Since media coverage insists on riffs on "spicy Latina," I decided to go with hot sauce pix today. Couldn’t help myself.

LEAHY about to gavel proceedings into session.  Liveblogging will begin as he does.

LEAHY:  Good morning everyone.  Judge, it’s good to see you back and your family.  Judge Sotomayor, yesterday you answered questions from 11 Senators.  I think you demonstrated your comittment to the rule of law, and you definitely demonstrated your patience.

For the schedule, we have 8 remaining Senators in that first round.  Then we’ll go into closed session, which we always do, and then will come back for a second round of questions for 15 minutes or less each.

CORNYN QUESTIONS:  Good morning.  Appreciate the good humor you’ve brought to this and your enjoyment of the back and forth as you do in the courtroom.  Talking about how nastiness in hearing sometimes dissuades people from serving — thinks that is not a good thing.

Wants her to help reconcile two pictures that have emerged about her — one from her court work, and one from her speeches and writings.  (CHS notes:  Cornyn pointedly doesn’t discuss where the misinterpretations of Sotomayor might have come, justuses a sorrowful tone about whatever need to reconcile them there may be.  And, good lord, we’re back to the "wise Latina" thing again.)  Sotomayor says that the comments were taken out of context, that you have to read the whole of the speech not cherry-pick her words — that she noted in the broader speech that white men decided Brown v. Board of Education, and there were other instances.

Cornyn trying to get her to either stand by her words or disavow them.  Sotomayor says it was clear that because there has been so much misunderstanding that her words failed, but she wasn’t saying her life experiences would make her decisions — she bases her courtroom decisions on the law.  (CHS notes: Cornyn still going on about this.  It’s going to be a long morning.)  Sotomayor says that the work she does with students and lawyers of all backgrounds and community groups of all types, and what she tries to do is encourage students, new immigrants, and others to participate in all levels of society.  This is one of the good things about America — we can participate fully in all of the opportunities, saying "I’ve made it, so can you.  Participate and work hard."

Cornyn now moving on to a particular set of quotes from a law review article that Sotomayor wrote.  It was a speech entitled "Returning Majesty To The Law."  She hopes she conveyed that she’s passionate about the rule of law, and was trying to say not to participate in the cynicism of the broader public in the law — but to engage in explaining the law in the broader public in all of its contexts rather than falling back on labels like "activism," or otherwise.  Talked about the law evolving as Congress writes new laws, or as technology changes.  About different approaches, there are some cases seen as radical – such as Brown v. Bd. of Ed. — but that can be a teaching point about the law as well — that those new directions rarely ever come at the initiation of the court, but because lawyers are pushing the court to see the law in a different way in their advocacy and as society changes.  Also spoke to them about what judges can do.  Judges have a responsibility to monitor the conduct of the lawyers before them — conduct which could bring repute to the system.

Cornyn asks her whether she believes judges ever change the law?  Sotomayor says they can’t change law — judges aren’t lawmakers.  But they can change how to interpret the law — there are changes by judges in the popular perception that this is a change in the law, but the law itself doesn’t change.  Only the arguments on what it means do. 

Cornyn asks her about a speech in which she celebrated some of the ambiguity in the law.  Sotomayor explains that the reason people bring cases is because the law is uncertain — this is the entire process of law.  If the law was always clear, we wouldn’t need judges.  Where there is unclear drafting of law, or where there is a unique setof facts to which the law has never been applied — that is where judging is done.  (CHS notes:  Jeebus, this is a first year law school tutorial today.)

Cornyn now moving back to the Cederbaum back and forth from yesterday.  Talking about the life experiences informing how you listen and judge.  Your work as a prosecutor may help with a criminal case, but it does nothing for you in a commercial context.  She says the physiological quote that Cornyn was asking about was part of a hypothetical she was asking in the speech — consider these sorts of things and think about them, not trying to suggest that it was a given.  (CHS notes:  Cornyn, not grasping the essential point of hypotheticals in a legal context.  Sad.)

