Supreme Court Nominations

Day 4, Confirmation Hearings: Witnesses Get Their Say on Sotomayor

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The ABA’s Kim Askew, left, and Mary Boies.

Editor’s note: Click here for more Sotomayor hearings coverage.

8:04 p.m. ET—Adjourned. The Senate Judiciary Committee will vote at 10 a.m. Tuesday on Sotomayor’s nomination, although the Associated Press notes that according to panel rules, Republicans can delay the vote for a week. In the same article, the AP notes that Democrats are planning a final Senate vote for early August.

7 p.m. ET—Final panel. Along that line, Sen. Kaufman calls the final panel. At this point, the panels are either supporters or critics. Here’s who they are and how they line up:

Patricia Hynes is president of the City Bar of New York; she praises Sotomayor and values her maturity of judgment and temperament.

Joanne Epps is dean of Temple law school—and she was my evidence professor—speaks for the National Women Lawyers Association, also favors Sotomayor.

Rep. Jose Serrano of the 16th District in New York, in the Bronx—“the proudest neighborhood in the nation.” With hard work, you can make it to the top in this country, he says.

David Rivkin is partner of Baker and Hostetler, is here on his own account. He wants to talk about national security issues, detention and enemy combatants. He wants the committee to take these into account. He also wears lots of bling.

Stephen Halbrook specializes in Second Amendment cases. If you’ve followed these hearings, you pretty much know where he’s coming from. Again, Maloney and the gun laws.

5:45 p.m. ET—Fourth panel. Ramona Romera is the president of the National Hispanic Bar Association, praises Sotomayor, just as Thurgood Marshall was hailed by fellow African-Americans, and Sandra Day O’Connor by women.

U.S. Rep. Nydia Velazquez, who represents 12th District in New York City and is chair of the Congressional Hispanic Caucus, praises Sotomayor for her intelligence and abilities.

Theodore Shaw, a professor at Columbia Law School, knew Sotomayor in high school. He and Sotomayor both came from public housing in the area.

Tim Jeffries, founder of P7 Enterprises, opposes Sotomayor. His brother Michael was tortured and murdered in Colorado. He reviews the rate of crime in this country. He criticizes Sotomayor for her speeches on crime and expressing consideration for defendants.

Neomi Rao is a professor at George Mason University School of Law and discussed legal philosophies.

John McGinnis of Northwestern University School of Law discussed constitutional principles regarding international and foreign law.

Nick Rosenkranz of Georgetown University Law Center also explains reliance on foreign law.

4:30 p.m.—Sotomayor has street cred. Another panel is sworn in by Sen. Klobuchar.

Louis Freeh is former head of the FBI and is now a private lawyer. He says he worked with many great judges. He recommends Sotomayor and says he actually has been with her in a courtroom.

Chuck Canterbury, president of the Fraternal Order of Police, says Sotomayor earned the respect of officers on the street. He says he is assured of Sotomayor’s respect for the Second Amendment.

David Cone was a professional baseball player and union member. Baseball has had a long history of labor relations. But 1994 was the worst. This was before the Curt Flood Act, which put baseball under the antitrust acts. Sotomayor found that the owners behaved in bad faith. She helped to revive the sport after the strike.

Kate Stith, a Yale Law School professor, favors Sotomayor. She says she also favored Samuel Alito.

Dr. Charmaine Yoest of the Americans United for Life says Sotomayor’s work on the Puerto Rican Legal Defense Fund means she is in favor of abortion as a fundamental right.

Sandy Froman, former president of the NRA, is against Sotomayor, and cites the Maloney case.

David Kopel, of the Independence Institute of Boulder, Colo., again slams Sotomayor for the Second Amendment case.

Ilya Somin, a law professor at George Mason University School of Law, talked about property rights.

From the Web:

“What you hear is, ‘Fair, neutral, nonpartisan, you better be prepared’—but fairness,” former judge and ex-FBI Director Louis Freeh agent tells the Mouth of the Potomac blog of the New York Daily News in a preview of his planned testimony today. “She’s very fair, open-minded, demanding but respectful of the people who appeared before her.”

Freeh mentored Sotomayor when both were New York City judges during the 1990s.

4:20 p.m. 5-minute recess.

