean Water Act. Cardin asks Sotomayor to say that she will follow the intent of Congress. Sotomayor says to look to her record to see she will defer to Congress. Cardin brings up Princeton, notes she was active in increasing diversity there. He asks her what steps government could take to increase diversity. Sotomayor says that issue starts with the legislative branch and executive bodies, and employers. Cardin says he wants a Justice who will fight for people who are beaten/killed for being gay or black. Cardin asks, if you ignore race completely, aren’t you ignoring facts in a case? Sotomayor says it depends on the context.
10:30: Cardin brings up privacy, mentioning Loving v. Virginia, Lawrence v. Texas, Griswold v. Connecticut. Sotomayor says right to privacy has been recognized in “a wide variety of circumstances.” Sotomayor says the framework the Court has set up will be used in privacy cases in this century.
10:33: Cardin asks about pro bono work, legal aid. Cardin asks what Congress and the courts can do to encourage more public service and pro bono work. Sotomayor says that’s probably the main topic she speaks about. Sotomayor says founding fathers were motivated by belief in public service.
10:36: Senator Coburn is up, introduces article from Washington Times into record, complains about Reid schedule on getting health care done. Coburn says committee is being too lawyerly, wants to use laymen’s terms. Coburn asking about abortion. What is the settled law about abortion? Coburn gives some hypothetical situations. Sotomayor says she’d have to look at state law and analyze it under Casey. Sotomayor also says that question might come before the Court. Coburn asks if technology is relevant: if we can save premature babies, does that affect the analysis? Sotomayor says she can’t answer in the abstract; the question might come before the Court. Coburn: if we now have viability at 21 weeks, why shouldn’t that be considered? Sotomayor: all I can say to you is what the Court said. Coburn: SHOULD viability be considered. Sotomayor: I can’t answer that. Coburn says he’s concerned. Asks does a state legislature have the ability to determine what is death? Sotomayor says it depends on what they’re applying that definition to. Coburn knows he’s not going to get answers to these questions, but he knows he has to ask. “I don’t expect you to answer this,” he says. He gives information about evidence of brain activity, life in fetuses.
10:46: Coburn asks about Maloney, discussed yesterday, about gun rights of individuals. He asks if Maloney said no individual right to guns. Sotomayor says that’s not what it said: it asked whether that individual right limits regulation by states. Coburn asks whether he has a right to arms at his home. Sotomayor says it’s not her interpretation, it’s the Court’s. Notably, the Oklahoma constitution protects that right for Coburn: http://oklegal.onenet.net/okcon/II-26.html. Coburn contrasting “right to privacy,” which is not explicit but applies to states, with right to arms, which is explicit. Sotomayor is trying to be nice. She admits it is frustrating since what the law says may be different from what people want the law to say, but that’s not up to judges. Sotomayor says Heller ruled just DC’s law unconstitutional. She says judges don’t make broad policy decisions. Coburn asks if Sotomayor believes she has a right to self defense. Sotomayor trying to think of a Supreme Court decision that has addressed that. Failing that she says most criminal laws allow self defense. Coburn says the American people want to know if they have a right to self defense, but Sotomayor can’t really answer.
11:01: Moving on, Coburn asks about foreign law. He asks her what authority she has to use foreign law. Sotomayor says she actually agrees with Justice Scalia and Justice Thomas about being cautious citing foreign law. Coburn reads a quote where she said it would be OK to consider ideas from foreign law. Sotomayor says that speech repeatedly pointed out that foreign law couldn’t be used to interpret or as precedent. But Sotomayor says judges can use foreign law to educate themselves, as an academic discussion. Sotomayor says other judges citing foreign law use it to make a point, not as precedent or to compel conclusion. Coburn says he’s not sure. Coburn asks about using foreign law to increase foreign popularity. Sotomayor says “you don’t render decisions to please the home crowd, or any other crowd.” “You rule to get the law right, under its terms,” Sotomayor says.
