In her testimony yesterday before the Senate Judiciary Committee, Judge Sonia Sotomayor made a serious contradiction of her own testimony of her involvement with the Puerto Rican Legal Defense and Education Fund, which was at the very least misleading. In addition, she appears to have contradicted the known facts of her involvement with the PRLDEF, based on the minutes of the Fund’s litigation committee that have been made available to the Senate Judiciary Committee.

The serious contradiction occurred during Sotomayor’s questioning by Sen. Orrin Hatch (R-Utah). Earlier, during the morning’s questioning, she had the following exchange with Sen. Lindsey Graham (R-S.C.):

GRAHAM: During your time on the board — and you had about every job a board member could have — is it a fair statement to say that all of the cases embraced by this group on abortion advocated the woman’s right to choose and argued against restrictions by state and federal government on abortion rights?

SOTOMAYOR: I didn’t — I can’t answer that question because I didn’t review the briefs. I did know that the fund had a health care docket…

GRAHAM: Judge?

SOTOMAYOR: … that included challenges to certain limitations on a woman’s right to terminate her pregnancy under certain circumstances.

The word”docket”refers to pending cases. When Sotomayor said she knew the Fund had a “docket,” she was saying that she knew in advance that the Fund was making the argument against “certain limitations on a woman’s right to terminate her pregnancy.” She knew that opposing common-sense abortion regulations was the Fund’s policy.

But later, when Sen. Hatch went down the list of PRLDEF briefs, Sotomayor denied she had advance knowledge of the PRLDEF’s legal efforts to fight these “limitations,” and she denied she was aware of the Fund’s policy opposing such limitations.

Here are the most pertinent excerpts of Hatch’s exchange with Sotomayor (see also the full transcript of the exchange and AUL’s in-depth analysis of the briefs):

HATCH: In another case, Ohio v. Akron Center for Reproductive Health, the fund argued that the First Amendment right to freely exercise religion undermines laws requiring parental notification for minors getting abortions. Now, at the time, did you know that the fund was filing this brief?

SOTOMAYOR: No, no specific brief. Obviously, it was involved in litigation, so I knew generally they were filing briefs, but I wouldn’t know until after the fact that a brief was actually filed. But I wouldn’t review it.

HATCH: The same questions on this. At the time, did you know that the brief made this argument? At the time, did you support the fund filing this brief that made this argument? And at the time, did you voice any concern, objection, disagreement, or doubt about the fund filing this brief or making this argument?

SOTOMAYOR: No, because I never reviewed the brief.

HATCH: That’s fine. I’m just going to establish this.
In another case, Planned Parenthood v. Casey, the fund argued against a 24-hour waiting period for obtaining an abortion. So, again, those questions. At the time, did you know that the fund was filing this brief? Did you know that the brief made this argument? Did you support the fund filing this brief that made this argument? And did you voice any concern, objection, disagreement or doubt about the fund filing this brief or making this argument?

SOTOMAYOR: For the same reason, no.

Sotomayor here appears to not only be contradicting her previous statement to Sen. Graham, but also contradicting the known facts about her involvement with the PRLDEF. In addition to the PRLDEF president’s claim that her role was to “set policy,” there is evidence in the minutes of the meetings of the PRLDEF board’s litigation committee, showing that Sotomayor was responsible for briefing the board on current litigation. Senate Republicans have access to these minutes and have posted information on their Leader Board blog about Sotomayor’s involvement.

That same Leader Board post notes that Sotomayor was on the Fund’s litigation committee for several years, including 1988 and 1991. The PRLDEF’s brief in the Webster case, although filed in March 1989, occurred during the Supreme Court’s 1988 session, while the PRLDEF’s brief in Planned Parenthood v. Casey, although filed in March 1992, occurred during the court’s 1991 session. So it is very possible that, while on the litigation committee, Sotomayor was involved in preparing those briefs. Besides, she was also on the PRLDEF’s board itself during the entire time that all six of the Fund’s pro-abortion briefs were filed.

The Washington Times reported last week that the White House has refused to release several boxes of documents from Sotomayor’s tenure with the PRLDEF. Given Sotomayor’s apparent contradictions in her own testimony, one is left to wonder: What are they trying to hide?

I hope you were able to watch my testimony before the Senate Judiciary Committee this afternoon concerning the nomination of Judge Sonia Sotomayor. (If you missed it, you can see it on AUL’s YouTube channel.)

Make no mistake if Judge Sotomayor is confirmed, it will be a setback for the pro-life cause.

When you couple Judge Sotomayor’s judicial-interventionist philosophy with her support for the radical arguments made by the Puerto Rican Legal Defense and Education Fund (PRLDEF) in abortion-related cases, her presence on the United States Supreme Court surely would endanger all of the common sense abortion regulations that have been passed in dozens of states.

Your support enabled me to provide this critical testimony today. And your continued support will enable Americans United for Life to continue to serve as your voice, as the voice for life in Washington, D.C. and the state Capitols.

Will you join us? Make your donation today and be part of this historic effort to protect and defend the hard-won victories of the pro-life movement.

Thank you for supporting our work and standing with us For Life!

Charmaine Yoest, Ph.D.
President & CEO

P.S. — Please consider making a donation and being part of this historic effort to protect and defend the hard-won victories of the pro-life movement.

