Tuesday
Jul142009
Sotomayor Confirmation Liveblog Day 2 AM
Tuesday, July 14, 2009 at 10:13AM
The Senate Judiciary Committee is set to begin the second day of hearings at 9:30 AM EDT. Today each senator will have a turn to ask Judge Sotomayor questions. Each senator will have 30 minutes.
9:31: Senator Leahy has gaveled the hearing into session. He is introducing Sotomayor again. His first question: what qualities should a judge possess? Sotomayor says the “process of judging is the process of keeping an open mind.” She says it’s important not to prejudge, to understand what the parties are arguing, examining the facts as proven or not, and making a decision.
9:36: Leahy asks about a prosecution she made. How did her experience as a prosecutor affect her? Sotomayor says law schools teach you legal theory, but she became a lawyer working as a prosecutor. She realized “the law is not legal theory, it’s facts.” Sotomayor, talking about the “Tarzan Murderer,” a case she prosecuted, wherein a man broke into houses by swinging in on ropes and killing people. Sotomayor says the murderer destroyed families. She says she learned prosecutors must be sensitive to the price crimes place on society. Sotomayor says she used a novel legal theory to try the different murders as one case.
9:42: Leahy asks, as a judge, how she handles new legal theories. Sotomayor says she considers whether the law, as it exists, applies. Leahy asks about Ricci case. Asks Sotomayor for her reaction to Supreme Court reversal in firefighters case. She says she was following precedent. She points out this was a challenge to a test which everyone agreed had a great disparity in passage rates of different groups, and the city was reacting to the threat that there would be a legal challenge had it kept the test. Sotomayor said she was following 2nd Circuit precedent, but Supreme Court put out new standard when it reversed her. Sotomayor confirms to Leahy prompt that the new standard, supported by 5 members of Supreme Court, is the standard now to be applied by lower courts.
9:51: Leahy brings up “wise Latina” comments, compares it Alito talking about his parents being immigrants. Offers to let Sotomayor respond. Sotomayor says she gave variations of that speech to lots of groups, and she says she was trying “to inspire them to believe that their life experiences would enrich the legal system.” Sotomayor: “I do not believe that any ethnic, racial, or gender group has an advantage in sound judgment.”
9:57: Leahy asks about guns. Sotomayor confirms that she believes DC v. Heller establishes 2nd Amendment as individual right. Leahy points out Scalia opinion in Heller expressly didn’t answer whether 2nd Amendment applies to states. Sotomayor decision had said it doesn’t. Leahy points to some other Bill of Rights rights that don’t apply to states. e.g. right to jury trial. Sotomayor says she understands how important guns are to many Americans. “I have friends who hunt.” She says she has an open mind on question of applicability to states.
10:02: Leahy asks about particular case regarding forced prostitution, brought against a mayor. Defendant claimed federal law violated Commerce Clause, since it wasn’t an interstate crime. Sotomayor says she had no problem reaching her conclusion.
10:04: Sessions is up. Brings up “wise Latina” comment, time when she said appellate court is where policy is made. Sotomayor says she, when made comment about policy, was talking about difference between district and appellate judges: district court decisions don’t bind anyone, but appellate decisions bind lower courts and therefore has policy implications.
10:10: Sotomayor: “Life experiences have to experience you. We’re not robots.” Sotomayor says judges have to be careful not to let experiences determine outcome, but there are times when the law requires examination in light of experiences. Sotomayor says judges must be conscious of experiences to ensure they don’t affect outcomes. Ignoring them runs the risk of letting them influence outcomes without noticing. Sotomayor says she thinks life experiences influence, but Sessions says past statements indicate she accepts that and thinks it’s OK.
10:17: Sessions reads Sotomayor quote about choosing to see some facts in light of personal views. Sotomayor says that’s why there are multiple appellate judges: each sees different things. Sessions: “You doubt the ability to be objective in your analysis.” How can you reconcile that with oath to impartiality? Sotomayor says her statement left impression that life experiences command a result in a case. Not what she meant to convey. Sessions points out she repeated that statement about 7 times over a period of years.
