Thursday
Jul162009
Sotomayor Confirmation Liveblog Day 4 AM
Thursday, July 16, 2009 at 10:00AM
Another day of Sotomayor confirmation hearings. Today we will finish the second round of questions; we have 4 Republicans and up to 8 Democrats remaining (they may not all wish to ask a second round of questions). Then we hear from outside witnesses.
The hearing is scheduled to begin at 9:30 AM EDT.
9:33: The hearing has been gaveled into session.
9:35: Senator Kyl is up. Kyl asks about the Ricci case and whether it was truly decided according to precedent. Kyl quotes court opinion saying there were “few if any precedents.” He asks Sotomayor if her early statements about precedent were correct. Sotomayor says 2nd Circuit precedent was that low-scoring, minority firefighters could have filed a lawsuit. Kyl interrupts, repeating his question. Kyl says, “You’re not getting to the point of my question.” Says she would say that same thing to an attorney arguing before her. Kyl, “so you contend there was 2nd circuit precedent.” [Kyl is ignoring the fact that there are multiple questions of law.] Kyl asking why, if there was precedent, other judges vote to review the decision en banc. Sotomayor says she can’t speak to why other judges voted the way they did. Kyl interrupts Sotomayor’s explanation again, apologizing, citing short time. Sotomayor says when the circuit court adopted the district court ruling, that became the court’s holding and therefore became precedent. Kyl asks if circuit courts typically dispose of questions of first impression with short opinions. Sotomayor cites another case she did. Sotomayor says circuit courts do that if district courts have good opinions. Kyl reads Cabranes opinion saying such short opinions usually reserved for straightforward cases, not like this. Kyl says the implications of the decision are far-reaching, and he reads some commentary, including Supreme Court opinion. Kyl asks if she agrees with SCOTUS that there is a risk her decision would lead to de facto quota system. Sotomayor says she found the city acted in good faith. SCOTUS later said higher standard was needed. Sotomayor says she was looking at narrower question than Cabranes described and than Supreme Court considered. Only looked at whether the city acted in good faith. Kyl says all 9 Justices on Supreme Court said Sotomayor shouldn’t have granted summary judgment. Sotomayor says 4 Justices said Court set out new standard and should have given Circuit change to apply. Kyl disagrees. Sotomayor says “I don’t believe that’s how I read the dissent.” Reads Ginsburg saying Sotomayor opinion should be affirmed. Kyl follows up on Hatch question on difference between circuit and district court judges. Sotomayor said circuit judges find justice for society. Kyl asks if she is saying Circuit has higher calling to make justice for society. Kyl says judges have only one job: deciding between litigants. Not making justice for society. Sotomayor says, “I think we’re in full agreement.” She says precedents have policy implications, but policy like legislature makes.
9:57: Feinstein is up. Feinstein supports Sotomayor, saying 4 Justices in Ricci would have supported Sotomayor. Feinstein asks what “per curium” means, translating it as “through the court.” Sotomayor says it’s for clear issues, when just adopting a lower court decision. Feinstein is talking about the fight for equality for women, history of getting vote, stats on current disparities. Feinstein says, “You’ve become an instant role model for women.” Asks how Sotomayor has become a role model for women. Sotomayor says she chose the law because it doesn’t get the kind of attention other public figures get. Feinstein calls Sotomayor “walking, talking best part” of America.
10:06: Senator Graham is up. Graham says one of the problems the court has is that Ricci has a story to tell, too. Graham says Brown v. Board is example of Court forcing societal change politicians were scared to do. Graham says he’s going to ask about marriage, and who’s best able to make those decisions. Graham says societal change is why people “fight so hard to put people on the court who see the world like us.” On right and left. Graham asks, when considering with Justices whether 2nd Amendment is “fundamental,” what Sotomayor will consider. Sotomayor says she will consider the “rule of law.” Graham asks, won’t consider personal opinion? Sotomayor says no. Graham asks if there is “some sort of legal cookbook” to figure out what’s fundamental. Sotomayor says there’s precedent on incorporation. Graham asks if there is no subjective judgment when deciding whether a right is fundamental. Sotomayor says will look at precedent. Sotomayor says Court will look at precedent, decide whether it controls, decide whether to revisit precedent. Graham joking tells Sotomayor to look at the 9th Circuit, saying he never thought he’d hear himself say that. He says the 9th Circuit got it right on gun rights being incorporated. Graham says, “You’re able…to embrace a right you may not want for yourself.” “That is my hope for you.” Graham says an activist is a judge who would be chomping at the bit to use Court to change society. Graham says he thinks Sotomayor broad-minded enough to know the world is bigger than the Bronx. Graham asks if Sotomayor embraces identity politics. She says she believes certain groups should express their views on social issues. But Sotomayor doesn’t believe such groups should not consider what’s best for the country. Graham asks if Sotomayor speeches embrace identity politics. She says embrace idea of expressing their views, but not at expense of rest of the country. She doesn’t describe her speeches as identity politics. Graham says Sotomayor speeches disturbing b/c they don’t tell people to get involved/vote. The focus is on race and gender issues. Graham says Sotomayor has been very reassuring that she knows difference between judging and personal views. Graham asks mission statement of PRLDEF, asks if all the brieffs they wrote followed that statement. Sotomayor not sure, didn’t read all. Graham says every PRLDEF case he saw advocated against restrictions on abortion, against death penalty, etc. Graham says generally hasn’t seen her taking those views, but Sotomayor did sign memorandum in 1981 against death penalty. Sotomayor says she was taking position on legislation in New York state, but when she had a case before her she followed the law. Graham says Roberts & Alito were asked a lot about their memos and explained about working for a client. Graham asks if Sotomayor has ever known low-income, latino families that have been pro-life/pro-death penalty, so she is clearly left of center. Graham returns to wise latina. Asks for comment from Sotomayor. She says she regrets “that she may have offended some.” Graham wishes Sotomayor good luck.
