Liveblogging Sotomayor Hearings — Day 3 (Part 1)

11:36 a.m. – Sen. Leahy calls a 15-minute break. Liveblogging will continue in a new post when the hearing resumes.

11:29 a.m. – Sotomayor is answering a Fourth Amendment question.

11:11 a.m. – Sen. Sheldon Whitehouse (D-R.I.) is questioning the nominee. Asks her about her role on the board at the Puerto Rican Legal Defense and Education Fund. Did the board members vet what the attorneys wrote?

Sotomayor says no, because most of the board didn’t have civil-rights experience. (This counters what sources told the New York Times about her active role in the fund’s legal efforts. At one point, she even chaired the board’s litigation committee. The fund’s president says her role included setting policy.)

Sotomayor says the fund is and has been “in the mainstream” of civil-rights issues.

As an AUL lawyer says to me, that defends on whose definition of mainstream. Do mainstream organizations push for an absolute, fundamental right to abortion? See AUL’s Sotomayor411.com for in-depth background on the PRLDEF’s aggressive abortion activism on Sotomayor’s watch.

11:02 a.m. – Coburn asks where does the oath Sotomayor took give her the authority that she can use foreign law in making decisions.

Sotomayor: “Unless the statute directs you to foreign law — some do, by the way — the answer is no.” Says foreign law cannot be used as a precedent. An AUL lawyer observes to me that she is trying to wiggle on this one — she’s contradicting her past statements.

Coburn is pressing her, quoting her previous statement. Sotomayor insists there is no contradiction. (For background on her previous statements, see Ed Whelan’s commentary on National Review Online.)

10:56 a.m. – Coburn: “Do you believe I have a right to personal self-defense?”

Sotomayor says she can’t think of an occasion when the high court has said a citizen has the right to self-defense. Says these issues are generally decided by state laws.

Coburn asks her opinion of whether he personally has an individual right to self-defense.

Sotomayor: “That is sort of an abstract question with no particular meaning to me.”

Coburn: “That’s what American people want to hear. Do they have a right to self-defense? … Is it OK to defend yourself in your home?”

Sotomayor says that under New York law, one can use force to repel the threat of serious injury. The question that comes up is how “eminent” (she means “imminent”) is the threat.

10:52 a.m. – Coburn: “In the Constitution, we have the right to bear arms.” How did we get to the point where a right to privacy, which is not explicitly spelled out in the Constitution (though interpreted as being in the 14th Amendment) is settled law and the Second Amendment, which is spelled out in the Constitution, is not settled law?

Sotomayor talks about “what we do” as judges. Says they look at facts and then look at the Constitution and attempt to apply its principles to the facts.

10:50 a.m. – Sotomayor insists her interpretation of the Constitution — that the right to bear arms is not a fundamental right — is not her interpretation. Insists it is based on precedent.

Coburn is pressing her hard on this issue. Members of AUL’s legal team observe to me that she is stumbling on this one.

10:47 a.m. – Coburn: “In your Second Circuit ruling on Maloney, the position was that there is not a fundamental right to bear arms in this country.”

Sotomayor: “Yes sir.”

10:38 a.m. – Coburn, who is a medical doctor, asks, what is settled law on abortion?

Sotomayor notes that in PP vs. Casey, the court reaffirmed the core holding of Roe v. Wade.

Coburn: “Let’s say I’m 38 weeks pregnant and we discover a small spina bifida sac on the baby? Would it be legal in our country to terminate that child’s life?”

Sotomayor says she would have to look at state law.

Coburn asks, should advances in technology have any bearing on how we look at Roe v. Wade? He cites the fact that we can now save children who were born at 21 weeks.

Sotomayor: “The law has answered a different question.” Says it’s talked about the constitutional right of women in certain circumstances.

But should it have any bearing?

“I can’t answer that in the abstract.”

Coburn says decisions have been made on basis of viability. If we now have viability at 21 weeks, why would that not be considered?

“All I can say to you is what the court’s done.”

Coburn: “All I’m asking is, should technology at any time be considered as we discuss these issues?”

Sotomayor says she can’t answer that because it’s not a question that the court reaches out to answer. Says that’s a question that is created by an action of the state tha tmay or may not, according to a claimant, put an undue burden on her.

Coburn: “I’m reminded of one of your quotes that says you do make policy, and I won’t continue in that.” He asks, “Does the state leg have the right under the constitution to determine what is the definition of death?”