Cornyn moving on to abortion.  Asks whether Obama asked her about abortion.  Sotomayor say no one at the WH ever asked her about abortion.  Sotomayor says in her cases, she follows the law, and you just have to look at her record.  Asks her about Pavia quote on abortion — Sotomayor says that she never spoke with George Pavia about any social political issue, he was the managing partner of her firm.  Cornyn asks if she agrees with Pavia’s comment that she has generally liberal instincts — Sotomayor says that he might be referring to her work on equality with PRLDEF, but that he hasn’t likely kept up with all her cases, since corporate litigators only tend to look at cases which deal with their clients’ business.

Cornyn now harping on the per curium opinion on Ricci.  Says he was shocked! by it being per curium.  Sotomayor says with regard to your broader question on per curium — about 75% of circuit court decisions are decided by summary order.  Partly because the volume of work means that every case can’t get a huge written decision.  But, more importantly, where there is a substantial record in the district court opinion, then often the circuit court will rely on that work.  In Ricci, we had a 78-page opinion that covered the precedents and the facts and evidence of the case.  Cornyn now arguing the Helms "Hands" ad line — and the SCOTUS decision, but fails to note the SCOTUS came up with a whole new standard that didn’t exist at the time of the 2nd circuit panel.  Sotomayor says that the court’s opinion en banc addressed the hardships of the plaintiffs — saying that this wasn’t dismissed by anyone.  But that the law required them to look at what was required, whether or not there was sympathy for either side.  The substantial evidence test was not discussed with the panel — it was a decision by SCOTUS after the fact.

LEAHY says he will put in the record a letter of support from the US Hispanic Chamber of Commerce for Sotomayor’s nomination, and for several in TX and AZ.

SESSIONS asks that a letter from the NRA be placed in the record where they express serious reservations, and adds Wayne LaPierre’s editorial to the record as well.  And a letter from Richard Land the head of the Southern Baptist Convention expressing reservations as well.  (CHS notes:  Hello, fundraising opportunities!)

CARDIN QUESTIONS:  Begins with a thank you for Orioles fans for getting Ripkin back in uniform during the strike.  Gosh you sure are smart and are answering questions really well, and gosh darn it, Americans like you.

Let’s go on to the complimentary comments in the Federal Almanac about you that Sen. Graham didn’t read yesterday.  Reading from many talking about how sharp and well prepared she is.  Sotomayor thanks those who commented — most lawyers who participate in arguments before her know how engaged she becomes in their arguments in trying to understand them.  My style is to engage as much as I can to assure myself that I understand what a party is trying to tell me.  As I noted yesterday, I have colleagues who ask no questions, I have others who ask a lot of questions.  Every judge has their own style.

Cardin talking now about constitution and bill of rights protections.  Discussing civil rights laws and struggles — talking about voting rights.  Says in his own election in 2006, there were longer lines int he African American precincts than in other areas — not as many machines, longer lines, fradulent sample ballots given out in certain neighborhoods — I mention this because it didn’t happen 60 years ago, this was 2006.  Tell me about your passion for protecting the right to vote — and making certain the laws are enforced as Congress intended.  Sotomayor says that when Cardin talks about her passion on this, it isn’t unique to her — voting is a fundamental right in this country and one which most Americans hold sacred.  Congress has passed a number of laws through the years to protect that right.  The question a judge would face is whether some Congressional law conflicts with a state requirement on voting mechanisms.  She references a dissent on an en banc hearing on voting rights — the majority upheld a state regulation barring a group of people from voting.  I dissented, referring to the words of Congress regarding not discriminating on voting based on race — need to give the plaintiff an opportunity to prove his allegation that occurred.   Cardin quotes from her "I trust that Congress would prefer to make needed changes, rather than have the Court do so for it."

Cardin says he’s concerned about judicial activism dismissing the clear intent of Congress.  Moves on to environmental laws.  Talking about more recent decisions rejecting Clean Water Act intent, particularly concerned with that impact on Chesapeake Bay for Maryland.  Understands that these decisions are now precedent, but I’d like you to comment on how you reach decisions that come to the bench and thatyou will follow intent of Congress and not supplant that with judicial action.  Sotomayor says thatshe believes her record shows that deference must be given to the rights of each branch in each situation in the exercise of its powers.  To the extent that the Court has a role in ensuring that the Constitution is folowed, that it attempts that with some deference to the elected branches in setting policy and making law.