5:38 p.m. -The hearing is recessing briefly to set up for the next panel. Liveblogging is recessing for the evening.

5:33 p.m. – Sen. Kyl asks re Coburn’s questioning, when Sotomayor did not want to acknowledge the impact of the advances in technology with regard to abortion law.

Yoest: “There have definitely been tremendous advances in the scientific realm as it relates to human life.” Also, she nots, AUL is very focused on pro-life legislation on the state level. Part of the question is how much the American people will be allowed to interact with their state representatives in encouraging restrictions on abortion that they’d like to say. (In other words, is Sotomayor going to deny the American people the opportunity to have a say on abortion law through their elected representatives? That’s what Sotomayor apparently endorses, based on her heavy involvement with the PRLDEF, which argued for striking down all common-sense abortion regulations.)

5:29 p.m. – Sessions thanks Somin for his testimony on Didden. The case was “worse than I thought,” Sessions says.

5:24 p.m. – Sen. Jeff Sessions (R-Ala.) takes the microphone. He asks AUL President & CEO Dr. Charmaine Yoest, with regard to  the nominee’s involvement with the PRLDEF, whether the AUL board members know what legal actions AUL is taking.

Yoest says that as she’s listened to Sotomayor’s discussion of her relationship with the PRLDEF as a board member, she finds that the nominee’s excuses strain credulity: “The point of being a board member … is to have oversight, and to have accountability and responsibility for the organization.”

5:12 p.m. – George Mason University law professor Ilya Somin begins his testimony. He was invited to speak by the GOP. He is concerned about Sotomayor’s stance on property rights, and discusses her role in the Didden case.

5:08 p.m. – David Kopel of the Independence Institute is testifying against Sotomayor’s confirmation, particularly out of concern over her views on the Second Amendment.

5:03 p.m. -Former National Rifle Association President Sandy Froman is testifying now. The NRA announced today that it opposes Sotomayor’s confirmation.

4:59 p.m. – Yoest brings up the core American belief in the bonds between parent and child. A mother of five, she says that the notion that one of her daughters might be taken for a surgical procedure without her knowledge is “horrific.” Yet the PRLDEF, on Sotomayor’s watch, argued that parental-notification laws — along with all other regulations on abortion — should be struck down.

4:55 p.m. – Yoest brings up Sotomayor’s twelve years of service on the board of the Puerto Rican Legal Defense and Education Fund. For in-depth background about the nominee’s involvement with that radical abortion-advocating organization, see AUL’s Sotomayor411.com.

4:53 p.m. – AUL President & CEO Dr. Charmaine Yoest begins her testimony. Read her entire testimony on AUL’s Web site.

4:48 p.m. – Another witness called by the Democrats, Yale Law School Professor Kate Stith, begins her testimony.

4:42 p.m. – Former Yankee pitcher David Cone begins his testimony. I think it’s safe to say he’s testifying in favor of Sotomayor’s confirmation.

4:36 p.m. – Another witness in favor of Sotomayor’s confirmation, Chuck Canterbury — national president of the Fraternal Order of Police — begins his testimony.

4:30 p.m. – Former FBI Director Louis Freeh begins his testimony. He is talking about why he recommends the nominee’s confirmation.

4:29 p.m. – The second panel of witnesses are sworn in. Americans United for Life President & CEO Charmaine Yoest is on this panel.

Americans United for Life President & CEO Dr. Charmaine Yoest is set to give testimony about Judge Sonia Sotomayor before the Senate Judiciary Committee today. She will be the only pro-life leader to address the committee. Read her testimony on AUL’s Web site.

4:20 p.m. – Sen. Cardin closes the panel and announces a five-minute break. Liveblogging will continue in a new post when the next panel begins. The next panel will include Americans United for Life President & CEO Dr. Charmaine Yoest.

4:06 p.m. -Sen. John Cornyn (R-Texas) takes the microphone. He notes Sotomayor’s past statement that there is “no neutrality” in the law and says he is more concerned about that in light of some of the panelists’ testimony: “If there’s no neutrality, I guess all that leaves is bias.”

4:02 p.m. – Linda Chavez says in answer to a question from Sen. Arlen Specter (D-Pa.), regarding the Ricci case, that she thinks Judge Sotomayor has indicated a preference to eliminate testing. “She has fought to get rid of civil-service testing … and has recognized civil-service tests as inherently unequal.”

3:55 p.m. – Hatch asks New Haven firefighter Ricci if his understanding of how the city worked hard to design a fair test made him believe he would be judged on his merits.

Ricci: “Just by taking the test, we knew that the test was job-related” and measured the skills needed to be competent firefighters.

3:51 p.m. – After a round of uneventful questioning by Sen. Amy Klobuchar (D-Minn.), Sen. Orrin Hatch (R-Utah) takes the microphone. He asks Wade Henderson if he agrees that there was no precedent for Sotomayor to follow in the Ricci case. Henderson does agree.

3:40 p.m. – Graham tells Ricci that as a country, we’re trying to find some balance. “But,” he adds, “please don’t lose sight of the fact, not so very long ago, the test was rigged a different way.”

The senator then tells firefighter Vargas — also apparently referring to past racial prejudice in America — that not too long ago, his last name would have been “it.” (Huh?)

