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SCOTUS: Sotomayor Hearings, Day One, Part III


Because I know you’d like nothing more than to relive this morning’s bloviating Judiciary Committee member statements, they are available for perusal on the committee website, as prepared for delivery.

Hearing is about to resume.

Should be a short rest of the afternoon:  4 Senator statements, an intro of Sotomayor and then the Judge will speak for herself. And that’s it for today. 

Tomorrow, the questioning of Sotomayor begins and witnesses for both sides of the issues will be called as well.  Or, as I like to think of it, the meaty bits begin.  But today?  Sotomayor gets to introduce herself without the aid of someone else trying to frame and interpret her own words — and that’s worth watching.

Soon as the hearing resumes, I’ll resume the liveblogging.

2:02 pm ET:  Leahy restarts the hearing.

KLOBUCHAR OPENING:  Jokes with Sotomayor about bringing a winter parka to Minn. for a hearing.  Talks about encyclopedias her mom bought that were the first in their neighborhood.  Talks about how education was valued in her family.

Believes having judges with real world frontline experience as prosecutors is a good thing.

Value of having justices who have real world, modest experiences in their lives.  Talks about O’Connor’s experience on a working ranch with no running water.  Talks about Thurgood Marshall’s lifetime, having grandparents who had been slaves and his mother pawning a watch to help him pay for law school.  And Justice Blackmun (? — missed this specifically, was it Blackmun?), who was only able to attend Harvard because local grads helped put together a scholarship for him.

Talks about diversity of the membership of the Judiciary committee and how valuable that is.  And addresses this with a Hubert Humphrey quote:  "America is all the stronger from the different strands of which is it woven."

You are only the third woman to come before this committee as a SCOTUS nominee.  Talks about O’Connor and Ginsburg’s difficulties after law school in being taken seriously as lawyers.  "Can she type?"

Although your record stands on your own, you also stand on their shoulders.  Another woman with an opportunity to be a justice for all of us.  Bringing some real world, practical experience into the courthouse.

You are more than a sum of your professional experiences.  But you bring an impressive resume to the table.  When you are a prosecutor, the law ceases to be an abstract subject, you see where the law applies in individual lives:  whether its the victims and their families, the defendants and their families or the community for which you work.  I’m interested to know what you learned from that job, how that job shaped your legal views, and what you think about 4th amendment issues, the balance of civil liberties, the text of the constitution, and the real world implications of your decisions and the impact you can have on that.  Talking about the confrontation clause and crime lab questions in recent case.

Quotes Sotomayor’s old boss, Morganthau:  Looking for someone with good judgment and understanding, but humility to appreciate the awesome responsibility given to a justice on SCOTUS.  Someone who appreciates balance of powers between different branches of justice.  Must interpret and enfore the law without fear or favor.  The cases you hear involve real people with real problems, who are looking for real remedies with justice in mind.

KAUFMAN OPENING:  Making the decision on a SCOTUS nominee is one of the most important things the Senate does — short of the decision to go to war, probably the most important decision the Senate participates in officially because SCOTUS justices are appointed for life. 

Public vetting process for Sotomayor, in press, in public discussion, and blogosphere — not always accurate, but always lively.  Anyone — literally anyone — can help dissect the debate.  The less public process is the 90 meetings with Senators that you had, and I know I found that meeting useful.

What I’m looking for in a justice:  integrity, intellect and an unwavering dedication to the rule of law.  And a real understanding of the impact that decisions have on the lives of real people who await them.

We should focus on your record and responses, not empty code words and spin.   Your experience is more substantial than any other justice nominee in the last 100 years.  What strikes me most about your record is that it seems to reveal no biases — you look at the arguments of both sides and the law before reasching a decision, based on my review of your decisions and of arguments you’ve heard.

The SCOTUS is not a representative body — but we shoudl hold as an ideal that it represent our nation’s pluralistic interests.  Groups with diverse experience and backgrounds come to the right decision more often than less diverse ones.

One concern of Kaufman’s is that the court’s decisions on business cases are often not based in real world considerations.  Today’s court gives me the impression that it is too outcome oriented and, therefore, too one-sided.  Given the prolems we see with an economy impacted by poorly enforced regulations in to many financial industry problems, this is troubling.  A judge or court has to call the game the same way for all sides.  Fundamental fairness requires that everyone comes to the plate at the same place.

For justice to work, the powerless have to come to the court through the same door as the powerful.

SPECTER OPENING:  Compliments Obama for nominating an Hispanic woman.  Thinks diversity is important, wrong to wait until the 1970s to get Marshall and the 1980s to get O’Connor.   (CHS notes:  Arlen’s sporting a spiffy new combover do today.)

Talking about how few cases SCOTUS now takes compared to prior years.  Circuit split cases which are not taken are troubling.  The case on warrantless wiretapping and contrast it with Congressional authority over surveillance — perhaps the sharpest conflict in this country over Art. II powers versus Art. I.  Talks about the various circuit opinions, and the fact that SCOTUS denied certiorari for the case, didn’t even touch on standing or other issues.  This has led to questions about legality that are ongoing and we now know that there are questions about lack of notification on other programs.

