Even if you thought Sessions was carrying out a politically astute tactic, he really is rather bad at it.

I am not a fan of Sotomayor's speaking style, but certainly she sounds calm and collected and Sessions appears quite wild.

If there was anything interesting being discussed on substance, I would write about it. So far, it is all nonsensical.

The optics of this are incredible. Sessions is incredible.

My gawd, Sessions is really dumb. I know what he is trying to do but boy is he bad at it. He must have been a lousy trial judge. To thik that someone thought he could be on the federal bench.

Sessions really is letting his resentments show. He HATES that this Latino woman is going to the SCOTUS and he could not even make it to a federal trial bench.

The hate permeates.

Why the GOP picked Sessions for this is hard to understand. Heis lousy at it. The optics are horrible. His own history. He does not work.

So far, what is disappointing about the hearings is there is no real discussion of judicial philosophy and the role of the Supreme Court. This will sound strange, but it is a shame specter is not in a leading role here. He has been fierce in defending the perogatives of Congress and harshly critical of right wing judicial activism that disrespects the power of Congress.

These hearings are worse than the usual tripe.

Here comes Kohl with a great question about judicial activism in the area of antitrust law. I wrote about that many years ago at Daily Kos (the post actually was the excuse National Review gave for outing my identity when I blogged under a pseudonym.) Sotomayor dodges the question. FULL DISCLOSURE: I argued a case before the First Circuit on the very issue Kohl discussed.

Hatch's questions on incorporation and when a right is considered "fundamental" are quite appropriate and good ones.

Here is a partial transcript of this mornings hearing:

LEAHY>> Let me refer to that. Her opinion in the case left unresolved and reserved as a separate question whether the second amendment guarantee applies to the states and laws adopted by the states. Now the unanimous decision i know they agreed with the second circuit decision. We all know that not every constitutional right has been applied to the states by the supreme court. One of my first cases was whether the fifth amendment made the grand jury applicable to the state. The supreme court has not held that applicable to the state. 7Th amendment, right to jury trial. Eight amendment, prohibition against excessive fines. These have not been made applicable to the state. I'm not going to ask about that case before the supreme court. How you're going to rule. But would you have an open mind on the supreme court in valuing the legal proposition on whether second-amendment rights should be considered fundamental rights and thus applicable to the states.

SOTOMAYOR>> Like you I how important the right to bear arms is to many, many americans. One of my god children is a member of the nra. I have friends who hunt. I understand the individual right fully that the supreme court recognized. As you pointed out the supreme court was addressing a very narrow issue, which was whether an individual right under the second amendment applied to limit the federal government's rights to regulate the possession of firearms. The court expressly identified supreme court precedence has said that that right is not incorporated against the state. Ha that term of incorporation means in the law is that doesn't apply to the state in its regulation of its relationship with its citizens. It's a legal term. It's not talking about the importance of the right in the legal term. It's talking about incorporated against the state. When maloney came before the second circuit, as you indicated, myself and two other judges read what the supreme court said, saw that it had not explicitly rejected the precedence and followed the precedence. It's the job of the supreme court to change it. You asked me I'm sorry, senator. I didn't mean to cut you off. But you asked me whether I have an open find on that question. Absolutely. My decision on maloney would be to follow the precedence of the supreme court when it speaks totally on an issue. I would not prejudge any question that came before me if I was a justice on the supreme court.

LEAHY>> Let me -- I just asked senator sessions. I want to ask one more question. And it goes to the area of prosecution. You've heard appeals in over 800 criminal cases. Many convictions for terror cases. 99% Of the time at least one republican judge on the appointed panel agreed with you. Let me ask you about one. The united nations versus donald. The mayor of waterbury, connecticut. The victim the young daughter, niece of a prostitute. Young children who as young as 9 and 11 were forced to engage in sexual acts with the defendant. The mayor was convicted under a law passed by congress prohibiting the use of any facility or means of interstate commerce to transmit or contact information about person under 16 for the purpose of illegal sexual activity. You spoke for a unanimous panel including judge jacobs and judge hall. You upheld the conviction against the constitutional challenge that the federal criminal statute in question exceeded congress's power to the congress clause. I appreciate your deference to prohibit illegal conduct. Did you have any difficulty in reaching the conclusion that you did in the case?

SOTOMAYOR>> No, sir.

LEAHY>> Thank you. I'm glad you reached it. Senator sessions. And I appreciate senator sessions forebearance.

