Senator Grassley (R-IA) starts off the afternoon with questions of property rights and questions about the Kelo case and how it affects the takings clause of the 5th Amendment. Grassley asks if the Supreme Court overstepped the Constitution with their ruling in Kelo. Sotomayor says she has to accept Kelo as precedent, she can’t comment further than to say she understands the questions and that some state legislatures have enacted more limiting state law…she will have to wait until another case comes up. This has been a common theme of hers: she sticks by precedent, believes in stare decisis, and won’t say now how she’ll decide a case she hasn’t seen yet. I think it’s wonderful to hear that sort of non-partisan talk. She seems to be truly devoted to the Constitution.

Ooh…an outburst!

Leahy: “Officer, remove that man immediately…”

Discussion pauses while they remove the man…

Leahy: “…and they did!”

After the outburst

Grassley: “People always say I have the ability to turn people on”
Sotomayor laughs—maybe she’ll earn points, and Grassley’s vote, if she pretends he’s funny.

Senator Feingold (D-WI) starts with questions about executive power—“Did 9/11 change your view on the importance of civil rights and civil liberties?”

Sotomayor explains that the Constitution protects certain rights, no matter what: “no, sir…[the constitution] has inspired us. That doesn’t change”

Feingold moves on to the right to bear arms—it is now a Constitutional right in D.C. (because of Heller), but might not be elsewhere. So Feingold wants to know if you then have to incorporate this right against the states as well? Sotomayor says that will be an interesting case to decide, but isn’t commenting on how she’d decide it…Feingold thanks her for her patience.

Feingold, who is from Wisconsin, asks her how she can empathize with small town or different/rural areas in the country. As a New Yorker, can she, when determining the real-world impact of a decision, see how it will impact the lives of everyone in the country, not just city-slickers? She replies that she has lived in, vacationed in, and visited lots of places—“when I  travel somewhere new, I try to find friends to stay with, not because I can not afford a hotel, but because I do think it’s important to know more than what I do and to try to stay connected…”

And in a final, somewhat weird question, Feingold moves to Korematsu, the case in which the detaining of Japanese citizens during World War II was upheld by the Supreme Court. “Does a judge have a duty to resist the kind of wartime fears that…played a role in the Korematsu decision?” Sotomayor’s answer is simple, “A judge should never rule in fear.”

Feingold: “How does a judge resist those kind of fears?”

Sotomayor: “One hopes by having wisdom to understand, always, no matter what the situation is, that our Constitution has held us in good stead for over 200 years…”

Senator Kyl (R-AZ) begins by asking her when it is appropriate to recuse herself—if she recuses herself on Maloney (a case she decided that will likely end up before the Supreme Court), will she also recuse if Maloney is heard in a joint hearing with 2 other cases that are split on the issue (incorporation of the 2nd amendment)? Sotomayor isn’t sure how she would handle the situation. Kyl thinks she should recuse herself, but she won’t give a firm answer either way.

Kyl switches topics then, moving on to Sotomayor’s insistence that she will always rely on precedent when making a decision. Kyl asks: “Have you ever been in a situation where a lawyer has said ‘I don’t have any legal argument to make; judge, please go with your heart’?” I think what Kyle is getting at is that all lawyers make their case with precedent, be it a Supreme Court case or a Circuit Court case, or even a law review article. He wants to know how Sotomayor can base all decisions on precedent, when there’s always precedent that goes both ways.

She smartly answers: “I look at the law that is being cited, I look at how precedent informs it, I look at the facts in the case before me. That is a process.” That’s right. It is a process, and it takes time and experience to know how to be good at implementing that process. She understands that, but I don’t think Senator Kyl does—because the next exchange went like this:

Kyl: “You’ve always found some legal basis for ruling one way or the other?”

Sotomayor: “When you use the word[s] some legal basis, it suggests that the judge is coming to the process saying ‘I think the result should be here, so I’m going to use something to get there’…”

Kyl: “I’m not trying to infer that your decisions were made on an inappropriate basis”

Sotomayor: “We apply law to facts, we don’t apply feelings to facts.”

