Sotomayor Confirmation Hearing

Orrin Hatch questioning about abortion. Hatch is talking about a brief that was filed by the "fund." She did not serve as a lawyer for the "fund" and did not review the briefs.

It's amazing how dumb Senators look when compared to these candidates.

Cycloptichorn

Sen. Grassley is discussing the Baker case. Sotomayor promised yesterday to review the Baker case. She informed Grassley that the issue is currently being litigated and she cannot prejudge.

Grassley discussing "vacuums in law" and Justice Souter.

Here's a link to a 1990 article concerning the subject:

http://www.nytimes.com/1990/09/15/us/filling-in-the-blanks.html

Sotomayor said it is very danger to use analogies because they are imperfect. She would not use Justice Souter's words because they are his words. She says that judges interpret the law as written and apply it to new situations.

Kyl is questioning now, and he is discussing the Ricci case again!!!!

Kyl now pressing on the issue of incorporation of the 2nd Amendment.

She again explains that the question in the Maloney case was very narrow--whether the State's regulation of a nunchuka--a very dangerous weapon--was reasonable.

They are discussing levels of scrutiny, i.e., rational basis which has more deference to the state and strict scrutiny which requires the state to meet a higher burden. Heller left the issue of standard of review (level of scrutiny) unanswered.

Sotomayor agrees that it is a concern to some people that cities and states will regulate their firearms under a deferential standard to the city or state if the 2nd Amend. is not incorporated through the Fourteenth Amend. as a fundamental right and made applicable to the states.

C-Span posted the link to excerpts from the Senate's hearings on the Souter nomination (vacuum discussion):

http://www.nytimes.com/1990/09/18/us/excerpts-from-senate-s-hearings-on-the-souter-nomination.html?pagewanted=all

Graham is questioning (mostly LECTURING).

He wants to know why we need to give the mastermind of 911 his day in court; and wants to talk about what this country is facing (national security).

He is talking about Hamdan line of cases.

You cannot hold people indefinitely without trial in civil courts.

Graham discussing military law and states (paraphrasing) if one of our pilots/soldiers is held by the enemy, that pilot/soldier does not have the right to require the enemy to take him before a civil court.

Graham wants to know if there is any point, just through the passage of time, when we must release an enemy combatant.

Sotomayor mentioned the values of our country might at some point require some process.

Graham says some people we're holding--if we (ever) let them go--will try to kill us. Some of them deserve to be in jail until they die--and he wants the world to know that America is not a bad place because there will be a process that allows our country to keep an enemy combatant until he dies.

Graham says, if you get on this court and look at our future military commission act, please remember we're not talking about domestic criminals, but rather the most dangerous enemies we have ever faced.

Sen. Coburn talking about Madison quotes. (The men are not angels passage from the Federalist Papers). He wants to know about interpretations of the commerce clause wherein it pretty much allows Congress to do anything it wants. Sotomayor informed Coburn that there are limits.

Leahy asking about the rule wherein it takes 4 to grant certiorari, but 5 justices to issue a stay of a death penalty sentence. There have been instances wherein a 5th vote could not be had and a prisoner was executed before the case is heard.

How would you approach the issue if you are asked to be the 5th vote to stay execution? I believe that she responded that a stay should be granted and she would cast the 5th vote. Leahy noted that others have stated the same thing but something happens somewhere between the confirmation hearing room and the new justice's journey over to the Supreme Court building....

I'm sure Sotomayor will inform her eight colleagues that terrorists with boxcutters are more dangerous than communists with nukes.

More on the Baker case from the NY Times live blogging link:

Marriage | 12:37 p.m. Senator Grassley presses for the second day in a row on whether a Minnesota case, Baker v. Nelson, is standing precedent on marriage. (In 1971, the Minnesota Supreme Court ruled that marriage was only between opposite sexes. The Supreme Court declined to hear an appeal by the plaintiffs, saying there was no substantial “federal” issue to be resolved.

Interestingly, Judge Sotomayor told the senator that she didn’t believe she’d ever read that case before he brought it up yesterday. (She had thought she’d read it in law school.) She explained that having read it last night, her understanding is that the case was decided at a time when jurisdictional issues over federal questions were mandated.

But the larger issue, she said, was that the Baker case and whether it involved questions of federal jurisdiction were now at the very heart of the challenges to same-sex marriage laws and to the Defense of Marriage Act that may be moving up through the courts right now. So she wouldn’t comment directly.

LINK

It is obvious that the new military commission act -- when it passes -- will provide for indefinite (lifetime--until they're dead) detention for enemy combatants who cannot be tried (because they were tortured and the evidence is tainted) but cannot be released because someone determines they are too dangerous. The Senator appeared to be lecturing and pleading Sotomayor not to rock the boat.

From the NY Times link:

Judges Don’t Run the Wars | 1:00 p.m.
Expounding for much of his time on military commissions and the ways to prosecute suspected terrorists, Senator Lindsey Graham barely asked the judge any questions. Rather, he pounded home the point that some of the members of Al Qaeda should never be afforded release, as suspects are under speedy trial laws in domestic criminal law.