SESSIONS>> I hope we have a good day today. Look forward to dialogue with you. I got to say that I like your statement on the fidelity of the law yesterday and some of your comments this morning. Had you been saying that with clarity over the last decade or 15 years we would have fewer problems today. You have evidenced -- I think it's quite clear, a philosophy of the law that suggests a judge's backgrounds and experiences can and should and naturally will impact their decision, which I think goes against the american ideal and oath that a judge takes to be fair to every party and every day when they put on that road robe, that's a symbol to put aside their pempbs preferences. It's not just one senate. As my chairman suggested that caused the difficulty. It's a body of thought over a period of years that causes difficulty. And I would say the suggestion is not exactly wise. You said I think six different times, "i would hope that a wise latina woman with the richness of her experiences would more often than not reach a better conclusion. So that's a matter I think we'll talk about as we go forward. Let me recall that yesterday you said it's simple but delicately to the law. The task of a judge is not to make law, it's to apply law. I heartedly agree with that. Previously you said the court of appeals is where policy is made. You said in another occasion the law that lawyers practice and judges declare is not a " law that many would like to think exists. So I'm asking today, what do you really believe on those subjects? That there is no real law? The court of appeals is where policy is made. Discuss that with us, please.

SOTOMAYOR>> I believe my record of 17 years demonstrates fully that i do believe that judges must apply the law and not make the law. Whether I've agreed with a party or not, found them sympathetic or not, in every case I have decided I have done what the law requires. With respect to judges making policy, I assume, senator, that you were referring to a comment I made in a duke law dialogue. That remark in content made very clear that I wasn't ing about the policy reflected in the law that congress makes. That's the job of congress to this decide what the policy should be for society. In that conversation with the student I was focusing on what district court judges do and circuit court judges do. I noticed that district court judges apply the facts to the individual case. When they do that they're findings doesn't bind anybody else. Appellate judges, however, establish precedence. They decide what the law says in a particular situation. That precedence has policy ramification. Because it binds not just the litigants in that case but all lit gats in similar cases and cases that may be influenced by the precedent. I think that it's very clear that I was talking about the policy ramifications of precedence. And never talking about appellate judges or courts making the policies that congress make.

SESSIONS>> I don't think it was that clear. I looked at that tape several times. Yesterday you spoke about your approach to rendering opinions and said I seek to strengthen the rule of law and faith and impartiality in the justice system. I would agree. But you have previously said this. I am willing to accept that we who judge must not differences resulting from experience and heritage, but attempt as the stream court suggests continuously to judge when those opinions, sympathies and prejudices are appropriate. So first I would like to know, do you think there's any circumstance in which a judge should allow their prejudices to impact their decision making?

SOTOMAYOR>> Never their prejudices. I was talking about the very important goal of the justice system is to ensure the biases of a judge. I was talking about the obligation of judges to examine what they're feeling as they're adjudicating a case and to sure that that's not influencing the outcome. Life experiences have to move you. We have to recognize those feelings and put them aside. That's what my speech was saying. That's our job.

SESSIONS>> But the statement was i willingly accept that we who judge must not deny the differences resulting from experience and heritage. But continually judge when those are appropriate. That's exactly opposite of what you're saying, is it not?

SOTOMAYOR>> I don't believe so, senator. All I was saying is because we have feelings and different experiences, we can be let to believe that our experiences are appropriate. We have to be open minded to accept that they may not be and that we have to judge always that we're not letting those things determine the outcome. There are situations in which some experiences are important in the process of judging because the law asks us to use those experiences.

SESSIONS>> I understand that you want to increase the faith and impartiality of the system. This statement suggest you accept that there may be sympathies, prejudices and opinions that legitimately can influence a judge's decision. How can that further faith in the impartiality of the system.

SOTOMAYOR>> I think the system is strengthened when judges don't assume they're impartial. But when judges test themselves to identify when their emotions are driving a result or their experiences are driving a result and the law is not.

SESSIONS>> I agree with that. I know one judge that says if he has a feeling about a case, he tells his law clerks to watch me. I do not want my biases, sympathies or prejudices to influence the decision which I've taken an oath to make sure is impartial. I'm very concern that had what you're saying today is quite inconsistent with your statement that you willingly accept that your prejudices may influence your decision making.

SOTOMAYOR>> Well -- as I have tried to explain, what I try to do is to ensure that they're not. If I ignore them and believe that I'm acting without them without looking at them and testing that I'm not then i could be led to do the thing i don't want to do, let something but the law command the results.