3:36 p.m. – Sen. Lindsey Graham (R-S.C.) on how he believes identity politics take place on both sides of the party divide: “I know that Republicans sit down and say … let’s let the whole country know we’re not just a party of short white guys.”

3:28 p.m. – Chavez: “I think it’s important to rejudge Sotomayor’s entire ['Latina Judge's Voice'] speech,” not just the “wise Latina woman” comment. She observes that the nominee spoke approvingly in the speech of studies that gave statistics on gender differences in judging. “Inherent in her analysis is the notion that there ought to be proportional representation on judicial panels” for ethnicity. Chavez says this is very close to arguing for quotas. (For more on the nominee’s “Latina Judge’s Voice” speech, including a link to its original text, see AUL’s Sotomayor411.com.)

3:24 p.m. – Sessions asks firefighter Vargas if those who failed the exam would have mastered it if they had studied as hard as he did. “Absolutely,” Vargas says.”

3:18 p.m. – Sen. Jeff Sessions (R-Ala.) begins to question the panel.

3:08 p.m. – Chavez observes that Sotomayor, in her senior thesis at Princeton, refused to refer to the U.S. Congress by its name, calling it instead “the North American Congress.”

3:05 p.m. – Linda Chavez begins her testimony. “My message today is straightforward: Mr. Chairman, do not vote to confirm this nominee. … It is clear from her record that she has drunk deep from the well of identity politics.”

3:01 p.m. – Kirsanow says the standard endorsed by Sotomayor in the Ricci case would have resulted in “de facto quotas.” (His words echo the Supreme Court’s language in its decision overturning the nominee’s ruling.)

2:59 p.m. – Peter Kirsanow of the U.S. Commission on Civil Rights begins his testimony. Says he is here in his personal capacity. Says his commission revealed three significant problems with Sotomayor’s handling of the case, starting with the summary dismissal.

2:54 p.m. – Benjamin Vargas begins his testimony. Notes that since his case was summarily dismissed by the district court and the Second Circuit panel, this is his first chance to give his story. He observes that he is Hispanic and proud of the heritage he and Sotomayor share.

He says he sought to better his life for his three young sons. “My wife … took time off from work to see me and our children through this [exam] process.” Spent months studying for the exam every day. Put photographs of his boys in front of him to inspire himself to keep studying.

“I was shocked when I was not rewarded for this hard work and sacrifice, but was actually penalized for it. … I am proud of the decision I made and proud of the principle that our group vindicated together.”

He notes that as a firefighter, unlike the judicial system, there is no room for error or delay. “I am not a lawyer, but I quickly learned about the law as it applied to this case. … I expected Lady Justice with the blindfolds on. … Instead, we were devastated to see a one-paragraph unpublished order summarily dismissing our case. … I expected the judges who heard my case along the way to make the right decision.” Says it was Justice Alito who best captured the firefighters’ own feelings.

2:53 p.m. – Ricci: “The more attention our case got, the more some people tried to distort it.” It bothered him that some saw the case as representing a testing process in which minorities were excluded from promotions. In fact, minorities were hurt by the lower-court decision as well, he says. “When we finally won our case and saw the messages we received from every corner of the country, we understood that we had done something very important together.”

2:51 p.m. – Ricci says the summary order, mentioning his dyslexia, made it seem as though the case was about him and his disability. “It had nothing to do with that. … The lower court’s belief that citizens should be reduced to racial statistics is flawed.”

2:50 p.m. – Ricci, being dyslexic, is following his testimony with his finger as he reads. Watching him really brings home what he overcame to pass the New Haven firefighters exam. “I studied harder than I ever had before. … I was a virtual absentee father and husband for months because of it.”

2:48 p.m.- Frank Ricci begins his testimony.

2:46 p.m. – Wade Henderson of the Leadership Conference on Civil Rights is giving his testimony. In the meantime, AUL has just posted the testimony that our President & CEO Dr. Charmaine Yoest is set to deliver when she appears on the next witness panel.

2:36 p.m. – Former New York City DA Robert Morgenthau, who was the nominee’s boss during her days as a prosecutor, is making his statement.

2:32 p.m. – Bloomberg keeps calling the nominee “Judge Sontamayor.”

2:29 p.m. – Bloomberg has arrived, so the rest of the Democrats’ panel is sworn in. Sen. Cardin introduces Mayor Bloomberg.

2:22 p.m. – Sessions asks McDaniel if he’s aware the Second Circuit panel decided Ricci as a summary order?

McDaniel says he is aware. “I know that the body of judges chose to review the matter and they voted not to meet en banc.”

Session notes that Judge Sotomayor was the key vote in deciding not to rehear the Ricci case. So, he says, it’s inaccurate to say she was just following authority, because it was her vote that decided the authority would not be reevaluated.

Sessions raises the issue of the Heller case and says that McDaniel joined a brief to the Supreme Court arguing the Second Amendment was a fundamental right. He points out that Heller was just a 5-4 opinion, with some justices arguing the Second Amendment did not apply to individual citizens. “Are you aware of the Maloney case in which Judge Sotomayor … justified her conclusion that the Second Amendment does not apply to the states? … Are you aware that one vote on the Supreme Court can make a difference” on whether the right to bear arms may be retained?

