Sotomayor Confirmation Liveblog Day 3 PM

The Senate Judiciary Committee is scheduled to resume the hearing at 2 PM EDT. We will have questions from Senators Specter and Franken, and then the committee will go into closed session to consider Sotomayor’s FBI file. After that, it will reconvene in open session to begin the second round of questions.

14:03: The committee has returned.

14:04: Senator Specter is up. Specter applauds Sotomayor for her stamina, saying she’s shown intellect, humor, and modesty. Specter (referring to wise latina speech): “This proceeding has tended to make a mountainout of a mole hill.” Says all nominees talk about their backgrounds. Specter jokes that “the Warren court changed the Constitution just about every day.” Specter talks about Judge Bork’s nomination, criticizing original intent constitutional interpretation. He says the 14th Amendment was written by a Congress with segregated public galleries.

14:11: Specter gives statistics showing the shrinking Supreme Court docket. He says Chief Justice Roberts said the Court should hear more cases. Sotomayor says that she thinks Justice Roberts was saying the Court should examine its processes. Sotomayor says she doesn’t want to make comments about what the Court should do before she has experienced its processes.

14:13: Specter moves on to FISA and wiretapping. Specter is very critical of Bush for not informing Intelligence Committee when the wiretapping began. Specter says the Supreme Court refused to hear any of the lawsuits about the wiretapping, and he says he wrote Sotomayor a series of letters about this case. He asks her if she would agree the Court should have heard the case. Sotomayor doesn’t want to make a statement on the case. She says she doesn’t want to appear to prejudge. Sotomayor says that with some important issues there is not a procedural bar to giving a case a full hearing. Specter asks if there is. Sotomayor refuses to answer.

14:17: Specter moves on to abortion. Is Casey “super stare decisis”? Sotomayor says she doesn’t use the word “super” stare decisis. Sotomayor says all precedent is entitled to stare decisis. Specter asks if Roe v. Wade is safe under Casey. Sotomayor says one of the factors is affirmance by later decisions. Specter is asking if later cases add weight to a precedent? “Just a little extra?” he asks. Sotomayor gives criteria again for evaluating precedents: reliance, cost of change, workablility, factual or doctrinal basis being altered. Specter asks about sep of powers when reviewing congressional power. Part of ADA was struck down while another part upheld. Specter wants to know if the “congruence and proportionality” test is “flabby” as Scalia said. Sotomayor says she doesn’t want to forecast how she’ll rule in “the next case.” Sotomayor says she understands that test to question whether Congress is legislating within its power.

14:25: Sotomayor says Roberts was very deferential in confirmation but not when he decided the recent Voting Rights Act case. Specter asks if Sotomayor agrees with Roberts’s statements during his hearings. Sotomayor defers, saying she doesn’t know what Roberts intended when saying that. But she gives her own views: very deferential to Congress. Sotomayor says one of the beauties of our system is the limit. Sotomayor points out her long record, though. Specter asks about cameras in the Court. He says the Court doesn’t have to obey Congress, but he says Congress has some power over the Court. Specter now talking about Bush v. Gore. He asks if the American people should have access to what’s happening in the Court. Sotomayor says she has allowed cameras in her courtroom in the past and has had positive experiences. She will tell that to the current Justices if she is confirmed. Sotomayor points out the Supreme Court has recently made transcripts available on the same day as oral arguments.

14:36: Senator Franken is up. Franken says he was also a big fan of Perry Mason, and it amazes him that Sotomayor wanted to be a prosecutor, since the prosecutor always lost in the show. Franken talks about free speech online, mentions Iran. He asks about the Brand X decision, asks her about corporate control of the Internet. He says some Internet service providers—and some areas only give people a single provider choice—speed up access to some sites while slowing down others. He says Internet connections use public resources—airwaves and rights of way—so doesn’t the public have an interest in keeping the Internet open? Sotomayor says the Court doesn’t make policy. It waits for Congress to act, then decides constitutionality. Sotomayor says in Brand X, the Court was deciding what agency regulated the companies. She says the Court wasn’t deciding considering policy. Franken asks, “But isn’t there a compelling First Amendment right here” for Americans to have access to the Internet. Sotomayor says Court looks at how Congress balances rights then decides if the balancing is within constitutional boundaries.

14:47: Franken asks about “judicial activism”: Franken says “‘judicial activism’ has become a code word for judges you don’t agree with.” Asks Sotomayor for her definition. Sotomayor says she doesn’t use that term. Franken says he’s going to as Sotomayor about a few cases. Franken asks about the recent Voting Rights Act case, reading the Fifteen Amendment. He notes Justice Thomas would have struck down the preclearance requirement of the Voting Rights Act. He reads the Fifteen Amendment as giving Congress without limit. Sotomayor says she will not make a statement on the preclearance issue, since it will likely come before the Court. Sotomayor says changes in VRA should be left to Congress in the first instance. Says she can’t opine further. Franken asks about a recent age discrimination case. The Supreme Court ruling was broader, he says, than the question the Court initially said it would answer, and it made it much harder to claim discrimination. Sotomayor says her general practice is to get the parties to brief an issue.