In the last few weeks, SCOTUS denied case on claims for families who had claims against Saudis — sovereign immunity questions had been previously decided, but SCOTUS denied cert. again to avoid answering that question in application to 9/11 families who have suffered greviously.

Currently questions about voting rights act.  Conflict has been there for years between what Congress decides is a rational basis and what SCOTUS has more recently adopted as a standard of congruence and proportionality — something referred to as "judicial lawmaking" by at least one justice.  Roberts had said Congress ought to decide what the factual basis is for lawmaking — but the SCOTUS just decided the voting rights case on narrow grounds based on exactly that.

Wants to know what Sotomayor’s standards on all of these will be.

Wants to talk with her about circuit court case involving the EPA and Clean Water Act.  You were in the majority looking at a "best technology" analysis — SCOTUS reversed based on a "cost/benefit analysis" in a 5-4 decision.  Wants to talk with her about that.

Wants to see what she thinks about teevee in the federal courts.  Court decides all the cutting edge questions of the day — wants to see the court televised, wants to see what she thinks.

FRANKEN OPENING:  Thank you, Mr. Chairman.  It’s an incredible honor to be here less than a week being a US Senator, and its humbling to have my first big duty be here in this hearing.  Thanks Leahy and also Sessions, and plans to follow the example of Wellstone in working with and partnering with those across the aisle.

Like many private citizens, has watched at least part of the SCOTUS hearings since they’ve been televised.  This is the first hearing since 1965 that Sen. Kennedy has not been able to attend — miss his presence.

(Yet another yelling person has to be removed at the moment.)

These televised hearings though the years have taught Americans a lot about the constitution, our courts and the Senate’s role in protecting their integrity.

Judge Sotomayor, your experience is impressive.  After meeting with you in my office, you are not just impressive as a lawyer,but an exceptional individual.  And I welcome your family as well.

This is my fifth day in office.  I may be the most junior member, but I’m also the Senator who most recently took his oath of office.  Quotes from the oath.  I may not be a lawyer, but neither are the overwhelming majority of Americans.  And yet we all are profoundly effected by the people who sit on our SCOTUS and their decisions.

Hopefully, this hearing will help Americans understand what the Court is, what it is supposed to do, and how it impacts all Americans every day.  Quotes Justice Souter about the impact that SCOTUS has on individual Americans and the obligation to get those decisions right.

The position of the Congress with respect to the Courts and the Executive is in jeopardy.  The Framers make Congress the first branch of government first for a reason — speaks directly for the people and has the responsibility to a nswer to the people.  Wary of judicial activism — looking at recent decisions on voting rights, campaign finance, and others show that judicial activism is on the rise in these areas — agree with Feingold and Whitehouse on this.

We hear a lot about judicial activism when politicians are running for office.  An "activist judge" is one who rules in a way that the politician doesn’t like.

Second, I’m concerned that Americans are facing new barriers in defending their individual rights.  SCOTUS is the last refuge for individuals for a fair hearing, the last place a small business can go to ensure a fair market, that an investor can go to enforce shareholder rights . . . where a woman can go to protect her reproductive health or rights.  And what I see is that the last few decades, those rights have been eroded.

Want to hear your views on judicial restraint and activism, on voting rights, open access to the internet and campaign finance reform and other issues.

LEAHY walking through how things will work.  He’s going to administer the oath before the committee (almost said oath of office, and caught himself).

SCHUMER INTRO:  Today is a great national opportunity.  Opportunity to realize that this nomination of Sotomayor could not have happened anywhere else int he world — it is a great American story and a great NY story as well.  Awoman from a minority community went to the best schools and grew up to gain a nomination to SCOTUS.

We started fresh with no ranks, no titles, no castes.

Judge Sonia Sotomayor from the Bronx, daughter of a single mom nurse, sits here today.  Her storyis about how race and class at the end of the day are not supposed to predetermine anything in American — but that hard work and education determines how far you can go.  This shared vision is why this moment is historic for all Americans.

Her father was a factory worker with a 3rd grade enducation, and he died when she was 9.  Her mother raised Sonia and her brother, a doctor, raised her children to pursue their dreams the same way she did.  The Nancy Drew stories inspired her to reach further, to see that women could speak up for themselves.

Judge Sotomayor went on to employ her enormous talents at Princeton where she graduated summa cum laude and won other accolades.  And then graduated from Yale Law.  Because she has such a substantial record in her professional life, her humble demeanor on the bench sticks out.  All Americans who believe in opportunity and who want for themselves and their children a fair reading of the laws, Sotomayor understands that we are all governed by one law, all of us.

Judge Sotomayor’s personal story shows that we are all God’s noble experiment.

GILLIBRAND INTRO:  Thank you for the privilege to speak for Judge Sotomayor.  President Obama has chosen one of the nation’s brilliant legal minds in his selection of Judge Sotomayor.

As a woman, I take great pride in this nomination.  Quotes O’Connor about having women on the Court.