10:22: Sessions moves on to Ricci case regarding firefighters reverse discrimination. Sessions reads from SCOTUS opinion, reversing Sotomayor, finding city threw out test for racial reasons. Sotomayor points out Judge Posner, a conservative pragmatic judge, used the same methodology she did when looking at a similar case.
10:27: Sessions is asking about procedural issues: Ricci decision was short, didn’t discuss legal issues, and was unsigned. Sessions points out other judges on the circuit thought the precedent wasn’t binding and voted to rehear the case. Sessions doesn’t give Sotomayor a chance to respond. Sessions asks why Ricci opinion didn’t talk about Adarand case. Sotomayor says that was a different question. She also says the opinion was short because the district court decision was lengthy and discussed 2nd Circuit precedent.
10:36: Sessions asks if she thinks Ricci and other firefighters were satisfied with such a short decision. Sotomayor says they had the lower court decision, and in fact they were very sympathetic to the firefighters.
10:37: Leahy puts ABA unanimous “well qualified” rating into the record. Also NY Bar evaluation and CRS evaluation.
10:39: Kohl is up. Asks whether Ricci was a close case. Sotomayor says reasonable minds can differ. Kohl says Alito said to look at his record to determine what kind of Justice he’d be. Sotomayor’s record, Kohl says, shows infrequent reversal. Kohl brings up umpire analogy. “But analogies are always imperfect,” she says. She says open mind is what’s important. Kohl asks about her views on current Justices. She says she doesn’t want to pick one over another, each being valuable. Sotomayor instead offers Justice Cardozo as someone she admires.
10:46: Kohl getting into issues. Affirmative action: what does she think? Sotomayor pauses to think, then says scope of affirmative action is a legislative question. Sotomayor says Constitution requires equal protection of all, and race must sometimes be considered in some form. Sotomayor says that, as Justice O’Connor wrote, it’s her hope that in 25 years race won’t be needed to be considered. Kohl asks about Bush v. Gore. “That case took the attention of the nation, and there’s been so much discussion…” Sotomayor stalls. Then she refuses to take a position. Sotomayor says some good came out of Bush v. Gore in that there were changes to the electoral system in response to the problem.
10:53: Kohl asking about Kelo decision: what is an appropriate “public use” for condemning private property? Sotomayor says Kelo said there is a role for courts to play in examining whether taking serves a public use. Kohl points out Sotomayor is just summarizing the case, but he wants to know her opinion on it. Sotomayor says only “I don’t prejudge issues” and doesn’t give an opinion. Kohl lets her off the hook.
10:56: Moving on to abortion. Kohl asks about constitutional right to privacy, and where is it found? Sotomayor gives a list of amendments where the right has been found by the Court. She says Roe, Casey are settled law. Kohl moves on.
10:59: Cameras in the courtroom. Sotomayor had cameras in lower courtrooms. Kohl asks about term limits for federal judges. Sotomayor: that’s a policy question for Congress, but there is value in services of judges for long periods of time. Kohl asks about antitrust and price-fixing. Sotomayor says Court decisions are precedent. She says she’ll approach new cases with an open mind, considering the law.
11:27: Back from the break. Leahy says we’ll have 2 more senators and then break for lunch until 2 PM EDT.
11:28: Senator Hatch’s turn. He asks about Gonzales v. Carhart, saying partial-birth abortion ban is constitutional. Sotomayor says that’s precedent, so it’s settled law. Hatch moves on to gun rights. Hatch asks if it would be proper for her to cite Miller, an early gun case, since the DC v. Heller decision dismissed that case as not being a thorough examination of the Second Amendment. She points out that Justice Scalia in his Heller decision left open the question of application of the Second Amendment to the states. She refuses to give an opinion, since there are pending cases asking that question. Sotomayor points out that even without the 2nd Amendment, state gun regulations still have to have a rational basis for regulating. Sotomayor says her earlier rulings on guns were based on precedents, not reexamination of the Second Amendment. Hatch asks how she decides which rights are fundamental enough to apply to states, and she says that the Second Amendment hasn’t been applied to states, refusing to engage in the theoretical discussion.
