Sotomayor Hearing, Day 4, Blog 1

By Big Tent Democrat, Section Supreme Court
Posted on Thu Jul 16, 2009 at 08:47:16 AM EST
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The nonsense continues today. I am watching intermittently. Tom Watson shot 65 at the British Open.

Jon Kyl misstating what happened in Ricci. The case he will never mention is Griggs. The law he will never mention is the 1991 Amendments to Title VII enacted by congress AFTER the Supreme Court decision in Ward's Cove.

To remember about Ricci, here was the Constitutional Accountability Center's analysis.

Though I must say Sotomayor does a terrible job of explaining this issue. [More...]

Kyl cites the extreme Right Wing commenter Stuart Taylor as if he is some authority. Might as well cite Liberty University law school.

Graham is very interested in what the PRDLEF advocated but was offended when Alito was questioned about what CAP advocated. Blatant hypocrite. And unlike Sotomayor, whose judicial record shows she did not rule based on the views of the PRDLEF, while Alito's judicial record was very much in line with what CAP advocated.

John Cornyn tried to get Sotomayor to agree with John Roberts' disinegenuous statement "the best way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Sotomayor's pushback was interesting and important. She talked instead of about the Constitution's demand of "equality of opportunity." The distinction is important. It was clearly the first time something real about Sotomayor peeked through imo.

Arlen Specter really makes the best points of any of the Senators. He is right on every point he makes.

Update (TL): Transcripts for today: Part 1

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Sotomayor Hearing, Day 4, Blog 1 | 78 comments (78 topical)

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Di Fi! (5.00 / 1) (#3)
by jbindc on Thu Jul 16, 2009 at 08:58:23 AM EST

Kyl is misreading Ricci

Ding ding ding!

Graham (5.00 / 4) (#12)
by jbindc on Thu Jul 16, 2009 at 09:17:39 AM EST

apparently also doesn't know that, contrary to what TV shows, during colonial times, MANY people were not allowed to own guns - blacks, Jews, Catholics, women, and non-landowners. Gun control laws were much more strict than they are now in some places (and guns were expensive, so many people could not buy a gun).

That's very interesting and not well known (none / 0) (#60)
by imhotep on Thu Jul 16, 2009 at 10:57:01 AM EST

Can you cite a source(s) for your comments?


I saw it a few years ago (none / 0) (#61)
by jbindc on Thu Jul 16, 2009 at 11:00:13 AM EST

It was a spot on CBS News, but haven't been able to find it.

I'll look around.


The report you saw was likely about the research (none / 0) (#66)
by esmense on Thu Jul 16, 2009 at 11:36:29 AM EST

done by Emory University history professor Michael Bellesides. He published a book (Arming America, the Origins of a National Gun Culture).

Here is a link to an interview he gave to Playboy:
http://www.guncite.com/gun_control_bellesiles_plby.html


: Thanks! (none / 0) (#68)
by imhotep on Thu Jul 16, 2009 at 11:50:05 AM EST

I ordered the Bellesiles book from the library.

Nice non-apology (5.00 / 1) (#26)
by jbindc on Thu Jul 16, 2009 at 09:27:21 AM EST

On the "wise Latina" comments

"I regret that my words may have offended some."

sort of the companion (none / 0) (#29)
by Capt Howdy on Thu Jul 16, 2009 at 09:29:14 AM EST

of "some people say you . . . "


Aha. The equivalent (none / 0) (#37)
by Cream City on Thu Jul 16, 2009 at 09:37:23 AM EST

of what I was taught in a management workshop, the transactional "I understand that you feel that way."

Yes, they actually teach managers to weasel that way.


: Yes (5.00 / 1) (#59)
by MO Blue on Thu Jul 16, 2009 at 10:48:57 AM EST

That comment was also soooo effective. Especially when the manager's eyes glazed over when they were delivering that line. Always felt that was worse than the alternative.

BTW. Judge Sotomayor told her (5.00 / 1) (#67)
by oculus on Thu Jul 16, 2009 at 11:37:31 AM EST

mom that as a federal judge she wouldn't be going on vacations with people involved in cases she was deciding. Refreshing. Will the news media pick this up?

: You wouldn't be talking about (none / 0) (#80)
by rdandrea on Thu Jul 16, 2009 at 09:53:06 PM EST

Scalia sharing a duck blind with Darth Cheney, would you?