Sotomayor: “Depends on what they’re applying that definition to.” And so, she says, there are situations where they might, and there are situations where that def would or would not have applicability.

Coburn: “But you would not deny the fact that states do have the right to set up statutes to give guidance on what defines death?”

Sotomayor: “It depends …”

Coburn observes the law is schizophrenic. He observes that we define death as the absence of certain things, but we do not define life as the presence of those things.

10:37 p.m. – Sen. Tom Coburn (R-Okla.) begins his questioning. As a pro-lifer, he apologizes to the nominee for the outbursts that some pro-life spectators have made during the hearings.

10:31 a.m. – Cardin: “I would just like to get your assessment of the role the court faces on privacy issues in the 21st century” recognizing today’s challenges are different.

Sotomayor: “The right to privacy has been recognized, as you know, in a wide variety of circumstances, for more than, probably, 90 years now. … That is part of the court’s precedent. … In terms of the coming century, it’s guided by those cases, because those cases provide the court’s precedents and framework … to look at how we would consider a challenge” to a law.

10:30 a.m. – Cardin raises the issue of the right to privacy. AUL’s ears perk up.

10:22 a.m. – Cardin is speaking at length about Sotomayor’s life history. Asks her about “the importance of different voices in our schools, in our Congress, … the importance of diversity” and what can be done to improve it.

10:13 a.m. – Sotomayor is answering a question from Cardin about her “passion” for protecting the right to vote.

10:05 a.m. – Sen. Ben Cardin (D-Md.) begins questioning. Raves about how Sotomayor is a “hero” in Baltimore for her baseball decision. The nominee enthuses about Maryland’s being a “beautiful state.”

10:03 a.m. – Cornyn is quizzing Sotomayor on the Ricci case.

9:54 a.m. – Sotomayor confirms she was asked no question on abortion during her White House interview.

Then why, Cornyn asks, did the White House assure abortion-rights groups she would uphold Roe v. Wade?

She says that “on all issues I follow the law.”

Then why, Cornyn asks, did her former associate George Pavia, head partner of the law firm where she worked before she was a judge, “guarantee” she would be for abortion?

“I have no idea.” Says she never spoke to Pavia about abortion.

Does she agree with Pavia’s statement that she has generally liberal instincts?

Sotomayor says, if he was referring to her having “promoted equal opportunity” on the Puerto Rican Legal Defense and Education Fund, yes. (For detailed background on the fund’s abortion activism during Sotomayor’s tenure on its board, see AUL’s Sotomayor411.com.

9:50 a.m. – Cornyn asks about her statement in a 2001 Berkeley speech that “our gender and national origins may and will make a difference in a judging.”

Sotomayor: “There are, in the law, there have been upheld in certain situations that certain job positions have a certain requirement for strength and other characteristics … There are differences that may affect a certain type of work” e.g. pilots. “But the process of judging for me is what life experiences bring to the process. … It doesn’t change what the law is or what the law commands. … It’s just a question of the process of judging.” Says it improves the public’s confidence that there are judges from a variety of backgrounds. It sounds like she is trying to please  conservatives and liberals at the same time.

She says we should “consider it as a possibility” that ethnicity and gender will affect judges and “think about it” affecting the process of judging, but claims she is not saying it would necessarily affect the outcome. Again, it sounds like she is trying to have it both ways.

9:46 a.m. – Cornyn: “Do you believe that judges ever change the law?”

Sotomayor answers that they change the ways laws are interpreted. She seems highly confident and in command.

9:38 a.m. – Cornyn notes that while O’Connor said an man or a woman should reach the same conclusion, Sotomayor said she hoped a wise Latina woman would reach a better conclusion. So, is she standing by that statement or disavowing it?

Sotomayor: “It is clear … that my words failed. They didn’t work.” Says the message her entire speech delivered remained what O’Connor meant, and also what Justice Alito meant when he said his Italian ancestry helped him in discrimination cases. (But, as a commentator noted, the context of Alito’s statement is different.)

9:36 a.m. – Cornyn asks re “wise Latina speech” — notes that she made it at least five times. Quotes her statement yesterday that it was a “failed rhetorical flourish” and “a bad idea.”

Sotomayor agrees with his characterization of her quotes from yesterday. Repeats her prior claim that she was riffing off a comment by Justice Sandra Day O’Connor and says that neither O’Connor’s nor her words make sense if taken literally.

9:33 a.m. – Sen. John Cornyn (R-Texas) begins questioning.