11:39: Sotomayor and Hatch have a discussion about nun-chucks. Weird. Hatch moves on to Ricci. Hatch says Sotomayor opinion in Ricci case didn’t cite any precedent. Sotomayor says they adopted the lower court opinion, which did cite precedents. Hatch is challenging the precedents cited by the district court in the Ricci case. Sotomayor says the principles were the same in cited cases, even if the applications were different. Hatch asks why they adopted the lower court reasoning instead of doing their own analysis, but he doesn’t really give Sotomayor a change to respond. Hatch brings up criticism of Frank Ricci’s appearance. Sotomayor has nothing to do what that, Hatch says. But then why bring it up?
12:01: Feinstein says she’s confused about why Estrada keeps coming up, since his credentials weren’t as good as Sotomayor’s and he refused to answer questions while she’s being responsive. Feinstein corrects that Ginsburg’s dissent in Ricci case would have affirmed Sotomayor’s opinion in Ricci. Feinstein is complaining that Sotomayor is being cast as an activist because she applied precedent in Ricci, and then SCOTUS set a new standard.
12:05: Feinstein asks about abortion: says SCOTUS has said law cannot put woman’s health at risk. Feinstein asks what to do when there are multiple precedents. Sotomayor defers, saying cases depend on factual situation, and each case is different. Sotomayor says each precedent must be given deference. Feinstein reads criticism from Justice Scalia of Roberts overruling of precedent without explicitly saying so. Sotomayor says there are times to reexamine precedent, but it should be done “very, very cautiously.”
12:11: Feinstein asks about executive power. What does Sotomayor think about signing statements? Sotomayor says courts are grappling with question of signing statements and executive interpretation of constitutionality, so she’s hesitant to answer. Sotomayor brings up Justice Jackson’s three-level scheme in the Youngstown case. Sotomayor doesn’t really give an opinion, but discusses the framework. Feinstein questions National Security Letters forbidding recipients from talking about them. An opinion joined by Sotomayor cautioned against the judiciary being used to punish people for speaking about something just because the executive branch ordered them silenced. Sotomayor said that if the government were going to stop people from speaking, it had to get court approval, rather than forcing the individual to challenge the order.
12:22: Feinstein moves on to the Commerce Clause, listing some federal laws that claim constitutionality under the Commerce Clause. She asks Sotomayor if she agrees with recent striking down of some laws as exceeding Commerce Clause, but Sotomayor refuses to answer, saying that might come before Court. Feinstein asks specific case: law restricting distance guns have to be kept away from schools. That’s the case of US v. Lopez. Sotomayor discusses the factors the Court considered but doesn’t give an opinion. She did point out the Raich case, in which the Supreme Court upheld federal drug regulations against a challenge brought by a sick woman who wanted to use medicinal marijuana. “Congress has to legislate,” Feinstein says. “And in most cases” they need the Commerce Clause to do that.
12:30: Recess for lunch. We will return at 2 PM EDT, with Senator Grassley up first.
9:31: Senator Leahy has gaveled the hearing into session. He is introducing Sotomayor again. His first question: what qualities should a judge possess? Sotomayor says the “process of judging is the process of keeping an open mind.” She says it’s important not to prejudge, to understand what the parties are arguing, examining the facts as proven or not, and making a decision.