Why does Stu Taylor get so much attention? (none / 0) (#1)
by andgarden on Thu Jul 16, 2009 at 08:54:42 AM EST

: because (5.00 / 1) (#17)
by Capt Howdy on Thu Jul 16, 2009 at 09:21:24 AM EST

he is a very serious person

Kyl uses Stuart Taylor (none / 0) (#2)
by byteb on Thu Jul 16, 2009 at 08:56:40 AM EST

to bolster his Ricci position!

Brilliant tactic

Could Graham be any more (none / 0) (#4)
by Anne on Thu Jul 16, 2009 at 09:08:55 AM EST

condescending?

I imagine he could be, and probably will be.

Ugh.

I think (5.00 / 2) (#6)
by jbindc on Thu Jul 16, 2009 at 09:09:59 AM EST

he needs to speak more slowly. THEN it would be more patronizing.


: I wonder if Sotomayor is (5.00 / 4) (#11)
by Anne on Thu Jul 16, 2009 at 09:17:13 AM EST

having moments where, in her head, she is saying things like, "Let's review: I'm the nominee, you're the Senator; if you were as smart as you think you are, you might be sitting where I am, and if I were as dumb as you think I am, I might be sitting where you are."
For sure, I would be having those moments.
Graham is now teaching Sotomayor about the law and how to make decisions. Bless his heart.

Funny how Graham jumps from Brown (none / 0) (#5)
by andgarden on Thu Jul 16, 2009 at 09:09:30 AM EST

to marriage. Not the kind of comparison you want to make if. . .you don't want to make the comparison.

: I missed that at first (none / 0) (#41)
by Carolyn in Baltimore on Thu Jul 16, 2009 at 09:43:42 AM EST

Let's talk 'separate but equal'!

Graham is on again (none / 0) (#7)
by byteb on Thu Jul 16, 2009 at 09:10:29 AM EST

and talking down to Sotomayor again.

Jeebus!

Am I missing something or (5.00 / 1) (#40)
by BackFromOhio on Thu Jul 16, 2009 at 09:43:25 AM EST

wouldn't it be appropriate for one of the male Dem senators to comment disapprovingly on the condescending tone of some of his Rep colleagues? Might make them pay attention to how they are perceived if another male actually called them on it -- or am I expecting too much?


: Expecting too much (5.00 / 1) (#44)
by Carolyn in Baltimore on Thu Jul 16, 2009 at 09:46:09 AM EST

The Senate is nothing if not collegial - the ultimate in old-boys clubs.
Many just don't see the sexism and racism in their manner.
And even if they saw it, they don't criticize each other directly.

Sotomayor keeps saying (none / 0) (#8)
by andgarden on Thu Jul 16, 2009 at 09:12:50 AM EST

that "fundamental" means something different in the law. I don't think that's really the right way to look at this.

Findamental Schmundamental (none / 0) (#9)
by Carolyn in Baltimore on Thu Jul 16, 2009 at 09:15:08 AM EST

I'm not a lawyer but even I get the difference between common usage and fundamental right as a legal term. Sotomayor is schooling Graham and he is obtuse - on purpose.

Not really (none / 0) (#10)
by andgarden on Thu Jul 16, 2009 at 09:16:03 AM EST

The point Graham is making is basically right. She just can't say how the decision would be made.


Graham is right (none / 0) (#13)
by Big Tent Democrat on Thu Jul 16, 2009 at 09:18:05 AM EST

Too bad he didn't think that line of questioning was appropriate when it was Alito and Roberts.

This is a farce.

And Sotomayor is doing a lousy job today. She still saying nothing today. but quite inarticulately.

Very unimpressive today.


For example (5.00 / 2) (#16)
by Big Tent Democrat on Thu Jul 16, 2009 at 09:20:59 AM EST

what did Alito's membership in CAP tell us about his personal views? Graham thought that was out of bounds.

Graham is a pr*ck.

He also comes across as condescending and sexist.

He stinks too.


: Lindsey Graham is a snake in the grass (5.00 / 1) (#36)
by gyrfalcon on Thu Jul 16, 2009 at 09:36:18 AM EST

But to be fair, after asking her about some of the PRLDEF positions, he said that he hadn't thought it was relevant with Alito and Roberts and didn't think it was particularly relevant for her, either. It appears he was making a point not about her but about the inappropriateness of that line of questioning generally.
Knowing full well Sotomayor is going to be confirmed, the GOP is concentrating, seems to me, on scoring points with their base, but more importantly on trying to frame the terms of debate for the next Obama SC appointment.