Kyl continues slamming her about her past speeches, and how she once said that if there were enough women and minorities in judging, they could “make a difference in the process of judging.” And he brings up the “wise Latina” comment again. She once again has to explain that she was using rhetoric derived from a statement by O’Connor. She explains that everyone’s background influences them, but it doesn’t command the result in the case. Haven’t we had enough of this in these hearings already? Stop making her repeat herself, and ask her a question that will actually assist us in evaluating her as a judge.

Leahy calls for a 10 minute break.

Schumer (D-NY) takes an opportunity to give a mini-speech about Sotomayor. He mentions that, “we’ve heard a lot about a few statements that make her seem impartial…but what about her 17 years of work? No colleague has pointed out even one case in which she used sympathy to come to a result in a case.” Schumer also notes that he believes empathy is “not the opposite of neutrality, but is the opposite of having ice water in your veins.”

Schumer goes through cases in Sotomayor’s record and asks her if she had sympathy for people in the cases. She often says yes, yet she ruled against them when the law required. After reviewing several cases in this manner, Schumer’s tactic is starting to get old. After three or four cases, I began to wonder if he’d do this for his full half hour.

Then, just when you thought you wouldn’t hear any more about baseball…Schumer wants to talk about the players’ strike case….but does he really? Or does he just want to be kitschy and tie it back to all the other baseball references? It felt like it, but then Schumer reminds us that Sotomayor did list this case as one of her ten most important cases. After her decision in this case, players and owners reached an agreement that ended the baseball strike. No one is actually taking issue with the outcome of the case, they’re all just excited that they get to talk about baseball. Turns out it really was about being cute and fun, and not about Sotomayor’s ability as a judge.

Senator Graham (R-SC) taks over the questioning and wants to know who we, as a nation, are getting if Sotomayor is confirmed. The speechwriter Sotomayor? Or the one who’s in front of us today?

Graham asks her if she’s a legal realist or a strict constructionist. Sotomayor says she doesn’t use labels to describe what she does. Graham has the nerve to ask her if she knows what’s meant by a strict constructionist, and asks what the term means to her. Wow. I think that’s offensive. It’s as if he believes a federal judge with seventeen years of experience on the bench never took a Constitutional law course.

Then he asks her what an originalist is. It’s like he thinks she never went to law school, never dealt with the Constitution. She doesn’t appear to be taking offense, but it’s ok, because I’m offended enough for both of us.

Now he’s asking about protecting the unborn…I’m trying not to be partisan in my reporting of these hearings, and I think some of the Senators on the Jucidiary Committee are too. But doesn’t that seem so…well, partisan?

Lawyers anonymously rate judges on temperament, and Graham reads some of the comments made about Sotomayor: “overly aggressive,” “abuses lawyers,” “lacks judicial temperament,” “behaves in an out of control manner,” “will attack lawyers for making arguments she does not like.”

Sotomayor’s responds: “I do ask tough questions in oral arguments. I can only explain what I’m doing, which is when I ask lawyers tough questions…it’s on both sides… it’s to give them an opportunity to explain their position and to persuade me that they’re right. We only give litigants 10 minutes of oral argument each…some lawyers find that our court generally is described as a hot bench…it means that they’re peppered with questions.”

Graham asks:“Do you think you have a temperament problem?” Again, I’m offended enough for both of us, but Sotomayor handles the question with her typical grace.

Next, Graham asks her if there are people out there right now plotting our destruction. He also wants to know if she thinks we’re at war. She says that yes, we are at war, because thousands of our sons and daughters are fighting overseas. Graham then launches into military law and the law of armed conflict, saying that we can indefinitely detain a member of the enemy force. Sotomayor doesn’t even really answer this question, and Graham’s time is up.

Next up is Senator Durbin from Illinois. Sadly, however, this is when the power went out here at GJEL, so I didn’t finish watching the afternoon session. Nor do I have exciting notes for you about what happened. My apologies! That’s also the reason this summary didn’t make it onto the site until this morning. I’ll have a summary of this morning’s session of the hearing up shortly.

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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.