9:36: Leahy asks about a prosecution she made. How did her experience as a prosecutor affect her? Sotomayor says law schools teach you legal theory, but she became a lawyer working as a prosecutor. She realized “the law is not legal theory, it’s facts.” Sotomayor, talking about the “Tarzan Murderer,” a case she prosecuted, wherein a man broke into houses by swinging in on ropes and killing people. Sotomayor says the murderer destroyed families. She says she learned prosecutors must be sensitive to the price crimes place on society. Sotomayor says she used a novel legal theory to try the different murders as one case.
9:42: Leahy asks, as a judge, how she handles new legal theories. Sotomayor says she considers whether the law, as it exists, applies. Leahy asks about Ricci case. Asks Sotomayor for her reaction to Supreme Court reversal in firefighters case. She says she was following precedent. She points out this was a challenge to a test which everyone agreed had a great disparity in passage rates of different groups, and the city was reacting to the threat that there would be a legal challenge had it kept the test. Sotomayor said she was following 2nd Circuit precedent, but Supreme Court put out new standard when it reversed her. Sotomayor confirms to Leahy prompt that the new standard, supported by 5 members of Supreme Court, is the standard now to be applied by lower courts.
9:51: Leahy brings up “wise Latina” comments, compares it Alito talking about his parents being immigrants. Offers to let Sotomayor respond. Sotomayor says she gave variations of that speech to lots of groups, and she says she was trying “to inspire them to believe that their life experiences would enrich the legal system.” Sotomayor: “I do not believe that any ethnic, racial, or gender group has an advantage in sound judgment.”
9:57: Leahy asks about guns. Sotomayor confirms that she believes DC v. Heller establishes 2nd Amendment as individual right. Leahy points out Scalia opinion in Heller expressly didn’t answer whether 2nd Amendment applies to states. Sotomayor decision had said it doesn’t. Leahy points to some other Bill of Rights rights that don’t apply to states. e.g. right to jury trial. Sotomayor says she understands how important guns are to many Americans. “I have friends who hunt.” She says she has an open mind on question of applicability to states.
10:02: Leahy asks about particular case regarding forced prostitution, brought against a mayor. Defendant claimed federal law violated Commerce Clause, since it wasn’t an interstate crime. Sotomayor says she had no problem reaching her conclusion.
10:04: Sessions is up. Brings up “wise Latina” comment, time when she said appellate court is where policy is made. Sotomayor says she, when made comment about policy, was talking about difference between district and appellate judges: district court decisions don’t bind anyone, but appellate decisions bind lower courts and therefore has policy implications.
10:10: Sotomayor: “Life experiences have to experience you. We’re not robots.” Sotomayor says judges have to be careful not to let experiences determine outcome, but there are times when the law requires examination in light of experiences. Sotomayor says judges must be conscious of experiences to ensure they don’t affect outcomes. Ignoring them runs the risk of letting them influence outcomes without noticing. Sotomayor says she thinks life experiences influence, but Sessions says past statements indicate she accepts that and thinks it’s OK.
10:17: Sessions reads Sotomayor quote about choosing to see some facts in light of personal views. Sotomayor says that’s why there are multiple appellate judges: each sees different things. Sessions: “You doubt the ability to be objective in your analysis.” How can you reconcile that with oath to impartiality? Sotomayor says her statement left impression that life experiences command a result in a case. Not what she meant to convey. Sessions points out she repeated that statement about 7 times over a period of years.
10:22: Sessions moves on to Ricci case regarding firefighters reverse discrimination. Sessions reads from SCOTUS opinion, reversing Sotomayor, finding city threw out test for racial reasons. Sotomayor points out Judge Posner, a conservative pragmatic judge, used the same methodology she did when looking at a similar case.
10:27: Sessions is asking about procedural issues: Ricci decision was short, didn’t discuss legal issues, and was unsigned. Sessions points out other judges on the circuit thought the precedent wasn’t binding and voted to rehear the case. Sessions doesn’t give Sotomayor a chance to respond. Sessions asks why Ricci opinion didn’t talk about Adarand case. Sotomayor says that was a different question. She also says the opinion was short because the district court decision was lengthy and discussed 2nd Circuit precedent.
