3:53 p.m. – Sen. Cornyn is currently briefing bloggers. Liveblogging will resume after the briefing.
3:09 p.m. – Sen. Leahy calls a recess a for closed-door session. Liveblogging will continue in a new post when the hearing resumes.
3:01 p.m. – Franken: “Are the words ‘birth control’ in the Constitution?” Sotomayor indicates it is not.
Franken: “Is the word ‘privacy’ in the Constitution?”
Sotomayor: “The word ‘privacy’ is not.” Says the Constitution contains, as has been recognized by the court for over 90 years, certain things under the due process clause that extend into the privacy area.
Franken: “So the issue of whether a word actually appears in the Constitution is not really relevant, is it?” In Roe v. Wade, he says, the court found the fundamental right to privacy included whether or not to have an abortion. So –”Do you believe that this right to privacy includes the right to have an abortion?”
Sotomayor says that the court has said, and repeated in Casey , that “there is a right to privacy that women have with respect to the termination of their pregnancies in certain situations.”
Franken says he will return to this line of questioning when he has the opportunity to follow up.
Franken asks what was the one case in “Perry Mason” that changed Sotomayor’s life — something she alluded to earlier. Sotomayor knows what he’s referring to — the case where Mason’s client was actually guilty — but she can’t recall the details.
Franken: “Didn’t the White House prepare you?”
2:50 p.m. – Franken: “There has been an ominous increase in what I consider judicial activism.”
He dramatically pulls out his pocket Constitution to read about the 15th Amendment and emphasizes Section 2. Says Congress used its power described in Section 2 when it passed the Voting Rights Act of 1965.
Franken asks her to comment on the Supreme Court’s decision in the Northwest Austin Municipal Utility District, in which Justice Thomas dissented on an extension of Section 5 of the Voting Rights Act. Sotomayor demurs, saying the issue of that section’s constitutionality is likely to come up before the courts.
2:48 p.m. – Franken asks the nominee her definition of “judicial activism.” She responds: “It’s not a term I use. I don’t use the term because I don’t describe the work that judges do in that way.”
2:40 p.m. – Franken is questioning the nominee about the Supreme Court’s 2005 Brand X decision. He wants her to talk about whether there is a compelling public interest in the Internet’s being accessible.
In answering him, Sotomayor says, “The role of the court is never to make the policy; it is to wait until Congress acts.” She is clearly conscious of the need to counter her own earlier public comment about how the courts are “where policy is made.”
2:38 p.m. – Franken talks about how both Sotomayor and he grew up watching “Perry Mason,” and now she’s before him on the Judiciary Committee, being considered for the Supreme Court: “I think that’s pretty cool.”
2:36 p.m. – Sen. Al Franken (D-Minn.) begins his questioning.
2:36 pm. – Specter: “Why not televise the court?”
Sotomayor says she will certainly relay her positive experiences with cameras in the courtroom to her colleagues if she makes it to the Supreme Court.
2:30 p.m. – Specter is asking about whether cameras should be allowed in the Supreme Court. He speaks at length about this …
2:16 p.m. – Specter asks if the nominee accepts that the precedent set by Roe v. Wade is “super-stare decisis.” Translation: Is Roe irreversible?
Sotomayor: “I don’t use the word ’super.’ I don’t know how to take that word. All precedent of the court is entitled to the respect of the doctrine of stare decisis.”
Specter presses her on the importance of stare decisis. She says, “That is one of the factors that I believe courts have used to consider whether or not a new direction should be taken in the law.” Says there are a variety of different factors, not just one.
Specter asks, what about the 38 cases where the Supreme Court could have reversed Roe v. Wade — does that add weight?
Sotomayor: “The history of a particular holding of the court and how the court has dealt with it … would be among one of the factors.” Each situation is considered in a variety of different viewpoints and factors, she says.
Specter asks, would the 38 cases lend a little extra support to the impact of Roe and Casey? (He is referring to Planned Parenthood of Southeastern Pennsylvania v. Casey -- see AUL’s history of U.S. Supreme Court abortion decisions for background.)
Sotomayor: “Casey itself, an opinion authored by Justice Souter, talks about the factors” that go into an opinion on what the court considers re precedent, including whether society has come to rely upon prior precedent.
She adds, “And the court has considered in other cases the number of times the issue has arisen. …
“Casey did reaffirm the core holding of Roe,” she continues, “and so my understanding is that the issue would be addressed in light of Casey with regard to stare decisis.”
2:15 p.m. – Specter asks about the Bush Administration’s Terrorist Surveillance Program. Says he gave the nominee advance notice of his question: How could it be justified for the Supreme Court not to take the case regarding the program?
Sotomayor demurs again. Specter is clearly miffed; he wants an answer.
2:13 p.m. – Specter asks if Sotomayor agrees with a statement by Justice Roberts saying that the Supreme Court should take on more cases. Sotomayor demurs.
2:08 p.m. – Specter is speaking at length, attempting to counter negative observations that have been made of Sotomayor: “A lot has been made of the issue of empathy, but that characteristic is not exactly out of place in judicial determinations.” Says there has been evolution of constitutional law that “puts empathy in an OK category.”
2:04 p.m. – Sen. Arlen Specter (D-Pa.) begins his questioning.
