Sotomayor passes out of committee

In a vote that surprised no one, Judge Sotomayor was approved by the Senate Judiciary Committee, largely along party lines. All 12 Democrats on the committee voted to confirm, joined by Senator Lindsay Graham (R-SC). The remaining 6 Republican senators voted against confirmation, leaving Sotomayor with a 13-6 vote.

Republican senators, led by Senator Jeff Sessions (R-Ala.), Ranking Member of the committee, continued to criticize Sotomayor for her decisions in cases concerning race discrimination, gun rights, and property rights, as well as her speeches in which she discussed the role ethnicity and background play in judicial decision making. Senator Graham, explaining why he was voting for her, nevertheless expressed concern that she had made statements about judicial decision making while she was a judge.

Senator Coburn (R-Okla.) said he believed Sotomayor was speaking from the heart in her speeches, but he said he was voting against her not for the content of those speeches but because she did not defend her statements when challenged in the hearings. If she believed, as Coburn thought judges should believe, that her rulings would be objective and unaffected by her personal beliefs, she should not have hesitated to stand behind her statements.

Democrats for the most part praised Sotomayor's record as a prosecutor and a judge, repeating that her judicial experience exceeds that of any other nominee in the last 100 years. They also said that her record showed that she was a fair and impartial judge. Finally, they repeated her personal story and spoke of her as an inspiration to women and minorities wanting to pursue a career in the law.

Chairman Leahy could not say when Sotomayor's confirmation would come before the full Senate, but he said it would have to be before the Senate leaves for the August recess, since the Supreme Court is scheduled to hear an early session of oral arguments on September 9. The Senate will have several days of debate on Sotomayor, though we are unlikely to hear any new arguments before the vote.

Sotomayor Confirmation Liveblog Day 4 PM

The committee is hearing from outside witnesses now.

14:21: The Attorney General of Arkansas is speaking with Senators now. Senator Sessions asking the AGAR about the handling of the Ricci case. Sessions asking “were you aware” questions to make speech about Ricci case. AGAR trying to argue with Sessions about the Ricci case. Says he agrees with dissents in that case. Sessions asks AGAR (that’s Attorney General of Arkansas) what he thinks about Sotomayor’s ruling on gun rights. Sessions asks if AGAR knows Heller was 5–4, separated by one vote. AGAR says he plans to join other case arguing that 2nd Amendment is incorporated, but he thinks Sotomayor’s statements are OK. Not worried about gun rights going away.

14:28: Schumer welcomes Mayor Bloomberg and DA Morgenthau. Bloomberg greets the senators. “Senator, Senator, Senator, Senator.” Bloomberg praising Sotomayor, discussing her record. NYC DA Robert Morgenthau being introduced. Morgenthau was born in 1919 and has served as NYC DA since 1975. That means he’s older than Justice Stevens and has been in his current office about as long. Morgenthau is talking about several cases prosecuted by Sotomayor. These cases already came up in Klobuchar’s questioning. Wade Henderson of Leadership Conference on Civil Rights reminds us of questions about Thurgood Marshall and NAACP’s LDEF.

14:47: Frank Ricci is up. Ricci talking about the difficulties of working as a firefighter. Ricci complains about short opinion in his case, noting it mentioned his dyslexia and implied the case was about him. Ricci is reading carefully, moving his finger along the paper as he goes. Now a statement from Ben Vargas, another New Haven firefighter. Says his case shows how Supreme Court decisions affect Americans. Vargas tells about how much time he spent studying, looking at photos of his children, whom he didn’t get to see much while studying. Vargas says in his profession there are no second chances, unlike judicial system. He says racial makeup doesn’t matter in his field.

15:00: Peter Kirsanow of U.S. Commission on Civil Rights. Kirsanow also complaining about handling of Ricci case.

15:24: Sessions asks Vargas if he thinks other firefighters would have passed if they had studied as hard as he.

15:40: Graham says he appreciates the hard work done by the firefighters. Says he’d want Ricci fighting a fire at his house. Mayor Bloomberg says New York currently defending against lawsuit by DOJ because they didn’t throw out firefighter test with low minority scores.

15:58: Specter asks Ricci if he has any reason to think Sotomayor acted in anything other than good faith. Ricci says beyond his expertise. Specter asks Ricci if he has any reason to think Sotomayor acted in anything other than good faith. Ricci says beyond his expertise. Linda Chavez does think Sotomayor’s writings, work with PRLDEF indicates a preference to eliminate standardized testing.