: Well, that's who he is (none / 0) (#20)
by andgarden on Thu Jul 16, 2009 at 09:23:19 AM EST

And Alito should have been asked more about CAP IMO.

: AND (none / 0) (#24)
by Capt Howdy on Thu Jul 16, 2009 at 09:26:51 AM EST

he has bad posture.
I think she is sort of messing with them in a bit of a passive aggressive way.
lets see how little I can actually say in response to your dumb questions.
it would be nice to know what she actually thinks about some of this stuff but I did not really expect to find out.

Agreed (none / 0) (#15)
by andgarden on Thu Jul 16, 2009 at 09:19:36 AM EST

But it doesn't matter.


And Graham seems to understand her today? (none / 0) (#18)
by nycstray on Thu Jul 16, 2009 at 09:23:01 AM EST

He at least finds her answers more reassuring


He is saying that (none / 0) (#28)
by Big Tent Democrat on Thu Jul 16, 2009 at 09:28:04 AM EST

cuz he is going to vote for her.

Note his citing Starr for cover.


: thats what (none / 0) (#31)
by Capt Howdy on Thu Jul 16, 2009 at 09:30:02 AM EST

I thought.

: I figured he was going there (none / 0) (#35)
by nycstray on Thu Jul 16, 2009 at 09:34:38 AM EST

but man, that was painful.

Can't a dem (none / 0) (#42)
by BackFromOhio on Thu Jul 16, 2009 at 09:44:08 AM EST

Senator call him on this?


As far as (none / 0) (#30)
by Carolyn in Baltimore on Thu Jul 16, 2009 at 09:29:52 AM EST

his talking about personal beliefs yes - but he is trying to get her to say that an 'individual' right is fundamental - and I don't see that. He is trying to get an admission from her on an area where I believe there is still controversy - whether a 2nd amendment right is individual or collective (in order to provide for a well-regulated militia).

I believe a right to bear arms is fundamental - whether it is individual or not and what limits can be imposed by states is not.

Please explain if I am wrong.


He's not right about the issue (none / 0) (#32)
by andgarden on Thu Jul 16, 2009 at 09:31:03 AM EST

but he's right about how judges determine what rights are fundamental.


: Thanks (none / 0) (#34)
by Carolyn in Baltimore on Thu Jul 16, 2009 at 09:32:51 AM EST

Graham finds Sotomayor 'more acceptable" (none / 0) (#14)
by byteb on Thu Jul 16, 2009 at 09:19:01 AM EST

than those gosh darn activist judges (like Roberts?).

The Democrats will likely keep it short (none / 0) (#21)
by andgarden on Thu Jul 16, 2009 at 09:24:01 AM EST

Feinstein did.

Message to Graham: (none / 0) (#22)
by andgarden on Thu Jul 16, 2009 at 09:25:17 AM EST

Those memos from Roberts and Alito almost certainly reflected their own views.

Roberts was also ... (none / 0) (#38)
by Robot Porter on Thu Jul 16, 2009 at 09:41:24 AM EST

just a lousy liar. Anyone with half a brain knew what kind of Chief Justice he would be.


And yet the Dems let him through without (5.00 / 2) (#39)
by andgarden on Thu Jul 16, 2009 at 09:43:21 AM EST

any difficulty. The Senate must go!


: Well, to be fair, the senate (5.00 / 1) (#46)
by dk on Thu Jul 16, 2009 at 09:49:39 AM EST

is going to let Sotomayor through without difficulty even though they haven't pressed her to reveal her judicial philosophy in public either.
It's one thing to know that we live in an oligarchy. But to see it put so blatantly on display is always a shock, somehow.

I replied to your (5.00 / 1) (#43)
by Capt Howdy on Thu Jul 16, 2009 at 09:44:13 AM EST

comment that disappeared about not knowing what to think about her.
I sort of feel the same way. I have tried to be skeptical but I have a very good gut feeling about her.
which, of course, means exactly nothing.


As I said in that previous ... (5.00 / 1) (#48)
by Robot Porter on Thu Jul 16, 2009 at 10:04:22 AM EST

post her decisions in those Fourth Amendment cases were somewhat troubling to me. They suggested more deference to the State than I would like.

