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.

Senate Democrats Predict Republican Support For Sotomayor

By Justin Duckham-Talk Radio News Service

Senate leaders predicted Thursday that Supreme Court nominee Sonia Sotomayor will not only be confirmed by their fellow Democrats, but will also have a number of supporters on the other side of the aisle.

“There will be some Republicans voting for her. To not do so is to be blind to what qualifications and personality she has,” said Senate Majority Leader Harry Reid (D-Nev.) during a pen and pad session with reporters.

Senate Majority Whip Dick Durbin (D-Ill.) agreed, noting that the attempts made by some Republicans to find grounds to oppose her confirmation have fallen flat.

“They have scant evidence to use against here, and I think she has handled [the hearings] so well.

“I know that some Republican Senators have spoken to me and said that many are starting to lean her way,” Durbin added.

The pen and pad session was also attended by Sen. Charles Schumer (D-N.Y.) and Sen. Patty Murray (D-Wa.).

Sotomayor Confirmation Liveblog Day 4 AM

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.

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.