SESSIONS>> Yet today you always said that your decisions have always been made to serve the larger interest of impartial justice. A good aspiration, I agree. In the past you repeatedly said I wonder whether achieving the goal of impartiality is possible at all. In even most cases and I wonder whether by ignoring our differences as women, mean, people of color, we do a disservice to people of the society. Aren't you saying there that you expect your background and heritage to influence your decision making.

SOTOMAYOR>> What I was speaking about in that speech harkens back to what we were just talking about a few minutes ago. Which is life experiences do influence us. In good ways. That's why we seek the enrichment of our legal system from life experiences. That can affect what we see or how we feel, but that's not what drivers a result. The impartiality is an understanding that the law is what commands the result. Most of my speech was an academic discussion about what should we be thinking about, what should we be considering in the process in accepting that life experiences could make a difference? But I wasn't attempting to encourage the belief that i thought that that should drive the result.

SESSIONS>> Yuj, I'm -- I think it's consistent in the comments i quoted to you in your previous statements that you do believe that your background will affect the result of cases. That's troubling me. That's not impartiality. That is not consistent with the statement that you believe rour role is impartial.

SOTOMAYOR>> No, sir. As I've indicated my record shows that at no point or time have I ever permitted my personal views or sympathies to influence the outcome of the case. In every case where I have identified a sympathy, I have articulated it and explained to the litigants why the law requires the different result. I do not permit my sympathies, personal views or prejudices to influence the outcome of my cases.

SESSIONS>> Well, you said something similar to that yesterday. That in each kals I applied the law to facts at hand. But you repeatedly made this statement. I accept the proposition that a difference there will be by the presence of women and people of color on the bench and my experiences affect the facts i choose to see as a judge. That's troubling to me as a lawyer. When I present evidence I expect the judge to see and hear all the evidence. How is it appropriate for a judge to ever say they will choose to see some facts and not others?

SOTOMAYOR>> It's not a question of choosing to see some facts or anher, senator. I didn't intend to suggest that. What I believe the point I was making was that our life experiences do permit us to see some facts and understand them more easily than others. But in the end you're absolutely right. That's why we have appellate judges that are more than one judge. Each of us from our life experiences will more easily see different perspectives argued by party. But judges do consider all of the arguments of litigants. I have. Most of my opinions if not all of them explain to parties why the law requires what it does.

SESSIONS>> Do you standby your statement that my experiences affect the facts I choose to see.

SOTOMAYOR>> No, sir. I don't standby the understanding of that statement that I will ignore other facts or other experiences because i haven't had them. I do believe that life experiences are important to the process of judging. They help you to understand and listen. But that the law requires this.

SESSIONS>> You made that statement in individuals spefches about seven times over a number of years. And it's concerning to me. I would just say to you, i believe in the judge's formulation. She said, and you disagreed, and this was really the context of your speech. And you used her statement as sort of a beginning of your discussion. You said she believes that a judge no matter what their gender or background should strive to reach the same conclusion and she believes that's possible. You then argued that you don't think it's possible in all, maybe even most cases. You deal with the famous quote of justice o'connor in which a wise old man should reach the same decision as a wise old woman. You say you don't think that's necessarily accurate. And you doubt the able to be objective in your analysis. It may not be possible in all or most cases with your oath that you've taken twice which requires impartiality?

SOTOMAYOR>> My friend judge Cedarbaum is here this afternoon. We are good friends. I believe that we both approach judging in the same way, km is looking at the facts of each individual case and applying the law to those facts. I also as I explained was using a rhetorical. I know he couldn't have met if judges reach different legal conclusions that one of them wasn't wise. That couldn't have been her meaning because reasonable judges disagree. On legal conclusions in some cases. I was trying to play on her words. My play fell flat. It was bad. It left an impression that i believe that life experiences command a result in the case. That's clearly not what I do as a jung. It's clearly not what I intended in the contest of my broader speech. It was to believe that their life experiences added value.