From the Web:

In the end, the hearings merely provided Republicans with an opportunity to hone their strategic approach concerning the next potential U.S. Supreme Court vacancy to be filled by President Barack Obama and publicly trumpet positions likely to appeal to their conservative base, reports the Associated Press.

Republican senators “got a chance to try out their lines,” says GOP consultant Rich Galen. “But it really doesn’t mean much because she’s going to get confirmed.”

The relatively restrained and polite debate over Sotomayor’s nomination is a sign that elections matter, NPR reported.

Although the GOP attempted to draw a line in the sand over President Barack Obama’s repeated mention of “empathy” as a desired quality in a high court justice, for instance, “lines in the sand can be quickly erased by a filibuster-proof majority in the Senate, which Democrats enjoy for now,” the article points out.

Meanwhile, as Sotomayor’s predecessor, Justice David Souter, demonstrated, Senate confirmation hearings and a nominee’s prior record can be a poor predictor of what he or she will actually do on the bench, writes professor Timothy O’Neill of the John Marshall Law School in Chicago in a CNN commentary.

Appointed by a Republican president, Souter went on to become one of the most liberal members of the high court, he points out. “If Souter taught us anything, it is that predictions of what kind of Supreme Court justice a person will be can often be dead wrong.”

However, one of the most “frustrating” aspects of Sotomayor’s testimony, O’Neill writes, is her latter-day insistence that a judge’s personal views make no difference in the way he or she decides cases. The current high court bench puts the lie to this fairy-tale view of the role of the judiciary, he says: Eight justices routinely split 4-4 along political or ideological lines in 16 cases this past term, with Justice Anthony Kennedy casting the deciding vote in every one of these 16 cases.

3:58 p.m.—Praise for the panel. At this point, a lot of the senators are varying their questions from one witness to another. Regardless of the party, most praise the firefighters and Morgenthau.

Sen. Specter to Ricci: “I agree with everything you said. And that the court finally decided that you were right and there ought to be a change. Do you think Judge Sotomayor acted beyond her abilities?”

Ricci declined to criticize the judge.

Chavez responds to Specter that Sotomayor bases her whole life on her ability as a Latina, and that Sotomayor insists on changing test standards.

3:37 p.m.—Identity politics. Graham asks Chavez about identity politics. “Do the ABA’s well-qualified ratings of Roberts and Alito alter your understanding?” Graham says he doesn’t want to have it both ways: You can’t say the ABA is great one day and not the next.

Graham says politics is politics, and GOP does it, too. Chavez says it’s different from what’s in her speech. She says Sotomayor says blacks, Hispanics and others deserve additional support. “But,” says Graham, “we can’t just look at one thing.” There are other issues involved in assessing Sotomayor.

Graham moves to Ricci: “Mr. Ricci, I want you to come to my house if it’s on fire,” says Graham. “But as a country, we’re one generation away, but all turned out well.”

3:21 p.m.—“We’re going to talk about crack cocaine.” Cardin asks Bloomberg about the Puerto Rican Legal Defense and Education Fund. Bloomberg says it performs a great function to Hispanics in New York, helping them with education, voting, other issues.

He asks McDaniel about writing Ricci in a summary order. McDaniel feels that that the method is fine, and he says he has empathy for the firefighters.

Sessions to Henderson: “We’re going to talk about crack cocaine together,” he says. He was referring to sentencing, but the audience cracked up.

3:15 p.m.—Don’t confirm her. Linda Chavez of the Center for Equal Opportunity and a FOX News analyst, says not to confirm Sotomayor.

It is “clear from her record that she has drunk deep from the well of identity politics.” Identity politics is at the core of who this person is, she says. She describes identity politics as a feeling that racism permeates American society and its institutions and that there should be a contest with society. Her full testimony (PDF).

2:48 p.m.—Firefighter Frank Ricci. Frank Ricci talks about being a firefighter today. “The structures we deal with today are more dangerous,” he said. Firefighters also deal with auto fires and rescues. “When your house is on fire, there is no time for do-overs.”

Regarding the exam: “I studied harder than I ever had before. I went to panels to prepare for it.” In 2004, New Haven, Conn., chose not to fill the captain vacancies that the firefighters tested for.