McDaniel says despite his views on the Second Amendment, he is nonetheless not concerned. He says he does not believe the right to keep and bear arms is at risk.

Sessions: “Thank you — and I think it is.”

2:13 p.m. – The hearing resumes and begins with the Democrats’ panel of witnesses. Arkansas Attorney General Dustin McDaniel is sworn in. (NYC Mayor Michael Bloomberg was supposed to go first, but he has not returned from break.) Daniel is explaining why he supported Sotomayor’s Ricci decision.

2:07 p.m. – A five-minute break is called. Liveblogging will resume afterward. The Democrats’ panel of witnesses is up next. Following will be the witnesses called by the GOP, including Americans United for Life President & CEO Dr. Charmaine Yoest.

2:00 p.m. – Sen. Jeff Sessions (R-Ala.) asks if the ABA looked at the Ricci case. One of the ABA reps says the Second Circuit panel heard full briefing and oral argument, and then decided to adopt in effect the district court’s ruling because they affirmed the ruling.

Sessions says that’s basically true, but what he’s asking about is the decision to decide it as a summary matter.

One of the ABA reps says they did not talk to Sotomayor about that and did not believe it was within the criteria they use to evaluate judges.

1:53 p.m. – One of the ABA reps says they met with Sotomayor for three hours and discussed “every” criticism that had been made of her. She talks about how they went to great length to investigate a particular criticism. Does not give details of what the criticism was, but it’s clear that the results of the investigation did not affect the ABA’s glowing evaluation of the nominee.

1:50 p.m. – Sen. Whitehouse is reading aloud various laudatory statements about the nominee from the ABA report.

1:42 p.m. – Sen. Whitehouse (D-R.I.) takes the microphone and announces the first witnesses, representatives from the American Bar Association.

The Leader Board blog at Republican.Senate.Gov reveals that Judge Sonia Sotomayor was not being truthful when she told the Senate Judiciary Committee yesterday that she was not involved in the legal strategies of the Puerto Rican Legal Defense and Education Fund (PRLDEF) during her twelve years on its board. In fact, the minutes of the meetings of the board’s litigation committee, on which she sat (including, at one point, as chairwoman) show that she was deeply involved in the fund’s abortion advocacy.

Here is the exchange from yesterday:

SEN. JEFF SESSIONS (R-AL): “Isn’t that true that you were more active than you may have suggested to Senator Graham yesterday?”

JUDGE SONIA SOTOMAYOR: “…That memo has to be examined in context. The memo was a moment in our 12-year history where the board was planning a retreat. To think about what directions, if any, we should consider moving into or not. We were not reviewing the individual cases to see if the individual cases, what positions were taken, the type of strategies.“

The PRLDEF litigation committee’s meeting minutes tell a different story, as the Leader Board blog describes:

March 25, 1981 Litigation Committee Meeting Minutes (Judge Sotomayor attended):  “The Committee was provided copies of the Fund’s Docket of Cases . . .”

•    The minutes also state: “There was a discussion regarding possible new issues that could be addressed by the Fund.”

•    The minutes also state: “The Board also unanimously resolved to request the Staff to examine what legal avenues might be available to challenge the cuts in federal entitlements.”

In Fact, According to PRLDEF’s Organization and Mission Report, When Judge Sotomayor Was Chairperson Of The Litigation Committee in 1987, She Was Responsible For Reviewing the Current Litigation:

November 11, 1985 Draft Report of the Organization and Mission Committee.  Responsibilities of the Litigation Committee included:  “(1) Review[ing] docket of current litigation; (2) Explor[ing] areas of potential litigation and set[ting] priorities for the Fund for the year.”

When Sotomayor Was Chairperson Of The Litigation Committee, She Briefed The Board On Current Litigation:

October 8, 1987 Minutes: “Chairperson Sotomayor summarized the activities of the Committee over the last several months which included the review of the litigation efforts of the past and present…”

On January 14, 1988, “Committee Chairperson Sonia Sotomayor reviewed the scope of the Committee’s work and indicated a fuller report would be presented at the upcoming Board meeting.” [Read the full story on the Leader Board blog.]

MORE: See AUL’s Sotomayor411.com for in-depth background on Sotomayor’s PRLDEF involvement.

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.”

In a bombshell admission, Judge Sonia Sotomayor — who yesterday spoke of the Puerto Rican Legal Defense and Education Fund as being a “mainstream” organization — admitted she was aware that the group, on whose board she served for twelve years, fought common-sense regulations on abortion.

Responding to a question by Sen. Lindsey Graham (R-S.C.) on the six briefs filed by the PRLDEF during her tenure as a board member there — briefs which argued that abortion was a “fundamental right” — she responded.

“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.”

One brief on the PRLDEF’s “health-care docket”argued against Ohio’s parental-notification law. It said:

that establishment and free exercise clause concerns also militate toward the invalidation of these abortion-specific notice statutes. If Justice Stevens is correct that the belief that life begins at conception is religious, [cit. omit.] then these statutes would seem to both reflect and accomplish state endorsement of religious beliefs. [cit. omit.] The Court would need to examine whether the ostensible secular purposes are “sham,” [cit. omit.] in light of the fact that abortion is singled out for notice from other, at least, equally life-shaping reproductive choices based on a purpose to save “lives”, and that parents who are religiously opposed to abortion are among its primary beneficiaries. It would also need to consider whether the state, through giving the parents confidential information (far more valuable here than financial assistance), has enhanced these parents’ ability to indoctrinate, control, or punish their minor daughters who choose abortion, and, thereby, has crossed the critical line between respecting the parents’ privacy right to inculcate religion in their children.