Mr. Graham, who delved quite deeply into military law, implored the judge to remember that as Congress dealt with such issues as perhaps preventive detention and trials of suspected terrorists, to remember that today’s terrorists don’t wear uniforms. Some don’t deserve the right to habeas corpus, he argued, as he and others are reviewing legislation to ensure a judicial system of prosecution for such prisoners. “Unelected judges can’t run the war,” he argued.

The woman needs to work on her Spanglish because she is currently mangling the English language.

Sessions offers to "do that crack cocaine thing" during recess with one of the witnesses. Sessions on crack -- not sure I'd want to see that.

I don't understand why the firefighters are given seats on the panel to testify.

Has Frank Ricci testified yet?

He did read a prepared statement. It had nothing to do with Judge Sotomayor.

Judge Sotomayor's former boss (district attorney) just testified that he was the one who recommended to her that she join the Puerto Rican Legal Defense Fund in order to assist minorities to fight against discrimination.

Thank you. I'll look for it online.

Here's another link to a Live Blog from the Wonk Room:

http://wonkroom.thinkprogress.org/2009/07/16/sotomayor-day4/

The text has several interesting hyperlinks, but I haven't transferred them, but here's an excerpt:

4:07: Your humble blogger needs to step away for a moment. Let him know what he misses.

4:01: Interesting exchange between Specter and the firefighters. Specter asks the firefighters if they doubt Sotomayor’s good faith, both say that they are not lawyers and have no insight into that question, they simply testified because they were invited to tell their stories and they wanted to tell them.

3:58: Hatch is dwelling on the dead horse claim that all nine justices disagreed with Sotomayor in Ricci.

3:43: Klobuchar and Specter get in a politeness war over

3:40: Graham to Ricci: we are one generation removed from a time when the color of your skin and your last name were the only thing that mattered when you tried to get a job. Now we are trying to find balance.

3:37: Lindsay Graham (!) pushes back against Chavez’s claim that Sotomayor has a record of racial politics, noting that the ABA reached a different conclusion. Also notes that Republicans frequently pick people for political jobs because they are minorities, adding that doing so is just “good politics.”

3:32: Morgenthau (who is white) notes that he was a founding board member of PRLDEF.

3:24: CBS: “Sotomayor Confirmation a Done Deal“

3:22: Sessions: “It’s not like anyone is opposed to the Voting Rights Act, I voted for it.” Sessions hasn’t always felt that way. He once called the VRA a “piece of intrusive legislation.”

3:21: Sessions: “We’re going to do that crack cocaine thing we talked about.” After laughter breaks out, he corrects himself, saying that he meant that he will support reducing the crack/powder disparity.


3:09: Peter Kirsanow, who just testified as a Republican witness, has some interesting views about internment camps for Arab-Americans.

3:06: Linda Chavez, a leading opponent of civil rights laws and Fox News commentator, opens her testimony with “I testify today not as a wise Latina woman.” Keep it classy, Ms. Chavez.

2:58: Ben Vargas, the other firefighter, is now testifying. Like Ricci, he emphasizes the essential role that firefighters play in protecting people’s lives, and his belief that he was judged on the basis of his race. Like Ricci, we agree that Vargas is an heroic man who was caught up in circumstances he could not control. He lost his case because of a binding precedent, not because of any verdict on his character.

2:50: Ricci’s remarks focus on the great deal of specialized knowledge that firefighters must have, his belief that the test that he took did a fine job of testing this knowledge, and how hard he worked to pass the test. To be clear, no one doubts that Ricci, a man who spent his entire career running into burning buildings to save people’s lives, is a dedicated and heroic firefighter. As a judge, Sotomayor’s job was not to decide whether Frank Ricci is sympathetic"he would have won that case in a walk"the issue is what the law requires. In this case, Second Circuit precedent simply wasn’t on Ricci’s side.


2:48: Ricci’s up.

2:41: NY District Attorney Robert Morgenthau notes that Sotomayor will be the only justice with experience as a state prosecutor.

2:35: Bloomberg reiterates his support for PRLDEF: “Only in Washington could someones many years of volunteer service to a highly regarded nonprofit organization that has done so much good for so many be twisted into a negative.”

2:32: Bloomberg cites Brennan Center study finding that “Sotomayor voted with the majority in 98.2 percent of the 217 constitutional cases in which she participated, dissenting only four times. Moreover, 94 percent of those rulings were unanimous decisions.”

2:31: Mayor Bloomberg: Sotomayor should be supported by Democrats, Republican and Independents, “and I should know because I’ve been all three.”

2:26: Now he’s wasting time reading a letter from the NRA. Dead horse. Sessions claims that, because Heller, the Supreme Court’s big Second Amendment decision, was 5-4, Sotomayor could cast the key vote to overrule Heller. Of course Sotomoyor will replace Justice Souter, who dissented in Heller.

2:22: Sessions is still ranting about the summary order in Ricci. His broken record is now a dead horse.

2:17: Arkansas’ AG joined a brief supporting Sotomayor’s panel decision in Ricci which was also joined by Alaska’s AG. You betcha!

Read the rest here:

http://wonkroom.thinkprogress.org/2009/07/16/sotomayor-day4/

The distinction is between "foreign and domestic" not between boxcutters vs ICBMs. Sotomayor, btw, doesn't have "8 colleagues" yet - she's still a judge, not a justice. And Souter could have had the decency to resign before now, but that's another topic....