The court originally mentioned Ricci’s dyslexia and nothing else, and that was unfair, Ricci said. He says firefighters from around the country have had to resort to the courts for civil rights. He and other firefighters had to push their case through the courts.

Lt. Ben Vargas, another plaintiff in Ricci case, says this is the first time he’s had a chance to tell his story.

He’s Hispanic and he congratulates Sotomayor, but says some courts didn’t care. His wife pitched in and helped him during the process of studying for the captain’s test. He placed photos of his boys in front of him while he worked. Once, he packed and went to a hotel to avoid distractions.

“I was shocked that I was not rewarded. I became not Ben Vargas but a racial statistic.” In the end, Vargas said, “We were devastated to see a one-paragraph order deciding the case.”

From the Web:

In his testimony, a Connecticut firefighter whose name has become a household word to those following the confirmation hearings got an opportunity to take his case directly to lawmakers, reports the Hill.

“We never asked for sympathy from the courts,” Lt. Frank Ricci told the committee. “We simply asked for serious consideration of our claims and an acknowledgment of our basic right to be treated fairly.”

He was, of course, the lead plaintiff in the oft-discussed Ricci v. DeStefano reverse-discrimination case eventually decided in firefighters’ favor by the supreme court this year.

2:30 p.m.—Mayor Bloomberg. New York Mayor Michael Bloomberg says Sotomayor “should be supported by Democrats, Republicans and Independents, and I should know: I’ve been all three.” Her decisions, he says, cut across party lines.

He praises her legal reasoning. Not all decisions have favored New York, but he has agreed with her.

He notes that the Supreme Court has a member each from Brooklyn and Queens, and now there is one from the Bronx. He also says that the Puerto Rican Legal Defense and Education Fund has made countless contributions to New York City.

Sotomayor also is praised by former boss, Manhattan District Attorney Robert Morgenthau, and Wade Henderson, CEO of the Leadership Conference on Civil Rights.

2:15 p.m.—Ark. AG talks about Ricci. Sen. Whitehouse introduces Dustin McDaniel, attorney general of Arkansas, who says he supports Sotomayor. He rebuts any assumption that her work on Ricci casts doubt on her. Before law school, he was a police officer, so he understands the dedication that Ricci and others go through.

“My experience with the exam was a successful one, but no should be given an unfair advantage or disadvantage,” he says. He says many states and organizations backed her ruling on Ricci.

After brief questions by Whitehouse, Sessions asks if McDaniel is aware that the opinion originally was only a summary order.

Talking about Heller, he asks McDaniel what his opinion on Heller is. He says he agrees that the Second Amendment ought to be a fundamental right and that Sotomayor’s nomination wouldn’t hurt that.

1:57 p.m. ET—Sessions has questions. Taking over the podium, GOP Sen. Sessions says the ABA was critical of President Bush for not taking the ABA’s considerations into account.

“The committee does not take a stand on that,” Askew said. “That’s a decision of the full ABA, not the committee.”

Sessions goes back to the criticism of Sotomayor’s reputation as a tough questioner. Askew says the committee goes outside to get other assessments.

Sessions again goes to the Ricci case and the summary opinion. Boies says she looked at that case—not at the outcome, but at the procedure. The panel, not just Sotomayor, decided to adopt the district court ruling.

However, Sessions said, one judge didn’t like it. Askew says the committee did not talk to Sotomayor about summary opinions.

Boies goes back to the Ricci decision. In 2008, of 1482 cases, 1,081 were summary orders, and only 401 full opinions were issued. That’s one of the reasons the panel thought it could go by summary order.

Specter compliments the ABA’s status in reviewing the case, as does Sen. Benjamin Cardin (D-Md.)

1:45 p.m.—ABA takes the stand. Sen. Sheldon Whitehouse (D-R.I.) welcomes Kim Askew, chair of the Standing Committee on the Federal Judiciary, and Mary Boies, the committee’s lead evaluator of Sotomayor’s qualifications.

In a prepared speech, Askew says the committee gave Sotomayor its highest rating and found that she is well qualified. They contacted some 2,600 people and received responses from 850 individuals. Read Askew’s full statement (PDF) here.

Askew compliments Sotomayor’s writing and says concerns by some lawyers about her judicial temperament did not detract from the committee’s rating.

