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Day 1, Confirmation Hearings: Sotomayor’s Philosophy? ‘Fidelity to the Law’

Posted Jul 13, 2009 3:05 PM CDT
By Richard Brust

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3:54 p.m. In addition to the Republicans revealing part of their strategy (see the 11:45 a.m. update), the Democrats also released some ideas of their own. Several senators referred back to the analogy urged by John G. Roberts Jr. when he was questioned before the Senate in 2005.

Roberts said the task of a judge is similar to that of an umpire: calling the game based on objective background. But several Democratic senators referred to that analogy and pointed out conflicts. Among them, Rhode Island Sen. Whitehouse referred back to a May 25 New Yorker article that details the shifts in the Supreme Court under Roberts.

“In every major case,” Toobin wrote, “Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative and the corporate over the individual plaintiff.” Added Whitehouse: “Some balls and strikes.”

The effort could be to show that there is more than just simple pitch calling, and that the imposition of personal attitudes and observations exists for both sides of the aisle.

Several Democrats also pointed to recent Supreme Court decisions to show how the addition of a woman would add balance to the bench. Specifically, Democratic senators pointed to the 2007 decision of Ledbetter v. Goodyear Rubber to reveal the protections needed against denying a woman equal pay. They also cited this year’s Redding v. Safford case over allowing a school district to force a teenage girl to discard.

3:18 p.m. Several short press conferences go on afterward. Sen. Specter mentions the fact that there have been news reports about wiretapping and presidential secret programs. He points to the recent revelations of secret wiretapping.

Specter also cites the Supreme Court’s turndown of a case by 9/11 victims.

Sen. Cardin next takes Specter’s place and says he is eager to hear more about Sotomayor’s background tomorrow.

Sen. Sessions says he appreciates Sotomayor and that the senators raise some interesting questions among themselves. He adds that there is a “serious critique” of a judge’s opinions and prejudices. He gives Sotomayor an “A” for listening to the entire opening.

Sessions says that he believes the Democratic majority will support the nominee, but that there were some questions raised by both sides for Sotomayor.

Additional coverage:

Washington Times: "EDITORIAL: Sotomayor in review"

Media Matters: "Wash. Times changes word in Sotomayor statement to call for her defeat"

2:50 p.m. Sotomayor begins by introducing friends and her mother.

“The progression of my life has been uniquely American,” she begins. Her father passed away when she was 9, and her mother taught her that education was the way to advance in this country.

She has seen the legal system from many perspectives. Her first job after law school was as a district attorney in New York. In her next job for a law firm, she focuses on commercial and business issues.

She was appointed by Gov. George H.W. Bush to the federal trial court, then appointed by President Clinton to the 2nd Circuit.

Many have asked her what her philosophy of law is. “Fidelity to the law,” she says. Interpreting the law and statute according to their terms is the process she uses.

She cites letters she has received from around the country. Many writers tell their own story about growing up in the U.S.

She completes her statement at 3 p.m. Leahy says the committee will be in recess until 9:30 a.m. tomorrow.

Additional coverage:

Top of the Ticket (Los Angeles Times): "Sonia Sotomayor's opening statement"

Associated Press: "Sotomayor vows impartial justice if confirmed"

2:50 p.m. Leahy delivers the oath to Judge Sotomayor.

2:40 p.m. Sen. Schumer begins by introducing Judge Sotomayor. Her life story is “a great American story and a great New York story, as well.”

Schumer recites Sotomayor’s life story of growing up in the Bronx, raised by her working mother.

“This is a story that all Americans should take pride,” Schumer says.

Next, New York Sen. Kirsten Gillibrand introduces Judge Sotomayor. She says she is thankful to Obama for appointing another woman to the Supreme Court.

She again recognizes Sotomayor’s story of growing up.

Additional coverage:

Top of the Ticket (Los Angeles Times): "Sotomayor hearing: All senators' opening statement texts: Leahy, Sessions, et al"

2:30 p.m. EDT New Minnesota Democratic Sen. Al Franken begins his discussion. He talks about how much he has to learn about the Judiciary Committee.

Again, Franken is disrupted by a speaker in the audience.

