Liveblogging the Sotomayor Confirmation Hearing (Day 2)

Constitutional Accountability Center President Doug Kendall is once again liveblogging the Sotomayor confirmation hearing today. Click here to read yesterday’s liveblog. This blog will be updated periodically. Please refresh to see updates.

Updated 5:27: Okay folks, we’ll see you back here tomorrow shortly before 9:30 am. Thanks for following.

Updated 5:26: Durbin’s done questioning. Leahy says we’re done for today, and will reconvene tomorrow morning at 9:30. Once this round of questioning is done, the Senator’s will move to a second round of 20-minute questioning. Then there will be closed-door meeting between Senators and the nominee concerning her FBI background check, followed by witnesses.

Leahy appears to have been as bored this afternoon as we have in parts. He asks his colleagues to respect the rule against repeating questions saying, “I realize every question may have been asked, but not by everybody.” Good way to end the day.

Updated 5:18: Judge Sotomayor seems to be responding to Sen. Durbin’s speechifying by giving one of her own about why she can’t comment on policy issues.

Updated 5:17: Third row dispatch. Sen. Cornyn, who would be next to question Sotomayor, just left with his staffers. Are we near the end?

Updated 5:14: Sen. Durbin is making some important points about the sentencing system in this country, and in particular the 100 to 1 disparity in sentencing between cases involving crack and powder cocaine. Unlikely that Judge Sotomayor will want to say much about this.

Updated 5:00: Sen. Durbin seems to be channeling his former colleague, Joe Biden, giving a neverending speech lightly disguised as a question. We’re waiting for a question.

Updated 4:57: Sen. Durbin just said “wise Latina” Drink!!

Updated 4:53: We’ve now gotten to the best thread of evidence conservatives have to suspect that Judge Sotomayor may be in favor of the Court’s ruling in Roe v. Wade, and opposed to the death penalty: her decision to serve on the board of PRLDEF, which took these positions on those issues. Expect her to answer very carefully here.

Updated 4:50: For the first time Judge Sotomayor has clarified that, as a member of the Puerto Rican Legal Defense and Education Fund from 1980 to 1992, it was not part of her responsibility to review legal briefs of the Fund.

Updated 4:44: Sen. Graham seems committed to lecturing Judge Sotomayor on every available topic, including the impact of 9/11, something that, if he listened, he’d know she JUST discussed in a vary poignant manner, noting that she, unlike he, lives in the shadow of Ground Zero, and was personally affected by the aftermath in NYC.

Updated 4:42: Everyone, drink! (Because we all need one. And because Sen. Graham just said “wise Latina.”)

Updated 4:40: After just telling Judge Sotomayor he likes her, Sen. Graham launches into a pointed question focusing on anonymous comments by lawyers who have questioned her “temperament” on the bench. Graham should be careful here, given the comments Judge Sotomayor colleague Judge Guido Calabresi has made about how these comments may reflect a sexist view about Judge Sotomayor’s hard questioning. (See his quote here.)

Updated 4:32: Sen. Graham tells Sotomayor “I like you.” (In response, she writes something down on her notepad. Perhaps “Sen. Graham likes me.”???)

Updated 4:30: Sen. Graham is playing the “What’s your judicial philosophy game?” And he’s being a bit smug about it. So far, Judge Sotomayor is not playing along, though she did give a nice response to the question of whether she believes the Constitution is a “living, breathing” document. She explains that the document has changed only through the amendments.

Updated 4:23: Mkay Sen. Schumer is done. On to Lindsay Graham.

Updated 4:21: Things have taken a turn for the ridiculous. Schumer just called Sotomayor “Judge Scalia”, while Sotomayor just called the Washington Nationals by their old name, “the Senators.”

Updated 4:19: Dispatch from the third row. With the discussion turning to foreign law, Sens. Cornyn, Kyl, and Graham sat up straight and started paying attention. There’s a flurry of staffer activity on the Republican side. (Click here to learn they’re talking about.) Judge Sotomayor did a nice job of batting this issue away.