SESSIONS>> Well, I can see that perhaps as a layperson approach to it. As a judge who took the oath that you repeatedly made statements that consistently argues that this ideal and commitment. I believe everybody judge is committed, must be, to put aside the personal experiences and biases and make sure that that person before them gets a fair day in court. So filts fi can impact your judging. It's much more likely to reach full flower if you sit on the supreme court than it will on a lower court where you're subject to review by your colleagues. So with regard to how you approach law and your personal experiences, let's look at the new haven firefighters cases. The city of new haven told firefighters they would take an examine, set forth the process to determine who would be eligible for promotion. The city spent a good deal of time and money on the examine to make it a fair test of a person's ability to serve as a supervisory fireman which in fact has the awesome responsibility at times to send their firemen into a dangerous building o on fire. They had a panel that did oral examines. Wasn't all written. And according to the supreme court, this is what the supreme court held. The new haven officials were careful to ensure broad racial participation in the design of the task and its administration. The process was open and fair. There was no genuine dispute that the examinations were job related and consistent with business necessity. But after the city saw the result of exam, it threw out those results because one group did well enough on the task. The supreme court then found that the city rejected the result because the high scoring candidates were white. After the tests were completed the raw racial results became the predominant rationale for the city's refusal to certify the results. So you've stated that your background affects the facts that you choose to see. Was the fact that the new haven firefighters were subject to discrimination. One of the facts you chose not to see in this case.

SOTOMAYOR>> No, sir. The panel was composed of me and two other judges in a very similar case. I'm sorry -- I misspoke. It wasn't judge easterbrook, they saw the case in an identical way. Neither judges -- I confuse ad statement. I apology. In a similar case the sixth circuit approached a very similar issue in the same way. So a variety of different judges on the appellate court were looking at the case in light of established supreme kurt and second circuit precedence. And determined that the city facing potential liability under title seven could choose not to certify the tests. The supreme court, as it is its prerogative in looking at a challenge, established a new consideration or a different standa for the city to apply. And that is with their substantial evidence that they would be held liable under the law. That was a new consideration. Our panel didn't look at that issue that way. It wasn't argued to us in the case before us. The case before us was based on existing precedence. It's a different test.

SESSIONS>> Judge, there was apparently unease within your panel. I was really disapointed and a lot of people have been that the opinion was so short. It did not discuss the serious legal issues that the case rose. And I believe that's legitimate criticism of what you did. It appears according to a writer for the national journal, it appears that the judge was concerned about the outcome of the case. Was not aware of it because it was an unpublished opinion. But it began to raise the question of whether a hearing should be granted. You say you're bound by the superior authorities. But the fact is when the question of rehearing that second circuit authority that you say covered the case, some says it didn't cover so clearly. That was up for debate. The circuit voted. And you voted not to reconsider the prior case. You voted to stay with the decision of the circuit. . In fact, your vote was the key vote. Had you voted for the judge himself a Puerto Rican, had you voted with him, you could have changed that case. In truth you weren't bound by the case. You must have agreed with it. And agreed with the opinion. And stayed with it until it was reversed by the court. Let me just mention this. In 1997 --

LEAHY>> was that a question?

SESSIONS>> Well, that was a response so some of what you said, mr. Chairman. You misrepresented fact chully what the -- the posture of the case.

LEAHY>> I obviously will disagree with that. But we'll have a chance to vote on the issue.

SESSIONS>> In 1997 when you became before the senate. I was a new senator. I asked you this. In a suit challenging a government racial preference will you follow the supreme court decision and subject racial preferences to the strictest judicial scrutiny? In other words, I asked you would you follow the supreme court's binding decision the supreme court held that all governmental organizations that discriminated by race of an applicant must face strict securityny in the court. This is not a light thing to do. When one raises favor over another, you must have a really good reason for it, or it's not accepted. The government agencies must prove there's a compelling state interest in support of any decision to treat people differently by race. It determines the same level of strict scrutiny applies for the purpose of evaluating the constitutionality of all government classifications. Whether at the state or federal level based on race. So that was your answer. It deals with the government being the city of new haven. In view of this commitment you gave me 12 years ago. Equal protection and strict scrutiny are completely missing from any of your panel's discussion on this decision.

SOTOMAYOR>> Because those cases were not what was at issue in this decision, and, in fact, those cases were not what decided the supreme court's decision. The supreme court parties were not arguing the level of skrurt des moines, iowa that would apply with respect to intentional discrimination. The issue is a different one before our court in the supreme court, which is what's a city to do when there is proof that its test districtly impacts a group. The supreme court decided not on the basis of scrutiny that what it did here was wrong, what the city did here was wrong, but on the basis that the city's choice was not based on a substantial basis in evidence to believe it would be held liable under the law. Those are two different standards. Two different questions. That a case would present.