Sen. Whitehouse says lawyers and judges praise Sotomayor’s integrity and compliment her opinions.

“Can you tell us about the review that took place?” Whitehouse asked.

Boies said the entire 15-member committee writes letters to lawyers, judges and law professors throughout the country. They convene reading groups to overview the results. The only standards are competence, temperament and integrity. “We review them, then meet with Sotomayor in her office in New York,” Boies said. Then they received the reading group reports and went through opinions one by one.

For example, they got a critical letter from a lawyer in an argument. They then identified all the lawyers involved in that case, the docket sheet and any other lawyers in that specific case. They then asked other lawyers in the panel about Sotomayor’s judicial temperament.

“So we looked at criticism because maybe she was having a bad day, but we talked to other lawyers on the panel,” Boies said.

Askew says the committee talks to lawyers so that they have full knowledge of each incident. “Luckily, we were able to get all the information so we can find out what happened in each instance.”

Whitehouse thanks the pair for their work.

From the Web:

Sotomayor received a “well qualified” rating from a unanimous vote of the ABA Standing Committee on the Federal Judiciary, as an post detailed last week. The Caucus blog of the New York Times also discussed the rating last week.

The Associated Press lists some of the most quotable quotes from witnesses appearing before the committee.

Among them: “We talked to over 500 lawyers. And not to minimize any comments … but of the 500 lawyers that we spoke to, we received comment on the temperament issue from less than 10 lawyers. They were mostly lawyers and judges who were outside of the 2nd Circuit and were not as familiar with 2nd Circuit precedent,” testified Kim Askew of the ABA’s Standing Committee on the Federal Judiciary.

1:25 p.m. 10-minute recess.

From the Web:

As Sotomayor concluded her testimony today, with, as the Hill put it, “few bruises,” the National Rifle Association issued a statement this afternoon formally opposing her nomination. (See this Washington Independent account for details.)

However, the Republican leadership has essentially thrown in the towel on opposing her nomination, and she is expected to be resoundingly confirmed with some Republican support in addition to a decisive Democratic vote, according to a detailed account in the Nation’s blog The Beat, of the legislative situation.

“What could have been an ugly, contentious and ridiculously ideological hearing that rubbed raw the open sores of a country that continues to struggle with questions of race, ethnicity and gender was, for the most part, calm and respectful—perhaps even a bit dull,” the Beat recounts, “as Judge Sotomayor refused to bite when her conservative critics attempted to bait her.”

1:05 p.m.—Finale. Sen. Coburn turns to the issue of pay. He wants to know if she has any concerns that reining in Congress by the commerce clause and other parts of the Constitution might help?

Sotomayor says the Constitution allots to Congress the ability to make those decisions and that we expect our courts to enjoy a limited role on that.

Sotomayor is trying to wind up her role by talking about the responsibilities of being a judge. She’s removing herself a bit from Coburn’s questions to make this a finale.

Sotomayor thanks all the senators for their fairness and consideration.

1 p.m.—Gun laws, foreign law. Sen. Cornyn wants to know if those who favored gun laws were engaged in right wing activism. Sotomayor says she does not use such statements.

Again, foreign law, and Sotomayor again stands on her opinion that you use foreign law only for discussion, that it does not govern in the U.S.

12:47 p.m.—Guantanamo Bay. Sen. Graham back up. Still the Second Amendment. The Republicans really want to make sure that the Supreme Court upholds state gun laws, so they keep hectoring her about that.

Next he moves to Guantanamo. Khalid Sheikh Mohammed appears before a panel at Guantanamo today, Graham said. “But that makes us better than him: to give the 9/11 mastermind his day in court.”

Congress is trying to reauthorize the Military Commission Act. Graham, an expert on military law, goes over the law on when and how to take in enemy prisoners. He says he wants a rational system of justice that every detainee can get his day in court, but not to release them if they are dangerous.

He goes into a huge speech about the imprisonment of enemy detainees. “Please remember, judge, we are not talking about domestic criminals who have robbed a liquor store.”

12:40 p.m.—Gun control. Sen. Kyl again. Ricci again. Does she have anything different to say from this morning, she can do so. She says she didn’t recall what she said.