These are the views that Sotomayor now admits she knew she was promoting as a board member of the PRLDEF and as chair of its litigation committee. These are the views that the Supreme Court nominee considers “mainstream.”

AUL’s Sotomayor411.com has the full story on the PRLDEF briefs, including full-text links.

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.”

5:49 p.m. – Leahy recesses the hearing until 9:30 a.m. tomorrow. Liveblogging will resume then in a new post, with special coverage of AUL President & CEO Charmaine Yoest’s testimony before the committee.

5:44 p.m. – Cardin asks Sotomayor a general question on her views about freedom of religion.

“I don’t mean to be funny,” she says, but it is indeed a “fundamental right,” in that it is incorporated into the states. (She is self-conscious on this because she has said many times during the hearing that she does not see the Second Amendment as a fundamental right.)

5:38 p.m. – Sen. Cardin (D-Md.) begins questioning. He will be the last questioner of the day.

5:33 p.m. – Sotomayor is talking about how laws change because society develops, technology develops. (But, earlier today, she refused to discuss whether courts should consider how technology has developed that pushes back the age of viability for the unborn.)

5:30 p.m. – Grassley quotes a law-review article in which Sotomayor says, “Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions.”

Sotomayor says she was talking about how lawyers have an obligation to explain to the public the reasons behind what seems unpredictable about the law; one reason for this is because Congress makes new laws.

5:26 p.m. – Grassley brings up her statement in which she wondered whether “ignoring our differences as women and men of color” does judges a disservice. How is being impartial a disservice to the law and to society?

Sotomayor says she doesn’t believe judges should consider the gender or races of any group before them. (But what about their own gender or race, which was the subject of her statement?)

5:22 p.m. – Grassley brings up the Defense of Marriage Act. Does she agree with those state courts that have upheld it? Sotomayor says she cannot comment on it, as it is a pending case.

5:18 p.m. – Sen. Chuck Grassley (R-Iowa) takes the microphone and discusses Baker v. Nelson (1972), a Supreme Court decision regarding state marriage laws.

Does she agree marriage is a question to be reserved to the states, based on Baker v. Nelson?

Sotomayor says she can’t answer because it is an issue pending in many courts. Grassley presses her. She says she hasn’t reviewed Baker in a while.

Then, Grassley asks, what sort of process might she go through if a marriage case came to the Supreme Court? If Baker is a precedent, would she follow it?

Sotomayor says that in a given case, one side might cite Baker as a precedent, while the other side might cite a different precedent.

Grassley notes that Sotomayor didn’t hesitate to describe other Supreme Court cases as being precedent; why won’t she do so with Baker v. Nelson? The nominee says she may not have examined that case since law school. She says she would be happy to revisit the case and answer him tomorrow.

5:13 p.m. – Sen. Russ Feingold (D-Wis.) has the microphone and speaks at length about election spending, particularly the pending Austin case. Asks a terribly general question about Supreme Court precedents regarding corporations. Sotomayor says it would be inappropriate for her to answer because it would seem to reflect a prejudgment.

Feingold: “I appreciate the opportunity to express what I wanted to say about that.

Sen. John Cornyn (R-Texas) just gave a briefing to bloggers on Capitol Hill, and AUL was there. Here are some highlights:

On Judge Sonia Sotomayor’s answers to the Judiciary Committee regarding her controversial past speeches, he says her “lack of clarity is really a great surprise”: “The problem is, we don’t know whether we’re going to get Sonia Sotomayor the speechwriter or Sonia Sotomayor the federal judge on the court.”

If she had shown any contrition or any understanding of why those statements are provocative, it would have been more human, he says. “Now we’re left with guessing what kind of judge she would be. … Her unwillingness to walk back from these extreme positions causes me even more concerns.”

“She’s used that’wise Latina’ formulation at least five times,” he adds, countering the nominee’s dismissal of her statement as a passing “rhetorical flourish.” He sees her as being dismissive of very legitimate concerns.

Cornyn observes that Sotomayor’s answers often lack depth and precision: “I think she’s playing for time.” She’s talking at great length “about process and about things that would make your eyes close.” At the same time, she seems to be “channeling Roberts and Alito” in some of her answers, giving the overall impression that  she is “way too malleable.”

He agrees with a blogger’s observation that she seems rehearsed. “I would have hoped for more candor. I don’t think we’re getting candor. … It seems like she’s very scripted.”

Regarding her comments on stare decisis, Cornyn notes that “there are occasions, although they ought to be rare, when precedents can and will be overruled” — e.g. the Dred Scott decision — “but I’m not sure how much this discussion really tells you.” In some ways, he says, it’s a “futile exercise to get some hint of how a nominee will rule in a future case.”

Sotomayor’s record as a circuit judge and trial judge is “pretty traditional,” Cornyn says, although he does not agree with all of her decisions. “What concerns me the most is that once she gets to the Supreme Court, there is no restraint, no limitation on her ability to pursue her wishes.” If those wishes reflect her speeches, “that is a real concern.”