10:27: Klobuchar up. Klobuchar asks about the only death penalty case Sotomayor heard. She allowed it to go forward. Klobuchar offers letters of support from law enforcement groups for the record. Sotomayor talking about child pornography case, said SCOTUS ruled constitutional. She says there were still some questions. Sotomayor says evidence was circumstantial, though child porn tapes were horrible. Sotomayor says she went ahead and brought the prosecution, jury returned guilty verdict. Case was upheld on appeal. Klobuchar asks about Sotomayor judging case of Giordano, mayor of Waterbury. Sotomayor wrote opinion holding mayor could be charged with violating civil rights under color of state law, since he had threatened them with law. Sotomayor says she followed precedent, but dissent disagreed with reading of state law.
10:40: Cornyn is up. Cornyn asks if Sotomayor thinks she has been given a chance to explain her judicial philosophy. Sotomayor says she does. Cornyn says still some confusion about Sotomayor philosophy. Said “Law” is a public myth, but not says fidelity to law is supreme. Cornyn alleging other inconsistency between prior comments and comments in hearing. Cornyn says his constituents might say she says one thing in Berkeley and other places, and other things in hearing. Sotomayor says to look at her decisions, proving fidelity to the law, not allowing prejudices to sway decisions. Sotomayor says also look at her complete speeches, the contexts of the comments, and understand background of issues discussed. Sotomayor tried to explain some of the “inconsistencies”: e.g. she disagreed with literal meaning of O’Connor’s words. Cornyn says Sotomayor judicial record strikes him as pretty much in the mainstream. But there’s “cognitive dissonance” with her speeches. Cornyn asks if Court rules there is a Constitutional right to same-sex marriage, is that interpreting or making law? Sotomayor doesn’t want to “forecast” that decision. Sotomayor says same-sex marriage hotly debated, legislated. She says she won’t even characterize what Court may do. Cornyn asks generally if there is a difference between making and interpreting law. Sotomayor says there is a great difference: laws are written by Congress. Cornyn asks her to reconcile with statement that courts of appeals make policy. Sotomayor says like discussion re: “fundamental.” Sotomayor says in both contexts she was talking about difference in that court of appeals makes precedent. She made both comments in a legal context. Cornyn reads comments Sotomayor made about role of private money in politics. She says she was ansering in context of a question. Sotomayor says difference between contribution and bribe is intent to sway a vote, and agreement to vote a certain way. Sotomayor cites recent SCOTUS case of West Virginia Supreme Court judge. Cornyn corrects that was not direct contribution. Cornyn mentions Obama set records for contributions. He asks if contributing time, volunteering is bribery. Sotomayor says no. Cornyn asking about hispanic New Haven firefighter who was denied promotion. Cornyn asks if Sotomayor agrees with Roberts statement that best way to stop racial discrimination is to stop racial discrimination. Sotomayor says best thing is to follow the Constitution, as it applies to each situation. Sotomayor says she accepts the ruling of the Court. Sotomayor says the Constitution requires equal opportunity for all. Cornyn asks if Sotomayor agrees with MLK dream of people being judged not by color of skin but by content of character. She agrees.
11:00: Senator Specter is up. Specter asks if Sotomayor would take on ideological battle if Roe challenge came up. She says she rules based on law and reason not ideology. Specter asks about her Entergy ruling, which was later reversed by Supreme Court. Sotomayor says she is bound by precedent, so will respect Court’s ruling under stare decisis. Specter asks about caseload, again recites statistics on how the load has gone down. Specter asks if it’s irresponsible to not take up split-circuit cases. Sotomayor agrees that the Court docket has lessened over time (duh), and says it appears the Court could take on more. Specter asks if Sotomayor will participate in the cert pool, meaning allowing Supreme Court clerks to split up the work of reviewing cases. Sotomayor says she’ll probably do what Alito did, trying out the pool, then reconsider after time. Specter asks about Sotomayor experiences with cameras in courtoom. She says limited experience, but positive. Specter cites C-SPAN survey showing most people want Supreme Court hearings televised. He cites interest in this hearing as evidence. Specter asks Sotomayor to tell her colleagues about her experience with cameras. She has already said she will, and she says so again.
11:12: Specter asks about Maloney case on guns, cites 7th Circuit opinion by Easterbrook agreeing with her. Specter asks about SCOTUS refusal to hear case from victims of 9/11 against Saudi Arabian citizens. Specter says Congress had said tort claims, like crashing a plane into WTC, were exception to sovereign immunity. Specter asks if she thinks Court should have heard case. Sotomayor says 9/11 very important to country, but she didn’t review that case. Sotomayor says it would be inappropriate to comment on a decision she wasn’t party to. Specter asks about wiretapping cases, whether she thinks SCOTUS should have taken cases. Sotomayor says she can’t evaluate cases in the abstract. The Court considers many factors when deciding to take case. Specter asks Sotomayor to rethink separation of powers cases.
11:21: We have a short break.
11:36: And we’re back. Senator Coburn is up next.
11:37: Corburn asks about foreign law speech. Corburn asks Sotomayor to promise to refrain from using foreign law to make a decision. Sotomayor agrees to not use foreign law to interpret the Constitution or American statutes. Coburn asks if Sotomayor thinks Congress could be clearer when it writes statutes. Coburn says they’re not clear about intent. Sotomayor says it would be presumptuous of her to tell Congress how to do its job. But Sotomayor says in private conversations a lot of Senators said they thought they could be clearer. Sotomayor says that when Congress’s intent is clear, the court applies that intent. Coburn says Sotomayor refused to give criteria for determining when right is fundamental, but she gave detail on stare decisis. He asked her why she can’t give method for determining incorporation. Sotomayor says she doesn’t remember that being the specific question. But the framework has been discussed by the Court in cases. Sotomayor says the application of the framework for deciding incorporation is the question before the Court. Coburn moves on.
