Day two of the Sotomayor confirmation hearings begins. 

9:29 am ET: LEAHY gavelling in the proceedings this morning. Traffic heavy inside the Beltway, and some memebrs having trouble getting to the Capitol. Talking procedure for hearings — they are planning 30 minute rounds back and forth.

Hoping that everyone will keep their questions on point and polite. Glad Sotomayor got her opportunity to speak for herself and introduce herself to the American public.

LEAHY QUESTIONS:  How does the experience you’ve had — in life and in your professional work — shape your approach to being on the bench?  Sotomayor answers:  Yesterday, many of the members emphasized their values essential to judging.  Something they emphasized frequently was a respect for the Constitution and a full appreciation of the limited jurisdiction of the court in our system of government, but understanding its importance as well.  The process of judging is a process of keeping an open mind — you shouldn’t come to a decision with a prejudged outcome.  Reaching a conclusion has to start with understanding what the parties are arguing, and examining the facts as they have proved them — or not — the record they’ve created, and then making the decision based on what the law says of the facts before the judge.

Leahy says one of the thing he found appealing about her is that she was a prosecutor.  Goes through some of the cases she worked and compliments from former co-workers.  Did that experience as a prosecutor shape your views as a lawyer but also as a judge — quoted a former co-worker saying that Sotomayor looked at this not just as punishment of crime, but also how to prevent it.  Sotomayor says that the job really shaped who she is as a lawyer and as a judge.  In law school, you learn to apply legal theory to the facts before you.  When you work in a prosecutor’s office, you learn the law isn’t theory — it’s facts.  What witnesses do and don’t say, what evidence you have or not — and you make your case based on the law as it exists.  Respect that each case gets decided, case by case, applying the law as it is to the facts before you.  You asked me about the Tarzan murder case — it brought to life for me, perhaps more than any other case I dealt with, the tragic consequences of unnecessary death.  Talks about the case facts.  As a result of what the defendant did, he destroyed families.   Prosecutors, as all people in the justice system, have to be sensitive to the costs of crime in society, but had to be certain that the facts be fully understood by jurors.  This was one of the largest cases in terms of crimes to be wrapped into one indictment — show a pattern that established a person’s identity and pattern of behavior, you can try it at once.  It was a different application of the law under Molinueax (sp?), but the trial judge allowed it.

Leahy asks about theories, law, and what she thinks.  Sotomayor says as a judge, she doesn’t make law — she looks at the law as it exists.  Leahy stops her and wants to talk about where law and facts conflict — says Sotomayor told him that in that case, the law controls.  Goes on to discuss Ricci — the law in that case isn’t new, decades old SCOTUS case, and the Congress reaffirmed it in the ’90s.  Going through the decision facts on Ricci — panel decision of 3 judges, and majority of 2nd Cir. upheld the decision deciding not to revisit it.  SCOTUS opinion — 5-4 – reversed that precedent, "many have said" created a reinterpretation of the law.  Many have said that if you hadn’t followed the precedent, you’d be attacked for being an activist, but because you did follow the precedent, you are attacked as being a racist — kind of damned if you do, damned if you don’t.  Sotomayor says the issue was not what they would or would not do — because we were following established Citcuit precedent.  The issue in Ricci was what the city could or could not do on a promotion test — everyone agreed had a very wide difference between the pass rate of a variety of different groups.  Goes on to discuss the "disperate impact" standard under law.  The question before the panel was not "was this a decision based on race" but rather "was the city’s decision based on what the legal requirements were for the city under these factual circumstances?"  SCOTUS explained that they had come up with a different standard, gleaned from a different legal consideration.  Leahy asks if the circuit would be bound by the new SCOTUS decision standard?  Sotomayor says absolutely.