4:52 p.m. – The committee breaks for a 15-minute recess. Liveblogging will resume after the recess in a new post.

4:48 p.m. – Hatch notes that President George H.W. Bush drew a distinction between human empathy and judicial impartiality and asks the nominee her opinion on this.

Sotomayor: “Two Presidents have used the word empathy, and each of them has given it their different meanings. I can’t speak for their choice of the word.” She repeats what she said earlier that “a judge cannot decide cases on the basis of personal feelings or biases.”

Hatch brings up her “Latina Judge’s Voice” speech, noting she gave it at least five times. (The original text of the speech is linked on AUL’s Sotomayor411.com.) “Do you believe that transcending personal prejudices is a judicial duty or” — as she said in her speech — “an aspiration?”

Sotomayor says it’s an aspiration in that one should recognize how one is influenced by one’s experiences.

Hatch reads further into her speech where she stresses again that impartiality is an “aspiration.”

Sotomayor insists she really believes impartiality is a “duty.”

4:39 p.m. – Hatch is quizzing the nominee on her judicial philosophy. “Can the [high] court change the meaning of the words in the Constitution?”

Sotomayor says the court can change the way certain meanings are applied to words, not the meanings of the words themselves. She is choosing her words very carefully.

4:31 p.m. – Sen. Orrin Hatch (R-Utah) begins questioning.

4:27 p.m. – Kohl observes that the Supreme Court justices choose to hear only about 1 percent of the cases brought to them. “How will you determine which cases are so important as to warrant review by the Supreme Court?”

Sotomayor observes that one aspect of the factors the court considers is disagreement among the circuit courts. But she will not give a more specific answer to a question asking her opinion “in the abstract.”

4:20 p.m. – Sen. Herb Kohl (D-Wis.) is questioning the nominee now. Sotomayor is giving a long discourse on Brown vs. Board of Education.

4:05 p.m. – Sotomayor says she’d like to make clear what is a fundamental right. (Because senators and other ordinary people apparently don’t understand, I presume.) “Fundamental is a legal term” on whether a particular constitutional provision “binds the states or not,” she says.

Sessions says he knows what the legal means, “and that’s hugely important. Because if it’s not a fundamental right, it’s not incorporated” into state law.

4:05 p.m. – Sessions is pressing Sotomayor on whether any other court said the right to bear arms is “not a fundamental right.” Sotomayor says Judge Easterbrook on the Seventh Circuit said so. Sessions disagrees.

3:59 p.m. – Sessions asks, isn’t it true that if her Maloney decision held, it would fail to protect the right of people to keep and bear arms in every state in America?

Sotomayor: “I’m not familiar enough with the regulations in all 50 states …” Cop-out.

3:56 p.m. – Alabama Sen. Jeff Sessions, the ranking Republican on the committee, is questioning Sotomayor on the “wise Latina woman” comment.

Sotomayor: “Senator, I want to give you complete assurance that I agree with Sen. Hatch on his definition of activism” — that justices should not decide according to personal biases. “My rhetorical device failed.”

As Sen. Cornyn just observed in a blogger briefing, which I’ll post about shortly, Sotomayor notably refuses to simply apologize for her controversial past statements. She’s not showing any contrition. She simply says her statements “failed” to achieve their desired result.

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.

Judge Sonia Sotomayor’s answers to the Senate Judiciary Committee in today’s hearing revealed a curious contradiction.

First, the nominee refused to tell Oklahoma Republican Sen. Tom Coburn whether advances in technology — such as the fact that the life of a child born at 21 weeks may now be saved –  should be taken into account when evaluating Roe v. Wade. But later, under questioning from Sen. Ted Kaufman (D-Del.) on antitrust laws, she gave quite a different answer when discussing stare decisis, the legal principle under which judges are obligated to follow courts’ precedents.

Sotomayor told Kaufman that one element that should be considered in stare decisis is, “Has there been a change in society that shows that the factual findings” of the previous rule may have been wrong? She added, “The court has recognized in its stare decisis jurisprudence that all of the factors weigh into the decision.”

As I wrote when liveblogging this exchange, apparently, when the subject is antitrust law, Sotomayor is perfectly comfortable with admitting that new information must be taken into account. But when the subject is abortion law, she doesn’t want to even discuss whether a change in “factual findings” is relevant.

Dr. Charmaine Yoest, Americans United for Life President & CEO, has this statement on today’s questioning of Judge Sonia Sotomayor by Oklahoma Republican Sen. Tom Coburn:

“Sen. Coburn asked good, probing questions today related to abortion jurisprudence. Judge Sotomayor’s response that the ‘issue becomes one of state regulations,’ points us directly back to her record of service with the Puerto Rican Legal Defense and Education Fund (PRLDEF).

“The question of state regulation of abortion connects her PRLDEF record with her judicial philosophy. Unfortunately, Judge Sotomayor is seeming to forget or purposefully mislead the committee on her pro-abortion record, particularly as it relates to legislatively-passed regulations on abortion.