Cardin turns to personal backgrounds.  Progress for women has not always come easily — we all agree that in rendering an individual decision, a gender and ethnic background will not affect your decision.  But you can’t just divorce who you are and what your life has taught you.  You were actively involved in promoting diversity at Princeton.  Talks about his own experience at UMaryland Law, which denied admission to Thurgood Marshall earlier.  Talks about Justice Ginsburg speaking to the impact of women on the bench and sexual harassment cases falling under Title VII through their influence.  Thoughts on improving diversity?  Sotomayor says his comment about his family reminds her of a letter she got when she was nominated to the 2nd cir from a woman who had 19 daughters and greandchildren — how proud this woman was that a woman could serve in that capacity, and how important that diversity can be as an example to others of the great opportunities we can have in America.  Policy decisions about equal opportunity come from Congress — how to do that in the first instance — the Court looks at what has been done to determine whether that passes constitutional muster.  Talks about more recent educational standards cases in Michigan — the law school and undergrad cases — and the differences in how the Court saw race application narrowly drawn in the law school case versus as a broader impermissible violation in the undergrad case.  Have to balance the need versus the remedy sought, and the facts.

Cardin refers to the Gant case that Sotomayor ruled on previously.  Can you ignore race completely?  Sotomayor says that it depends on the context of the case that the Court is asked to examine.  In Gant, she joined the majority in dismissing some of the claims — but there was a disperate treatment element in terms of the services he was provided and the remedies tried.  Says you have to look at all the facts and circumstances in any individual case under the law.

Cardin says privacy is the right to be left alone.  SCOTUS had advanced that in Myers, Loving, Lawrence, Griswold, and Roe v. Wade.  Wants her assessment of the where this stands today — with extensions of technology and others — how do you see privacy in the 21st century courts?  Sotomayor says privacy has been recognized in a number of circumstances for more than 90 years now — it’s partof the Court’s precedents, with the liberty provision of the due process clause that provides a right of privacy in a number of different settings in awhole line of cases.  In the coming century, it’s guided by that line of cases and other cases — by that precedent — for any new law or new situation.  The constitution remains the same, society changes, the cases brought before the courts change — but the principles and precendents remain more constant.  And you apply those principles to the cases brought before you.

Wants to talk about pro bono work.  Legal access is important — but the numbers of attorneys to defendants is a huge disparity.  Hopes Congress will reauthorize Legal Servies Act.    Wants to know how she sees the role of the courts in promoting pro bono work?  Sotomayor says if you look at the body of her speeches, public service and pro bono work is a huge part of what she speaks to in the bulk of her speeches.  The importance of participation in bettering the conditions of our society — active involvement in their communities, and not just in politics.  Work in your community to improve it.  The ABA requires community involvement and public service, in virtually every state bar as well.  Public service for lawyers is critically important — its a core responsibility of lawyering.  Our Founders became that because of their fundamental belief in public service — for lawyers, we are supposed to help people receive justice under the law, and it’s a critical duty.

COBURN QUESTIONS:  Places Washington Times article in record.  Apologizes for missing yesterday because of health care legislation work.  Apologizes for abortion protestors from yesterday — "you don’t change minds by yelling at people, you love them."  Let’s talk in regular parlance, so regular folks can understand it.

What is the settled law in America about abortion?  Sotomayor says she can walk him through SCOTUS precedent.  And proceeds to do so.  Coburn now throws out a hypothetical on a pregnancy with spina bifida.  Sotomayor says she can’t answer that in the abstract, because she’d have to look at the specific state’s law to know where her analysis would fall — but Casey does comment about undue burden issues.  But this is certainly an issue which may come before the Court.

Coburn now talking about technology on premature birth saves being advanced.  Sotomayor says the law has answered a different question, on the fundamental right of women, and not in that type of specifics.  Says she couldn’t answer because it is very likely a case that would come before the courts.  Coburn asks whether viability and technology should be considered?  Sotomayor says that isn’t a question that the Court reaches out to answer.  That’s a question that gets created by state legislation — we don’t make policy questions in the court — we would look at this as a challenge to a state law by a litigant who would claim an undue burden.

Coburn moves on.  Does a state have a right to determine what is death?  Sotomayor says it depends on what they are applying that definition to — some cases would be appropriate, some would not have applicability to courts.   And now we’re back to viability, technology, etc.  I don’t expect you to answer this, but I do expect you to pay attention to it.  And he goes on to the standard pro-life speech on life, the womb, and not one word about the mother whatsoever. 