11:45: Coburn says he wants her to understand why he spends so much time talking about the Second Amendment. Coburn asks how people can protect their rights to bear arms if Sotomayor’s ruling that the Second Amendment does not apply to the states is not upheld. Sotomayor says she has an open mind on incorporation of the 2nd Amendment. Coburn asks if Sotomayor thinks that ironic, since US took guns away from freed slaves. Sotomayor asks if Coburn if she’d prefer a nominee who came in and expressed an opinion on a case before hearing arguments from parties. Sotomayor repeats that she keeps an open mind on the incorporation doctrine.
11:50: Coburn asks Sotomayor about the state of the law right after Roe v. Wade. Coburn asks if any state laws restricting abortion survived Roe. Sotomayor says she’s not sure. Sotomayor says she’s not sure because her experience has been since the Casey decision, so that’s the standard she has used. Coburn says that since January 22, 1972, you can have an abortion for any reason you want, even with more recent rulings. Coburn talking about viability. He says the state interest begins at viability. Coburn asks if the Casey test is a policy choice. Sotomayor says Casey test is the Court’s framework for addressing the balance of a woman’s right to terminate pregnancy against state interest. Coburn asks if Sotomayor thinks the Court’s abortion rulings have ended the national controversy on that issue. Sotomayor says no. Coburn asks if there are other similarly divisive issues that could be decided by the court in the near future, without naming them. Sotomayor says people are very passionate about the issues they believe in. Almost any issue has fervent people, she says. Coburn asks if it’s better for the Court or Congress to decide these issues. Sotomayor says in the first instance the Congress or state makes a regulation, and then the courts review them. Coburn says he’s more reserved here than when he makes a speech, when he “let[s] it all go.” He says he’s “deeply troubled” by what she’s said, but he hasn’t yet decided how to vote.
11:59: Leahy speaking about gun laws. Says most states have more restrictive gun laws than Vermont. Leahy says he has not heard anything or read anything in Sotomayor’s speeches or decisions that makes him worry about his gun rights. Sessions interrupts to express concern that any state or city could ban all guns. Leahy: “Vermont has decided to not have the restrictive laws that you have in Alabama.”
12:01: Franken is up, reading a letter of support from someone who appear before her as a litigant. Franken asks, “Why do you want to be a Supreme Court Justice?” Sotomayor says she wants to tell a story. Sotomayor talks about first being told she was under consideration to be district judge. She told her mother. Mother asked about salary. Sotomayor says she said she’d take a big pay cut. Also told mom she wouldn’t get to travel as much. Longer pause from mom. Mother asked about interesting clients. Sotomayor told she wouldn’t be able to make friends with clients. Mom asked why she wanted this job. She says she loves public service and the rule of law. Sotomayor says she can’t think of any greater service she could do to this country than being a Justice. Franken says he’ll support her nomination.
12:06: Senator Sessions has another 10 minutes. Sessions says American people are rightly concerned that social issues are being decided by unelected judges. Sessions asks if she’ll be OK with judicial pay. Sotomayor says it’s difficult, but she’s been living on it for years. Sessions says all judges say they’re going to follow the law. Sessions talking about people being discriminated against deserving a remedy. Sessions says that neither he nor anyone on his side will support a filibuster of her nomination. Sessions says he thinks it fair to say Ricci wasn’t handled in regular order. Sessions quotes Sotomayor statement about how she writes opinions (setting out law, etc.), but that’s not what she did in this case. Sessions says Ricci opinion was contrary to rule of Second Circuit, since there was dissent and law wasn’t well-settled. Sessions says Ricci decision had more of an impact, and she was wrong to use summary order. Sessions asks if Sotomayor didn’t show courage, and wouldn’t case have been better if it had been handled differently? Sotomayor says she doesn’t think she didn’t show courage and wouldn’t have been better handled differently.
12:17: Leahy talking about Sotomayor’s prior nominations. Leahy introduces letter from President Clinton.
12:18: Senator Hatch is up. He says he’d like her to answer with “yes” or “no” answers. Hatch says PRLDEF filed briefs, with Sotomayor on litigation committee. Says New York Times says she took an active role. Hatch asks about involvement in specific cases PRLDEF cases. Hatch says PRLDEF asked for tax-funded abortion, compared denial to Dredd Scott decision. Sotomayor says she didn’t know brief was filed. Sotomayor says she didn’t know brief made this argument, didn’t support that argument. Sotomayor says she wasn’t a lawyer for PRLDEF the way Ginsburg was a lawyer for ACLU. Sotomayor says she didn’t know about a brief in a case regarding parental notification, didn’t know about argument, didn’t disagreement. Sotomayor says she didn’t know about a brief in a case regarding waiting period, didn’t know about argument, didn’t voice disagreement. Hatch says constituent asks whether Sotomayor sees courts as place to resolve social injustices. Sotomayor says that not the role of courts. Sotomayor says resolve of social injustice may be an effect, but that’s not how judges make decisions. Hatch asks if Sotomayor thinks both sides of Heller decision were doing best to analyze the law. Sotomayor says she thinks they both expressed fidelity to the law. She says winning side not expressing judicial activism. Hatch asks if Constitution as originally written deserves more weight than newer legal precedent. Sotomayor says most important is words of founders. “You follow what they said in their words.” Leahy introduces letter from board of PRLDEF saying no board members selects cases or controls ongoing litigation.
12:27: Grassley is up again. Grassley asks about Baker v. Nelson, marriage case he asked about yesterday. Sotomayor says she went back to look at Baker. She says at time of Baker jurisdictional rules were different and now subject to litigation. Grassley says Souter talked about the court having a role in filling “vacuums in law.” He asks Sotomayor if she agrees. Sotomayor says it’s dangerous to use analogies, since they’re always imperfect. She advises students to use simple words. Sotomayor repeats that judges apply the law and apply precedent, but they’re not creating law, whether that’s what Souter meant or not.
