5:23 p.m. – Leahy breaks the session for today. It will resume at 9:30 a.m, when Sen. Al Franken (D-Minn.) will continue the first round of half-hour questions. AUL liveblogging will continue, so check back here tomorrow a.m.
5:13 p.m. – Durbin:”May I ask you to reflect for a moment on this question of race and justice in America today?” Sotomayor demurs, explaining that it is not her role as a judge to speak on this question.
5:00 p.m. – Sen. Dick Durbin (D-Ill.) asks Sotomayor a question about the death penalty. Sotomayor gives a vague answer. “I think my record speaks more loudly than I can. …”
4:46 p.m. – Graham asks the nominee if she was familiar with the Puerto Rican Legal Defense and Education Fund’s position on taxpayer-funded abortions, where it compared the unavailability of affordable abortions for the poor to “slavery.” (AUL covers the PRLDEF’s legal briefs in depth on Sotomayor411. com.)
Sotomayor: “I wasn’t aware of what was said in those briefs.” Says she wants to explain what the function of a board member is. She says the Fund’s mission statement was “broad like the Constitution.”
Graham holds a “host of briefs over a 12-year period” from the Fund that argued it was an unspeakable cruelty to deny taxpayer-funded abortions to low-income women.
Sotomayor says she didn’t review those briefs. But says she knew the Fund was “involved in public-health issues.”
Graham asks: “Is abortion a public-health issue? Do you personally view it that way?”
She dodges: “It wasn’t a question of whether I personally viewed it that way or not …”
Graham says he could go down a list of issues the Fund was involved in, including death-penalty issues.
Sotomayor says the issue with her re the death penalty is that the Supreme Court has determined the death penalty was applicable in certain cases.
Graham: “As an advocate, did you challenge the death penalty …? Did you ever sign a memorandum saying that?”
Sotomayor: “I signed a memorandum for the board to take under consideration what position the Fund … should take on … reinstating the death penalty in the state. It’s hard to remember because so much time has passed in the past 30 years.” (When she is ready to refresh her memory, she can find the memorandum here.)
Graham asks if a lawyer advocated for taxpayer-funded abortion, should that disqualify him or her as a judge.
Sotomayor: “An advocate advocates on behalf of the client they have.”
4:42 p.m. – Sotomayor gives a strangely understated answer a question from Graham on what Al Qaeda and their allies think of women: “I understand that some of them have indicated that women are not equal to men.” You can say that again.
4:38 p.m. – Graham asks Sotomayor to recite her “wise Latina quote” from memory. Odd. She demurs. He locates it in his notes and reads it out loud. He repeats his question from yesterday: “Do you understand that if I had said anything like that and said it was inspirational, they would have had my head?” He says that had he claimed to make a better decision due to being a “white Caucasian male,” it would have made national news, and rightly so.
The moral, he says, is “that some people deserve a second chance when they misspeak. If that comes from this hearing, then we’ve probably done the country some good.”
4:34 p.m. – Graham: “Do you think you have a temperament problem?” Sotomayor (calmly): “No, sir.”
4:31 p.m. – Graham brings up unfavorable reviews of Sotomayor from fellow lawyers who called her a “terror on the bench.”
4:30 p.m. – Graham has a very interesting exchange with Sotomayor about the abortion issue. He asks her, “Is there anything in the Constitution that says a state cannot regulate the definition of life in the first trimester?”
She sputters. He persists: “Does the Constiution as written prohibit” a state or the federal government “from protecting unborn life in the first trimester? is there anything in the document written about abortion?
She responds: “The word abortion is not used in the Constitution, but the Constitution does have a broad provision …”
Graham says the “broad provision” is what’s at issue: “A lot of us feel that the best way to change society is to go to the ballot box … A lot of us are concerned from the left and the right that unelected judges are quick to change society in a way that is disturbing.”
He adds an odd non sequitur, “I like you, by the way, for what that matters.”
4:26 p.m. – Asked if she would be an originalist: “Again, I don’t use labels.”
4:25 p.m. – Sotomayor, asked if she would be a strict constructionist: “I don’t use labels to describe what I do.”
4:24 p.m. – Sen. Lindsey Graham (R-S.C.) begins his questioning.
4:20 p.m. – This is about as tough a question as Schumer gives: “Am I correct you share my love for America’s pastime?” He goes on to ask her about the baseball case. Incidentally, as Ed Whelan has noted, Sotomayor has admitted she is not personally interested in the sport.
4:15 p.m. – After many more such questions, Schumer admits he is asking questions targeting accusations that Sotomayor allows her sympathy or empathy to overrule the rule of law. So he is not really trying to gain information, only to score points on Sotomayor’s behalf. I don’t see how this line of questioning serves the American people — it doesn’t give any new insight into her judicial philosophy.
4:05 p.m. -Schumer cites various cases where Sotomayor ruled against plaintiffs for whom she might have had “sympathy.” His line of questioning is designed to show that, in her desire to uphold the law, she was not afraid to rule against plaintiffs who were hit hard by circumstances. It is a frontal attack against her opponents’ claims that she allows her personal feelings to enter into her verdicts.
For an alternative view, see Stuart Taylor’s National Journal piece on the Ricci case. Written before the Supreme Court overturned Sotomayor’s Second Circuit verdict, Taylor’s article described why he had “concern that [Sotomayor's] decisions may be biased by the grievance-focused mind-set and the ‘wise Latina woman’ superiority complex displayed in some of her speeches.”
3:53 p.m. – Sen. Chuck Schumer (D-N.Y.) begins his questioning. Attacks what he says is his colleagues’ focusing on her statements rather than her record. (Not true — witness the many questions that have been posed to her on the Ricci and Maloney cases, for example.)