They go back and forth on strict scrutiny versus rational basis tests. He and other GOP senators keep pushing Sotomayor on what she might decide if the state law cases involving gun control come before the high court.

12:30 p.m.—Baker v. Nelson. Sen. Chuck Grassley (R-Iowa) goes back and asks her about the case of Baker v. Nelson, a 1972 opinion that federal courts lack jurisdiction to hear due process and equal protection challenges to state marriage laws. She responds that the case has to be considered as stare decisis.

12:20 p.m.—Questions from Utahns. Sen. Orrin Hatch (R-Utah) gets another shot. He grills her on her involvement with the Puerto Rican Legal Defense Fund. The fund filed briefs in a few abortion questions.

In a series of cases, Sotomayor says she was not involved in the briefs that the fund filed in those cases.

He reads several questions from his constituents. One: “Which is more important, the Constitution or statements from that point?”

“You follow the document,” she says.

Leahy reads a letter from the LDF that no board member participates in legal opinions.

From the Web:

Hatch asked Sotomayor several questions posed by constituents, reports the Deseret News. Among them, Hatch asked her to discuss the proper role of the supreme court in righting social injustice. That can be a by-product of applying the laws written by Congress, but it is lawmakers’ job to address such issues, she testified.

The Washington Post provides a detailed CQ Transcriptions account of Hatch’s questioning.

12:05 p.m.—Judicial pay. Sen. Jeff Sessions (R-Ala.) gets the microphone back. He asks her about the pay. “Well,” she says, “I’ve been living on this pay for years.” But she cites it as an issue for many judges.

He says the Ricci case was not handled in the regular order because it did not state the 2nd Circuit opinions. He says she was wrong to use the summary order because it resulted in a discussion within the circuit.

“Did you fail to show the courage to display the decision in a longer way?” he asked.

“No, there was no lack of courage,” she says. It relied on the district court ruling.

From the Web:

Virtually putting an end to any likelihood that Sotomayor won’t be seated on the nation’s highest court, the full Senate is expected to vote on Sotomayor’s confirmation in early August before it recesses, reports the Associated Press. Sessions, the senior Republican committee member, says he doesn’t intend to try to block the vote and doesn’t believe any other member of the GOP will, either.

In response to questioning by Sessions, Sotomayor says she can “suffer through” her upcoming judicial career on a Supreme Court justice’s pay of about $200,000, reports the Associated Press. As she herself points out, the salary is about four times what an average family earns.

12 p.m.—Why do you want this job? Leahy says he will give the Republicans another 10 minutes each to compare with the greater number of Democratic senators.

Leahy says in Vermont there are not instituted restrictive laws.

He gives the podium to Sen. Al Franken (D-Minn.) who asks her why she wants this job. She tells a story about when she first told her mother that she was going from a law firm to the federal court.

Her mother wanted to know if she makes more money, get to travel, see more people? No, she says. Then her mother asks why she wants the job.

Her mother’s boyfriend says in Spanish, “Selena, you know your daughter and public service.”

That, she tells Franken, is the answer for her.

From the Web:

Leahy says he plans to schedule a vote on Sotomayor’s confirmation on Tuesday, reports the Associated Press. If Republicans so desire, however, they can delay the vote for a week.

Although he is known as a comedian, Franken revealed a serious and even geeky side when he put the issue of net neutrality on the table yesterday, reports the Digits blog of the Wall Street Journal.

The Brand X case, he said, had caused concern on this front, and he asked the Sotomayor if citizens “have a compelling First Amendment interest in ensuring … that the Internet stays open and accessible.” She replied that Congress, rather than the courts, establishes policy concerning Web access.

The Washington Post provides a detailed CQ Transcriptions account of Franken’s questioning.

11:35 a.m.—Second Amendment, Abortion. Sen. Tom Coburn (R-Okla.) asks her about using foreign law. She says she will not use it to interpret the Constitution or its statutes.

“Could Congress be clearer about the way it writes statutes?” he asked.

She says the majority of senators say they think Congress could do a better job in making its intent clear. He says better guidance could be given.

He returns to the issue of what determines making a fundamental right, but he doesn’t get the kind of direct answer he wants so he moves on.

For him, coming from Oklahoma, one vote on Heller could destroy a basic right. “But if you decide it doesn’t apply to the states, how does that uphold Heller?”