There has been so much erosion in the Fourth Amendment in the last 20+ years, I think its a very important issue.


: dont disagree (none / 0) (#51)
by Capt Howdy on Thu Jul 16, 2009 at 10:07:03 AM EST

I think she'll be a great Justice (none / 0) (#47)
by Carolyn in Baltimore on Thu Jul 16, 2009 at 09:50:41 AM EST

I think that while she has ducked many questions. But I don't think she has lied like Alito and Roberts affirmatively did about their respect fro precedent.

She has been mainstream - fllowing the law - in her career. But I do believe she will slowly lean lefter as a SC Judge who can set precedent rather than just hew to it.

I have a good feeling.


Oh no (none / 0) (#23)
by jbindc on Thu Jul 16, 2009 at 09:25:56 AM EST

Then we go to all the witnesses

: Im looking forward (none / 0) (#27)
by Capt Howdy on Thu Jul 16, 2009 at 09:27:44 AM EST

to the panels. I think it may get a bit more interesting.

: It won't be (none / 0) (#33)
by jbindc on Thu Jul 16, 2009 at 09:32:03 AM EST

voted on this week, is my guess.
It could be next week, or two weeks, or, if the R's can drag it out, not until after the August recess.

Cornyn (none / 0) (#45)
by jbindc on Thu Jul 16, 2009 at 09:48:39 AM EST

will vote for her. He just said he feels her decisions are mainstream.

Reading about (none / 0) (#49)
by lilburro on Thu Jul 16, 2009 at 10:04:54 AM EST

Lt. Vargas who joined the Ricci suit and will testify later...he's a piece of work. NYT.

But Lieutenant Vargas's aspirations were stymied by a 1988 lawsuit, filed by black firefighters, that shut down hiring for years. The lawsuit challenged a written test that relatively few nonwhites passed. In 1994, the city agreed to disregard the test, over union complaints, and hire 40 firefighters -- 20 white, 10 black and 10 Hispanic, according to The New Haven Register.
Lieutenant Vargas was among those hired. That later led some people to criticize him as trying to shut the door that welcomed him, though he maintained that it was impossible to know how he would have done under the old hiring process.

The Linda Chavez of the firefighters (none / 0) (#52)
by Big Tent Democrat on Thu Jul 16, 2009 at 10:07:46 AM EST

: ad hominem snark (none / 0) (#79)
by diogenes on Thu Jul 16, 2009 at 09:20:51 PM EST

Scared that Vargas has some appeal to whites and Hispanics who are dubious of the extremes of affirmative action? I wonder what Asians think about Ricci?

Re: the Roberts quote Cornyn raised (none / 0) (#50)
by andgarden on Thu Jul 16, 2009 at 10:06:56 AM EST

It was one of the most bone-headed things I've ever seen come out of that Court. But there are now 5 votes to overturn almost all federal affirmative action programs. . .

The only way (none / 0) (#53)
by CST on Thu Jul 16, 2009 at 10:18:05 AM EST

we truly change the make-up of the court is to keep winning presidential elections over and over. Eventually, one of the republicans will either step down or die.


Roberts will be there for most of my (none / 0) (#54)
by andgarden on Thu Jul 16, 2009 at 10:20:57 AM EST

adult life, and probably so will Alito. That's really depressing.

As for Kennedy, Scalia, and Thomas, being able to replace any one of them would be highly beneficial.


Or all three! (5.00 / 1) (#58)
by CST on Thu Jul 16, 2009 at 10:39:25 AM EST

I am resigned to Roberts and Alito. But they can be seriously marginalized. But we really can't have republicans win the presidency again any time soon. Then again, Obama might be the last president ever if the Mayans were right :)


: I doubt the Chief Justice can be (none / 0) (#69)
by oldpro on Thu Jul 16, 2009 at 11:52:20 AM EST

"seriously marginalized."

Now there was a shot! (none / 0) (#55)
by jbindc on Thu Jul 16, 2009 at 10:24:32 AM EST

They are in a short recess and CSPAN just showed a shot of Specter and Franken with the heads together chit chatting.