15:02: Franken asks about Graham’s question yesterday about “abortion” not appearing in the Constitution. Asks her if “birth control” appears. Sotomayor agrees “birth control” and “privacy” don’t appear in the Constitution. But Sotomayor agrees the Constitution contains rights that extend to privacy, and she cites it back to a decision giving parents the right to direct the education of their children. Sotomayor doesn’t agree with Franken, who said the words weren’t necessarily relevant. She says some words must be followed, like age limits. Franken asks if she believes right to privacy includes abortion. Sotomayor says Court has held that in certain situations.

15:07: The committee is now going to closed session, but it won’t say for how long.

15:36: We’re back. Time for second round of questions. 20 minutes per senator. Some humorous microphone problems, and now Senator Leahy is sitting in Senator Franken’s seat.

15:43: Leahy begins his second round, talking about the impact of Court decisions on Americans. He cites the Lilly Ledbetter case as an example. Leahy also talking about strip searches of young girls. Leahy says as a grandparent and agrees with her dissent, urging against the search. Leahy asks how she thinks it affects young women to see only one female Justice. Sotomayor says every president in last 20-25 years has tried to promote diversity. Leahy and Sotomayor talking about right to counsel at trial. Sotomayor says right to counsel in Constitution is given meaning by act of Congress.

15:53: Sessions is up. Sessions says Senator Hatch has given a good definition of “judicial activism”: allowing personal bias to overwhelm commitment to rule of law. Sessions says O’Connor’s comment is an ideal, while Sotomayor’s version is that she expects a different outcome. Sotomayor says she agrees with Hatch’s definition. She says her words failed if they left an impression that she will be a judicial activist. Sessions asks if her rhetorical device was in opposition to O’Connor’s view. Sotomayor says it may be aspirational, but law is not that certain. She says people parse statutes differently. Sessions asks if her decision on 2nd Amendment, if national law, would say 2nd Amendment doesn’t protect right to bear arms from state regulation. Sotomayor says the question in her case would have been what the basis is for the law. Sotomayor says that the Court has struck down regulations under every level of review, even rational basis. Sessions quoting Sotomayor as saying the 2nd Amendment was not “a fundamental right.” He’s completely twisting her words. Sotomayor says “fundamental” is a legal term, made up by the Supreme Court, meaning whether a specific right binds the states.

16:07: Sessions asks about her statement earlier today about use of foreign law, contrasting it with speech to ACLU in April. Sessions reads Sotomayor speech where she said she agrees with Ginsburg with respect to use of foreign law so we don’t lose influence in the world. Sotomayor says courts use law review articles, statements by other courts. Not for holding but for a way of thinking.

16:10: Sessions starts about PRLDEF. Sessions says Sotomayor said she had never seen a brief and did mainly fundraising. Sotomayor says she was speaking generally. Sessions points out that Sotomayor served on “litigation committee” of PRLDEF board. Sessions brings up PRLDEF minutes that show Sotomayor doing review of litigation efforts and exploration of potential areas. Sessions says some PRLDEF cases were like New Haven firefighters cases. Sessions asks if Sotomayor was more active than what she suggested? Sotomayor says that memo was planning for retreat, not reviewing individual cases. Sessions’s time is up, but Sotomayor gets in that cases were in many areas. They were considering other areas to move into.

16:15: Leahy makes statement that Maloney case wasn’t her decision, it was Scalia’s statement in Heller that Second Amendment wasn’t incorporated.

16:15: Kohl is up. Kohl asks when Sotomayor thinks it is a good idea to overrule precedent. Sotomayor says stare decisis starts with principle that precedent is good for society. She cites England as a bad example of immutable precedent. Sotomayor gives several factors for consideration whether to overrule precedent: reliance on precedent, cost of changing, is providing enough guidance, have facts changed, changes in related fields. Sotomayor gives Brown v. Board as following trend of change. Sotomayor says Brown precedents didn’t achieve goals, so that gave Court reason to rethink separate but equal. Sotomayor says they also look at number of times precedent has been reaffirmed. Kohl asks about Twombly: does she think it does serious damage to enforcement of antitrust law? As a judge, Sotomayor says, she doesn’t make policy. She just applies law to situation. Sotomayor says she understands Twombly to only deal with amount that needs to be plead at beginning, not amount needed to be proven. Kohl asks her if bound by Twombly; Sotomayor says she would apply laws to case, might reexamine precedent. Kohl says he has a different understanding from Twombly than Sotomayor seems to have; he thinks it will do great damage to antitrust enforcement. Kohl notes Justices only choose to hear about 1% of appeals. He says many important cases weren’t circuit splits, so how does she decide which cases to hear? Sotomayor says it’s hard to say what criteria they’ll use. She says each case presents different facts and may be in different procedural postures. Sotomayor says they might wait until circuit courts have fully explored all the issues.