10:36: Sessions asks if she thinks Ricci and other firefighters were satisfied with such a short decision. Sotomayor says they had the lower court decision, and in fact they were very sympathetic to the firefighters.
10:37: Leahy puts ABA unanimous “well qualified” rating into the record. Also NY Bar evaluation and CRS evaluation.
10:39: Kohl is up. Asks whether Ricci was a close case. Sotomayor says reasonable minds can differ. Kohl says Alito said to look at his record to determine what kind of Justice he’d be. Sotomayor’s record, Kohl says, shows infrequent reversal. Kohl brings up umpire analogy. “But analogies are always imperfect,” she says. She says open mind is what’s important. Kohl asks about her views on current Justices. She says she doesn’t want to pick one over another, each being valuable. Sotomayor instead offers Justice Cardozo as someone she admires.
10:46: Kohl getting into issues. Affirmative action: what does she think? Sotomayor pauses to think, then says scope of affirmative action is a legislative question. Sotomayor says Constitution requires equal protection of all, and race must sometimes be considered in some form. Sotomayor says that, as Justice O’Connor wrote, it’s her hope that in 25 years race won’t be needed to be considered. Kohl asks about Bush v. Gore. “That case took the attention of the nation, and there’s been so much discussion…” Sotomayor stalls. Then she refuses to take a position. Sotomayor says some good came out of Bush v. Gore in that there were changes to the electoral system in response to the problem.
10:53: Kohl asking about Kelo decision: what is an appropriate “public use” for condemning private property? Sotomayor says Kelo said there is a role for courts to play in examining whether taking serves a public use. Kohl points out Sotomayor is just summarizing the case, but he wants to know her opinion on it. Sotomayor says only “I don’t prejudge issues” and doesn’t give an opinion. Kohl lets her off the hook.
10:56: Moving on to abortion. Kohl asks about constitutional right to privacy, and where is it found? Sotomayor gives a list of amendments where the right has been found by the Court. She says Roe, Casey are settled law. Kohl moves on.
10:59: Cameras in the courtroom. Sotomayor had cameras in lower courtrooms. Kohl asks about term limits for federal judges. Sotomayor: that’s a policy question for Congress, but there is value in services of judges for long periods of time. Kohl asks about antitrust and price-fixing. Sotomayor says Court decisions are precedent. She says she’ll approach new cases with an open mind, considering the law.
11:27: Back from the break. Leahy says we’ll have 2 more senators and then break for lunch until 2 PM EDT.
11:28: Senator Hatch’s turn. He asks about Gonzales v. Carhart, saying partial-birth abortion ban is constitutional. Sotomayor says that’s precedent, so it’s settled law. Hatch moves on to gun rights. Hatch asks if it would be proper for her to cite Miller, an early gun case, since the DC v. Heller decision dismissed that case as not being a thorough examination of the Second Amendment. She points out that Justice Scalia in his Heller decision left open the question of application of the Second Amendment to the states. She refuses to give an opinion, since there are pending cases asking that question. Sotomayor points out that even without the 2nd Amendment, state gun regulations still have to have a rational basis for regulating. Sotomayor says her earlier rulings on guns were based on precedents, not reexamination of the Second Amendment. Hatch asks how she decides which rights are fundamental enough to apply to states, and she says that the Second Amendment hasn’t been applied to states, refusing to engage in the theoretical discussion.
11:39: Sotomayor and Hatch have a discussion about nun-chucks. Weird. Hatch moves on to Ricci. Hatch says Sotomayor opinion in Ricci case didn’t cite any precedent. Sotomayor says they adopted the lower court opinion, which did cite precedents. Hatch is challenging the precedents cited by the district court in the Ricci case. Sotomayor says the principles were the same in cited cases, even if the applications were different. Hatch asks why they adopted the lower court reasoning instead of doing their own analysis, but he doesn’t really give Sotomayor a change to respond. Hatch brings up criticism of Frank Ricci’s appearance. Sotomayor has nothing to do what that, Hatch says. But then why bring it up?