Updated 4:15: To ward off the boredom, here’s a link to Chairman Leahy’s cameo in “The Dark Knight.” (It starts at the 40-second mark.) Also, yesterday, Sen. Klobuchar shared that random story about how Leahy once nearly missed a call from the President because he was on stage with the Grateful Dead.

Updated 4:09 : Dispatch from the third row. All but three Democrats are at their seats right now. The three Republicans who are here, however, look bored out of their minds. (For once we’re concurring with the Republicans.)

Updated 4:00: Sen. Schumer’s softball questions are nonetheless effectively illustrating that Judge Sotomayor does not let empathy for plaintiffs trump her respect for the rule of law. This is an important part of Judge Sotomayor’s theme that has not been developed much up to this point.

Updated 3:58: If there’s a video dictionary that includes the term “softball questions” they should put a video of Chuck Schumer’s last two questions next to it.

Updated 3:45: We’re starting again. Sen. Schumer is speaking.

Updated 3:35: Sen. Leahy just called a 10-minute recess. We’ll resume liveblogging shortly.

Updated 3:31: Sen. Kyl is about 10-minutes into the “You said…” portion of the “You said….I meant….” debate over Sotomayor’s speeches. It’s clear that Republicans are not going to let go on this point. But we should pause for a second here to make clear how significantly Judge Sotomayor has changed this debate by distancing herself, fully, from President Obama’s remarks about empathy and the role of judges in close cases. I’ve been critical of the comments in the past and told the Washington Post recently, that Obama’s comments have made this confirmation hearing process more difficult for Judge Sotomayor. She has just made a bold and surprising move that will make this process easier.

Updated 3:21: Going back to this morning’s questions from Sen. Hatch regarding incorporation of the Second Amendment. For law nerds, we’ve just posted a more detailed analysis of the background of this question our blog, Text & History.

Updated 3:13: This is the first really big moment in Sotomayor’s testimony. Sen. Kyl, for the first time today, asked Sotomayor about statements made by President Obama about his judicial philosophy, and her response was unequivocal:

I would not approach judging the same way President Obama does… It’s not the heart that compels conclusions in cases, it’s the law.

Here she is undercutting a key component of the Republican case against her, and reinforcing her main theme, which is that she rules based on the law. Period.

Updated 3:07: Sen. Kyl is trying to get Sotomayor to agree that she will recuse herself from the Second Amendment incorporation case, which is likely to come before the Supreme Court soon. He’s not asking the most likely scenario, which is that the Court will grant review of the Seventh Circuit case, and hold the Second Circuit case ruling in Maloney (in which Sotomayor was involved). If that’s what happens, it would be surprising if Sotomayor decided she could not hear the case.

Updated 3:03: Judge Sotomayor just gave her most forceful answer today, responding to questions about the Court’s ruling in Korematsu, upholding the internment of Japanese-Americans during WWII, by saying flatly that the Court got this case wrong, that a judge should never rule of fear, and that it was “inconceivable” to her that a large category of Americans would be interned simply on the basis of race.

Updated 2:50: Judge Sotomayor has just worked herself into a perfect logical circle, saying something like “the Supreme Court’s more recent cases involving incorporation of the Bill of Rights against state action are more recent.”

Updated 2:42: Things are getting a bit slow here. We need a new drinking game. How about every time Sotomayor says “precedent,” take a drink and turn around 180 degrees.

Updated 2:33: Judge Sotomayor is now discussing what some critics have called her “missing ruling,” in a environmental case involving global warming. She correctly points out that the case was delayed first because of the pending Supreme Court ruling in Massachusetts v. EPA, and then refuses to say more about why this ruling has still not been issued over two years later, citing ABA code of conduct for judges, which prevents discussion of pending cases. Thus, the mystery remains.

Updated 2:28: Sen. Grassley gets the award, so far today, for the longest and most convoluted question. He’s asking about Judge Sotomayor’s ruling in Entergy v. Riverkeeper, a key environmental case protecting aquatic life when cooling power plants. Judge Sotomayor wrote a long and persuasive ruling that was adopted in large part by Justice Stevens in a dissent, when the Supreme Court reversed Riverkeeper. (See here for a discussion of how the Court this term reversed all of the five pro-environmental cases that came before it this term — all by a divided vote.)