“The totality of her record and judicial approach to the law is unequivocal. As a 12-year board member of PRLDEF, in association with that organization’s legal strategy, she opposed any and every example of common-sense abortion regulation, including parental notification, informed consent and bans on partial-birth abortion, as well as advocating for mandatory taxpayer funding of abortion. PRLDEF asserted under her watch and in multiple briefs that abortion was a fundamental right, akin to the enumerated Constitutional protections of free speech. A vote for Judge Sotomayor is a vote for unrestricted abortion-on-demand without any common-sense restrictions — a position far outside the mainstream of the American public.”

See AUL’s Sotomayor411.com detailed information on Sotomayor’s involvement with the PRLDEF and the organization’s aggressive abortion advocacy.

12:59 p.m. – Sen. Leahy calls a lunch break. The hearing will resume at 2 p.m.; AUL liveblogging will also resume then in a new post.

12:53 p.m. – The discussion has turned to antitrust law, and the question of stare decisis comes up. Sotomayor says that one element that should be considered in stare decisis is, “Has there been a change in society that shows that the factual findings” of the previous rule may have been wrong? She added, “The court has recognized in its stare decisis jurisprudence that all of the factors weigh into the decision.”

Although the subject is antitrust, the nominee’s statement is quite interesting in light of her earlier refusal to comment to Sen. Coburn on whether technological advances — e.g. being able to save the life of an infant born at 21 weeks — should influence interpretation of abortion law. Apparently, when the subject is antitrust law, Sotomayor is perfectly comfortable with admitting that new information must be taken into account. When the subject is abortion law, she doesn’t want to even discuss whether a change in “factual findings” is relevant.

12:43 p.m. – Kaufman is asking about securities law.

12:34 p.m. – Sotomayor continues to talk about what she learned from her experience at a commercial law firm.

In the meantime, Jillian Bandes of TownHall.com fires a response from across the Senate blogging room to my disparaging Sen. Klobuchar’s bringing up bathroom conversation. Jillian writes: “There is a back-and-forth that exists among women that does not exist among men. In professional situations, that probably deserves to be tempered. But wouldn’t it serve us better to complain about the pacification of debate during the hearings as a whole, rather than complaining [about] the estrogen involved in the discussion of a women’s bathroom conversation?”

Most definitely, and I’m trying to do that as well. But I remain embarrassed by Sen. Klobuchar’s comment, as a woman. The senator’s comment was not womanly,; it was girly.

12:30 p.m. – Kaufman asks about the nominee’s commercial practice. She talks about how much she wanted to go into a small law firm where she could have hands-on practice. Says she was involved in contracts related to grain commodity trading.

12:28 p.m. – Sen. Ted Kaufman (D-Del.) begins questioning.

12:26 p.m. – Klobuchar ends her question by asking, “Did you have a chance to watch the All-Star game last night?”

Sotomayor admits she “turned it on for a little while.”

What a waste of the American people’s time.

12:20 p.m. – Klobuchar is talking about “white-collar cases.” Asks the nominee about her views of sentencing white-collar defendants. Sotomayor responds by talking about how sentencing laws have changed since she was a district-court judge. “That makes me sound ancient,” she observes.

12:09 p.m. – Klobuchar asks about Sotomayor’s decision in the Falso case, which involved child pornography. The nominee discusses the case, which hinged on whether a warrant was required for obtaining certain evidence. (SCOTUSblog has background on the case.)

11:55 a.m. – Sen. Amy Klobuchar (D-Minn.) starts her questioning with a bizarre story complimenting the “patience” of the nominee’s mother. Says she ran into Sotomayor’s mother in the ladies’ room. The mom was so eager to share stories about her daughter that the senator barely made it back to the hearings room in time.

As a woman, I find this embarrassing. Men don’t talk about their bathroom conversation in public hearings; why should a woman? I have enough estrogen as it is without having to soak it up as it seeps out from the TV set.

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.

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.)

A significant moment arrived in the hearing this morning as Sen. Herb Kohl (D-Wis) turned to questioning Judge Sotomayor, albeit briefly, on the abortion issue and the “right to privacy” underlying Roe v. Wade.  Sotomayor replied that she does agree that Roe is “settled law” as follows:

KOHL: All right. Judge, the court’s ruling about the right to privacy in Griswold laid the foundation for Roe v. Wade. In your opinion, is Roe settled law?

SOTOMAYOR: The court’s decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled, in terms of the holding of the court.

KOHL: Do you agree with Justices Souter, O’Connor, and Kennedy in their opinion in Casey, which reaffirmed the core holding in Roe?

SOTOMAYOR: As I said, I — Casey reaffirmed the holding in Roe. That is the Supreme Court’s settled interpretation of what the core holding is and its reaffirmance of it. [Transcript via Los Angeles Times.]

This question of Roe as settled law goes to a central point in the testimony we’ll be providing on Thursday morning:  Roe is not settled law.  The holding in Roe establishing the right to abortion has been substantially modified in subsequent cases – even Casey while reaffirming the central holding of Roe, modified the standard of review applied to abortion regulations.  As Roe and its successors continue to be repeatedly reconsidered, it is anything but settled law.

3:35 p.m. – Leahy calls a 10-minute break. Liveblogging will resume after the break in a new post.

3:30 p.m. – Sotomayor repeats her earlier excuse re her “wise Latina woman” comment — that she was making a “rhetorical riff” (earlier, she said “rhetorical flourish”) that was echoing a statement by Justice Sandra Day O’Connor. Again, her implication is that the fact that she was riffing on O’Connor excuses her making what is really an outrageous statement — that she hoped a wise Latina woman would come to a better decision than a white male who dd not have the same experience.

