Today is the last day of the first round of questioning–exciting!

Coburn (R-OK) wants to know what the settled law is on abortion. Sotomayor responds that she can only comment on what the court has said in Roe and Casey. Coburn gives her a hypothetical about a pregnancy that is 38 weeks along and there is a defect with the fetus. Coburn wants to know if the mother just doesn’t want to deal with the child, can she abort it? Sotomayor replies that depends on which state is being discussed, because states have their own regulations. She avoids truly answering any question about how she feels about abortion, and also about how she would rule in an abortion case.

Coburn moves on to ask whether technology should have any bearing whatsoever on the way we look at Roe v. Wade. He notes that most recently a 21 week fetus was able to live and is now nine months old and healthy. Sotomayor gives the same “depends on the state” response.

As a general rule, I like when a judge insists that each case is different. I’m curious to hear more about what Sotomayor thinks of the line of cases that includes Roe and Casey, but I wouldn’t want her to prejudge a case. She’s avoiding controversy with her answers, which is usually a good thing, but it’s frustrating anyway.

Cornyn (R-TX) can’t resist the “wise Latina” questions! I’ve already made clear that this has been rehashed too many times. I have no further comments on this topic. And neither does Sotomayor. She repeats herself one more time.

Klobuchar(D-MN) gives Sotomayor some open time to discuss her judicial philosophy. Sotomayor has been criticized and praised for taking too much time to understand the facts of a case, and Klobuchar asks her to explain why the facts are so important, and why her opinions are so thorough. She explains that all cases are decided on their facts, and that judges must apply the law to facts. I don’t know that there’s any such thing as a judge that’s too thorough.

Klobuchar then asks Sotomayor if she watched the All Star baseball game last night. Of course she admits she did for a bit. There’s an exchange about the Yankees, and some other completely off topic baseball nonsense before questioning is handed over to Senator Kaufman.

Kaufman(D-DE) wants to know about Sotomayor’s time as a commercial litigator. Why did she leave the DA’s office to go into commercial practice? Sotomayor said that she wanted to increase opportunities for all people, and that she couldn’t do that at the DA’s office. She said that her work as a commercial litigator and her pro bono work were focused on financial and economic issues, and that worked with the New York State Mortgage Board which got people into affordable housing, She also wanted to expand her knowledge of all areas of law.

She opted to go to a smaller firm for hands on experience, and was involved in grain commodity trading and the contracts involved. Her firm represented a very impressive list of clients including Ferrari. She said she got a wide variety of experience.

Kaufman asks how her commercial litigation practice helped her in the 2nd Circuit? Sotomayor replied, “In business, the predictability of law may be the most necessary, in the sense that people organize their business relationships by how they understand the courts will interpret their contract.” It’s certainly true. Business documents are drawn up with the intention that they will be read and enforced by a judge a certain way. She gained an appreciation of that fact when she was writing them.

Kaufman, being from Delaware, is concerned about business cases, so he’s glad she has the commercial experience. “Do you believe that Congress has the Constitutional authority to regulate financial markets?” She hedges…”Congress has certain Constitutional powers, one of them is to pass laws affecting interstate commerce. The question will be the nature of whatever statute congress passes”

Leahy calls a lunch break.

Specter(D-PA) wants to know her standards for when she would or would not take a case. Sotomayor isn’t sure. She explains that she’d like to speak with the other justices who would be her colleagues, and it would depend on if there was a procedural bar to the Court taking the case. Specter is angry because he gave her advance notice that he would pursue this line of questioning. She explains that she did think about it, but she can’t say whether she would or would not take a certain case. Specter explains that that isn’t what he’s asking for, but that he’s asking her for guidelines or standards that she would apply to all cases. She hedges again, and Specter eventually gives up and switches topics.

Then, Specter moves on to “a woman’s right to choose”(a distinctly Democratic way of saying what we heard a Republican Senator say yesterday was “protecting the unborn”).–Specter tells us that there were 38 cases that had come before the Court in which Roe could have been reversed. Does that give more weight to the stare decisis of Roe? Sotomayor explains that yes, how the Court has dealt with an issue in subsequent cases would be one of the factors to consider. Specter asks, when can the Court change precedent? Sotomayor responds that it depends on how much weight has been put on a given precedent, as well as how the public views the precedent and how much they rely on it. She also notes that there may have been developments in fact or law that would command a different result. She notes that “Casey reaffirmed the core holding of Roe, so my understanding is that the issue should be addressed in light of Casey.”

Specter asks about Bush v. Gore: The result of the election was determined by one vote in a Court that was closed to the public.  Shouldn’t the American people have access to the Supreme Court?  Would Sotomayor be willing to televise the Court? He closes with the comment that it’s not just the accused that has the right to a public trial, but the public as well.

Franken(D-MN) has a nice chat with Sotomayor about Perry Mason, a television show it seems they both enjoyed. The prosecutor in that show lost every time (except one, notes Sotomayor), and Franken finds it hard to believe that this show would lead her to want to be a prosecutor. He then says, “I think that this says something about your determination.” There is laughter (it is Franken, after all).

Franken then gets a little more serious and asks her what her definition of judicial activism is. She replies that she doesn’t use the phrase. She prefers to assume the good faith of the judges. She says that she believes the judges “are attempting to interpret the law and coming in good faith to an outcome that we believe is directed by law” and that, “we all go through the process of reasoning it out and coming to a conclusion according to the principles of law” Things might be “the wrong conclusion in light of politics” but “I know that I don’t approach judging in this way at all.” If a judge did something improper by judging by what they think should be done—for Sotomayor that would be judicial activism, but she reminds us, “I don’t use that word”

Then, jumping on the reproductive rights bandwagon, Franken asks, “do you believe the Constitution has a fundamental right to privacy?” She says it has been recognized for over 90 years by the Court, so it exists, and that the Constitution is written in broad terms, the Court decides how to apply them to facts. She’s sticking with her “if the Court says it is so, then it is so” approach. I can’t decide if I like her better for it or not. I agree with her principles—apply the law to the facts in good faith, and come to a good result; reasonable persons might disagree; don’t prejudge cases—but I also want to know more about her.

The Judiciary Committee then headed into a closed session, where they’ll get an FBI background check of Sotomayor and a chance to chat with her. They came back at 4:00 PM EST, giving each Senator another 20 minutes to ask questions. So far they’re repeating the same ones, so I won’t be covering the second round of questioning the same way I’ve covered the first. Hopefully you’ve found my summaries and comments helpful! Look for more posts about other topics soon. We need a change of pace around here!

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Andy Gillin

Andy Gillin received his Bachelor’s Degree from the University of California at Berkeley and his law degree from the University of Chicago. He is the managing partner of GJEL Accident Attorneys and has written and lectured in the field of plaintiffs’ personal injury law for numerous organizations. Andy is a highly recognized wrongful death lawyer in California.