11:07: Senator Whitehouse up. Whitehouse asks Sotomayor to make a pledge to decide cases on law and facts, to uphold will of Congress, not prejudge, respect precedent. She agrees. Whitehouse points out PRLDEF stuff was considered by Senate in previous confirmations. Whitehouse asks if the board of PRLDEF, where Sotomayor sat, reviewed legal briefs. Sotomayor says most of the board didn’t have civil rights law experience, so didn’t review briefs. Whitehouse switches to asking about the role of the jury. Sotomayor speaks about her trial judge experience and says she has found jurors to take their roles very seriously. She gives an example of a juror who broke her leg on the way home, spent the night in the hospital, and returned to jury duty the next day. Sotomayor doesn’t seem to understand what Whitehouse is asking about juries checking the executive. She says the role of the jury is to ensure judgment by peers. Sotomayor says the juries ensure someone is prosecuted under the law and that the law applies. No mention of judgment of justice of law. Whitehouse asks about checks against unilateral exercises of power by branches. Sotomayor says the Constitution gives limits. Sotomayor brings up Justice Jackson’s opinion in Youngstown case again.
11:24: Whitehouse Whitehouse praising Sotomayor’s work as prosecutor. Whitehouse is asking about 4th Amendment and technology: original documents can be returned after seizure, but copies can be kept for later. He asks how she’d go about analyzing searches in the electronic age. Sotomayor discussed a case involving flyovers with thermal imagers, but she was actually confusing Florida v. Riley and Kyllo v. US. Kyllo involved thermal imagers, and she correctly said that Justice Scalia had written that activities in one’s home normally wouldn’t be intruded upon without a warrant. On personal information in databases, Sotomayor says it is Congress’s job to set policy for storage and searches of databases.
11:56: Klobuchar is up. Says she ran into Sotomayor’s mother in the restroom, and her mother has lots of stories to tell. Sotomayor says that it’s important to influence children to be good, since waiting until they’re before a judge is too late. Sotomayor says as a prosecutor she was greatly influenced by Perry Mason. Klobuchar is asking about specific cases Sotomayor heard. In one child pornography case, Sotomayor admitted evidence under good-faith exception to warrant requirement; the police had not really satisfied the probable cause requirement to get the warrant, but it was a mistake and not the police’s fault. Klobuchar asking about Supreme Court decision that crime lab workers must testify in criminal prosecutions rather than admitting test results as unchallenged evidence. Klobuchar says she agrees with the dissent in that case: It’s unreasonable to expect this of criminal justice system. This change makes it difficult for prosecutors. Sotomayor says that case is precedent, so it must be followed. Responding to criticism that she delved into facts too much, Sotomayor says their job is to apply law to facts, so they must look at the facts. Klobuchar says studies show Sotomayor handed out longer sentences than other judges, including in white-collar cases. When Sotomayor was a district judge, sentencing guidelines focused on amount of crimes, not damage to victims. She considered victims, too. So maybe that’s why she gave longer sentences, she says. The court later accepted that consideration into guidelines. Sotomayor won’t comment on guidelines no longer being mandatory; she says there are lots of cases pending on that.
12:27: Senator Kaufman is up. Sotomayor talking about decision to focus on commercial matters after working as prosecutor. She says that was motivated in part by belief that fulfilling economic needs of people was a good way to solve problems. Sotomayor lists some of her clients. Ferrari, Fendi. Sotomayor says she worked on trademark, real estate, banking, wide variety of areas of law. Sotomayor says commercial law experience helped reaffirm that predictability of law is very important. Sotomayor talks about the value of settling cases instead of going to court, especially in business realm. When she became a circuit court judge, Sotomayor says her district court experience made her more sensitive to facts and the record. Kaufman: “Do you believe Congress has the Constitutional authority to regulate financial markets?” Sotomayor says she can’t answer. Sotomayor does say Congress has authority to pass laws on things affecting interstate commerce. Kaufman asks what a judge’s role is in evaluating a law. Sotomayor says she’s not sure a judge ever has the change to judge in that role; she says Congress makes policy. Sotomayor also says courts defer to regulatory agencies. Kaufman asks about securities law. Sotomayor says NYC is the business capital of the world, so they deal with every kind of securities law. Sotomayor: “Whatever Congress has regulated, our court will have a case on it.” Sotomayor had ruled to give NYSE immunity in one case because the injury had come from third parties who could still be held liable. Question was whether NYSE had quasi-governmental function, so could hold them liable for not acting. Sotomayor said no. Sotomayor says private rights of action were created by Congress, so they can be used to enforce securities law. Kaufman asks if it’s permissible to use economic theory in the Court. Sotomayor says it’s not used in evaluating constitutionality. Kaufman asks whether stare decisis is particularly important in economic cases. Sotomayor says reliance factor is a consideration, so there would be some consideration of the value of the precedent. Sotomayor gives some criteria for looking at stare decisis: reliance, workability, affirmance by Court (and how long ago it was affirmed).