Updated 2:21: Sen. Grassley is clearly reading scripted questions without any listening, at all, to Sotomayor’s answers. Thus he’s repeatedly asked questions she’s just answered.

Updated 2:14: Right before the first, rather prolonged outburst of the day…. Judge Sotomayor missed a few opportunities there to give Sen. Grassley a clear “yes” answer about the constitutional demand that just compensation be awarded whenever there is a taking. Grassley’s getting into harder questions about Sotomayor’s specific ruling in the Didden case. (Once again, the details of that case, which involved property rights, are here.)

Updated 2:09: Dispatch from the third row. Leahy’s punctuality is having a real impact on attendance. Only three Senators, Grassley, Leahy and Fiengold, are seated.

Updated 2:01: As a way of wrapping up the morning and previewing this afternoon, let me return to my first preview of the hearing, which discussed a narrow debate over Judge Sotomayor and a broader debate over the future of the Supreme Court and the Constitution.

The White House and Judge Sotomayor have to feel pretty good about how the first debate is going. This morning Senator Sessions and Senator Hatch threw at Judge Sotomayor the hardest questions she will face about her speeches, and her decisions in key cases including Ricci and Maloney v. Cuomo. Judge Sotomayor’s answers were solid, if unspectacular, and seems to diffuse, considerably, the main case republicans are trying to make against Sotomayor: that she cannot be trusted to be a fair and neutral judge. The debate over the speeches devolved into a “you said/I meant” debate that is inherently inconclusive. The debate over her cases seems hopelessly technical and uninteresting. Is she really going to be derailed for upholding a law against numchucks?

The larger debate about the future of the Supreme Court and the Constitution is fizzling on the shores of a nominee who has so far at least refused to say anything about any larger constitutional vision she may have. Her assertion to date is that she will “follow the law,” subject only to a multi-factored balancing test about when to overrule prior cases and discretion about how to apply established precedent. This is both uncontroversial and not too interesting. And so far at least it has prevented either side from making much headway in any larger debate they may want to have about the meaning of the Constitution and the future of the Court.

The question for this afternoon is whether any of the Senators can find a way to have a more illuminating discussion about the way Judge Sotomayor will approach novel questions of Constitutional law?

Updated 1:55: We’re getting started in a few minutes.

Updated 12:35: The Committee is now recessed until 2pm, when Sens. Grassley and Feingold will begin their questioning. We’ll resume liveblogging shortly before then.

Updated 12:33: Just before breaking for lunch Sen. Sessions interrupted to correct something he said earlier. Turns out he does not in fact have a letter from Miguel Estrada, a failed Bush nominee to the DC Circuit. Leahy remarks on the Republican obsession with Estrada’s nomination before gaveling the committee to the lunch recess.

Updated 12:28: Sen. Feinstein has just raised for the first time today rulings by a conservative majority on the Supreme Court that limit Congress’s authority under the Commerce Clause to address national problems, including environmental problems (which she’s focusing on right now).

Update 12:26: Dispatch from the third row: Most of the Committee members have left, apparently getting an early start on the lunch recess planned for 12:30.

Updated 12:24: Going back for a second, the Republican Senators have repeatedly slammed People for the American way for what they’re calling a “personal attack” on Frank Ricci, the lead plaintiff in the Ricci case. They’re referring to remarks published in this story published by McClatchy News Service. Here’s PfAW’s response to this clamor, and here’s a thorough piece by Dahlia Lithwick at Slate, chronicling the issue. We’ll let readers decide whether there is a legitimate issue here.

Updated 12:15: Oh wait, as all other recent nominees have, she just did.

Updated 12:14: For the first time Sen. Feinstein is raising the issue of the Bush Administration’s use of executive power and his issuing of signing statements asserting his authority not to follow parts of the law he believes interfere with his inherent power. Wait, expect her to cite Justice Jackson’s opinion in Youngstown.

Updated 12:10: Sen. Feinstein is doing a nice job of using Justice Scalia’s colorful criticism of rulings by Chief Justice Roberts to highlight the quiet activism of the Roberts Court.