She says the Maloney court did not decide on the same point, but she can assure his constituents that she has a completely open mind on this precedent.

He again grills her about the Fourteenth Amendment and asks whether it’s ironic that part of the amendment had to do with keeping guns away from people after the Civil War?

She asks: “Senator, would you want a judge to come here and say she would make a decision before analyzing the cases, before discussing it, before talking to her colleagues? That’s not the kind of judge I can be.”

He moves to Roe. Where do we stand when 80 percent of the rest of the world allows an abortion only before eight weeks?

“Have the court’s abortion rulings ended the national conflict over this issue? No,” she says. “Are there similarly divisive issues that can be decided by the court in the future? People are passionate about the issues they believe in,” she says.

He asks, is it better that the court decide it or the state legislature? In the first instance, she says, it’s better if Congress or a state first decide it.

“Problem I have is I see a difference between what you say here and what you have said outside,” Coburn said. This is a frequent issue for the Republicans; they continue to dwell on what they say are the differences between her speeches and her legal opinions.

From the Web:

Continuing with her trend toward blunter answers, Sotomayor told Coburn there’s no way she’ll say at a congressional hearing how she might rule on the constitutional question of the right to bear arms, according to the Associated Press.

The Washington Post provides a detailed CQ Transcriptions account of Coburn’s Coburn’s questioning.

11:21 a.m ET. 10-minute break.

11 a.m.—Would she join the cert pool? Sen. Allen Specter (D-Pa.) picks up on what he asked yesterday involving the high court taking on more cases. Would Sotomayor join the cert pool or have her own clerks make separate decisions?

She would do what Alito does: Consider the prospect and then decide what works best. After joining, Alito last year left the clerk cert pool.

Specter wants to know about allowing TV coverage in the courtroom. Would you tell your colleagues about your experiences with it in the courtroom? She says she will participate in discussions on this issue.

He picks up on the Maloney Second Amendment case in the 2nd Circuit, and says it agrees with most of Easterbrook’s opinion in the 7th Circuit on a similar case.

Specter also points to a case that the high court denied cert to this year, Burnett v. al Baraka, in which plaintiffs sought to hold Saudi Arabia and the Saudi royal family liable for the Sept.11 terrorist attacks. The 2nd Circuit held that the claims were barred by the Foreign Sovereign Immunities Act. He wants to know if there was such a split between the two bodies, executive and congressional, that the court ought to have taken it.

In both cases, Sotomayor declines to offer an opinion on such cases, since she was not part of those courts.

He urges her not to let the issues of separation of powers slip by. He ends by saying he doesn’t know how he would vote on the issue.

From the Web:

The Washington Post provides a detailed CQ Transcriptions account of Specter’s questioning.

10:40 a.m.—Same-sex marriage broached. Sen. John Cornyn (R-Texas) says the question is what she will do when she is justice. “So far, I find that there is confusion.”

He recites a series of disagreements with the Republican senators and Sotomayor about what she said and what she is saying now at the hearings.

In response, Sotomayor says to look at her decisions. They show her fidelity to the law. “Look at the speeches completely, see what their content was and understand the background of them.”

Cornyn agrees that her judicial record places her in the mainstream, but her speeches make her a different person.

He asks her about same-sex marriage. If the court allows it, does that mean it made law or reviewed previous law? Sotomayor says she will reach any opinion objectively.

Also she disagrees with Conryn’s analysis of whether an appeals court makes policy. That goes back to a speech at Duke University in 2005. She says they were two different uses of the word. There, policy was a more general description; legally it means something more distinct.

Later, Conryn moves to the Ricci case, and cites Lt. Ben Vargas, of Puerto Rican descent, who also lost his opportunity to advance based on the city decision. “Do you agree with Roberts’ statement that to end bias, you just end it?”

“I agree with following the Constitution,” she says.

From the Web

Questioned by Conryn today, Sotomayor obviously was more at ease and comfortable pushing back against aggressive questioning than she was initially during the confirmation hearings, reports the Top of the Ticket blog of the Los Angeles Times. She forcefully disagreed with the premise of a number of his questions, and flatly refused to address a question about same-sex marriage, saying that any comment she might make would be taken as an expression of personal views.