12:57: The committee has recessed for lunch. The Committee will return at 2 PM EDT.
9:31: And we’re back. Leahy summarizing yesterday’s events in a very rosy tone.
9:33: Senator Cornyn is up. Cornyn express concern about her speeches, since as a Justice there won’t be any courts reviewing her decisions. Goes back to the “wise latina” comments. Sotomayor again says that she was playing off Justice O’Connor’s words. She says that O’Connor didn’t literally mean a wise man and a wise woman would reach the same conclusion, as she didn’t literally mean that a wise latina woman would make a better decision. Sotomayor is trying to walk a fine line: she stands by her words but doesn’t agree with the way they’ve been understood by others. Cornyn now reading from a law review article where he says Sotomayor implies she approves of judiciary-led social change. Sotomayor says she was referring to Congress passing new laws, so the courts get to apply new laws. Additionally, technology means they get to apply laws to new facts. Cornyn asks if she believes judges ever change the law. Sotomayor says they change their interpretations of the law, looking at whether an interpretation has been workable and what other courts have done. Cornyn asks about another article, where Sotomayor said the law is constantly in flux. Sotomayor says people bring new cases with new facts. New cases bring uncertainty, Sotomayor says, so there is indefiniteness “not in what the law is, but it’s application to new facts.”
9:49: In another speech read by Cornyn, Sotomayor said that her “gender and national origins will make a difference in our judging.” Sotomayor says it’s good to have people from all backgrounds on the bench. Sotomayor says that speech was asking a hypothetical question about whether there is a difference in judging due to physiological differences.
9:53: Cornyn reads Washington Post article about White House trying to assure liberal groups about abortion. Sotomayor says Obama never asked her about abortion. Article quoted a partner from her old law firm saying she would be liberal on abortion, Cornyn asks why he would think that. Sotomayor doesn’t know, since she never discussed abortion with him. Cornyn asks about statement that she has generally liberal instincts. Sotomayor says PRLDEF supported equal opportunity in America. Sotomayor says that quoted partner probably hasn’t read her cases, since corporate litigators only look at law that affects their cases.
9:57: On New Haven firefighter case, Cornyn says he was “shocked” at treatment of 2nd Circuit panel of firefighters’ case. Cornyn asks why Sotomayor and other judges treated case with short order and opinion. Sotomayor says that when parties are dissatisfied by a decision, they can ask for rehearing. Her, the firefighters did, and the full court voted to not rehear. Then they appealed to the Supreme Court. Sotomayor says about 75% of circuit decisions are by summary order, partly because of workload and partly because lower court opinions are sometimes sufficient. Not every case requires a lengthy opinion. Cornyn asks whether the firefighters deserved a more lengthy discussion of the firefighters’ claims and efforts. Sotomayor says she made the Ricci decision under existing precedent, and then the Supreme Court changed the standard.
10:05: Leahy and Sessions each offering letters of support and criticism. Sessions has a letter from the NRA.
10:06: Cardin is up. Begins talking about baseball. Cardin reads some positive evaluations from judges of Sotomayor, contrasting with Graham’s critical evaluations from lawyers yesterday. But Cardin brings up Voting Rights Act case in SCOTUS, asking what she thinks. She won’t answer, since this is a case that will come. But Sotomayor does talk about passion about right to vote. “It is a fundamental right.” Sotomayor mentions a case where she addressed voting. Majority allowed state to keep some people from voting. She dissented citing statute of Congress saying no discrimination on basis of race, and in this case plaintiff had alleged racial discrimination by the state.
10:18: Cardin goes to the environment, brings up recent decisions where Supreme Court has forced EPA to drop cases against polluters, going against longstanding interpretations of Clean Water Act. Cardin asks Sotomayor to say that she will follow the intent of Congress. Sotomayor says to look to her record to see she will defer to Congress. Cardin brings up Princeton, notes she was active in increasing diversity there. He asks her what steps government could take to increase diversity. Sotomayor says that issue starts with the legislative branch and executive bodies, and employers. Cardin says he wants a Justice who will fight for people who are beaten/killed for being gay or black. Cardin asks, if you ignore race completely, aren’t you ignoring facts in a case? Sotomayor says it depends on the context.
