Again, we present a quick wrap up of the day’s events.
Perhaps the most significant nomination-related news didn’t come from the hearings but from the pages of the Washington Times. In an op-ed this morning, Wayne LaPierre of the NRA let loose on Judge Sotomayor’s anti-gun bias. She and colleagues on the Second Circuit ruled against Second Amendment rights in two cases, one of which, Maloney, is now being appealed to the Supreme Court, where Sotomayor may soon sit.
Or not—LaPierre says those decisions “raise serious questions about her fitness to serve on the highest court in the land,” and when the NRA speaks, legislators listen. The big question now is whether the group will include the Sotomayor vote on its legislative scorecard. If so, even some Democrats would face a tough choice: rejecting the President’s nominee versus making themselves targets for challenges by pro-gun candidates.
So far, the group’s kept mum on its decision, and may still be mulling the matter. But after today, there’s not much left for mulling. Judge Sotomayor gave a tortured reading of the High Court’s incorporation analysis—which determines when a constitutional right applies to the states—claiming that when the Court decides there is incorporation, the right becomes fundamental. But in reality, that’s perfectly backwards: the 14th Amendment incorporates already-fundamental rights. And as Senator Tom Coburn pointed out, lots of historical evidence shows that the Second Amendment was foremost among the fundamentals at the time of Reconstruction, when the 14th Amendment was ratified.
And while the judge implied that she would probably step aside if the Maloney reaches the Supreme Court, she refused to state that she would do the same in a case raising the same exact issue. Souter might have found for incorporation; in the context of his jurisprudence on rights, it wouldn’t have been unlikely. But Sotomayor? The possibility is fading with every question on the Second Amendment that she ducks or dodges.
The NRA has given the judge a fair shake by waiting this long—no doubt about it. But it’s getting awfully close now to the time for choosing. If the NRA does nothing more than publish an op-ed, it will have made its choice.
A Wise Latina: After yesterday’s half-dozen or so interpretations and glosses on her most infamous statement, Judge Sotomayor added a couple more to the mix. First, she took down Justice O’Connor, on whose words Judge Sotomayor said yesterday she was riffing: “Hers literally and mine literally made no sense in the context of what judges do.” O’Connor’s quote, as paraphrased by the Judge: “a wise old man and wise old woman will reach the same conclusion in deciding cases.” You be the judge—does that “literally make no sense”? Said Sotomayor, O’Connor (read literally) meant that “when two judges disagree, one of them has to be unwise,” except that’s “clearly not what she meant.” So what did O’Connor mean? How about, simply, that a wise judge, whether male or female, would reach the same result, because wisdom has nothing to do with whether a judge is male or female? Of course, we’re often accused of being literalists…
Physiological Differences: Many Senators didn’t want to touch the statement that Sotomayor made before her “wise Latina” remark: that differences in judging may be “born from…inherent physiological or cultural differences.” But not the brave Senator Cornyn, who asked the Judge what she meant by that. Her response: “There are, in the law, there have been upheld, in certain situations, that certain job positions have a requirement for a certain amount of strength or other characteristics that may be the — a person who fits that characteristic can have that job.” She continued, “There are differences that may affect a particular type of work.” So Cornyn asked again: “So you stand by the comment or the statement that inherent physiological differences will make a difference in judging?” The Judge: “I’m not sure. I’m not sure exactly where that would play out.” The answer we were looking for: No, “physiological differences” between judges of different “gender and national origin” do not affect their decisions. Let’s hope for more on this tomorrow.
Ricci: “When parties are dissatisfied [with a panel decision], they file for rehearing en banc. That’s what happened in Ricci.” Except it didn’t. Karen Lee Torre, counsel for the New Haven firefighters, only learned that the case had been considered for rehearing when the court informed her that the request, which had been raised by Judge Cabranes after he read about the case in the newspaper, had been denied. It came as a real surprise. Why didn’t they petition for rehearing en banc? The way Sotomayor buried the case, with an unpublished summary order, meant there was zero chance the court would have granted their request.
- Self-Defense: Is self defense a right? “That’s an abstract question with no particular meaning to me.”
- The Use of Foreign Law: “There’s a public misunderstanding of the word ‘use.’”
- Public Speaking: “The message I deliver in all of my speeches is, ‘I’ve made it, so can you!’”
- On Abortion: “I can’t answer that in the abstract, because the question, as it would come before me, wouldn’t be in the way that you form it as a citizen.”
- Euthanasia: “All state action is looked at within the context of what the state is attempting to do and what liabilities it’s imposing.”
- Crime: Senator Coburn to Sotomayor, after she used shooting him as a hypothetical: “Lucy, you got some ‘splainin to do!”
- Foreign Law (again): “Unless the statute directs you to look at foreign law…foreign law cannot be used as a holding or a precedent or to influence the outcome of a legal decision interpreting the Constitition.” Sotomayor had said previously that foreign laws “get our creative juices flowing” and that banning foreign law would ask judges to “close their mind to good ideas.”
- Foreign Law (again): “When I’ve seen other judges cite to foreign law, they’re not using it to drive the conclusion. They’re using just to point something out about a comparison between American law or foreign law, but they’re not using it in the sense of compelling a result.” Sotomayor is apparently unfamiliar with Supreme Court opinions from recent decades, including two very recent biggies: Roper and Boumediene.
- Voting Rights: “The majority upheld a state regulation barring a group of people from voting.” What group of people? Felons. Barring criminals from voting, said Sotomayor, “denies or abridges the right to vote on the basis of race.”
- Originalism: Arlen Specter, while winding his way to a question: “And how can you have original intent…where you have Judge Bork who believed that equal protection applied only to race and ethnicity?”
- Empathy: Arlen Specter, still winding his way to a question: “But you had an evolution of constitutional law which I think puts empathy in a — in an OK status, in an OK category.”