12:01: Feinstein says she’s confused about why Estrada keeps coming up, since his credentials weren’t as good as Sotomayor’s and he refused to answer questions while she’s being responsive. Feinstein corrects that Ginsburg’s dissent in Ricci case would have affirmed Sotomayor’s opinion in Ricci. Feinstein is complaining that Sotomayor is being cast as an activist because she applied precedent in Ricci, and then SCOTUS set a new standard.
12:05: Feinstein asks about abortion: says SCOTUS has said law cannot put woman’s health at risk. Feinstein asks what to do when there are multiple precedents. Sotomayor defers, saying cases depend on factual situation, and each case is different. Sotomayor says each precedent must be given deference. Feinstein reads criticism from Justice Scalia of Roberts overruling of precedent without explicitly saying so. Sotomayor says there are times to reexamine precedent, but it should be done “very, very cautiously.”
12:11: Feinstein asks about executive power. What does Sotomayor think about signing statements? Sotomayor says courts are grappling with question of signing statements and executive interpretation of constitutionality, so she’s hesitant to answer. Sotomayor brings up Justice Jackson’s three-level scheme in the Youngstown case. Sotomayor doesn’t really give an opinion, but discusses the framework. Feinstein questions National Security Letters forbidding recipients from talking about them. An opinion joined by Sotomayor cautioned against the judiciary being used to punish people for speaking about something just because the executive branch ordered them silenced. Sotomayor said that if the government were going to stop people from speaking, it had to get court approval, rather than forcing the individual to challenge the order.
12:22: Feinstein moves on to the Commerce Clause, listing some federal laws that claim constitutionality under the Commerce Clause. She asks Sotomayor if she agrees with recent striking down of some laws as exceeding Commerce Clause, but Sotomayor refuses to answer, saying that might come before Court. Feinstein asks specific case: law restricting distance guns have to be kept away from schools. That’s the case of US v. Lopez. Sotomayor discusses the factors the Court considered but doesn’t give an opinion. She did point out the Raich case, in which the Supreme Court upheld federal drug regulations against a challenge brought by a sick woman who wanted to use medicinal marijuana. “Congress has to legislate,” Feinstein says. “And in most cases” they need the Commerce Clause to do that.
12:30: Recess for lunch. We will return at 2 PM EDT, with Senator Grassley up first.
Sotomayor Confirmation Liveblog Day 2 PM
14:23: Grassley asks about the Entergy case, which held the EPA could not use cost-benefit analysis. He says this was against precedent, and the case was reversed by the Supreme Court. Sotomayor goes into a lengthly discussion of agency deference.
14:32: Senator Feingold’s turn. Feingold jokingly says he’s enjoying this so much he hopes they put cameras in the Court so he can see more. Feingold asks if the 9/11 terrorist attacks changed Sotomayor’s views on civil rights and individual liberties. Sotomayor says 9/11 had an impact on her; she was living in New York at the time, near the WTC. Sotomayor says the Constitution protects rights. Did it change her view of the Constitution? No, “the Constitution is a timeless document.” Feingold asks for her understanding of the Guantanamo detainee cases. Sotomayor: the Court is doing its task. The Court looks at the actions and applies constitutional review.
14:39: Feingold says they discussed with previous nominees the process for examining the scope of executive power. Feingold points out in Youngstown the Court approved President Truman’s actions. Sotomayor says the framework still stands. Feingold asks if she knows of any time presidential action has been invalidated as against Congress’s mandate. Sotomayor doesn’t give an example. Feingold brings up the torture memos written by the Department of Justice Office of Legal Counsel. Feingold asks if she thinks it odd that those memos didn’t mention Youngstown.