Says Sotomayor has a dedication to learning and excellence.  Grew up in public housing in the South Bronx, with a mother who made certain she understood the importance of hard work.  She has a keen understanding of case law and legal precedent — gleaned from her experience as a prosector, a trial lawyer, district trial judge and appellate court judge.  Her prosecutorial experience exposed her tothe worst and best of humanity.  Her corporate litigation experience gave her a wide glimpse of that civil litigation and contracts work.

As a trial judge, had a reputation for being tough and fair.  On the appellate level, enormous breadth of experience.

As a testament to Judge Sotomayor, many independent legal and law enforcement groups have already endorsed her qualifications:  the ABA, the president of the Fraternal Order of Police, etc.

Like Ginsburg’s participation in the ACLU’s women’s rights project, and Marshall’s work for the NAACP, Sotomayor’s work with the PRLDEF is an inalienable right under the constitution to work for civil liberties concerns.

Goes through some discussion of Sotomayor’s record on the 2nd Circuit.  Then points to prior statements by SCOTUS justices of their background as an asset they bring to the court:  Scalia, Thomas, etc.

Strongly supports Judge Sotomayor and firmly believes she;s one of the finest jurists in American history.

LEAHY administering the oath to Sotomayor.

OPENING STATEMENT OF JUDGE SONIA SOTOMAYOR: Thank you, Mr. Chairman. I also want to thank Senators Schumer and Gillibrand for their kind introductions.

In recent weeks, I have had the privilege and pleasure of meeting eighty-nine Senators, including all the members of this Committee. Each of you has been gracious to me, and I have so much enjoyed meeting you.  I thank you for the time you have spent with me. Our meetings have given me an illuminating tour of the fifty states and invaluable insights into the American people.

There are countless family members and friends who have done so much over the years to make this day possible. I am deeply appreciative for their love and support.

I want to make one special note of thanks to my mother. I am here, as many of you have noted, because of her aspirations and sacrifices for both my brother Juan and me. Mom, I love that we are sharing this together. I am very grateful to the President and humbled to be here today as a nominee to the United States Supreme Court.

The progression of my life has been uniquely American. My parents left Puerto Rico during World War II. I grew up in modest circumstances in a Bronx housing project. My father, a factory worker with a third grade education, passed away when I was nine years old.

On her own, my mother raised my brother and me. She taught us that the key to success in America is a good education. And she set the example, studying alongside my brother and me at our kitchen table so that she could become a registered nurse.

We worked hard. I poured myself into my studies at Cardinal Spellman High School, earning scholarships to Princeton University and then Yale Law School, while my brother went on to medical school. Our achievements are due to the values that we learned as children, and they have continued to guide my life’s endeavors. I try to pass on this legacy by serving as a mentor and friend to my many godchildren and to students of all backgrounds.

Over the past three decades, I have seen our judicial system from a number of different perspectives – as a big-city prosecutor, as a corporate litigator, as a trial judge and as an appellate judge. My first job after law school was as an assistant District Attorney in New York. There, I saw children exploited and abused. I felt the pain and suffering of victims’ families torn apart by the needless death of loved ones.  I lsaw and earned the tough job law enforcement has in protecting the public.

In my next legal job, I focused on commercial, instead of criminal, matters. I litigated issues on behalf of national and international businesses and advised them on matters ranging from contracts to trademarks.

My career as an advocate ended—and my career as a judge began—when I was appointed by President George H.W. Bush to the United States District Court for the Southern District of New York. As a trial judge, I did decide over four hundred and fifty cases, and presided over dozens of trials, with perhaps my most famous case involving the Major League Baseball strike in 1995.

After six extraordinary years on the district court, I was appointed by President Clinton to the United States Court of Appeals for the Second Circuit. On that Court, I have enjoyed the benefit of sharing ideas and perspectives with wonderful colleagues as we have worked together to resolve the issues before us. I have now served as an appellate judge for over a decade, deciding a wide range of Constitutional, statutory, and other legal questions.

Throughout my seventeen years on the bench, I have witnessed the human consequences of my decisions. Those decisions have not been made to serve the interests of any one litigant, but always to serve the larger interest of impartial justice.

In the past month, many Senators have asked me about my judicial philosophy. It’s simple: fidelity to the law.

The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and by my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.

The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged. That is why I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position, sympathetic or not, is accepted or rejected. That is how I seek to strengthen both the rule of law and faith in the impartiality of our judicial system.

My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.

Since President Obama announced my nomination in May, I have received letters from people all over this country. Many tell a unique story of hope in spite of struggles. Each letter has deeply touched me. Each reflects a belief in the dream that led my parents to come to New York all those years ago. It is our Constitution that makes that Dream possible, and I now seek the honor of upholding the Constitution as a Justice on the Supreme Court.

Senators, I look forward in the next few days to answering your questions, to having the American people learn more about me, and to being part of a process that reflects the greatness of our Constitution and of our nation. Thank you all.

LEAHY:  Thanks everyone for opening statements and thanks Judge Sotomayor.  Will stand in recess until 9:30 am ET tomorrow morning.

With that, a big hug with mom, and the hearing is adjourned until in the morning.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com