1:24 p.m. – Sen. Leahy announces a ten-minute break. Liveblogging will resume in a new post when the hearing restarts.
1:18 p.m. – Sen. Jeff Sessions (R-Alabama) takes the microphone and introduces various news articles into the record. He also moves to include in the record Americans United for Life’s memo to the Judiciary Committee.
1:16 p.m. – Judiciary Chair Sen. Patrick Leahy (D-Vt.) is asking Sotomayor on a question regarding the court’s taking up death-penalty cases.
1:10 p.m. – Coburn asks if we’ve honored the intents of the Founders with regard to the limited role that they intended for the judiciary with regard to checks and balances.
Sotomayor: “That’s almost a judgment call. I don’t know how to answer your question because it would lead to the natural question, ‘Did the courts do this in this case?’”
1:06 p.m. – Sen. Tom Coburn (R-Okla.) takes the microphone.
1:00 p.m. – Cornyn notes that she testified she would not use foreign law. He contrasts this with her April 2009 statement saying “it is my hope that judges everywhere” will take foreign law into account. Does she stand by her testimony today or by her speech, or can she reconcile the two?
Sotomayor: “I stand by both.” Says her speech made clear that foreign law cannot be used to interpret American law.
Cornyn asks why would a judge cite foreign law unless it had an impact on their decision?
Sotomayor: “I haven’t,” but some other judges do. “That’s as far as I can go.”
Cornyn asks why she said foreign law “gets the creative juices flowing” (her exact words).
Sotomayor: “I think about ideas all the time, and so for me it’s fun to think about ideas.” Talks about how judges chat with one another in the lunchroom. “It’s just talking, it’s just sharing ideas. … But you can’t use foreign law to determine the American Constitution.”
12:56 p.m. – Sen. John Cornyn (R-Texas) begins questioning. Asks about Sotomayor’s having written that neutrality and objectivity are “a myth.”
Sotomayor: “In every single case … there are two parties arguing different perspectives on what the law means. … and what the judge has to do is choose the perspective that applies. … That’s the perspective of a lack of neutrality; you can’t just throw up your hands and say I’m not going to rule. … There is choice in judging; you have to rule.”
12:52 p.m. – Sen. Lindsey Graham (R-S.C.) is questioning the nominee regarding military law as it applies to trials of enemy prisoners.
12:37 p.m. – Sen. Jon Kyl (R-Ariz.) is questioning Sotomayor about the Maloney case.
12:27 p.m. – Sen. Chuck Grassley begins questioning. Asks about the Baker precedent regarding marriage — will she support the precedent based on stare decisis and if not, why not?
Sotomayor says she went back to read Baker after being questioned on it yesterday. Had never studied it before. But she says she can’t prejudge how she would apply stare decisis and she won’t comment on issues pending before the court.
12:19 p.m. – Hatch brings up the PRLDEF briefs and notes Sotomayor served on a dozen different leadership positions during her twelve years on the fund’s board. Says he wants to ask questions regarding abortion cases in which the fund filed briefs. (All of these briefs, in which the fund argued that abortion was a “fundamental right,” are on Sotomayor411.com.)
Brings up amicus brief comparing refusing to use Medicaid funds for abortion to the Dred Scott case. “Did you know the fund was filing this brief?”
Sotomayor: “No sir.”
Asks if she knew the fund was making its Dred Scott argument.
Sotomayor: “No.”
He runs down a line of questions asking if she ever made any objections to the arguments made in the brief. She responds: “I was not a lawyer on the fund. … I was a board member.” Says it was not her practice to review the briefs.
He cites the fund’s Ohio brief and begins running down the same list of questions. Did she know the fund was filing this brief?
Sotomayor: “No.” Says she knew generally that they were filing briefs but didn’t know of the brief until after the fact.
He brings up the Planned Parenthood vs. Casey brief and asks the same questions.
Sotomayor: “For the same reason, no.”
