“If there’s a test for judicial temperament, you pass it with an A++”
Senator Feinstein (D-CA) commenting on Sotomayor’s ability to remain calm during the intense discussions in this morning’s hearing.
This morning we finally got to hear some questions for Judge Sotomayor and not only that, we heard answers! Topics ranged from abortion to the right to bear arms to racial discrimination–all intense and controversial subjects. Sotomayor’s answers, however were less intense. She remained calm throughout the morning, it’s true, but left some questions unanswered.
The early portion of the morning was spent discussing biases and prejudices, and what role, if any, they should play in a judge’s decision. Sotomayor said, “Life experience has to influence you. We’re not robots who don’t have feelings. We have to recognize those feelings, and put them aside.” While I agree with this statement whole-heartedly, the bit about putting the feelings aside has been a point of contention since Sotomayor was nominated. She has been quoted as discussing the importance of life experience and how it informs a decision. She brushed of the infamous “wise Latina” remark as not meant to be taken seriously, but rather a play on something Justice O’Connor once said about how a wise man and a wise woman would come to the same decision. She also asked that her audience be taken into consideration–she was speaking to a group of young Latino/a students and was trying to inspire them.
To some extent, life experience influences everything we do. It influences how I view the confirmation hearings and how I report them to you. It’s necessary to recognize that, as Sotomayor said, but it is also necessary for a judge to focus on puttnig the feelings aside. I’m not convinced that Sotomayor will do that–yet. She might still convince me in further hearings.
The second part of the morning was devoted to the controversial issues I mentioned above and to Sotomayor’s skirting those issues. Senator Hatch (R-UT) grilled Sotomayor about her views on the 2nd Amendment for quite a while. It seemed to me like he was trying to get her to confess that she personally thought the right to bear arms was not a fundamental right, as opposed to whether or not the right is legally a fundamental right. Sotomayor did a good job guiding Hatch through the principle of stare decisis, and kept the distinction between what rights have been incorporated against the states and are legally fundamental rights separate from her personal views on those same rights.
At the end of his questioning, Hatch mentions that some groups have been smearing Ricci for being willing to testify in the confirmation hearings. He says he knows Sotomayor has nothing to do with that, but just wanted to aks her what she thought. He gave her a change to say how awful she thought it was, but still managed to tie her to it in a negative way, never letting us forget that she originally ruled against Ricci, and was overturned by the Supreme Court. I distinctly remember my Civil Procedure professor saying “if there’s one thing judges hate it’s being overruled. So try not to bring it up if you argue in front of them.” Poor Sotomayor!
Fortunately for Sotomayor, the morning session ended with a friendly face. Senator Feinstein (D-A) questioned the nominee until the lunch recess was called. Feinstein starts with something of a re-direct examination on Sotomayor. A question something like: ‘Though Senator Hatch said all nine Supreme Court justices disagreed with your ruling in Ricci, isn’t it true that four of them said the Second Circuit should be affirmed?’ was asked, allowing Sotomayor to just say “yes” and breathe a sigh of relief.
Feinstein then asks about executive signing statements. Bush, she says, would sign a law, but then write a note about how he would only enforce certain parts of it. Feinstein wants to know if this is Constitutional. Sotomayor explains that there is a spectrum: “First, has Congress expressly or implicitly authorized the president’s act in any way? If so, he has the highest stature of power…If they have prohibited the act in Congress, then it’s the lowest nde of his power… If Congress has said nothing, it’s a Zone of Twilight.” She also notes that a president can’t act in violation of the constitution, and that her answer to Feinstein’s question depends on the factual situation before the Court.
Feinstien moved on to the Commerce Clause, asking a string of questions about the narrowing of its interpretation that ultimately led her to her goal, which was to find out if the narrowing of the Commerce Clause would prevent Congress from legislating around the environment: would there be an impact on the Clean Air Act or the Clean Water Act? Sotomayor admits that she can’t say much on the topic since there are cases concerning this very issue pending across the country. Feinstein closes with a request for Sotomayor to “go to the court with the sensitivity that this body (Congress) needs to be able to legislate in these areas (environment); they involve all the states.”
I’m looking forward to the afternoon session, and I’ll hopefully be able to report many of the issues discussed therein here on this blog. The topics are fascinating, to say the least, but also complex–it’s hard to keep up with the questions and answers while typing! To watch the hearings yourself, visit www.cspan.org. And for more live blogging coverage, Ann Althouse, a Constitutional Law prof and blogger has good insights at her blog.