The Washington Post provides a detailed CQ Transcriptions account of Cornyn’s questioning.

10:30 a.m.—Prosecutorial reminiscing. The podium goes to Sen. Amy Klobuchar. (D-Minn.) She puts on the record letters of support from a variety of police and district attorney associations.

She invites Sotomayor to speak about a case involving child pornography when she was a prosecutor. Sotomayor was the only prosecutor to take the case.

The case involved pictures of youths being sexually and physically abused. The issues had to be raised in court. The jury found the defendants guilty, and they were sentenced. She says such cases are enormously difficult because of the sensitivity of the evidence, but she insisted on taking it.

One last question, the same one that Sen. Graham asked Roberts: “What would you like history to say about you when all is said and done?”

“I can’t write history stories. I hope it will say I was a fair judge, caring personally and served my country.”

From the Web:

Klobuchar elicited rare revealing answers in her earlier savvy questioning of Sotomayor, including an extensive rumination on the role of prosecutors, defense attorneys and judges that included a reference to the highly popular Perry Mason television show of decades past, reports the Nation in an article reprinted in NPR. “Judge Sotomayor spoke freely and extensively in her exchanges with Klobuchar, and the senator encouraged her to do so by actually listening as the nominee spoke.”

“The Perry Mason reference was one of several moments in which Sotomayor flashed a down-to-earth personality and a grasp of pop culture that has helped charm Democratic and Republican senators on the Judiciary Committee, even as she refused to let them pin her down on abortion and other controversial topics,” agrees the American Chronicle.

The Washington Post provides a detailed CQ Transcriptions account of Klobuchar’s questioning.

10:10 a.m.—Second Amendment. Sen. Lindsey Graham (R-S.C.) warns Sotomayor that she should understand the Supreme Court justices are confirmed for life, and there is no further voting on them.

“For many of us,” he says, “the court has made changes in ways that can never be remedied at the ballot box.” In his state, he says, favoring Brown would likely have denied him a seat in the Senate if he backed it. People understand the role of the court in societal change, he says.

He brings up the Heller ruling, and says Sotomayor will have to decide whether it is a fundamental right. “Won’t you have to come and decide whether it is so? How do you decide that?”

“There is precedent to refer to,” she says. The court will look at precedents in other incorporation cases and decide from there whether the Second Amendment is fundamental.

He refers to the 9th U.S. Circuit Court of Appeals ruling, Nordyke v. King (PDF), which identifies gun ownership as fundamental. “You’re going to have to rely on your background and decide that,” he says.

He praises her as someone who will back a right even if she may not necessarily agree with it. Says Graham: “An activist is a judge who will be chomping at the bit to use the Supreme Court to change the rest of us. You’re broadminded to understand that America is bigger than the Bronx.”

He discusses identity politics. “Do you think your speeches show identity politics?”

“No,” she says. She said she is not advocating that groups do anything illegal.

“But,” says Graham, “your speeches don’t argue going to the ballot box. Those speeches suggest gender and racial affiliations. We wonder if you will take that to the Supreme Court, too.”

They discuss the Puerto Rican Legal Defense Fund. Graham says the group supports many liberal positions, on abortion, the death penalty, etc. He blasts her as an advocate who took viewpoints that were left of center. In Ricci, she missed a huge issue that became very important, he said.

One more question on the “wise Latina” comment. What do you say to those who are bothered by that? “I regret that I bothered some people.”

“You know what, I agree with you,” says Graham.

From the Web:

Graham, who had been criticized for the dismissive tone he took in questioning Sotomayor earlier, softened both his comments and his voice today, reports the Blog of Legal Times. “Will he vote for Sotomayor? That’s far from certain,” the law blog says. “But Graham’s tone had changed.”

A New York Times article gives a detailed round-up on Republican senators’ sharp questioning of Sotomayor concerning Ricci.

The Washington Post provides detailed CQ Transcriptions account of Graham’s questioning.

10 a.m.—Ricci, round 2. Sen. Dianne Feinstein (D-Calif.) says the Ricci Supreme Court decision was 5-4, and that the dissenters said they would have agreed with the 2nd Circuit. Sotomayor says she agrees.