Leahy discusses radio and teevee pundits and another leader of the GOP called her a bigot.  To their credit, GOP Senators have not repeated any of that.  You haven’t been able to respond to any of this.  You’ve heard all these charges and countercharges — the "wise latina" and all of that — you tell us what you think.  Sotomayor thanks him for giving her an opportunity to explain her remarks — says no words she’s ever spoken have been given so much attention.  Trying to inspire the listeners to think about their life experiences would be valuable in the legal system — and to inspire them that they could be whatever they wanted, just as people inspired me.  Goes on to say no particular ethnic background is superior to another — trying to convey O’Connor’s message that both men and women are equally capable of being wise and fair judges.  Judges disagree a lot, but it can’t mean that one of them is unwise.  There is an equal capacity to be fair and impartial.

Sotomayor, at Leahy’s prompting, says that her 17 year record shows that she first decides what the law requires under the facts before her, she explains to litigants why the result is commanded by law.  Her oath of office commands her to do that.

Leahy goes on to discuss Heller — the recent 2nd amendment case.  Do you accept the SCOTUS opinion that the 2nd amendment right is an individual right?  Yes, sir.  Did you apply Heller in the Maloney case?  She says yes, she applied that in her decision.  Leahy now talking about state’s rights versus application of federal precedent.  How would you evaluate — would you have an open mind on 2nd amendment being a fundamental right versus application of federal principles to the states.  Sotomayor says she understands the individual right fully — says that the SCOTUS expressly identified that there is SCOTUS precedent which says 2nd amendment is not "incorporated" to the states (says Scalia referred to this in a footnote expressly) — talks about incorporating this into Maloney.  Do I have an open mind on this?  Absolutely, my decision is to follow the SCOTUS precedent when it speaks directly on the issue — but I would not prejudge any issue that came before me.

Leahy asks about criminal cases that she’s heard.  Specifically about a child pornography case and the commerce clause questions raised about the transmission question for it.  She agrees with Leahy’s comment on it.

SESSIONS QUESTIONS:  Appreciated her comments on the law.  Wishes she’d been saying it all along.  Goes on about the "wise latina" comment again.  Yesterday, you talked about "fidelity to the law" — but previously you talked about appellate court being where policy is made and that the law is not "capital L" law — what do you really believe?  Sotomayor says that she believes her 17-year record demonstrates fully that judges must apply the law, not make the law.  Whether she sympathized with the parties or not, she’s done what the law required.  Goes through the differences between the branches — talking about the Duke speech, says she was explaining to student that district courts make findings on the facts, appellate judge decisions are more binding and make precendent which has policy ramifications — it binds litigants coming afterward which then must follow that precedent.  Says she was talking about policy ramifications of precedent and not the policy of legisaltion, which is the realm of Congress.

Sessions goes on to next cherry-picked quote.  Is there any circumstance where judge should allow prejudices to influence their decision-making?  Sotomayor says never use prejudices.  That she was talking about the need for judges to examine their life experiences and be sure that they are not influencing our judgment in a particular case.  We have to be open-minded that our experiences may not be appropriate — and we have to be certain that prejudices do not determine an outcome.  Sessions says you say in your statement that you want to further faith in impartiality fo the system, but then you said this.  Sotomayor says the system is strengthened when judges test themselves not to allow experiences to drive the result, but rather make certain they are wary of that potential bias.

Yesterday, you also said that your decisions were to make the larger sense of impartial justice.  In the past, though, you said you wonder whether impartiality is possible at all.  Aren’t you saying that you expect your background and heritage to influence your decision-making?  Sotomayor says that life experiences do influence us, in good ways.  That can affect what we see or how we feel — but that’s not what drives a result.  The impartiality is an understanding that the law commands a result.  To the extent that we are asking the question, what should be be asking and thinking in looking at a case — but I wasn’t attempting to say that background should drive the result.  (CHS notes:  Jeebus, asked and answered, Jeffy.)

Sessions goes on with yet another quote, and Sotomayor says that your life experiences allow you to more easily see different perspectives argued by parties — that’s why appellate courts have more than one judge.  Life experiences are important to the process of judging — they enable you to hear a lot of the information — but the law requires a result under the law.

Judge Setabaum’s (sp?) formulation is good for Sessions.  You deal with the famous quote of O’Connor’s, and you pushed back from that as well.  You doubt the ability to be objective in your analysis — how can you reconcile your speeches with your oath that you’ve taken twice that requires impartiality?  Sotomayor says her friend Judge Seterbaum (sp?) is here today, and is a friend.  Was trying to get young lawyers to see that their life experiences add to the process.