12:35: Senator Kyl is up. Kyl asks about Ricci again, when Sotomayor says she was bound by precedent from SCOTUS and 2nd Amendment. Sotomayor says she has nothing to add to what she said earlier. She says she hasn’t looked at a transcript and can’t respond to that particular question again. Kyl asks Sotomayor, if SCOTUS doesn’t review the gun decision, whether states in the 2nd Circuit could restrict gun rights. Sotomayor first corrects that she was on a panel that decided, not she decided. She says she can’t speak in absolutes. Sotomayor says that if there were a regulation, someone could challenge it, and the court would have to consider that. Kyl asks what test a court would apply. Sotomayor says Kyl hypo is similar to Heller. Sotomayor says test would depend on regulation. Sotomayor says Maloney addressed 14th Amendment Equal Protection, looked for rational basis for regulation. Kyl asks about rational basis. Sotomayor says it’s the one where you don’t need “an exact fit” between regulation and problem to be solved. Sotomayor says that strict scrutiny requires narrow tailoring, while rational basis does not. Kyl asks about gun context, Sotomayor says it would depend on facts, legislative findings. Kyl asks whether incorporation would make it harder for a state to regulate. Sotomayor points out Heller didn’t set standard of review, so even incorporation wouldn’t determine standard of review. Kyl asks Sotomayor if she can understand why a gun owner would be concerned about 2A not being incorporated. Sotomayor says it’s clear to her from public discussions that that is a concern. Kyl asks about use of foreign law in Roper SCOTUS decision on death penalty, but not in Kennedy. Asks Sotomayor why. Sotomayor says it’s impossible for her to know. Kyl says Court uses foreign law that supports it, but not foreign law that doesn’t support. Sotomayor says she doesn’t believe foreign law should be used to determine the meaning of the Constitution or American law.
12:46: Graham is up. Graham says that when she looks at 2nd Amendment, she’ll be thinking about Americans and talking to people about importance. Graham says Kalid Sheikh Mohammed appearing before military tribunal today, represented by military judge. Graham says he’s a former JAG. Says we give people like him a trial because it makes us better than him. It makes us stronger. Graham asks if Sotomayor has looked at Guantanamo habeas decisions. Sotomayor says she has. Graham asks if Sotomayor knows of any provision of civilian criminal law that would allow someone to be held indefinitely. Sotomayor says there’s the Speedy Trial Act, plus Constitution. Graham says that’s a correct statement of the law. Graham asks whether it’s the same under military law. “There, you have an advantage on me,” Sotomayor says. Graham says we can’t demand civilian trial of one of our pilots held by enemy. Or review of their status. Graham asks whether people who don’t follow law of armed conflict are going to get better treatment than those who do. Graham asks if there’s law that says enemy prisoner must be released just due to passage of time. Graham says they’re going to work hard to create a military commission system that’s consistent with the values of our nation. Graham says we shouldn’t put a burden on ourselves that isn’t on anyone else. Graham says he’s working with colleagues to come up with workable system. Some al-Qaida members deserve to be held in prison until they die, he says. Graham says that if she gets on Court and looks at military tribunals act, please remember we’re talking about dangerous enemy.
12:56: Cornyn up. Cornyn says Sotomayor wrote that neutrality and objectivity in the law were a myth. He asks her to explain. Sotomayor explains that in every case there are two parties arguing different perspectives on what the law means, and the judge chooses one. Sotomayor says judges can’t throw up hands and refuse to rule. They must pick one. That’s what she was trying to say. Cornyn asks whether 4 dissenters in Heller were showing fidelity to the law. Sotomayor says yes. Cornyn asks whether senators who joined brief were encouraging “judicial activism.” Sotomayor says she doesn’t use that term. Cornyn bringing up another quote about foreign law. Sotomayor again explains how foreign law can be used, but not for making decisions. Sotomayor cites Wikipedia as a place people can get ideas, but they still must follow the law. Cornyn asks about quote that foreign law “gets the creative juices flowing.” Sotomayor says she’s an academic at heart. “To me, it’s fun to think about ideas,” Sotomayor says. Cornyn suggests anyone who has “juices flowing” over foreign law, use the amendment process. Sotomayor agrees.
13:05: Coburn up. Coburn says he’s going somewhere new. Judicial pay. Coburn says our national debt is going to be too high. Coburn brings up Madison in Federalist Papers, talking about benefit of restrained government. Sotomayor says SCOTUS says that all powers are limited. Coburn reads another Madison quote about Congress needing to be limited. Coburn talks about national debt, asks if restraint of Congress to enumerated powers might be good. Sotomayor says national policy is a question for Congress, and once it passes laws people can challenge them in court. Coburn says he thinks Founding Fathers thought Court would be check on Congress. Asks if Sotomayor thinks we’ve altered plain meaning of Constitution. Sotomayor says that’s “almost a judgment call,” and fears it would come up in a case. Sotomayor says she likes her job more than his, Coburn says he’d like her job more, too, but he’s not likely to get to confirmation. Coburn says “people call me simple” because he believes the Constitution is the genesis of our nation and hopes Court looks at its limits again.
13:14: Leahy talking about the death penalty. Leahy mentions it takes 5 Justices to stay an execution, but only 4 to hear the case. As a matter of courtesy, a 5th Justice usually agrees so they don’t end up hearing the case after the execution. Roberts and Alito both agreed that this rule was sensible, Leahy says. But a NYTimes study says this rule has not been adhered to. Leahy asks if Sotomayor would agree to be the 5th vote to stay the execution. How would she approach the issue? Sotomayor says the rule has a sensible basis, so she’d approach it the same way Roberts and Alito said they would.