Feinstein says she wants to put the “wise Latina” comment in historical perspective. She praises the nation, but says there is a history of unempowered people seeking to advance themselves. As a woman, Feinstein says she understands the issue by being a woman and a former mayor and senator.

How does Sotomayor view her appointment as empowering for women? Sotomayor says her life does serve as an inspiration for others, not just Latinos, but all groups. “I understand my responsibility and I reach out to all groups.”

Feinstein praises Sotomayor and cuts off after 10 minutes.

From the Web:

After providing “roundabout and technical” to Kyl’s barrage of questions concerning the precedent she relied on in deciding Ricci, Sotomayor got a friendly reception from Feinstein, reports the Top of the Ticket blog of the Los Angeles Times. The California Democrat described the nominee as an example of what is best in America.

The Washington Post provides detailed CQ Transcriptions account of Feinstein’s questioning.

9:35 a.m.—Precedent for Ricci? Sen. Patrick Leahy calls the committee to order. He recognizes Sen. Jon Kyl (R-Ariz.) for the next 20-minute round of questioning.

The senators discuss the problem of air conditioning. Yesterday, the AC was out for most of the room, but it was freezing in the press area.

Kyl mentions that there was no U.S. Supreme Court precedent for the Ricci decision, so wasn’t she incorrect in citing to a precedent? Sotomayor says there was established 2nd Circuit precedent that existed.

Sotomayor tries to discuss the background, but Kyl cuts her off, saying there still was no precedent by which her decision was bound. She says the Supreme Court acknowledged that there was scanty precedent, so they created their own decision.

“The implications of this decision are far-reaching,” Kyl said. He quotes the Supreme Court’s opinion that any employer could dismiss the result on mere expectation of disparate impact, creating the possibility of a quota system.

But, she says, the question that her panel focused on was whether the city in good faith could discard an employment test.

Kyl switches, citing a quote from her yesterday that a quote from her that district courts supply justice for the parties but a circuit court files justice for the society. They quibble again on the issue of precedent.

From the Web:

Testimony is likely to conclude today, as Sotomayor continues to an elusive witness, predicts the Supreme Court blog of the Washington Post. The nominee, who is wearing a hot pink suit and black blouse, started the day with questions from Kyl about the Ricci case and is likely to hear from Frank Ricci, a plaintiff firefighter in the reverse discrimination case, later in the day, the newspaper notes.

The Washington Post provides a detailed CQ Transcriptions account of Kyl’s questioning.

Wednesday overview. The fourth day of Judge Sonia Sotomayor’s confirmation hearing kicks off today, with 13 senators still in line to question the judge for the second time.

After a long day of questioning yesterday, the senators started the second round later in the day, with their questions this time limited to 20 minutes. During the first round, each had a half-hour.

The Senate Judiciary Committee still has a long list of witnesses to call, among them members of the ABA Standing Committee on the Federal Judiciary, who are expected to testify to Sotomayor’s “well qualified” rating.

In addition, it’s likely the Republicans will call New Haven, Conn., firefighter Frank Ricci, the plaintiff in the Title VII case decided last month. Several GOP senators have pleaded Ricci’s case during their questions, and slammed what they called liberal sources for bad-mouthing Ricci.

Again yesterday, Republican senators bore in on Sotomayor, bringing up her cases, asking how she came to her opinions and wringing out the speeches she has made over the years. Probably the toughest interviewer was Oklahoma’s Tom Coburn, whose well known anti-abortion stands prompted his questions of Sotomayor’s opinions.

Coburn also grilled Sotomayor on gun rights, asking her if it’s OK to defend himself. Sotomayor constantly referred back to her opinions. Coburn cut her off: “But that’s what the American people want to know, your honor,” he says. They want to know what she thinks.

The two most interesting Democrats were Pennsylvania’s Arlen Specter and Minnesota’s Al Franken. A former Republican, Specter pressed Sotomayor to answer his questions. Several times he cut Sotomayor off and warned her that he sent her information just so she could answer his questions. If he were a law professor, Sotomayor would have been zinged as unprepared.

And then Sen. Al Franken (D-Minn.) made his baptism under fire. He still possesses that calm sense of humor and asked Sotomayor about the Perry Mason shows she watched. It was a pleasant bit of quiet humor in a long day.

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