Updated 11:59: More still about the details of the Ricci case, particularly the decision to use a summary order. Here’s what we’ve said about that aspect of the opinion in the past:

…the panel of judges considered itself bound by Second Circuit precedent, which was discussed at length by the district court, and issued a summary order pursuant to Second Circuit Rule 32.1 that adopted the district court’s reasoning. That Rule allows for summary orders when “no jurisprudential purpose” would be served by publishing a lengthy opinion; if a case is controlled by existing precedent, then “no jurisprudential purpose” is served by publishing an opinion. This practice is far from unusual: the Second Circuit Handbook notes that approximately 75% of the Circuit’s cases are disposed of by summary order. (The practice isn’t even unusual in the specific context of these sorts of discrimination claims: the Sixth Circuit Court of Appeals issued an unpublished decision in Oakley v. City of Memphis, 2008 WL 4144820 (2008), rejecting arguments that the City of Memphis violated Title VII when it refused to act on promotion exam results that had a disparate impact on minority test-takers, citing the district court’s opinion in Ricci in support.) The Ricci panel then converted the exact text of this order–the only addition was a citation to the district court’s opinion–into a published per curiam order, and the dissents from rehearing en banc (which disagreed with the panel’s ruling and initial decision to issue a summary order) were published on the following page of the Federal Reporter. It is unsurprising that this published order would be an unsigned, per curiam order, given that the panel was adopting the exhaustive reasoning of the district court. And, as noted by one of Judge Sotomayor’s colleagues, Judge Parker, there is also nothing unusual about adopting the reasoning of the district court in a published per curiam opinion–the court has been doing so for over a century, even in high-profile cases.

Updated 11:51: Sen. Hatch is walking through Maloney and Ricci, in pretty mind numbing detail. It’s unclear to me whether he is making any headway in undermining Judge Sotomayor’s assertion that she was simply following settled law in her Circuit.

Updated 11:48: Sen. Hatch is the first Republican to raise what I think is a ludicrous claim: the idea that all 9 justices disagreed with Judge Sotomayor’s ruling in the Ricci New Haven firefighters case. That was a 5-4 ruling, and even the majority agreed it was moving the law in a new direction. For more on this, see our post here.

Updated 11:45: Dispatch from the third row. The recess has taken its toll. The room is half empty. Only 4 Democrats are back at there seats, and 4 Republicans.

Updated 11:42: Sen. Hatch is raising a fascinating issue here about whether and how the Second :Amendment is “incorporated” against state action. For background here, read our report the Gem of the Constitution, and our brief arguing that the Second Amendment is incorporated against the states through the Privileges or Immunities Clause.

Updated 11:33: Predictably, also, Sen. Hatch follows up with a question about Judge Sotomayor’s earlier statement suggesting that the Second Amendment right to bear arms is not “fundamental.” Judge Sotomayor answer, that she’s using “fundamental” in the legal sense, concerning whether that right is “incorporated” against state action, comes across as, well, a little legalistic. (Again, to understand the three Second Amendment/incorporation cases at the Circuit level Sotomayor mentions, which will likely result in this issue coming before the Court very soon, see this piece.)

Updated 11:30: We’re back. Predictably, Sen. Hatch starts off by asking Judge Sotomayor what “settled” means, and whether the Court’s ruling in Gonzalez v. Carhart (the case upholding partial birth abortion) is also “settled.” Sotomayor explains that all prior rulings are settled law, subject to the doctrine of stare decisis (meaning settled doesn’t really mean settled).

Updated 11:22: While we’re on the break, for additional perspective on the hearings check out Tom Goldstein’s liveblog over at SCOTUSBlog.

Updated 11:09: Leahy has just called a “flexible” 10 minute break. We’ll resume liveblogging shortly.

Updated 11:08: In answering a long question by Sen. Kohl about antitrust law and the Supreme Court’s rulings in the Leegin case, Judge Sotomayor raises the question about the different views by members of the Court about the application of stare decisis (the idea the Court has to respect its prior rulings), but she doesn’t give an indication of when she believes prior rulings should be discarded. She’ll be pushed on this throughout the day.