13:18: Sessions up again. Sessions thanks Sotomayor, introduces a few more newspaper articles into the record. Sessions reading a letter from a former NRA head.
13:22: Leahy wrapping up.
The hearing is scheduled to begin at 9:30 AM EDT.
9:33: The hearing has been gaveled into session.
9:35: Senator Kyl is up. Kyl asks about the Ricci case and whether it was truly decided according to precedent. Kyl quotes court opinion saying there were “few if any precedents.” He asks Sotomayor if her early statements about precedent were correct. Sotomayor says 2nd Circuit precedent was that low-scoring, minority firefighters could have filed a lawsuit. Kyl interrupts, repeating his question. Kyl says, “You’re not getting to the point of my question.” Says she would say that same thing to an attorney arguing before her. Kyl, “so you contend there was 2nd circuit precedent.” [Kyl is ignoring the fact that there are multiple questions of law.] Kyl asking why, if there was precedent, other judges vote to review the decision en banc. Sotomayor says she can’t speak to why other judges voted the way they did. Kyl interrupts Sotomayor’s explanation again, apologizing, citing short time. Sotomayor says when the circuit court adopted the district court ruling, that became the court’s holding and therefore became precedent. Kyl asks if circuit courts typically dispose of questions of first impression with short opinions. Sotomayor cites another case she did. Sotomayor says circuit courts do that if district courts have good opinions. Kyl reads Cabranes opinion saying such short opinions usually reserved for straightforward cases, not like this. Kyl says the implications of the decision are far-reaching, and he reads some commentary, including Supreme Court opinion. Kyl asks if she agrees with SCOTUS that there is a risk her decision would lead to de facto quota system. Sotomayor says she found the city acted in good faith. SCOTUS later said higher standard was needed. Sotomayor says she was looking at narrower question than Cabranes described and than Supreme Court considered. Only looked at whether the city acted in good faith. Kyl says all 9 Justices on Supreme Court said Sotomayor shouldn’t have granted summary judgment. Sotomayor says 4 Justices said Court set out new standard and should have given Circuit change to apply. Kyl disagrees. Sotomayor says “I don’t believe that’s how I read the dissent.” Reads Ginsburg saying Sotomayor opinion should be affirmed. Kyl follows up on Hatch question on difference between circuit and district court judges. Sotomayor said circuit judges find justice for society. Kyl asks if she is saying Circuit has higher calling to make justice for society. Kyl says judges have only one job: deciding between litigants. Not making justice for society. Sotomayor says, “I think we’re in full agreement.” She says precedents have policy implications, but policy like legislature makes.
9:57: Feinstein is up. Feinstein supports Sotomayor, saying 4 Justices in Ricci would have supported Sotomayor. Feinstein asks what “per curium” means, translating it as “through the court.” Sotomayor says it’s for clear issues, when just adopting a lower court decision. Feinstein is talking about the fight for equality for women, history of getting vote, stats on current disparities. Feinstein says, “You’ve become an instant role model for women.” Asks how Sotomayor has become a role model for women. Sotomayor says she chose the law because it doesn’t get the kind of attention other public figures get. Feinstein calls Sotomayor “walking, talking best part” of America.
10:06: Senator Graham is up. Graham says one of the problems the court has is that Ricci has a story to tell, too. Graham says Brown v. Board is example of Court forcing societal change politicians were scared to do. Graham says he’s going to ask about marriage, and who’s best able to make those decisions. Graham says societal change is why people “fight so hard to put people on the court who see the world like us.” On right and left. Graham asks, when considering with Justices whether 2nd Amendment is “fundamental,” what Sotomayor will consider. Sotomayor says she will consider the “rule of law.” Graham asks, won’t consider personal opinion? Sotomayor says no. Graham asks if there is “some sort of legal cookbook” to figure out what’s fundamental. Sotomayor says there’s precedent on incorporation. Graham asks if there is no subjective judgment when deciding whether a right is fundamental. Sotomayor says will look at precedent. Sotomayor says Court will look at precedent, decide whether it controls, decide whether to revisit precedent. Graham joking tells Sotomayor to look at the 9th Circuit, saying he never thought he’d hear himself say that. He says the 9th Circuit got it right on gun rights being incorporated. Graham says, “You’re able…to embrace a right you may not want for yourself.” “That is my hope for you.” Graham says an activist is a judge who would be chomping at the bit to use Court to change society. Graham says he thinks Sotomayor broad-minded enough to know the world is bigger than the Bronx. Graham asks if Sotomayor embraces identity politics. She says she believes certain groups should express their views on social issues. But Sotomayor doesn’t believe such groups should not consider what’s best for the country. Graham asks if Sotomayor speeches embrace identity politics. She says embrace idea of expressing their views, but not at expense of rest of the country. She doesn’t describe her speeches as identity politics. Graham says Sotomayor speeches disturbing b/c they don’t tell people to get involved/vote. The focus is on race and gender issues. Graham says Sotomayor has been very reassuring that she knows difference between judging and personal views. Graham asks mission statement of PRLDEF, asks if all the brieffs they wrote followed that statement. Sotomayor not sure, didn’t read all. Graham says every PRLDEF case he saw advocated against restrictions on abortion, against death penalty, etc. Graham says generally hasn’t seen her taking those views, but Sotomayor did sign memorandum in 1981 against death penalty. Sotomayor says she was taking position on legislation in New York state, but when she had a case before her she followed the law. Graham says Roberts & Alito were asked a lot about their memos and explained about working for a client. Graham asks if Sotomayor has ever known low-income, latino families that have been pro-life/pro-death penalty, so she is clearly left of center. Graham returns to wise latina. Asks for comment from Sotomayor. She says she regrets “that she may have offended some.” Graham wishes Sotomayor good luck.
