11:22 a.m. – The committee recesses for a short break. Liveblogging will resume after the break in a new post.
11:15 a.m. – Specter is pressing Sotomayor on whether the Supreme Court should have heard the case on the Terrorist Surveillance Program. As when he quizzed her on this previously, she demurs.
11:10 a.m. – Specter asks Sotomayor about her experience of cameras in the courtroom. She says hers was a “positive” experience.
11:00 a.m. – Sen. Arlen Specter (D-Pa.) begins questioning.
10:47 a.m. – Cornyn: “If the Supreme Court in the next few years holds that there is a constitutional right to same-sex marriage, would that be making the law or interpreting the law?”
Sotomayor: “Senator, that question is so embedded with its answer, isn’t it? … I understand the seriousness of the question. … but I also know, as all America knows, that this issue is being hotly debated on every level. … This is the type of situation where even the characterizing of whatever the court may do … suggests that I have both prejudged an issue and that I come to the issue with my own personal views. … Neither of that is true.” Says she would look at the issue in the context of a case, with a “completely open mind.”
10:43 a.m. – Sen. John Cornyn (R-Texas) is reading Sotomayor’s controversial past statements. “So, judge, what should I tell my constituents who are watching these hearings and saying to themselves, in Berkeley [where she gave her "Latina Judge's Voice" speech] … she says one thing, but in these hearings she says things that are contradictory?”
Sotomayor says that her record as a judge proves her fidelity to the law.
10:29 a.m. – Sen. Amy Klobuchar (D-Minn.) begins her questioning time. Reads a long list of endorsements for Sotomayor into the record.
10:25 a.m. – Graham notes that as an advocate with the PRLDEF, Sotomayor consistently aligned herself with left-of-center views, but as a judge — save for Ricci — she was generally in the mainstream.
10:21 a.m. – Graham asks Sotomayor about the six briefs filed by the Puerto Rican Legal Defense and Education Fund during her tenure as a board member there.
Sotomayor: “I can’t answer that question, because I didn’t review the briefs. I did know that the fund had a health-care docket that included challenges to certain limitations on a woman’s right to terminate her pregnancy under certain circumstances.”
Graham submits the PRLDEF death-penalty memo, signed by Sotomayor, into the record. What led her to the conclusion in 1981 that the death penalty should not be allowed in America?
Sotomayor changes the subject.
10:18 a.m. – Graham is going on and on, wasting his question time with a long, rambling lecture. The point seems to be that Sotomayor is not an activist. No, wait, now he’s asking a question: “Do you embrace identity politics, personally?”
Sotomayor says she doesn’t believe in identity politics as the term is understood. “I would never endorse a group advocating something that was contrary to some basic constitutional right.” (Such as the right to life?
As AUL President Dr. Charmaine Yoest will tell the committee today, for twelve years Sotomayor was on the board of the Puerto Rican Legal Defense and Education Fund, which engaged in aggressive legal action to push abortion as a “fundamental right.” See AUL’s Sotomayor411.com for background.)
10:09 a.m. – Graham is speaking at length about why it’s important to put on the court “people who see the world like us.”
He is fumbling as he tries to ask her a question regarding how she would determine whether the Second Amendment is a fundamental right. “Is there a sort of legal cookbook that you can go to that says, (A) this is a fundamental right, and (B) this is not?”
The nominee is patient with him. He doesn’t seem to understand what a fundamental right is.
10:06 a.m. – Sen. Lindsey Graham (R-S.C.) begins questioning.
10:02 a.m. – Feinstein asks how the nominee looks at her appointment to the court’s affecting empowerment for women.
Sotomayor: “I chose the law because it’s more suited to that part of me that’s never sought the kind of attention that other public figures get.” Says her friends in law school thought she would go into politics, but she wanted to be a judge. Now that she realizes she is an inspiration to others, it gives her an “awesome sense of responsibility.”
10:01 a.m. – Sen. Dianne Feinstein (D-Calif.) is questioning the nominee.
9:35 a.m. – Sen. Jon Kyl (R-Ariz.) begins with a question about the Ricci case. Says he’s reviewed the case and found there was no Supreme Court precedent, contrary to Sotomayor’s earlier claims. Isn’t it true that she was incorrect in her claim she was bound by precedent?
Sotomayor: “The issue was whether or not employees who were a member of a disparately impacted group had a right under existing precedent to bring a lawsuit. … That was established in Second Circuit precedent … and had been concluded under existing Supreme Court precedent.”
But it’s not a question of standing, but of summary judgment.
Sotomayor says that established precedent said one could make a case by showing a disparate impact. Goes into the history of the case: “Then the city …”
Kyl interrupts. Is aware of facts of the case. Asked a simple question. What was the precedent that bound her? There is no Supreme Court precedent and few if any Second Circuit precedents.
Sotomayor says one could view that the city was discriminating on race or saying that because it was unsure, was it discriminating?
So you disagree with the Supreme Court’s characterization of the precedents available to decide the case?
Sotomayor: “It’s not that I disagree …” Says the city was unsure whether it could defeat its liability.
Kyl interrupts again. “You’re not getting to the point of my question. … Isn’t it true that, first, the result of your decision was to grant summary judgment against these parties, and, secondly, that there was no Supreme Court precedent that required that result and few if any Second Circuit precedents.”
Sotomayor cites the Bushie line of Second Circuit cases. Says the question then became, “how do you view the city’s action.”
So you contend that there was Second Circuit precedent. Now, on the en banc review, there was a different precedent and yet you took the same position. Now, what precedent would have bound the court in its en banc review?
Sotomayor: “I can’t speak for why the others did or did not take the positions they did …”
Kyle: “But you felt you were bound by precedent.”
Sotomayor says she felt she should accept the district court’s decision.
Kyl is still baffled by what precedent she’s speaking of.
Sotomayor says a district court’s decision below does become the court’s precedent. Starts going off-topic about her previous work.
Kyl apologizes for interrupting, but has now used half his time. “You will not acknowledge that even though the Supreme Court said there was no precedent … you still insist that somehow there was precedent that you were bound by.”
Says the Circuit incorporated the District Court’s holding, so that became its precedent. Says what the Supreme Court did in Ricci said, should we adopt a standard “different than what the circuit did. … That argument of adopting a different test was not what was raised before us.”
Kyl asks, if it’s a matter of first impression, do judges on the circuit generally procure an opinion based on that? Would that be typical?
Sotomayor says courts have done so in the past.
Kyl quotes Cabranes’s dissent, saying the questions in the case were indisputably complex and should not have been decided based on a first impression. “Let me just say … that the implications of this decision are far-reaching.” Quotes Supreme Court’s Ricci decision in his effort to explain why the case is so important.
Sotomayor: “As I stated earlier, the issue for us … was what the Supreme Court recognized, which is that there was a good-faith basis for the city to act.”
Kyl reminds her that the Supreme Court said such a rule as Sotomayor endorsed would amount to “a de facto quota system.” Asks her about a comment she made about the dissent in the case. Notes that all nine judges disagreed with her judgment, even though it was a 5-4 decision — they all believed the lower court should have heard the facts of the case before a summary judgment was granted. “Isn’t that correct?”
Sotomayor won’t give him a direct answer. “The engagement of the judges was varied on different levels …”
Kyl interrupts. “All nine justices said that summary judgment was inappropriate. … did they not?”
Sotomayor: “I don’t believe that’s how I read the dissent.”