10:30: Cardin brings up privacy, mentioning Loving v. Virginia, Lawrence v. Texas, Griswold v. Connecticut. Sotomayor says right to privacy has been recognized in “a wide variety of circumstances.” Sotomayor says the framework the Court has set up will be used in privacy cases in this century.
10:33: Cardin asks about pro bono work, legal aid. Cardin asks what Congress and the courts can do to encourage more public service and pro bono work. Sotomayor says that’s probably the main topic she speaks about. Sotomayor says founding fathers were motivated by belief in public service.
10:36: Senator Coburn is up, introduces article from Washington Times into record, complains about Reid schedule on getting health care done. Coburn says committee is being too lawyerly, wants to use laymen’s terms. Coburn asking about abortion. What is the settled law about abortion? Coburn gives some hypothetical situations. Sotomayor says she’d have to look at state law and analyze it under Casey. Sotomayor also says that question might come before the Court. Coburn asks if technology is relevant: if we can save premature babies, does that affect the analysis? Sotomayor says she can’t answer in the abstract; the question might come before the Court. Coburn: if we now have viability at 21 weeks, why shouldn’t that be considered? Sotomayor: all I can say to you is what the Court said. Coburn: SHOULD viability be considered. Sotomayor: I can’t answer that. Coburn says he’s concerned. Asks does a state legislature have the ability to determine what is death? Sotomayor says it depends on what they’re applying that definition to. Coburn knows he’s not going to get answers to these questions, but he knows he has to ask. “I don’t expect you to answer this,” he says. He gives information about evidence of brain activity, life in fetuses.
10:46: Coburn asks about Maloney, discussed yesterday, about gun rights of individuals. He asks if Maloney said no individual right to guns. Sotomayor says that’s not what it said: it asked whether that individual right limits regulation by states. Coburn asks whether he has a right to arms at his home. Sotomayor says it’s not her interpretation, it’s the Court’s. Notably, the Oklahoma constitution protects that right for Coburn: http://oklegal.onenet.net/okcon/II-26.html. Coburn contrasting “right to privacy,” which is not explicit but applies to states, with right to arms, which is explicit. Sotomayor is trying to be nice. She admits it is frustrating since what the law says may be different from what people want the law to say, but that’s not up to judges. Sotomayor says Heller ruled just DC’s law unconstitutional. She says judges don’t make broad policy decisions. Coburn asks if Sotomayor believes she has a right to self defense. Sotomayor trying to think of a Supreme Court decision that has addressed that. Failing that she says most criminal laws allow self defense. Coburn says the American people want to know if they have a right to self defense, but Sotomayor can’t really answer.
11:01: Moving on, Coburn asks about foreign law. He asks her what authority she has to use foreign law. Sotomayor says she actually agrees with Justice Scalia and Justice Thomas about being cautious citing foreign law. Coburn reads a quote where she said it would be OK to consider ideas from foreign law. Sotomayor says that speech repeatedly pointed out that foreign law couldn’t be used to interpret or as precedent. But Sotomayor says judges can use foreign law to educate themselves, as an academic discussion. Sotomayor says other judges citing foreign law use it to make a point, not as precedent or to compel conclusion. Coburn says he’s not sure. Coburn asks about using foreign law to increase foreign popularity. Sotomayor says “you don’t render decisions to please the home crowd, or any other crowd.” “You rule to get the law right, under its terms,” Sotomayor says.
11:07: Senator Whitehouse up. Whitehouse asks Sotomayor to make a pledge to decide cases on law and facts, to uphold will of Congress, not prejudge, respect precedent. She agrees. Whitehouse points out PRLDEF stuff was considered by Senate in previous confirmations. Whitehouse asks if the board of PRLDEF, where Sotomayor sat, reviewed legal briefs. Sotomayor says most of the board didn’t have civil rights law experience, so didn’t review briefs. Whitehouse switches to asking about the role of the jury. Sotomayor speaks about her trial judge experience and says she has found jurors to take their roles very seriously. She gives an example of a juror who broke her leg on the way home, spent the night in the hospital, and returned to jury duty the next day. Sotomayor doesn’t seem to understand what Whitehouse is asking about juries checking the executive. She says the role of the jury is to ensure judgment by peers. Sotomayor says the juries ensure someone is prosecuted under the law and that the law applies. No mention of judgment of justice of law. Whitehouse asks about checks against unilateral exercises of power by branches. Sotomayor says the Constitution gives limits. Sotomayor brings up Justice Jackson’s opinion in Youngstown case again.