10:27: Klobuchar up. Klobuchar asks about the only death penalty case Sotomayor heard. She allowed it to go forward. Klobuchar offers letters of support from law enforcement groups for the record. Sotomayor talking about child pornography case, said SCOTUS ruled constitutional. She says there were still some questions. Sotomayor says evidence was circumstantial, though child porn tapes were horrible. Sotomayor says she went ahead and brought the prosecution, jury returned guilty verdict. Case was upheld on appeal. Klobuchar asks about Sotomayor judging case of Giordano, mayor of Waterbury. Sotomayor wrote opinion holding mayor could be charged with violating civil rights under color of state law, since he had threatened them with law. Sotomayor says she followed precedent, but dissent disagreed with reading of state law.
10:40: Cornyn is up. Cornyn asks if Sotomayor thinks she has been given a chance to explain her judicial philosophy. Sotomayor says she does. Cornyn says still some confusion about Sotomayor philosophy. Said “Law” is a public myth, but not says fidelity to law is supreme. Cornyn alleging other inconsistency between prior comments and comments in hearing. Cornyn says his constituents might say she says one thing in Berkeley and other places, and other things in hearing. Sotomayor says to look at her decisions, proving fidelity to the law, not allowing prejudices to sway decisions. Sotomayor says also look at her complete speeches, the contexts of the comments, and understand background of issues discussed. Sotomayor tried to explain some of the “inconsistencies”: e.g. she disagreed with literal meaning of O’Connor’s words. Cornyn says Sotomayor judicial record strikes him as pretty much in the mainstream. But there’s “cognitive dissonance” with her speeches. Cornyn asks if Court rules there is a Constitutional right to same-sex marriage, is that interpreting or making law? Sotomayor doesn’t want to “forecast” that decision. Sotomayor says same-sex marriage hotly debated, legislated. She says she won’t even characterize what Court may do. Cornyn asks generally if there is a difference between making and interpreting law. Sotomayor says there is a great difference: laws are written by Congress. Cornyn asks her to reconcile with statement that courts of appeals make policy. Sotomayor says like discussion re: “fundamental.” Sotomayor says in both contexts she was talking about difference in that court of appeals makes precedent. She made both comments in a legal context. Cornyn reads comments Sotomayor made about role of private money in politics. She says she was ansering in context of a question. Sotomayor says difference between contribution and bribe is intent to sway a vote, and agreement to vote a certain way. Sotomayor cites recent SCOTUS case of West Virginia Supreme Court judge. Cornyn corrects that was not direct contribution. Cornyn mentions Obama set records for contributions. He asks if contributing time, volunteering is bribery. Sotomayor says no. Cornyn asking about hispanic New Haven firefighter who was denied promotion. Cornyn asks if Sotomayor agrees with Roberts statement that best way to stop racial discrimination is to stop racial discrimination. Sotomayor says best thing is to follow the Constitution, as it applies to each situation. Sotomayor says she accepts the ruling of the Court. Sotomayor says the Constitution requires equal opportunity for all. Cornyn asks if Sotomayor agrees with MLK dream of people being judged not by color of skin but by content of character. She agrees.
11:00: Senator Specter is up. Specter asks if Sotomayor would take on ideological battle if Roe challenge came up. She says she rules based on law and reason not ideology. Specter asks about her Entergy ruling, which was later reversed by Supreme Court. Sotomayor says she is bound by precedent, so will respect Court’s ruling under stare decisis. Specter asks about caseload, again recites statistics on how the load has gone down. Specter asks if it’s irresponsible to not take up split-circuit cases. Sotomayor agrees that the Court docket has lessened over time (duh), and says it appears the Court could take on more. Specter asks if Sotomayor will participate in the cert pool, meaning allowing Supreme Court clerks to split up the work of reviewing cases. Sotomayor says she’ll probably do what Alito did, trying out the pool, then reconsider after time. Specter asks about Sotomayor experiences with cameras in courtoom. She says limited experience, but positive. Specter cites C-SPAN survey showing most people want Supreme Court hearings televised. He cites interest in this hearing as evidence. Specter asks Sotomayor to tell her colleagues about her experience with cameras. She has already said she will, and she says so again.
11:12: Specter asks about Maloney case on guns, cites 7th Circuit opinion by Easterbrook agreeing with her. Specter asks about SCOTUS refusal to hear case from victims of 9/11 against Saudi Arabian citizens. Specter says Congress had said tort claims, like crashing a plane into WTC, were exception to sovereign immunity. Specter asks if she thinks Court should have heard case. Sotomayor says 9/11 very important to country, but she didn’t review that case. Sotomayor says it would be inappropriate to comment on a decision she wasn’t party to. Specter asks about wiretapping cases, whether she thinks SCOTUS should have taken cases. Sotomayor says she can’t evaluate cases in the abstract. The Court considers many factors when deciding to take case. Specter asks Sotomayor to rethink separation of powers cases.
11:21: We have a short break.
11:36: And we’re back. Senator Coburn is up next.
11:37: Corburn asks about foreign law speech. Corburn asks Sotomayor to promise to refrain from using foreign law to make a decision. Sotomayor agrees to not use foreign law to interpret the Constitution or American statutes. Coburn asks if Sotomayor thinks Congress could be clearer when it writes statutes. Coburn says they’re not clear about intent. Sotomayor says it would be presumptuous of her to tell Congress how to do its job. But Sotomayor says in private conversations a lot of Senators said they thought they could be clearer. Sotomayor says that when Congress’s intent is clear, the court applies that intent. Coburn says Sotomayor refused to give criteria for determining when right is fundamental, but she gave detail on stare decisis. He asked her why she can’t give method for determining incorporation. Sotomayor says she doesn’t remember that being the specific question. But the framework has been discussed by the Court in cases. Sotomayor says the application of the framework for deciding incorporation is the question before the Court. Coburn moves on.
