Now it gets fun. Yesterday, we liveblogged the opening statements from the Senate Judiciary Committee and Judge Sonia Sotomayor. Today, it’s time to get real with questions, answers, and more questions.
And we’ll be liveblogging it all for you again.
I’ve done a full preview for non-lawyers over on True/Slant. But regular Above the Law readers should be already prepared for all of the hard hitting substantive questions about constitutional interpretation.
To the extent that our U.S. Senators actually care about constitutional interpretation. It’s much more likely that we are in for a full day of “wise Latina” quips and a whole bunch of talking about one case (Ricci v. DeStefano) from Sotomayor’s 18 year judicial record.
Which is totally fair of course. This is the Senate’s one chance to ask questions of a person who is appointed for life and won’t ever need another promotion.
It should be fun. Check back throughout the day for updates, after the jump.
9:31: Senator Leahy lays out the ground rules: 30 minute rounds, going back and forth between both parties, from most senior to most junior. For her part, Sotomayor is bedecked in “bring-it-on” red over a black shirt.
9:40: Sotomayor says she became a lawyer in the prosecutor’s office. She was somewhat dismissive of the “legal hypotheticals” used in law schools. Was that an indirect slam at Yale, or a simple truth about the difference between law school and legal practice?
9:45: 15 minutes in and Senator Leahy is throwing her a softball on Ricci v. DeStefano, and the SCOTUS reversal. He said “ironically, if you had not followed the precedent, some would attack you for being an activist. Now you are being attacked for being biased and racist. It’s kind of a unique thing … how do you react?” Not a question, so much as a babbling introduction to what will end up being Sotomayor’s main talking points about Ricci.
9:53: Main Ricci talking point: Sotomayor had no choice on Ricci if she wanted to follow the law. Anybody buy that one? I’ve got a good deal on a bridge in New York City.
Now Leahy is giving Sotomayor a chance to explain the wise Latina comment.
9:59: Main wise Latina talking point: “The context of the words that I spoke gave everyone a misunderstanding … and to give everyone assurances, I want to state upfront, unequivocally, and without doubt, I do not believe that any racial or ethnic group has an advantage in sound judging.”
See white males, you don’t have to feel victimized by Judge Sotomayor.
10:07: It’s Jeff Sessions time. He wants to know if Sotomayor believes in “real law.”
10:14: Sotomayor is saying that because people have feelings and different experiences, judges have to be consciously aware of these feelings — but not let those feelings determine the outcome. Sessions believes this is directly opposite than what she has said before.
It seems like the core of the debate is whether it is ever appropriate for judges to have their prejudices guide the result, but both of them are saying that it is not appropriate. Sessions is saying that Sotomayor’s position today is inconsistent with her statements in the past.
10:20: Now she is saying that experiences will influence the result, but not drive the result. Sotomayor said “I do not permit my sympathies, personal views, or prejudices to influence the outcome of my cases.”
Sessions fires back with this past statement from Sotomayor: “I accept the proposition that a difference there will be by a presence of women and people of color on the bench, and that my experiences affect the facts I choose to see as a judge.”
It sounds like Sotomayor wants to take this back to her actual record, while Sessions wants to go with her past statements about judging.
10:30: Sessions reminds us that Sotomayor promised to apply strict scrutiny to questions of racial preference. He’s apparently pissed that the words “strict scrutiny” did not appear in in Sotomayor’s Ricci opinion. Sotomayor is trying to teach Session a lesson about “strict scrutiny” the legal concept, and “strict scrutiny” as a lay person might use the term.
It doesn’t look like it is working on Sessions. We’ll have to see what the American people are hearing.
10:44: As a lawyer, was Sessions under any duty to at least pretend like he understands the concepts of strict scrutiny and equal protection as a lawyer understands those terms? Or was it okay to use the more commonly understood, non-legal definitions of those words?
10:48: Senator Kohl asks Sotomayor which Justice she most admires and which Justice(s) she is most likely to agree with. What does he want to know next, what book is sitting on her bedside table?
Sotomayor says she doesn’t want to answer the question, but eventually waxes poetically about Justice Cardozo.
10:55: Kohl wants to know what Sotomayor thinks about affirmative-action and Bush v. Gore. These are two questions Sotomayor can’t possibly answer.
Sotomayor goes into a very elegant bullet-time dodge. Maybe next the Senator from Wisconsin can ask her about Sotomayor’s favorite cheese.
11:00: I love the Senate. Kohl asked if Sotomayor believed that Roe v. Wade was settled law. Sotomayor said that she did and that Planned Parenthood v. Casey reaffirmed the Court’s decision in Roe.
Unable to deviate from his script, Senator Kohl’s very next question was whether Sotomayor believed Casey “reaffirmed” the Court’s opinion in Roe. Sotomayor — looking like a person who just got smacked with a serious case of deja vu — stammered and eventually repeated herself. Nice job Senator.
11:30: We’re back after a short break. And with heavyweight Orrin Hatch. And we’re going right for the Second Amendment. Take the safety off, boys.
11:35: Sotomayor is trying to squeeze out of the issue by quibbling with whether or not the Second Amendment has been incorporated against the states, and whether a state can have a rational basis for regulating guns. Hatch is having none of it. “I’m not asking a hypothetical,” he said.
11:45: Unlike Sessions, Orrin Hatch is expressing a commanding knowledge of the rational basis standard. He’s arguing that rational basis is a permissive standard. Sotomayor doesn’t want to call it “permissive.”
11:50: Turning to Ricci, Hatch says “people all over the country are tired of the courts imposing their will against one group or another.” Do you guys agree with that? Are you tired of courts and their will against one group or another?
11:55: Nice push back from Sotomayor. Orrin Hatch suggested that all nine SCOTUS Justices disagreed with the way Sotomayor handled the Ricci case. Sotomayor clarified that the four dissenters wanted to case remanded back to the Second Circuit to apply the new standard that the majority made in its opinion. It’s a big difference and Sotomayor put it nicely.
But Hatch isn’t relenting. He’s suggesting that there was “little or no” Second Circuit precedent on the issue and the Circuit should have looked at this as an issue of first impression.
12:18: Great question from Senator Dianne Feinstein on signing statements. She asked if the President has the right to not follow certain parts of the law by way of a signing statement.
But the question is totally overboard. Sotomayor can’t really answer it. So instead she’s talking about Jackson’s concurrence in the Youngstown Steel case. You have to look at executive power in the context of the expressed or implied intent of Congress.
Sotomayor sounds a little bit like she thinks signing statements could be in Jackson’s “zone of twilight.” Interesting stuff.
12:30: Feinstein is getting very technical. She’s asking about the President’s latitude in national security, gun free schools, and environmental law. Sotomayor, of course, can’t answer anything on point.
But this little bit reminds me of confirmation hearings I’ve heard on tape or read transcripts of from before Bork. You know, before everything got super partisan. Of course, Feinstein is a Democrat, I don’t remember her (at all) being this substantive when Alito or Roberts were there.
12:40: So, the Judiciary Committee has broken for lunch. The big news for laypeople is going to be the “it was bad” quote Sotomayor gave in response to the wise Latina questions. For lawyers, I thought the Hatch questioning was easily the most interesting. And I think that the “zone of twilight” comment in response to presidential signing statements could be very interesting if she gets confirmed. One day SCOTUS will have to make a clear decision about these statements.
Lunch time!
Check out our continuing coverage of the confirmation hearings here.