Sotomayor Conformation Hearings, Day 3, Part II

Sorry, had to pause for a second there because my local cable station keeps testing the emergency broadcast system and its overplaying the hearing.  Thank goodness for TIVO.

WHITEHOUSE QUESTIONS:  I, like many, many Americans, feel enormous pride that you are here today.  I was talking with some friends in Providence when I was home about your nomination, it gives me goosebumps to think about the path that has brought you here today and, more importantly, about what that means about America — that path.  You have done nothing but vindicate and reinforce that pride that people have felt.  I hope that you very much feel buoyed and sustained, even through these long days in here.

I want to ask you to make a simple pledge:  that you will decide cases based on the law and facts before you, that you will respect the role of Congress as representative of the American people, that you will not prejudge any case but listen to all parties before you and that you will respect precedent.  Sotomayor says that is the pledge that she took as a district court and circuit court judge, and that if she is honored, that she would take as a SCOTUS justice.

Goes on to discuss PRLDEF work in 1992.  This was information you gave to the Senate during your appointments in 1992 and 1997?  Yes.  You were a member of the Board?  Yes.  Did the Board vet the legal filings?  No, most of the folks on the board had no civil rights experience — she didn’t have any at that time because she’d only done criminal and corporate work.  In 1992 and 1997, was this questioned during either of your confirmation processes?  Sotomayor doesn’t think that was raised — it’s a mainstream civil rights organization, like others dealing with Mexican-American heritage and others like that around the country.

Whitehouse now talking about federal trial judge experience she’s had.  And the role of the jury in the American system of government.  Founders made great efforts to disaggregate power — to create checks and balances.  The Founders also revealed strongly felt concerns about the hazards of unchecked power and the vulnerabilityof the legislative and executive branches of either corruption or being consumed or overwhelmed by passing passions.  I’d like ot hear your thoughts on the importance of the jury in that system?  And, if you could, with particular reference to vulnerabilities of the elected branches.  Sotomayor talks about her experience in the criminal context trying cases, less in the corporate civil context, and then quite a bit with her district court tenure.  Just about just about every juror that I’ve dealt with came away with more understanding and respect for the process, they were very intent and took their deliberations and responsibilities very seriously.  Tells story about a juror showing up the next day during jury service with a broken leg in a wheelchair with a cast up to her hip having been at the hospital most of the night — testament to commitment to public service of jurors.  States have some discretion in what types of trials require them, but it is some form of protection for the accused especially in criminal trials. 

Whitehouse asks about the Founders concerns about elected branch corruptions and how jury system factors into that.  As she sees the jury system, she doesn’t know exactly what function the jury was to ensure– sees it as a determination of guilt or innocence being determined by peers.  For the elected branches, that ensures that people are not prosecuted unjustly but that charges are brought appropriately under the law.  Same applies to civil trials.

How would you characterize the Founder’s view of unilateral or unchecked power by any fo the three branches of government?  Sotomayor says the constitution by its terms sets out the balance of powers — to the extent that there are limits within the constitution, the bill of rights — it’s a question always of looking at what the constitution says and what kind of scope it gives for a government action at issue.

Whitehouse asks about the careful attention the constitution gives to establishing and enforcing checks and balances between the branches of government, if a judge were presented with an argument that a particular branch should be able to exercise unilateral, unchecked power in a particular area, a judge should approach that with a level of heightened caution?  Sotomayor says typically this comes to the fore with an executive action, because the executive enforces the law.  Refers again to the Justice Jackson framework in Youngstown.  What has Congress said expressly?  If Congress has authorized expressly, then President is acting at the height of his powers.  If Congress has implicitly prohibited, then President is acting at the ebb of his power.  If Congress hasn’t spoken, then zone of twilight.  What president’s powers are in the constitution, minus whatever power Congress may also have been given in that area — as a judge you look at all those factors.  Congress makes the law, the president can veto but he can’t make the law.  Look at those questions in light of what Congress has said on the issue and in light of Congressional power in the constitution.

Turn to law enforcement.  Compliments Morganthau’s office in Manhatten.  Complimenting her on work in the prosecutor’s office.  One of the things prosecutors have to deal with all the time is search and seizure and warrants.  The warrant requirement under the constitution — and I see the constitution as timeless and immutable, what changes is society and technology.  Would like your thoughts on the warrant requirement as set up by the Founders — the sheriff seized the proeprty as contraband, papers seized, then returned and that was the end of it.  Then came the Xerox — and you could make copies that ended up in government files somewhere.  Nowadays, with electronic databases and search functions, matters that once would have been returned and that envelope of privacy opened by the warrant would have been closed again, are now potentially eternally searchable and it raises some privacy questions that will eventually need to be addressed.  How does the constitution — what analysis would you go through to see whether the change from a quickly openng and closing privacy envelope to a potentially open forever one — how would you address that?  Sotomayor says there are two issues more starkly in your question, the one of search and seizure and the 4th amendment as it applies to taking evidence from an individual in a current proceeding which is a constant.  She says SCOTUS dealt with a technologically new situation — a flyover for thermal energy from the house, does that require a warrant before the flyover?  The FLIR case.  SCOTUS, via a Scalia opinion, looked at the questions of unreasonable search and seizure context — acts taken int he privacy of one’s home would not be thought to be intruded upon without the police first securing a warrant.  Tothe extent that new technology that you wouldn’t expect to intrude on that privacy, then you were protected by the warrant clause — then the police had a responsibility to talk to a magistrate/judge, lay out probable cause and get a court determination on whether it was enough to secure a warrant.  Balancing the new technology against the expectations of privacy in the 4th amendment.

Sotomayor says Whitehouse asked a second question regarding the discovery retention issue where disclosures to the government might be made available to the public.  Or use it in another context from when it was first given.  So much of that gets controlled by the issues that Congress is thinking about — which is what are people’s rights to privacy in their personal information?  Should that use be regulated somehow and, if so, how?  Congress has regulated public disclosure in databases that the Courts maintain — and the Courts have come up with rules and regs like limiting use of social security numbers in public documents to prevent identity theft, etc.  Courts would have to look at how the Constitution might apply to particular laws that Congress might enact.

LEAHY says he appreciates getting into the area of criminal law on this.  Fifteen minute break.

Marcy will be picking up the liveblogging for the next round.  We’re going ot trade off a little today, to ease things for The Peanut.  Thanks Marcy!

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