16:32: Hatch reads Scalia’s footnote from Heller on incorporation of Second Amendment rights. Hatch asks if Sotomayor still believes judges cannot read new rights into the Constitution. Sotomayor says the Constitution is immutable. Sotomayor says she doesn’t view right to privacy as having been created by Court. Instead she says Court said states can’t do some act, since it’s prohibited by the Constitution. Hatch says “as you know” at time of Griswold there was no right to privacy in the Constitution. Sotomayor says the Court can’t ignore the words or change them. She says it applies them to each situation. Sotomayor says that when the Court has recognized new rights, it has applied the words of the Constitution. Sotomayor says courts can’t change the meaning of words in the Constitution. Hatch cites Marbury v. Madison as saying the Constitution controls courts as well as the legislature, but how can it control the courts if the courts can change its meaning? Hatch cites Sotomayor speech where she said circuit court judges “do justice to society as a whole.” Hatch relates that to her statement that Circuits are where policy is made. Sotomayor says all her speeches were talking about the difference between circuit and district courts. She says was talking about precedent and the effects on other courts. Hatch asks Sotomayor about empathy. She says the law always directs the outcome of a case. Hatch asks if “transcending personal sympathies and prejudices” improves the quality of judging. Yes, Sotomayor says. Hatch asks if that transcendence is aspirational or a duty. Sotomayor says she was saying we should recognize that we have experiences. Hatch reads quote where Sotomayor said transcendence was an aspiration, but she’s now saying it’s a duty. Sotomayor agrees. Hatch asks if personal sympathies or prejudices are ever a legitimate factor. Sotomayor says in some situations like sentencing law says considering them is OK.

16:52: 15-minute recess.

17:08: Senator Feingold is up. Feingold introduces a letter from PRLDEF explaining the role of the board. Feingold talks about the West Virginia Supreme Court case recently decided: Court said a Justice must recuse if a party campaigns for him. Feingold asking what else can be done to ensure people have faith judges are impartial. Sotomayor says she won’t make decisions to Congress. She says that’s policy. Sotomayor says the law is only the minimum one must do, but judges should try to meet highest standards. Feingold brings up Hillary: The Movie challenge to be reargued in September. He also expresses concern about narrowing of McCain-Feingold. Feingold asks about idea of corporations having the same free speech rights as people, expresses concern about the consequences. Feingold asks about the current law of corporations. Sotomayor says she can’t say anything about it, since that might be first case she hears. But Sotomayor says she appreciates what Feingold has said to her. Feingold says he would probably say the same thing if he were in Sotomayor’s shoes.

17:16: Senator Grassley is up. Grassley asks about a 1972 decision say SCOTUS can’t review state marriage laws, since no federal question. Sotomayor says that’s a pending question, so she can’t answer. Grassley points out other cases that she said were precedents, settled law. So he asks is she saying Baker v. Nelson not precedent? Sotomayor says no, but she hasn’t reviewed the status of that case to determine whether it is precedent. Grassley asks how she’d consider. Sotomayor says parties would come in and argue about what precedent controls, and she’d decide based on the law. Sotomayor says it’s been a while since she’s looked at Baker v. Nelson, so she can’t answer exactly what the holding was. Sotomayor offers to respond by letter or tomorrow after reviewing that case. Grassley asks if Sotomayor agrees with district court rulings that Defense of Marriage Act is constitutional. Sotomayor says ABA rules do not allow comment, since case may come before the Supreme Court. Grassley asks if she has ever ruled on Full Faith and Credit Clause. Sotomayor says she has no memory of doing so.

17:24: Grassley asks about Sotomayor statement saying judges must and should take background into account. Sotomayor says she doesn’t believe judges should use personal beliefs or value systems to influence outcomes or consider race or gender of parties of the parties before them. Grassley asks if it’s ever appropriate to let personal identity or politics influence judging. Sotomayor says no. Grassley asks about quote where Sotomayor talks about “overhauling the law” and adapting. He asks if she means they twist the law. Sotomayor says she was talking about bringing back public respect of jobs of judges. She says lawyers should explain that there are reasons behind changes judges make, like changes in technology.

17:34: Grassley asks about Didden, discussed yesterday. Grassley says Sotomayor had said he had to file suit before extortion had happened. Sotomayor says Didden’s argument was about eminent domain, and he brought lawsuit 5 years after he knew about that.

17:38: Senator Cardin up, last for today. Cardin offers high praise for Sotomayor for going through this hearing. Cardin says there’s a lot of predatory lending out there, saying it would be good for a high court to make ruling, clarifying law. Cardin asks Sotomayor to consider effect of taking a case on society at large. She says deciding to take a case because she would want effect would be policy choice, and therefore would be improper for a judge. Sotomayor talking about a case where she had to look at the sincerity of an individual’s religious belief.

17:48: We’ve adjourned for the day, to return tomorrow at 9:30 for more questions.