16:29: Back from a short break. Third panel sworn in now. First up is former FBI Director (and former federal judge) Louis Freeh. Freeh recommends confirmation of Sotomayor and says he’s going to talk about her judicial experience. Chuck Canterbury, National President of the Fraternal Order of Police, speaks now. Supporting Sotomayor. Canterbury is impressed Sotomayor graduated from Yale and went to a low-paying prosecutor job. Canterbury says he’s not worried about losing his Second Amendment rights.

16:46: David Cone is talking about Sotomayor saving baseball.

17:07: David Kopel, blogger at http://volokh.com/, is up. Kopel’s argument for why 7th Circuit doesn’t back up Sotomayor’s interpretation seems to be that the 7th Circuit was explained more. Now we get Ilya Somin, also blogger at hhttp://volokh.com/. Somin is REALLY excited to be here. Somin says Sotomayor wrote in Didden that she’d have ruled the same way even if the statute of limitations had not expired.

17:47: Fourth panel. We’re down to Klobuchar and Sessions only.

18:27: Nick Rosenkranz, whose class I took at Georgetown, is up. Rosenkranz, like Professor McGinnis, is talking about (mis)use of foreign law. Rosenkranz encourages people to see the original Constitution at the National Archives. [I would, but the line is always really long.]

18:56: Some back-and-forth between Professor Rosenkranz and Senator Klobuchar on whether Sotomayor used foreign law. Microphones were off, so I’ll have to check the transcript.

19:07: Final panel up. Senators Kaufman, Sessions, Whitehouse, Specter are here.

19:39: Congressman Serrano says that there are many watch parties in his district, the Bronx.

19:45: Sessions unsurprisingly wants to talk to David Rivkin about national security. Sessions asks Rivkin about claims that Congress has denied habeas corpus to detainees. Rivkin agrees habeas was never intended for them. Sessions asks Halbrook whether Maloney decision will need to be reversed or 2nd Amendment doesn’t apply to states. Halbrook agrees.

19:54: Whitehouse indicates he wants to quibble with Halbrook. Whitehouse says that for 220 years, Supreme Court didn’t recognize any individual right to bear arms, then bare majority recognized. Whitehouse says Court may choose to apply Second Amendment to states, but hasn’t decided that yet. Whitehouse says he doesn’t want to create atmosphere where a nominee would walk into a “volley of fire” unless announces intent to expand Second Amendment. Whitehouse says a cautious judge would be inclined not to expand Heller, then let Supreme Court expand. Whitehouse doesn’t want to tell nominees that they need to signal how they’re going to rule if they want to be confirmed. Sessions responds, saying it’s fair to ask nominees about cases they’ve decided. Sessions says he thinks the “average American” thinks the text of the Second Amendment gives an absolute right, contrasted with First Amendment’s mention of “Congress.”

20:02: Sessions, complimenting Kaufman on his temporary chairmanship, says “Who needs Pat Leahy?” Kaufman thanking panels, audience, senators. Kaufman says Supreme Court nomination is second only to decision to go to war in importance.

20:04: The hearing is adjourned.

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.

Sotomayor Confirmation Liveblog Day 3 AM

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.

Sotomayor: How Little We've Learned

Going into the second day of questioning, it’s remarkable how little we’ve learned about Judge Sotomayor. Questions from senators have largely fallen into two categories: questions about her extra-judicial speeches and activities, and questions about specific issues. On the speeches, she has tried to explain herself, but Republican senators don’t seem to be buying it. On specific issues, like abortion, gun control, and the death penalty, she has replied to questions by either reciting Supreme Court precedents or refusing to answer, saying it is a policy question for Congress; these non-answers frustrate both Republican and Democratic senators alike. But almost no one has asked the questions that really matter: how exactly does she go about deciding cases?

Remember Justice John Roberts’s confirmation hearings? There were long discussions of the role of precedents—and “superprecedents,” a ridiculous term—and the method of judicial interpretation used by judges when interpreting statutes and the Constitution. Judge Sotomayor in her opening statement said her philosophy is simple: “fidelity to the law.” But that means almost nothing. She has said several times that judges apply the law to the facts in front of them, but the law is rarely clear, especially at the Supreme Court level. If the law can easily be applied to the facts, the lower courts can handle the case. The Supreme Court must take on cases where the law is unclear and can’t easily be applied to facts, and thus Sotomayor’s “judicial philosophy” assumes an intelligible, coherent “law” that she is likely to never see.

The closest we got was during Senator Graham’s questioning, when he asked Sotomayor if she would call herself a legal realist. She said she wouldn’t, and then she refused to label herself a strict constructionist or an orginalist, either. Instead of pursuing the line of questions, Senator Graham moved on to another topic. We can only hope someone returns to her judicial philosophy today.