Franken says this is his fifth day, which means he is the person who most recently took office. “I may not be a lawyer, but neither are the majority of Americans,” he says.

He quotes Justice Souter: “Some human being is going to be affected [by our rulings] … so we ought to use every power in our beings to get it right.” Franken says Souter had it right.

“I’m going to start listening,” says Franken, ending his discussion.

Additional coverage:

The Beat (The Nation): "GOP Senator Says Attacks on Sotomayor 'Mainly About Politics' "

Front Row Washington (Reuters): "Of umpires and the heart at Sotomayor hearing"

2:20 p.m. Newly Democratic Sen. Arlen Specter of Pennsylvania, once the chairman of the Judiciary Committee when he was a Republican, says he wants to expand by asking questions about cases that the Supreme Court decided not to take on. He wants to know what standards Sotomayor would employ to decide to hear certain cases.

Specter also wants to know whether Sotomayor would reverse David Souter’s long-held contention that allowing cameras into the Supreme Court "over his dead body." Specter says he would like to see the Supreme Court televised.

2 p.m. Minnesota Democratic Sen. Amy Klobuchar starts the afternoon session. She reminds the committee of other justices like Sandra Day O’Connor, Thurgood Marshall and Harry Blackmun who bore hardships but ultimately grew up to become justices.

“This should be unremarkable,” she says, referring to her work as a carhop growing up.

CQ Politics: "Republicans Outline Case Against Sotomayor"

Wall Street Journal Law Blog: "Senate Sermons: The Philosophy of Judging"

12:50 p.m. Hearings will resume at 2 p.m. EDT.

This morning, several Republican senators have cited quotes from Judge Richard Paez of the 9th U.S. Circuit Court of Appeals. Among the senators, Jon Kyl of Arizona quoted Judge Paez as saying that although he was a Latino judge “as I judge cases, I try to judge them fairly. I try to remain faithful to my oath.”

Republicans had delayed the nomination of Paez for more than 1,500 days, until the judge was ultimately confirmed in 2000.

12:30 p.m.: During Ill. Sen. Dick Durbin’s speech, another outburst was heard. Police removed the individual. Sen. Leahy again continues the hearing. This is the second such outburst today. It wasn’t known what the individual was saying.

Durbin, a Democrat, again criticizes the Roberts umpire analogy. “If this was baseball, we wouldn’t see so many 5-4 decisions,” Durbin says.

Additional coverage:

Bloomberg: "Sotomayor Impartiality Questioned as Senators Clash"

God & Country (U.S. News & World Report): "Antiabortion Group Changes Tune on Sotomayor"

12:10 p.m.: Sen. Sheldon Whitehouse (D-R.I.) criticizes the use of John G. Roberts, calling the Supreme Court an umpire. He says the right-wing members of the court have issued rulings that defy precedent. “Some balls and strikes,” he says.

He cites a passage from Washington, D.C., writer Jeffrey Toobin that criticizes Roberts’ decisions.

Whitehouse continues to give a discussion on judicial thinking and praises Sotomayor’s background.

Additional coverage:

Muckety: "Witnesses line up for Sotomayor hearing"

12 p.m.: Leahy recalls the committee. GOP Sen. John Cornyn of Texas says that Sotomayor’s nomination makes “us all feel good about being Americans.”

Cornyn also says the Supreme Court “micromanaged the death penalty … creating new rights.” He criticized a lot of Supreme Court history, including the takings clause and how the court has used it to seize property.

Two choices for the future of the Supreme Court: We can back on check and follow the law (he praises D.C. v. Heller, the Second Amendment decision as doing that). Or, he says, the court can “follow its own star,” and take us down paths we never went.

Cornyn again focuses on the Second Amendment and whether Sotomayor would limit it.

Additional coverage:

Top of the Ticket (Los Angeles Times): "Sotomayor hearings: Sen. Cardin recalls an era of legalized prejudice"

Maryland Politics (The Baltimore Sun): "Cardin highlights Baltimore's racist, anti-Semitic past at Sotomayor hearing"

Runnin' Scared (Village Voice): "Sotomayor Ordeal Continues"

11:45 a.m.: The committee will take a 10-minute break.