14:45: Feingold says he was “elated” when the Supreme Court ruled the Second Amendment protected an individual right, and he thinks she did the right thing in holding the Second Amendment was not yet incorporated against the states. Sotomayor agrees that she would recuse herself if her lower court decision were heard by the Supreme Court. She would not, however, necessarily recuse herself if a related case came up. Sotomayor won’t even say what test she would apply for deciding whether Second Amendment applies to states, since litigants will argue about what the standard should be.
14:52: Feingold asking about secret laws, like FISA rulings and OLC memos. These documents have the effect of law, but they’re not public. Does this concern you? Sotomayor points out Congress designed FISA that way, with their opinions being secret. That’s a legislative decision, not a judicial one.
14:57: Feingold asks about empathy. He says it’s important for judges to understand the real world implications of their actions. What about people who don’t live in big cities? How can you empathize with them? Sotomayor says she has visited and vacationed on farms, mountain tops, and other places. When she travels, she tries to stay with friends. She likes to try to experience other things.
15:00: Feingold asks about Supreme Court approval of detention of Japanese Americans. Sotomayor agrees it was a bad decision. “A judge should never rule from fear,” she says. To resist pressure, a judge must have wisdom.
15:02: Senator Kyl is up. He asks if she would recuse herself if other state gun law challenges came up. Sotomayor says recusal is discretionary, and she’d decide recusals in discussion with colleagues. Kyl wants to know why she wouldn’t necessarily recuse herself in the other cases. Sotomayor says it depends on the circumstances. Sotomayor points out state statutes differ, however. Kyl says Alito and Roberts promised to recuse themselves in broader circumstances, but Sotomayor says she doesn’t think their promises were that broad.
15:10: Kyl asks about the role of “the heart” in making decisions. Sotomayor says it’s not the heart that decides the case, it’s the law. Kyl asks whether she’s been able to find a legal basis for every decision she’s made. Sotomayor describes how she decides cases.
15:16: Going to her speeches, Kyl asks about the “wise Latina” parts of her speeches. Reading substantial portions of her speech, Kyl says the clear inference is that she’s saying the influence of her background is a good thing. Sotomayor says to look at her record: 17 years show that she doesn’t make decisions on the basis of her biases. Sotomayor says the intent and structure of her speeches was to inspire them “to believe that life experiences enrich the legal system.”
15:36: 10-minute break.
15:53: Senator Schumer is up. Schumer says empathy is the opposite of indifference, not of neutrality. Schumer asks about the case coming out of TWA crash off Long Island. Sotomayor wrote a dissent in that case, suggesting the court should have rejected their claims. The legislature, she said, made that policy choice to not allow such claims. She said she felt regret, but she had to decide the way she did. Congress afterward changed the law to allow the suits. Schumer also asks about a case brought by black corrections officers, asking if Sotomayor could understand how they felt. Sotomayor says the result was compelled by law, though. Schumer also asks about a case where a woman was denied a home loan. Schumer then asks about a case about a police officer fired for offensive, racist speech. Sotomayor dissented in that case, saying offensiveness and racism were not grounds for dismissal. “The employee’s right to speech had to be respected,” she wrote.
16:16: Schumer asking about use of foreign law. Says she’s been quoted out of context. Asking for clarification. Sotomayor says it’s improper to use foreign law to interpret the Constitution. Sotomayor says that, except when interpreting treaties or conflicts of law, she’s never cited foreign law. Schumer laughs at Justice Scalia’s common citation of dictionaries, asks Sotomayor if dictionaries are binding law.