Asks her about Maloney — and her position on the 2nd amendment.  Sotomayor talks about Heller — SCOTUS recognized an individual right to bear arms guaranteed by the 2nd amendment and one that limited the actions the federal government could take with regard to possession of firearms.  Maloney presented a different question, and that was whether the individual right limited the state’s ability to limit possession of weapons.  Talking about the difference of common meaning of fundamental versus the legal definition — is that amendment of the constitution incorporated to the states through the 14th amendment?  In Maloney, the issue for us was a very narrow one, was the Heller right incorporated against the states — in accordance with SCOTUS precedent, it was not.  In Heller, the SCOTUS failed to rule on the state applicability issue (CHS notes:  which leaves prior precedent on that incorporation intact until such time as SCOTUS rules on it.  Duh.)  Sotomayor goes on to say that there was also substantial 2nd Cir. precedent saying that it was not incorporated against the states.

What the Court will look at is the state regulation of the right, and then whether what the state is doing to limit or expand that right — whether that’s appropriate.  Coburn talking about the 2nd amendment being the reason that the 14th amendment was applied to states to restore right ot bear arms to freedmen.

Wants to know how we got to the point that something is guaranteed in the constitution isn’t, but something that isn’t set out in the constitution is?  Sotomayor says that one of the frustrations with judges by citizens is that what we do is different than the conversation the public has on what they want the law to do.  Judges don’t make law.  We get a particular setof facts presented to us.  We look at what states are deciding to do or not do, what laws have been enacted by them and by Congress — look at the principles in the Constitution, the bill of rights and the laws, and then apply that to the set of facts and evidence before you.  Says Scalia wasn’t suggesting all regulation was illegal, just that the particular DC regulation was unconstitutional.  Judges don’t make a broad policy choice — we look at what other actors in the system are doing, what their interest in doing that is, and what they are trying to fix — that’s the court’s function.  Can’t explain it philosophically, just explain it by the function of judging.

Do you believe I-nate-ly in a right of personal self-defense?  Sotomayor trying to remember if SCOTUS has addressed that — can’t think of one off the top of her head.  As she understands, most criminal law statutes are passed by states.  Can’t think of a federal law statute which addresses that.  Sotomayor says she doesn’t know if that legal question has ever been presented.  It’s an abstract question with no particular meaning outside how I would have to look at it under the law.  Coburn goes off on whether people can defend themselves in their own homes.  Sotomayor says it’s tough to deal with someone whose answers are so cornered by the law — let me answer in the context of NY law, which is my personal experience.  Under NY law, if you are being threatened by force, you can use force to repel that — the question which comes up with the jury is how imminent is that threat?  It’s a question of self-defense under NY law — but the answer can differ radically under the set of facts.

You’ve been critical of Justice Scalia’s crits of foreign law.  I’d like you to quote from your oath, outside of treaties, where that’s allowed?  Sotomayor says she has actually agreed with Thomas and Scalia that you have to be careful outside treaty and other obligations where you use that.  She says her speech and her record on this issue is that she’s never used foreign law to interpret the constitution or statute — unless the statute directs you to look at foreign law, and some do btw — it cannot be used as a precedent or to bind on an interpretation.  Coburn going to a cherry-picked quote:  "nothing in the American legal system prevents us from considering those ideas" from foreign law.  Sotomayor says if you look at my speech, you’ll see that repeatedly I underscored that foreign law could not be used for precedent — but what judges do, and I cited Justice Ginsburg, is that you build up a store of knowledge in an academic discussion way in thinking about ideas from other courts — not using foreign law as a controlling precedent to drive a conclusion.  You use it as a comparison point, not in compelling a result.  Coburn says he doesn’t agree with that on certain 8th and 14th amendment cases.

Should we worry about what other people think about us in interpreting our own law?  Not saying this very well.  Should we worry about achieving a politically correct around the world?  Sotomayor says that we don’t render decisions to please the home crowd nor anyone else.  Have heard discussions about SCOTUS needing to take more treaty cases because we aren’t particpating in the broader discussion on this.  But we shouldn’t make decisions based on what someone else thinks.

Am starting 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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