During a break, the most significant part of the committee so far has been a look at how the Republicans expect to challenge the nomination. The GOP senators have all dwelled on Sotomayor’s 2001 statement that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Sen. Lindsey Graham (R-S.C.) said that had he made a similar kind of statement, he would never have been confirmed to a seat. Several senators have also cited Sotomayor’s involvement with the Puerto Rican Legal Defense and Education Fund, and have questioned some of the work that she did with that organization.

Many have also raised questions on President Obama’s use of the word empathy to describe what he was looking for in a Supreme Court justice. They have said that they expect to question Sotomayor on several of her rulings, including Ricci v. DeStefano, known as the New Haven firefighter case.

Additional coverage:

Caucus (New York Times): "Live-Blogging the Sotomayor Hearings"

11:35 a.m.: Maryland Sen. Benjamin Cardin describes his young life as a minority Jewish boy growing up in Baltimore. He was denied access to pools and amusement parks, until Brown v. Board of Education. That and other civil rights decisions changed the country, he says.

11:25 a.m.: Sen. Lindsey Graham (R-S.C.) says that "unless you have a complete meltdown, you will be confirmed."

He says that some of his colleagues are confused by Sotomayor’s decisions, statements and other items.

Tells Sotomayor that he will not hold iher past with the Puerto Rican Legal Defense and Education Fund against her.

"If I applied Obama’s standard, then I wouldn’t vote for you. But to decide what’s in a judge’s heart is unfair, and cases shouldn’t be judged that way."

"Generally speaking, the president nominated person of good character, someone who has stood up and out during her lifestyle. But I don’t want milquetoast judges; I want people to speak their minds."

Repeats that he doesn’t know how he’s going to vote, but for him, elections matter. So Sotomayor may be a “bridge too far.”

Chuck Schumer

Chuck Schumer

11:20 a.m.: Sen. Charles Schumer (D-N.Y.) is identified for five minutes since he will introduce Sotomayor.

Sotomayor’s record “bespeaks judicial modesty, just what our opponents insist on.”

Says he’s not sure how any member of this panel can say she is outside the mainstream.

11:10 a.m.: Sen. Jon Kyl (R-Ariz.), sitting without a jacket, begins his statement. Describes the full statement of Sotomayor’s statement in 2001 about Latina women.

Says a very important person decided it’s time for a change. That’s Obama.

He says the critical ingredient is supplied by what is in the person’s heart. Problem is when biases and other prejudices are used to make a decision.

"I submit that Obama is outside the mainstream in what judges should decide about cases. The question is whether a judge should depend on her biases and prejudices. Sotomayor says a judge should allow that."

He quotes Sotomayor’s statements at several lectures to criticize her use of personal ethnicity and use of foreign law in deciding American cases.

Says he wants to hear why the Supreme Court has reversed 80 percent of her rulings.

11:00 a.m. Sen. Russell Feingold (D-Wis.) praises Supreme Court for saying no to what the administration tried to do at Guantanamo Bay after 9/11.

10:54 a.m. Sen. Chuck Grassley (R-Iowa) says a nominee must understand the role of a judge in society. A justice must monitor what he or she says.

Says judges may not take on the role of policymakers. That’s a role for legislators. But some groups don’t see it that way. Says Supreme Court is “ground zero” for their pleas.

Criticizes Obama’s empathy standard. Criticizes Sotomayor’s statement of whether a judge can be impartial, also in another speech Sotomayor criticizes whether a judge can be competent.

These, to Grassley, don’t involve proper role of a justice.

"I’ll be asking you about your ability to wear the blindfold, as in the picture of blind justice."

He’s not looking to support a creative jurist who decides opinions on his or her own background. Lists off the decisions that the court has made on issues such as due process, freedom of the press, and other issues. Justices need great legal expertise, but they must understand the country around them.

We are asked to consider the term judicial activism but the word has lost all usefulness. The best definition is of a judge who makes a decision you don’t like.

Feingold praises Sotomayor’s Berkeley speech about Latina woman. Says you have to consider the entire statement, not just the use of the words.

10:30 a.m.: Sotomayor come to the committee for the third time. Sen. Orrin Hatch (R-Utah) questions whether the record that President Obama used to justify other nominees when he was a senator still apply.