11:24: Whitehouse Whitehouse praising Sotomayor’s work as prosecutor. Whitehouse is asking about 4th Amendment and technology: original documents can be returned after seizure, but copies can be kept for later. He asks how she’d go about analyzing searches in the electronic age. Sotomayor discussed a case involving flyovers with thermal imagers, but she was actually confusing Florida v. Riley and Kyllo v. US. Kyllo involved thermal imagers, and she correctly said that Justice Scalia had written that activities in one’s home normally wouldn’t be intruded upon without a warrant. On personal information in databases, Sotomayor says it is Congress’s job to set policy for storage and searches of databases.
11:56: Klobuchar is up. Says she ran into Sotomayor’s mother in the restroom, and her mother has lots of stories to tell. Sotomayor says that it’s important to influence children to be good, since waiting until they’re before a judge is too late. Sotomayor says as a prosecutor she was greatly influenced by Perry Mason. Klobuchar is asking about specific cases Sotomayor heard. In one child pornography case, Sotomayor admitted evidence under good-faith exception to warrant requirement; the police had not really satisfied the probable cause requirement to get the warrant, but it was a mistake and not the police’s fault. Klobuchar asking about Supreme Court decision that crime lab workers must testify in criminal prosecutions rather than admitting test results as unchallenged evidence. Klobuchar says she agrees with the dissent in that case: It’s unreasonable to expect this of criminal justice system. This change makes it difficult for prosecutors. Sotomayor says that case is precedent, so it must be followed. Responding to criticism that she delved into facts too much, Sotomayor says their job is to apply law to facts, so they must look at the facts. Klobuchar says studies show Sotomayor handed out longer sentences than other judges, including in white-collar cases. When Sotomayor was a district judge, sentencing guidelines focused on amount of crimes, not damage to victims. She considered victims, too. So maybe that’s why she gave longer sentences, she says. The court later accepted that consideration into guidelines. Sotomayor won’t comment on guidelines no longer being mandatory; she says there are lots of cases pending on that.
12:27: Senator Kaufman is up. Sotomayor talking about decision to focus on commercial matters after working as prosecutor. She says that was motivated in part by belief that fulfilling economic needs of people was a good way to solve problems. Sotomayor lists some of her clients. Ferrari, Fendi. Sotomayor says she worked on trademark, real estate, banking, wide variety of areas of law. Sotomayor says commercial law experience helped reaffirm that predictability of law is very important. Sotomayor talks about the value of settling cases instead of going to court, especially in business realm. When she became a circuit court judge, Sotomayor says her district court experience made her more sensitive to facts and the record. Kaufman: “Do you believe Congress has the Constitutional authority to regulate financial markets?” Sotomayor says she can’t answer. Sotomayor does say Congress has authority to pass laws on things affecting interstate commerce. Kaufman asks what a judge’s role is in evaluating a law. Sotomayor says she’s not sure a judge ever has the change to judge in that role; she says Congress makes policy. Sotomayor also says courts defer to regulatory agencies. Kaufman asks about securities law. Sotomayor says NYC is the business capital of the world, so they deal with every kind of securities law. Sotomayor: “Whatever Congress has regulated, our court will have a case on it.” Sotomayor had ruled to give NYSE immunity in one case because the injury had come from third parties who could still be held liable. Question was whether NYSE had quasi-governmental function, so could hold them liable for not acting. Sotomayor said no. Sotomayor says private rights of action were created by Congress, so they can be used to enforce securities law. Kaufman asks if it’s permissible to use economic theory in the Court. Sotomayor says it’s not used in evaluating constitutionality. Kaufman asks whether stare decisis is particularly important in economic cases. Sotomayor says reliance factor is a consideration, so there would be some consideration of the value of the precedent. Sotomayor gives some criteria for looking at stare decisis: reliance, workability, affirmance by Court (and how long ago it was affirmed).
12:57: The committee has recessed for lunch. The Committee will return at 2 PM EDT.
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