16:23: Senator Graham is up. Graham says her cases make her sound like Roberts, but he doesn’t know how to reconcile that with her speeches. “Don’t become a speechwriter,” Graham tells Sotomayor. Sotomayor says she’s not a disciple of the legal realism school. Asked if she’s a strict constructionist, she says she doesn’t use labels. Graham asks her to define strict constructionism, originalism. She refuses to say whether she’s either. “The Constitution is a document that’s immutable in the sense that it’s last us 200 years,” Sotomayor says.Graham asks if she thinks Roe v. Wade changed society. Sotomayor doesn’t really respond. Graham asks if anything in the Constitution says that states can’t regulate abortion. Sotomayor starts saying the Court has interpreted something and is cut off. Graham: a lot of us feel that the best way to change society is a the ballot box; a lot of us are concerned that unelected judges are very quick to change society in a way that is disturbing. Graham brings up the temperament issue, reading some evaluations by lawyers of Judge Sotomayor. Sotomayor: 2nd Circuit only gives 10 minutes each, so they pepper attorneys with questions, and some attorneys find that difficult. Graham: They find you difficult and challenging.
16:35: Graham brings back the “wise Latina” comment. Graham says there is hope in the middle east that they will have a court system that will judge people by what they did not who they are. Graham says he hopes there will be more women in the law, but he is concerned about her speeches.
16:42: Sotomayor: 9/11 “The most horrific experience of my personal life.” Graham asks about the people behind the attacks, the role of women in their world. Graham asks if Sotomayor believes we are at war, and Sotomayor says that we are, having soldiers on battlefields. Graham asks if she knows about military law. Graham: Do you believe there are people out there right now plotting our destruction? Sotomayor: Based on the statements I’ve seen, yes. Graham asks if there is a requirement to release a member of the enemy force while there is still a threat. Sotomayor wavers, says she’s not an expert. Graham says she should go back and look at that before second round of questions.
16:46: Graham asks about Puerto Rican Legal Defense Fund. Sotomayor says she was a board member, not involved in litigation. Sotomayor says she never reviewed their briefs. Graham says they argued for taxpayer funds for abortion. Graham asks if she agrees with statements in briefs. Sotomayor offers to explain function of board members as opposed to staff. Sotomayor says board spent most of its time fundraising. Any review of legal work was to ensure it went along with broad mission of fund. Graham: did mission statement include taxpayer funded abortion? Sotomayor: mission statement was broad like the Constitution. Graham: would it bother you if they advocated for taxpayer funded abortion? Sotomayor: they lobbied for public health issues. Graham: is abortion a public health issue in your mind? Graham says PRLDF also tried to abolish death penalty, asks Sotomayor for her opinion of it. Sotomayor says SCOTUS has said death penalty appropriate under some circumstances.
16:54: Durbin up. Describing the number of speeches, cases in Sotomayor’s record. Durbin discusses Justice Blackmun’s change of mind on the death penalty, saying it had been mishandled. Sotomayor says she’s hesitant to express a view. Durbin reads some statistics about the disparate racial impact of the death penalty. Sotomayor had a case before her where defendant challenged application of death penalty. She rejected the challenge. Sotomayor said questions about applications of the death penalty are a legislative policy concern. Durbin asks about the recent Supreme Court case regarding access to DNA evidence, asking if the Court can use Due Process to make changes to death penalty policy. Sotomayor says the Court doesn’t make broad policies. Durbin says an unnamed Justice told him to look into our corrections system, saying it has to be the worst in the world. Durbin speaking about the racial differences in incarceration rates and the impact that has on what people think of the court system. Sotomayor says she knows these issues are important to Durbin, and she knows it must be frustrating when nominees don’t engage. But, Sotomayor says, that’s not her role as a judge. She has to follow the law as passed by Congress.
17:18: Finally, Durbin asks about immigration courts, referring to a “scathing” opinion by Judge Posner. Sotomayor says some things have changed with immigration courts since Judge Posner’s 2005 opinion. Sotomayor refers to Ashcroft’s “streamlining” of immigration courts, saying it was imperfect. Sotomayor says there is more cooperation b/t courts and immigration authorities on process. Durbin asks if Sotomayor thinks it has changed since 2005. She says in last 2-3 years, the number of cases questioning the processes has decreased.
17:24: Leahy announces we’re about to break for today and will return at 9:30 tomorrow. Will finish first round, then go to closed session.