10:25 a.m.: Sen. Herb Kohl, (D-Wis.) says he admires Sotomayor on her experience. "President has asked us to commend to your power. Don’t have a right to ask what you will decide on specific cases."

Says some believe the confirmation process is totally scripted, but when considering Supreme Court nominees over the years, expect excellence.

Adds that he perceives a sense of values that form the corps of our system.

He says that some things said about Sotomayor have been intemperate or unfair. He criticizes left-wing groups who slammed someone who will testify this week. Referring to Frank Ricci.

During Sen. Diane Feinstein’s (D-Calif.) discussion there was ordering at the back of the Senate chamber. Sen. Patrick J. Leahy (D-Vt.) ordered that individual be dismissed.

Says a very important person decides it’s time for a change. That’s Obama.

10 a.m.: The long-awaited confirmation hearings of Judge Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals for the U.S. Supreme Court begin in Room 216 of the Senate’s Hart Office Building.

Leahy calls the committee to order. He introduces Sotomayor and passes the podium to ranking minority member Sen. Jeffrey Sessions (R-Ala.).

Sessions cites several of Sotomayor’s previous rulings and asks whether the judge will be prejudiced. "Empathy appears to be prejudiced against another demographic group."

Says he hopes the American people can follow closely, and at the end of hearing asks "if I must one day go to court what kind of judge must I face?"

Reporter's note:

Today’s schedule allows each of the Judiciary Committee’s 19 members to deliver an opening statement of up to 10 minutes. New York Senators Chuck Schumer and Kirsten Gillibrand, both Democrats, will introduce Judge Sotomayor. Committee chairman Patrick J. Leahy will then administer the oath, and Judge Sotomayor will be invited to make an opening statement. Her statement is expected to begin around 1:30 p.m. The Judiciary Committee plans to recess for the day after Sotomayor’s statement.

The Judiciary committee has also called 31 witnesses, among them Kim J. Askew and Mary McInnis Boies of the ABA’s Standing Committee on the Federal Judiciary. Askew, committee chair, and Boies are expected to testify on the ABA’s granting Sotomayor the panel’s highest rating of "well qualified."

The hearings begin 47 days after President Obama named Judge Sotomayor to take the seat of retiring Justice David H. Souter. While Republicans complained that the time limit was too short, Democrats countered that the schedule was coordinated to the time needed to confirm John G. Roberts Jr. as chief justice.

Sotomayor, 55, would be the first Hispanic nominated and the third woman justice. The judge was raised in the Bronx, N.Y., and said she praises her mother for her upbringing. After graduating from Catholic parochial school, Sotomayor was educated at Princeton University and Yale Law School. She also worked as a prosecutor in New York City. She was appointed to the federal bench in 1992 and promoted to the 2nd Circuit in 1998.

In addition to her case decisions, the Republicans are likely to focus on Sotomayor’s personal background, including her membership in a females-only private group. They are also expected to question her about a now controversial 2001 statement that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Several conservatives have labeled Sotomayor a reverse racist.

Also, the minority party is likely to consider Sotomayor’s joining the 2nd Circuit’s 2008 opinion in Ricci v. DeStefano, known as the New Haven firefighter case. When the appellate case was decided, Sotomayor agreed that exams given the firefighters amounted to a violation of section 7 of the 1964 Civil Rights Act and the Constitution’s equal protection clause. However, the Supreme Court last month overruled the 2nd Circuit, saying that the city’s discarding the results violated Title VII.

Additional coverage:

Associated Press: "Sessions gives Sotomayor tough greeting at hearing"

Associated Press: "Leahy says Sotomayor follows rule of law"

Political Intelligence (Boston Globe): "The more they speak, smoother path for Sotomayor?"

CNN: "Sotomayor called 'extraordinary' as hearings get under way"

Two-Way (NPR): "As Sotomayor Hearing Begins, Senators Lay Out Pros & Cons"

Washington Post: "Sotomayor Confirmation Hearings Begin"

Washington Post: "Quiet and Calm Outside Sotomayor Hearings"

Opening Arguments (Washington Post): "Media, VIPs Get Prime Seats at Hearing"

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