: I bet they were ... (5.00 / 2) (#57)
by Robot Porter on Thu Jul 16, 2009 at 10:36:53 AM EST

comparing their Sessions impressions.
;)

Leahy - vote (none / 0) (#56)
by jbindc on Thu Jul 16, 2009 at 10:26:26 AM EST

just said markup will be Tuesday, and under Senate rules, R's can put vote off a week and he will defend that right.

He suggests to have vote next Tuesday in committee, then it's up to Maj/Min leader to schedule on the floor.

Pat Leahy - aka (none / 0) (#62)
by vicndabx on Thu Jul 16, 2009 at 11:00:32 AM EST

Dirty Harry.

Sen. Session stated his goal was (none / 0) (#63)
by oculus on Thu Jul 16, 2009 at 11:26:04 AM EST

for these hrgs. to the most fair evah. Fun to watch Judge Sotomayor's face.

Back to Baker v. Nelson (none / 0) (#64)
by andgarden on Thu Jul 16, 2009 at 11:28:16 AM EST

: Not for long. (none / 0) (#65)
by oculus on Thu Jul 16, 2009 at 11:33:10 AM EST

Graham (none / 0) (#70)
by lilburro on Thu Jul 16, 2009 at 11:56:54 AM EST

is going on about military tribunals and indefinite detention. I hope Whitehouse will pick up the thread. Excerpt from SCOTUSblog:

12:49
Kristina Moore: LG: Do you know of any concept in domestic criminal law that would allow for indefinite detention?
12:49
Kristina Moore: Held in jail without a trial
12:49
Kristina Moore: SS: There are constitutional principles that require a speedy trial, so no
12:50
Kristina Moore: LG: Under military law, is there any requirement to try every enemy prisoner?

Did anyone else find (none / 0) (#75)
by BackFromOhio on Thu Jul 16, 2009 at 01:21:47 PM EST

questioning by Whitehouse yesterday troubling where he asked Judge Sotomayor to take a pledge which included asking her to say that she would never overturn precedent -- and she took the bait? What happened to Dred Scott?


I reviewed yesterday's testimony (none / 0) (#77)
by Steve M on Thu Jul 16, 2009 at 03:35:26 PM EST

this is the only thing I found:

WHITEHOUSE: I also wanted to fulfill another promise, which was one I made to you, that in my opening statement I said I would ask you to make a simple pledge. And that simple pledge is that you will decide cases on the law and the facts before you, that you will respect the role of Congress as representatives of the American people, that you will not prejudge any case but will listen to every party that comes before you and that you will respect precedent and limit yourself to the issues that the court must decide.
May I ask you to make that pledge?
SOTOMAYOR: I can. That's the pledge I would take if I was -- that I took as a district court judge, as a circuit court judge. And if I am honored to be confirmed by this body, that I would take as a Supreme Court justice, yes.

: What are "issues that the Court (none / 0) (#78)
by BackFromOhio on Thu Jul 16, 2009 at 06:14:08 PM EST

must decide"???

This should be mandatory (none / 0) (#71)
by Inspector Gadget on Thu Jul 16, 2009 at 11:59:27 AM EST

viewing by all voting Americans. None of those R's would get elected again.

We're PAYING them to sit there and ramble on showing their ignorance!!

: Senator Graham: all 535 of us (none / 0) (#72)
by oculus on Thu Jul 16, 2009 at 12:00:43 PM EST

have a tough job.

Kudos to the ABA committee which (none / 0) (#73)
by oculus on Thu Jul 16, 2009 at 01:09:44 PM EST

reviewed Judge Sotomayor's nomination and pronounced her "well qualified." What an enormous effort. Ms. Boise stated she read every opinion written by the Judge, including district court written opinions. Listened to oral arguments, tracked down every lawyer in the courtroom, read transcript re opinion of one lawyer the Judge was a bully during oral argument.

I liked (5.00 / 1) (#74)
by jbindc on Thu Jul 16, 2009 at 01:15:14 PM EST

How she shut down Sessions when he started blathering about "all" the letters he got from lawyers saying she was a tyrant on the bench. Ms. Askew (I think that was her name) said they talked to over 500 lawyers and judges and fewer than 10 had complaints about "temperment", and those did not practice at all or very infrequently in the 2nd Circuit.


: How come temperament (none / 0) (#76)
by BackFromOhio on Thu Jul 16, 2009 at 01:23:28 PM EST

only seems to be an issue for female nominees. I fear the same thing has happened in private practice.