Updated 11:03: Another dispatch from the third row, this one on fashion. Sen. Hatch hasn’t been seen on TV yet but he’s dressed like the flag: blue shirt, white collar, red tie. Meanwhile Sen. Kyl has taken off his jacket, while the others remain formal.

Updated 11:01: Sen. Kohl just quickly ran through some of the most contentious issues in modern constitutional law, including the right to privacy and the Court’s rulings in Griswald, Roe, and Casey. Judge Sotomayor’s fairly predictable answer is that these rulings are “settled” in that they are precedents of the Court. She does not give much away in terms of how she feels about these precedents or the right to privacy.

Updated 10:55: Sen. Kohl just asked about eminent domain in the Kelo case. For background on Judge Sotomayor’s record on property rights, see here and here.

Updated 10:53: Judge Sotomayor’s identification of Justice Cardozo as the justice with whom she most identifies seems a little odd because Justice Cardozo only spent 6 years on the Supreme Court and made his greatest mark on the law as a member of the New York Court of Appeals, where he was among America’s most celebrated state court judges.

Updated 10:47: Sotomayor does, however, name Benjamin Cardozo as the past Supreme Court justice with whom she most identifies, explaining Cardozo is known for his “respect” for precedence and “deference” to the political branches of government.

Updated 10:45: First question that Judge Sotomayor won’t answer: What current Supreme Court justice do you most identify with?

Updated 10:42: Sen. Kohl is now questioning Judge Sotomayor, and her entire demeanor is far less tense. She just gave a nice description of the role precedents of the Supreme Court play in “guiding and giving stability to the law.” This will be an important topic throughout the day.

Updated 10:38: Sotomayor: “we were sympathetic to the white firefighters and expressed that sympathy” but the law, expressed the district court’s opinion, was against them. This passage does a nice job of turning around the empathy issue, suggesting it’s Sen. Sessions’s who wants empathy for a litigant to trump the law.

Updated 10:35: Sen. Sessions just explained how important the Ricci case is based on the statement of Mr. Ricci’s lawyer that the case was important. Most of the time, the lawyer will say the case is important. That’s generally the lawyer’s job.

Updated 10:26: Sen. Sessions is getting into the procedural issues involving the Ricci (New Haven white firefighters) case. For more on how Ricci represented an instance of judical restraint, read this.

Updated 10:08: Dispatch from the third row: You can’t appreciate watching on TV how loud the constant clicking of the cameras is. However, even the photographers stopped clicking to listen to Sotomayor’s answer regarding Ricci.

Updated 10:05: Judge Sotomayor just gave her first extended discussion of an issue that is likely to come before the Supreme Court: the question of the whether the Second Amendment individual right to bear arms, recognized in Heller, applies to limit the actions of states and local governments. She gave a pretty comprehensive answer, indicating she would be pretty forthcoming in discussing pending cases — at least in terms of legal background. The gun rights community probably won’t like her assertion about gun rights not being “fundamental,” though she was careful in explaining what she meant.

Updated 10:00 : Sen. Leahy is asking about her Second Amendment ruling in Maloney v. Cuomo, which we discussed here.

Updated 9:58: Judge Sotomayor’s response here was effective upfront but got a little confused, as did her attempt to compare her remarks to those of Sandra Day O’Connor. She’ll have plenty of opportunities to come back to this. Sen. Leahy helpfully brought her back to her judicial record.

Updated 9:56: Judge Sotomayor clarifies the “wise Latina” comment “upfront, unequivocally, and without doubt.” She says: “I do not believe any ethnic group has an advantage in wise judging…Men and women are equally capable of being wise and fair.”

Updated 9:52: Sen. Leahy just said “wise Latina.” You know the drill. (Drink!) Leahy’s giving Sotomayor the first chance to respond to attacks from conservatives. Her answer here will be key.

Updated 9:47: After being criticized for her ruling in the Ricci case for the last six weeks, Judge Sotomayor is finally getting a chance to explain her ruling as simply following the law of her Circuit, in response to a very friendly question from Sen. Leahy.