11:45: Coburn says he wants her to understand why he spends so much time talking about the Second Amendment. Coburn asks how people can protect their rights to bear arms if Sotomayor’s ruling that the Second Amendment does not apply to the states is not upheld. Sotomayor says she has an open mind on incorporation of the 2nd Amendment. Coburn asks if Sotomayor thinks that ironic, since US took guns away from freed slaves. Sotomayor asks if Coburn if she’d prefer a nominee who came in and expressed an opinion on a case before hearing arguments from parties. Sotomayor repeats that she keeps an open mind on the incorporation doctrine.
11:50: Coburn asks Sotomayor about the state of the law right after Roe v. Wade. Coburn asks if any state laws restricting abortion survived Roe. Sotomayor says she’s not sure. Sotomayor says she’s not sure because her experience has been since the Casey decision, so that’s the standard she has used. Coburn says that since January 22, 1972, you can have an abortion for any reason you want, even with more recent rulings. Coburn talking about viability. He says the state interest begins at viability. Coburn asks if the Casey test is a policy choice. Sotomayor says Casey test is the Court’s framework for addressing the balance of a woman’s right to terminate pregnancy against state interest. Coburn asks if Sotomayor thinks the Court’s abortion rulings have ended the national controversy on that issue. Sotomayor says no. Coburn asks if there are other similarly divisive issues that could be decided by the court in the near future, without naming them. Sotomayor says people are very passionate about the issues they believe in. Almost any issue has fervent people, she says. Coburn asks if it’s better for the Court or Congress to decide these issues. Sotomayor says in the first instance the Congress or state makes a regulation, and then the courts review them. Coburn says he’s more reserved here than when he makes a speech, when he “let[s] it all go.” He says he’s “deeply troubled” by what she’s said, but he hasn’t yet decided how to vote.
11:59: Leahy speaking about gun laws. Says most states have more restrictive gun laws than Vermont. Leahy says he has not heard anything or read anything in Sotomayor’s speeches or decisions that makes him worry about his gun rights. Sessions interrupts to express concern that any state or city could ban all guns. Leahy: “Vermont has decided to not have the restrictive laws that you have in Alabama.”
12:01: Franken is up, reading a letter of support from someone who appear before her as a litigant. Franken asks, “Why do you want to be a Supreme Court Justice?” Sotomayor says she wants to tell a story. Sotomayor talks about first being told she was under consideration to be district judge. She told her mother. Mother asked about salary. Sotomayor says she said she’d take a big pay cut. Also told mom she wouldn’t get to travel as much. Longer pause from mom. Mother asked about interesting clients. Sotomayor told she wouldn’t be able to make friends with clients. Mom asked why she wanted this job. She says she loves public service and the rule of law. Sotomayor says she can’t think of any greater service she could do to this country than being a Justice. Franken says he’ll support her nomination.
12:06: Senator Sessions has another 10 minutes. Sessions says American people are rightly concerned that social issues are being decided by unelected judges. Sessions asks if she’ll be OK with judicial pay. Sotomayor says it’s difficult, but she’s been living on it for years. Sessions says all judges say they’re going to follow the law. Sessions talking about people being discriminated against deserving a remedy. Sessions says that neither he nor anyone on his side will support a filibuster of her nomination. Sessions says he thinks it fair to say Ricci wasn’t handled in regular order. Sessions quotes Sotomayor statement about how she writes opinions (setting out law, etc.), but that’s not what she did in this case. Sessions says Ricci opinion was contrary to rule of Second Circuit, since there was dissent and law wasn’t well-settled. Sessions says Ricci decision had more of an impact, and she was wrong to use summary order. Sessions asks if Sotomayor didn’t show courage, and wouldn’t case have been better if it had been handled differently? Sotomayor says she doesn’t think she didn’t show courage and wouldn’t have been better handled differently.
12:17: Leahy talking about Sotomayor’s prior nominations. Leahy introduces letter from President Clinton.
12:18: Senator Hatch is up. He says he’d like her to answer with “yes” or “no” answers. Hatch says PRLDEF filed briefs, with Sotomayor on litigation committee. Says New York Times says she took an active role. Hatch asks about involvement in specific cases PRLDEF cases. Hatch says PRLDEF asked for tax-funded abortion, compared denial to Dredd Scott decision. Sotomayor says she didn’t know brief was filed. Sotomayor says she didn’t know brief made this argument, didn’t support that argument. Sotomayor says she wasn’t a lawyer for PRLDEF the way Ginsburg was a lawyer for ACLU. Sotomayor says she didn’t know about a brief in a case regarding parental notification, didn’t know about argument, didn’t disagreement. Sotomayor says she didn’t know about a brief in a case regarding waiting period, didn’t know about argument, didn’t voice disagreement. Hatch says constituent asks whether Sotomayor sees courts as place to resolve social injustices. Sotomayor says that not the role of courts. Sotomayor says resolve of social injustice may be an effect, but that’s not how judges make decisions. Hatch asks if Sotomayor thinks both sides of Heller decision were doing best to analyze the law. Sotomayor says she thinks they both expressed fidelity to the law. She says winning side not expressing judicial activism. Hatch asks if Constitution as originally written deserves more weight than newer legal precedent. Sotomayor says most important is words of founders. “You follow what they said in their words.” Leahy introduces letter from board of PRLDEF saying no board members selects cases or controls ongoing litigation.
12:27: Grassley is up again. Grassley asks about Baker v. Nelson, marriage case he asked about yesterday. Sotomayor says she went back to look at Baker. She says at time of Baker jurisdictional rules were different and now subject to litigation. Grassley says Souter talked about the court having a role in filling “vacuums in law.” He asks Sotomayor if she agrees. Sotomayor says it’s dangerous to use analogies, since they’re always imperfect. She advises students to use simple words. Sotomayor repeats that judges apply the law and apply precedent, but they’re not creating law, whether that’s what Souter meant or not.