She may have just perjured herself. The Judicary Committee has the minutes of the PRLDEF litigation committee’s meetings, showing that Sotomayor was briefed on pending litigation. It would be interesting to compare the dates of the briefings with the dates of those briefs Sotomayor claims she never saw in advance.
12:19 p.m. – Sen. Orrin Hatch (R-Utah) begins questioning.
12:12 p.m. – Sessions discusses the Ricci case. “I think the Supreme Court made clear … that the firefighters case … had tremendous jurisprudential impact. …” He criticizes the nominee’s treatment of the case. Asks if we wouldn’t have been better off had she shown the “courage” to issue an in-depth opinion?
Sotomayor denies she lacked courage.
12:11 p.m. – Sessions says he will not support a filibuster or any attempt to block a vote on Sotomayor’s nomination.
12:07 p.m. – Sen. Jeff Sessions (R-Alabama) begins questioning.
12:01 p.m. – Sen. Al Franken (D-Minn.) begins questioning. Reads an endorsement letter for Sotomayor. She tells him a story. Nothing substantive in this exchange.
11:51 a.m. – “Did any laws of the 50 states regulating abortion survive the decision of Roe?”
Sotomayor doesn’t know. Coburn answers, “They didn’t.” He asks, what are the limits on abortion, according to Roe and Doe?
Sotomayor says her knowledge is based on the Casey standard of “undue burden.”
Coburn: “The truth is, ever since January 22, 1973, you can have an abortion for any reason in this country. … Where do we stand in this country when 80 percent of the rest of the world allows abortion only before 12 weeks and yet we allow it at any time, for any inconvenience, under the health-of-the-woman aspect?”
He notes that the state’s interest is viability. “Is the Casey undue-burden test a policy choice?”
Sotomayor: “I understood that that was the court’s framework for addressing both the woman’s right to terminate her pregnancy under the Constitution and the state’s rights to legislate and regulate in areas within its jurisdiction.”
Coburn: “I just want your opinion. Do you believe that the court’s abortion rulings have ended the national controversy over this issue?”
Sotomayor: “No.”
Coburn asks if she thinks there are other similarly divisive issues that could be decided by the court in the near future? Assisted suicide, euthanasia?
Sotomayor: “People are very passionate about the issues they believe in.”
Coburn asks, on these divisive issues, is it better that the courts decide them or our elected representatives?
Sotomayor: “It’s always the state that passes regulation” which the court is reviewing. Not a choice of either-or, she says.
Coburn: “I believe your speeches reflect your passions. … The problem I’m having is, I really see a dissonance about what you said outside of your jurisprudence.”
11:45 a.m. – Coburn says his constituents understand, as do most Americans, that the right to own a gun hangs in the balance. With “one wrong vote,” “what we consider a fundamental right” could be taken away. “Tell me how American citizens would be able to enforce their constitutional right to bear arms if you are holding that it does not apply to the states.”
Sotomayor: “Maloney was decided on the basis of precedent.” Says the case was decided on the rule of law. “I can assure your constituents that I have a completely open mind on this question.”
Coburn: “Do you not consider it ironic” that the issue provoked by the 14th Amendment originated in the states’ taking away guns from slaves?
Sotomayor asks him if he wants a nominee who agrees with him without having examined the facts of a particular case before the court.
Coburn: “But I ask you, isn’t it ironic that in this country … where our law comes from English law … where we have a 14th Amendment right … and we have a legal schizophrenia that can’t decide whether this is a fundamental right?”
Sotomayor: “I understand that the importance of the right was recognized in Heller …” Assures him she will keep an open mind.
11:42 a.m. – Coburn: “Why can’t you give us your description of what you think your parameters are in light of what the court uses to determine a fundamental right?”
Sotomayor gives an oblique answer, concluding, “What I’m trying to do is not prejudge an issue.”
11:36 a.m. – Sen. Tom Coburn (R-Okla.) begins questioning. Will she agree to refrain from using foreign law in her decisions?
Sotomayor: “I will not use foreign law to interpret the Constitution or American statutes.”