Sessions says every judge needs to be committed to putting aside their personal biases and give everyone an equal hearing.  I think these questions could reach full flower if you are on a higher court and not subject to review.  So let’s look at Ricci.  City had a panel that had one hispanic, one african american and one white putting the test together.  SCOTUS said the city threw out results because not enough of one group did well (CHS notes:  I think Sessions is actually quoting from the Alito concurrence, isn’t he?  Not Kennedy’s majority opinion.  Anyone know off the top of their head?)  Sotomayor says the 7th circuit/6th circuit have also approached similar cases in the same ways based on prior SCOTUS precedent and Title VII requirements.   SCOTUS decision came up with a different standard for substantial evidence of liability — that didn’t exist as a test prior to the 2nd cir. decision.

Sessions quotes from Stuart Taylor.  (CHS note: Oh, good lord.  Next we’ll have Bill Kristol’s take on national security questions as a controlling thought process.)  Gripes about the initial panel opinion being per curium — "you could have gone with Judge Cabranes who is also a Puerto Rican."  And gripes about the 2nd cir. court majority.  Doesn’t give Sotomayor an opportunity to respond, but has a back and forth with Leahy.

Goes through a question he asked her in her 2nd cir. confirmation hearing on Aderand — on racial quotas requiring "strict scrutiny" in the courts as a standard.   Sotomayor says that those cases were not what was at issue in this decision, and these were not what decided the SCOTUS decision.  The parties weren’t arguing scrutiny levels, they were arguing the question on what a citywas to do when there was proof of a disperate impact question for tests done by city.   Sessions goes back to griping about the per curium nature of the opinion.  Sotomayor talks about the fact that they had a 78-page decision from the district court.  (CHS notes:  per curium opinions from federal circuits are really common — and Sessions knows that.)

LEAHY putting into the record the ABA highest rating for her, the NYC Bar opinion on her being extremely well qualified, the Congressional Research Service report which found she consistently dealt with stare decisis and precedents, the Brennan Center analysis and analsysis of more than 800 cases as well into the record.  It’s one thing to talk about speeches you give, I’m more interested in how you decide your cases.

KOHL QUESTIONS:  Talking about Ricci some more — Sotomayor says that judges in lower courts must apply precedents, and that’s what she did.  Now talking about speeches and personal views.  Kohl says he believes better way to evaluate is to look at the record as a judge. 

You’ve served as a federal judge for 17 years, last 11 as an appellate court judge.  You’ve authored 230+ cases in 2nd circuit, and in only 3 your cases have been reversed.  Does this low reversal rate indicate that you’ve been faithful to the law?  Sotomayor says that her record shows that she follows the law.  Says she’s been a participant in thousands more opinions where she was part of a panel that have also either not been reviewed by SCOTUS or not reversed either.  Kohl says that her record as a federal judge is one of being very steady.

What is your view of the Roberts "balls and strikes" analogy?  She loves baseball, but analogies are always imperfect.  Judges need to be impartial and bring an open mind to the cases before them.  Look at the facts of each case, looks at the evidence and apply the law to the facts at hand.

Judge, which current SCOTUS Justices do you most identify with, and which would you mostly be agreeing with if you were confirmed?  Sotomayor declines to name one and dodges — each justice brings their own individual sense of what the law requires and hard work.  Going further with that would suggest that I’m elevating one and then disagreeing or criticising another, and I don’t want to do that.  I’d rather talk about my own judging.  A justice from the past that I admire for applying that legal standard is Justice Cardozo — he was a judge on the NY Court of Appeals for a long time, and one ofthe factors he was known for was his great respect for precedent and his great respect for the legislative branch.  I approach the law as a case by case application of law to facts. 