Updated 9:43: Judge Sotomayor is in the middle of a long and captivating story about how she brought the “Tarzan murderer” in New York City to justice as a prosecutor. She’s in her element here, and is helping herself by establishing her tough-on-crime credentials, as well as reinforcing her point about the need for understanding — in this case toward the victims of crime.

Updated 9:38: Judge Sotomayor started out this morning a little haltingly and seemingly a little nervous. She now appears to have hit a rhythm and comfort level — evening smiling — in describing her record as a prosecutor.

Updated 9:36: Judge Sotomayor, in response to Sen. Leahy’s first question just carefully fleshed out her opening statement remarks about how good judging starts with an understanding of the perspectives of all the parties before the Court, but ends with a judge following the law. Expect to hear that explanation in a lot of different variations over the course of the day.

Updated 9:31: Sen. Leahy has just now said we will have 30-minute rounds of questions, meaning we will be here late into the night simply to complete a single round of questioning from the 19 members of the Senate Judiciary Committee.

Good morning, everyone. Let’s get started this morning with a little recap of yesterday and an assessment of what Republicans, Democrats and Judge Sotomayor are looking to accomplish as questioning begins this morning.

Republicans launched a blistering and well coordinated attack on Judge Sotomayor yesterday, stringing together President Obama’s statements about the importance of “empathy” with Judge Sotomayor speeches, which suggest that her heritage (“wise latina,” drink!) and powerful life story will influence/improve her decisionmaking, to argue that Judge Sotomayor will not be a fair and neutral arbiter of cases that come before her. There are huge evidentiary failures with this case — most importantly, it cannot be squared with Sotomayor’s long and distinguished judicial record — but this is otherwise a very smart strategy: American’s are deeply committed to the idea of fair and impartial judges.

The response to this onslaught from Democratic Senators felt a bit schizophrenic. Some Senators, such as Chairman Patrick Leahy focused on Sotomayor’s judicial record, which, in Leahy’s words, “reveals her to be a careful and restrained judge with a deep respect for judicial precedent and for the powers of the other branches of the government, including the law-making role of Congress.” “In her service as a Federal judge, Sonia Sotomayor has kept faith with that promise. She understands that there is not one law for one race or another. There is not one law for one color or another. There is not one law for rich and a different one for poor. There is only one law.”

Others, notably Senators Cardin, Whitehouse, and Durbin focused more on defending the idea that a judge’s perspective and her “empathy” matters. Thus, we heard for example, Senator Whitehouse state that Judge Sotomayor’s “wide experience brings life to a sense of the difficult circumstances faced by the less powerful among us” and that her “broad and balanced background and empathy prepare you well for this constitutional and proper judicial role.” Both these arguments are effective on their own, but there is clearly some tension here. Is the story that Judge Sotomayor puts aside her background and perspectives in ruling in a fair and neutral matter, or is it that Judge Sotomayor’s background and perspective will make her a great justice?

A similar tension is muddling the Democrat’s message on the Roberts’ Court. As I noted in my Democratic drinking game yesterday (“Umpire,” drink!), Democratic Senators remain fairly obsessed with responding to Chief Justice Roberts’ 2005 claim that good judges are like umpires, simply calling balls and strikes. But I listened carefully yesterday and couldn’t tell whether the main problem was (1) that judging is not really like being an umpire or (2) that Chief Justice Roberts is not really acting like an umpire. Both may be true, but it would be more effective if the Democrats could agree to focus on one of these two lines of attack.

For her part, Judge Sotomayor was effective but very brief. Sotomayor’s opening statement does a nice job of explaining how “understanding” the perspectives of different litigants and “applying the law” can go hand-in-hand in “the larger interest of impartial justice.” These remarks start to bridge the gap between the two lines of defense offered by Democratic Senators. What Sotomayor needs to do today is reinforce this frame in responding to pointed questions from Republican Senators. Those Senators in turn will be trying to undercut that frame and portray her as a judicial activist. Hopefully the Democratic Senators will get in line behind Sotomayor’s frame while consistently attacking the Roberts Court for being activist.

[A programming note: We were bumped out of our skybox today (back tomorrow) and will be liveblogging from a remote location. CAC’s Judith Schaeffer is in the confirmation room and will be supplmenting our coverage.]