12:35: Senator Kyl is up. Kyl asks about Ricci again, when Sotomayor says she was bound by precedent from SCOTUS and 2nd Amendment. Sotomayor says she has nothing to add to what she said earlier. She says she hasn’t looked at a transcript and can’t respond to that particular question again. Kyl asks Sotomayor, if SCOTUS doesn’t review the gun decision, whether states in the 2nd Circuit could restrict gun rights. Sotomayor first corrects that she was on a panel that decided, not she decided. She says she can’t speak in absolutes. Sotomayor says that if there were a regulation, someone could challenge it, and the court would have to consider that. Kyl asks what test a court would apply. Sotomayor says Kyl hypo is similar to Heller. Sotomayor says test would depend on regulation. Sotomayor says Maloney addressed 14th Amendment Equal Protection, looked for rational basis for regulation. Kyl asks about rational basis. Sotomayor says it’s the one where you don’t need “an exact fit” between regulation and problem to be solved. Sotomayor says that strict scrutiny requires narrow tailoring, while rational basis does not. Kyl asks about gun context, Sotomayor says it would depend on facts, legislative findings. Kyl asks whether incorporation would make it harder for a state to regulate. Sotomayor points out Heller didn’t set standard of review, so even incorporation wouldn’t determine standard of review. Kyl asks Sotomayor if she can understand why a gun owner would be concerned about 2A not being incorporated. Sotomayor says it’s clear to her from public discussions that that is a concern. Kyl asks about use of foreign law in Roper SCOTUS decision on death penalty, but not in Kennedy. Asks Sotomayor why. Sotomayor says it’s impossible for her to know. Kyl says Court uses foreign law that supports it, but not foreign law that doesn’t support. Sotomayor says she doesn’t believe foreign law should be used to determine the meaning of the Constitution or American law.
12:46: Graham is up. Graham says that when she looks at 2nd Amendment, she’ll be thinking about Americans and talking to people about importance. Graham says Kalid Sheikh Mohammed appearing before military tribunal today, represented by military judge. Graham says he’s a former JAG. Says we give people like him a trial because it makes us better than him. It makes us stronger. Graham asks if Sotomayor has looked at Guantanamo habeas decisions. Sotomayor says she has. Graham asks if Sotomayor knows of any provision of civilian criminal law that would allow someone to be held indefinitely. Sotomayor says there’s the Speedy Trial Act, plus Constitution. Graham says that’s a correct statement of the law. Graham asks whether it’s the same under military law. “There, you have an advantage on me,” Sotomayor says. Graham says we can’t demand civilian trial of one of our pilots held by enemy. Or review of their status. Graham asks whether people who don’t follow law of armed conflict are going to get better treatment than those who do. Graham asks if there’s law that says enemy prisoner must be released just due to passage of time. Graham says they’re going to work hard to create a military commission system that’s consistent with the values of our nation. Graham says we shouldn’t put a burden on ourselves that isn’t on anyone else. Graham says he’s working with colleagues to come up with workable system. Some al-Qaida members deserve to be held in prison until they die, he says. Graham says that if she gets on Court and looks at military tribunals act, please remember we’re talking about dangerous enemy.
12:56: Cornyn up. Cornyn says Sotomayor wrote that neutrality and objectivity in the law were a myth. He asks her to explain. Sotomayor explains that in every case there are two parties arguing different perspectives on what the law means, and the judge chooses one. Sotomayor says judges can’t throw up hands and refuse to rule. They must pick one. That’s what she was trying to say. Cornyn asks whether 4 dissenters in Heller were showing fidelity to the law. Sotomayor says yes. Cornyn asks whether senators who joined brief were encouraging “judicial activism.” Sotomayor says she doesn’t use that term. Cornyn bringing up another quote about foreign law. Sotomayor again explains how foreign law can be used, but not for making decisions. Sotomayor cites Wikipedia as a place people can get ideas, but they still must follow the law. Cornyn asks about quote that foreign law “gets the creative juices flowing.” Sotomayor says she’s an academic at heart. “To me, it’s fun to think about ideas,” Sotomayor says. Cornyn suggests anyone who has “juices flowing” over foreign law, use the amendment process. Sotomayor agrees.
13:05: Coburn up. Coburn says he’s going somewhere new. Judicial pay. Coburn says our national debt is going to be too high. Coburn brings up Madison in Federalist Papers, talking about benefit of restrained government. Sotomayor says SCOTUS says that all powers are limited. Coburn reads another Madison quote about Congress needing to be limited. Coburn talks about national debt, asks if restraint of Congress to enumerated powers might be good. Sotomayor says national policy is a question for Congress, and once it passes laws people can challenge them in court. Coburn says he thinks Founding Fathers thought Court would be check on Congress. Asks if Sotomayor thinks we’ve altered plain meaning of Constitution. Sotomayor says that’s “almost a judgment call,” and fears it would come up in a case. Sotomayor says she likes her job more than his, Coburn says he’d like her job more, too, but he’s not likely to get to confirmation. Coburn says “people call me simple” because he believes the Constitution is the genesis of our nation and hopes Court looks at its limits again.
13:14: Leahy talking about the death penalty. Leahy mentions it takes 5 Justices to stay an execution, but only 4 to hear the case. As a matter of courtesy, a 5th Justice usually agrees so they don’t end up hearing the case after the execution. Roberts and Alito both agreed that this rule was sensible, Leahy says. But a NYTimes study says this rule has not been adhered to. Leahy asks if Sotomayor would agree to be the 5th vote to stay the execution. How would she approach the issue? Sotomayor says the rule has a sensible basis, so she’d approach it the same way Roberts and Alito said they would.
13:18: Sessions up again. Sessions thanks Sotomayor, introduces a few more newspaper articles into the record. Sessions reading a letter from a former NRA head.
13:22: Leahy wrapping up.
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