Kohl says gosh you sure are swell, but I think we need to know what sort of judge you will be.  On affirmative action — we can all agree that itis good when our schools, businesses and others encourage diversity — but see difficulties in coded systems that become rigid in hiring and other questions.  What do you think about affirmative action?  Is it more justified in education than employment?  And do you agree with O’Connor that perhaps it won’t be needed in a few more decades?   Sotomayor says that affirmative action questions are tough to answer in the abstract — it depends on what particular issue is being addressed, and what remedy is being sought and why.  The constitution requires equality.  O’Connor’s decision in the UMich admissions criteria — her hope that we’d reach a point where it wasn’t needed is always the hope.  But there are situations where the state applies a solution that is very narrowly tailored.  Talking about O’Connor’s decision.  And then talking about the more fixed application in another case which was not narrowly tailored, which SCOTUS found inappropriate.  Applying that into other contexts has not been addressed by SCOTUS directly — that would have to come through another state action, and the court would have to determine whether it was applicable.

Kohl asks about Bush v. Gore — should SCOTUS have been involved?  Sotomayor says that case took the attention of the nation, and there has been a lot of discussion about what the court did or didn’t do.  As a sitting judge, I can’t take a position on what they should or should not have done.  But as I look at that, it’s only happened once in this country.  Some good has come — there has been enormous electoral change in some states as a result of the difficulties that went on, and that is a tribute to our system that all of the branches become involved in resolving the problems identified.

Kohl moves on to private property seizures cases.  When is it appropriate public use?  Sotomayor says that it is now SCOTUS prcedent and as a circuit judge, she’s required to follow it.  The reach question is something that has to be decided on a case by case applicability basis.  She understands the concerns about honoring individual property rights — but the decision was a narrow one in terms of definition of "public use."  Kohl delves further and asks her to talk about what she’d do as a SCOTUS justice?  Sotomayor says she doesn’t prejudge — she’d look at facts and law as it came to her.

Kohl asks about Griswald.  Sotomayor says it’s established precedent.  Is there a right to privacy and where is it?  There is one, Court has found it in Fourth amendment in prohibitions and questions of reasonable search and seizure, plus liberty questions of due process, and has found it elsewhere.  What about Roe?  Sotomayor says that the Court reaffirmed the standard in Casey, and that is established precedent.  That is SCOTUS settled holding on what the rights are.

Cameras in the court.  How would you feel about allowing cameras in SCOTUS?  Sotomayor says she’s had positive experiments with cameras in the courtroom.  Talks a bit about her theories of collegiality on a court — says she likes to listen to what should or should not be done.  Wouldn’t want to come in with pre-judgements — I go in with my own experiences and share my thoughts, and be collegial to come to a conclusion together.  Kohl says he appreciates that if you can’t convince them, it won’t happen.  Sotomayor says she was a really good litigator, and when she works hard trying to convince colleagues of something, they’ll often try something — if I’m fortunate enough to be confirmed, I’ll be a new voice in the discussion.

Kohl asks about specific, fixed terms.  Federal judiciary very different — serve for life.  Would you support term limits to prevent a cloistered, ivory tower existence for federal judges?  Says all policy questions are within the Congressional purview first, but it would have to be considered within the Constitution as well.  There was a purpose to the structure of our Constitution — it was a view of the Founders, and it was that they wanted justices not subject to a political whim of the moment to ensure objectivity and impartiality over time.   Says that her experience is that service and length of time is useful, but it is a question of how the structure of our government is best served.  There is value in the services of judges for long periods of time.

Kohl moves onto anti-trust law — old-fashioned word for protecting consumers and others from unfair trade practices.  Wants her to respond to her anti-trust record and Leggins (sp?) — vertical price-fixing case — no longer violates anti-trust law.  Sotomayor says she cannot speak to Leggins, it centered around the judges different views on stare decisis, but where none of them seemed to dispute the economic assumptions in this field of law.  This is the SCOTUS precedent and one that I have to apply.  With respect to my record, I can’t speak to why someone else would suggest a pro or anti approach to business cases — but my structure is the same in business or any other case, and that is what does the law require?  She refers to the Visa/Mastercard anti-trust decision which was also a major anti-trust case inthe field.  Says she will apply the law as its written by Congress and apply precedent of the law.

Short break — flexible 10 minutes.

When they come back, I’ll start a fresh thread.

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

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