Day Two: Balls, Strikes, and Errors

via: Heritage

This post contains some quick takes and many quotations from the first real day of the hearings.

But let’s put the bottom line first: Judge Sonia Sotomayor did not impress, but it probably does not matter. Her goal today was to avoid slipping and saying something that could get her into trouble. On that count, mission accomplished.

More remarkable, though, was the use of conservative language and ideas by both sides of the Committee and by the nominee, herself. Today, a nominee for the High Court must at least pay lip service to applying the law as it is written, deferring to Congress on matters of policy, and rejecting the “living Constitution.” It’s just more evidence: the public and their representatives (in rhetoric only, for some) have embraced the Framer’s conception of the rule of law. Too bad that furthering their vision was not among the President’s aims in selecting Judge Sotomayor.

 

  • Poise. The day began with softballs pitched by Committee Chairman Patrick Leahy. Sotomayor whiffed and hit a few foul balls. She was uncomfortable and bumbling, and it was very apparent. But she eased up as the day progressed, taking on a professorial air, with lengthy digressions and equivocations. Still, her speech is slow and deliberate, always, showing a trepidation or uncertainty with the questions and the process.
  • Dodging. More so than Chief Justice Roberts, more so than Alito, Sonia Sotomayor has dodged nearly every question that’s come at her. In the entire day, she answered only one question in a straightforward manner: What does she think of Korematsu. Sotomayor’s response: “It was wrong.” But that was it. She couldn’t even give a straight answer to Sen. Schumer’s question as to whether she is a baseball fan.
  • A “Wise Latina.” Nearly every senator who spoke had a lot to say about the nominee’s infamous speeches. Judge Sotomayor, less so. Her first response was that her language was meant to show her agreement with O’Connor’s statement “that a wise old man and wise old woman will reach the same conclusion in deciding cases.” But that’s not what Sotomayor wrote. Her exact words: “I am also not so sure that I agree with the statement.” Later she called it “a rhetorical flourish that fell flat.” And when asked by another senator, she said it was meant to mirror O’Connor’s language. She said that both men and women are equally capable of being wise and fair judges. But then, to Jon Kyl, she admitted stated that male and female judges may reach different results. Back on the speech: “It was a bad idea.” Obviously.
  • Policymaker. Do judges make policy? Sotomayor admitted in a speech that she does. But today, in response to senator after senator, she took the opposite position: “In every case I have decided, I have done what the law requires.” The good news is that the conservative position–that judges apply the law, not make it–is now the dominant position, something that was not the case just a few years ago. But the question, of course, is does she mean it? Her focus on the outcome of cases–their “reality”–in so many responses to senators means that this is an open question.
  • Property Rights. Just like in Ricci, a panel on which Sotomayor sat buried in a brief, unpublished decision a case, Didden, that many scholars describe as “the most important property rights case since Kelo.” Sotomayor said that result–a complete failure to grapple with the difficult and complex issues that arise when a town attempts to take penalty for a purely pretextual “public purpose”–was compelled by the law. A number of scholars believe the Supreme Court will take the case in its next session–another dismissive Sotomayor opinion subject to searching review by the High Court. Further, her description of the facts of the case was simply wrong and doesn’t even match the factual statement in her own opinion.
  • Ricci. Ricci came up in almost every round of questioning. According to Sotomayor, the case presented no new issues and her court was bound by Second Circuit precedent. But Judge Cabranes, as well as a number of senators speaking today, disagreed. She then argued that the Supreme Court made new law in the case; how could she have known? But this obscures the fact that all nine justices agreed that she applied the wrong standard in the case. Mr. Ricci himself will testify on Thursday.
  • Second Amendment. Several senators grappled with Sotomayor on Maloney, a Second Circuit case holding that the Second Amendment is not incorporated against the states. Sotomayor refused to say whether the right was “fundamental” or not, despite that the very brief section of her opinion on that issue–all of 11 or so words–states simply that it is not. Heller, she said, was the Court’s precedent, but other precedent–100-year old cases premised on the “privileges and immunities” clause–foreclosed incorporation. She had no answer to the charge that she ignored the Supreme Court’s invitation to conduct the full selective incorporation analysis that its cases from recent decades require. What would she decide on the Supreme Court? “I bring an open mind to every case.” But is it a fundamental right? “It’s an open question.”
  • Precedent. Every time a senator asked Sotomayor about a Supreme Court case, with the exception of Korematsu, she responded only that it was “the precedent of the Court.” In this way, she avoided answering questions about Supreme Court cases already on the books. She did state that the Constitution does contain a right to privacy, in the Fourth and 14th Amendments, and that the cases on that point are, surprise, “the precedent of the Court.”

Quick Hits

  • Executive Power: “The President can’t act in violation of the law.” She referred to the Steel Seizure case repeatedly, emphasizing the limits on the President’s power. And the recent war on terror decisions? “The Court is doing its task.”
  • Favorite Judge: Judge Benjamin Cardozo, renowned for making up, from whole cloth, modern tort law as a judge on the New York Court of Appeals. Cardozo is also known for a variety of New Deal-era precedents, such as those blessing the then-new Social Security program as a valid exercise of the federal government’s power. Let’s hope she’s not the new Cardozo.
  • Qualifications: “I’m a historian by undergraduate training.”
  • Legal Realism: She defines it as “You are guided in reaching decisions…by the realism of the situation.” But she’s not a realist, she explains.
  • Strict Constructionists: She is not one. “I don’t use labels to describe what I do.”
  • The Living Constitution: “The Constitution has not changed except by amendment.”
  • But, on Privacy: There is a right to it, protected by the Fourth and 14th Amendments. Further, “it is the precedent of the Court.”
  • Speechwriting: Lindsey Graham to Judge Sotomayor: “Don’t become a speechwriter if this law thing doesn’t work out.”
  • On Speeches: “My views are demonstrated by what I do as a judge, not by what I said in a speech.” Shouldn’t it be the other way around?
  • On Korematsu: “A judge should never rule from fear.”
  • Experience: She wrote, “My experience affects the facts I see.” But she clarified today: “Our life experiences do permit us to see some facts more easily than others.” And what about that first statement? “I do not stand by the understanding of that statement”–that is, that experience affects the facts she sees. But then why did she say it?
  • Senatoritis: To Sen. Sessions: “Was that a question?”
  • On Baseball: “Few judges can claim they love baseball more than I do.” It has been widely reported, however, that Judge Sotomayor does not like baseball.
  • Discrimination: “Equality requires effort.” She agreed with Justice O’Connor that 25 years may be enough time for affirmative action, but maybe not.
  • On Kelo: She understands “the concerns that many citizens have” about the government seizing private property for no good reason. But does she agree? “I must give it [Kelo] the deference that the doctrine of stare decisis would suggest.” So, no.
  • Qualifications (again): “I was a really good litigator!”
  • Abortion: “The health and welfare of the woman must be a compelling consideration.” Why? Because the Court has said so in the past, and “Those precedents must be given deference.”
  • Precedent: Courts should overturn previous cases only “very, very” rarely.
  • Lodging: “When I travel somewhere new, I try to find a friend to stay with them…because I do think it’s important to know more than where I live.”
  • On Barack Obama and Empathy: “I don’t approach the issue of judging in the same way the President does.” Further: “It’s not the heart that compels conclusions in cases.”
  • Tough Questions: “I ask tough questions.”
  • The Death Penalty: The Supreme Court has addressed it many times, and “I rule in the context of a case that comes before me.” Which means…?

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