3:28 p.m. – As Sotomayor responds, Kyl says, “I think you just contradicted your speech.” Because, he says, she did say in her speech that gender should make a difference in judging, whereas now she is trying to say that was not what she meant.

3:23 p.m. – Sotomayor argues in defense of her “Latina Judge’s Voice” speech that “diversity on the bench is good for America.” Kyl says, “That’s the key. … The question, though, is whether you lead them [listeners to her speech] to believe that it’s good to make different decisions because of your ethnicity or gender.”

3:16 p.m. – Kyl quotes Sotomayor’s lecture “A Latina Judge’s Voice,” in which she said “there is no objective stance … no neutrality” in judging. Says “it is relativism run amuck.” How true! For more on that lecture — including a link to its full text — and other writings of Judge Sotomayor, see AUL’s Sotomayor411.com.

3:05 p.m. – Kyl is pressing Sotomayor on issues related to the Maloney case.

3:02 p.m. – Sen. Jon Kyl (R-Ariz.) begins his questioning.

2:57 p.m. – Feingold brings up the empathy question, saying he agrees with President Obama on the importance of that quality. Asks her how she can empathize with residents of small towns, since she is from NYC. As AUL President & CEO Charmaine Yoest wrote in her NPR op-ed, it’s a issue that’s off-point with regard to how a nominee would judge.

2:50 p.m. – Feingold asks, after the Supreme Court’s Heller decision, doesn’t it seem almost inevitable that the high court will find the Second Amendment as it applies to the states to be “fundamental”? Sotomayor demurs, saying she doesn’t want to comment on a case that might come up.

2:39 p.m. – Feingold asks if there are any elements of the government’s response to 9/11 that we may regret in 60 years. Sotomayor gives a vague answer. Feingold goes on to ask her about Patriot Act cases. She clearly does not want to be pressed on this issue.

2:32 p.m. – Sen. Russ Feingold (D-Wis.) begins his questioning.

2:26 p.m. – Sotomayor, in answer to a question about Entergy Corp. v. Riverkeeper: “Ultimately the task of the court is to give deference to what Congress wants.”

2:15 p.m. – Sotomayor answers Grassley’s question on the Didden property-rights case. She says “Mr. Didden didn’t” — and stops herself for a moment as though she’d hit a tongue-twister. Says the issue was, did Didden bring his lawsuit in a timely manner. Says her court ruled that he hadn’t.

2:12 p.m. – Eruption! A man starts shouting very loudly as Sotomayor begins to answer after Grassley asks why Sotomayor chose to “deny Mr. Didden his day in court.” Police escort him out and Leahy lectures the spectators. Grassley smiles: “People are always saying that I have the ability to turn people on.” Laughter!

2:10 p.m. – Grassley asks what are the constitutional limitations against the government’s taking any land for a public purpose. Sotomayor responds that she won’t speak on “a hypothetical” because she is a sitting Second Circuit judge.

2:07 p.m. – Grassley says Kelo was an expansion of previous precedent, going beyond constitutional principles. Sotomayor says she understands that some hold that view, but says she has to accept the majority’s decision as precedent.

2:06 p.m. – Re the Kelo decision, is public use and public purpose the same thing, Grassley asks? Sotomayor says “the two inform each other.”

2:01 p.m. – Sen. Chuck Grassley (R-Iowa) begins his questioning. He observes, with regard to developing vs. developed nations, that respect for private property has a great deal to do with the advancement of societies. Asks her about the Kelo decision.

Associated Press Washington Bureau Chief Ron Fournier observes in a blog entry titled “Tiptoeing Around Abortion,” “As an appeals court judge, she dismissed a challenge to the so-called global gag rule, deciding against an abortion rights group. But in her opinion she used the phrases ‘anti-abortion’ and ‘pro-choice,’ typically used by the abortion rights side.”

There is a certain irony in the AP bureau chief’s noting that the phrases “anti-abortion” and “pro-choice” are “typically used by the abortion rights side.” Those are also the phrases mandated by the Associated Press. In essence, Fournier is confirming his employer’s own “abortion-rights” bias.

Fournier also records some of Sotomayor’s comments to the Judiciary Committee today that favor the Supreme Court’s placing abortion under the “right to privacy”:

Sotomayor says the right to abortion is “settled law.”

She told the Judiciary Committee that “there is a right of privacy. The court has found it in various places in the Constitution.”

The nominee said this right is stated in the Fourth Amendment protections against unreasonable search and seizure and in the 14th Amendment guaranteeing equal protection of the law.

12:30 p.m. – Leahy calls a lunch break until 2 p.m. Sen. Chuck Grassley (R-Iowa) will be the first questioner when the hearing resumes. Liveblogging will continue then in a new post. In the meantime, check back here at the AUL Blog for links to pro-life commentary on what’s happened at the hearings so far.

12:23 p.m. – Feinstein’s questions have turned to issues such as the judicial branch’s role in relation to the executive branch with regard to national-security issues, and the Supreme Court’s interpretation of the commerce clause.

12:09 p.m. – In the wake of her previous answer, perhaps to dispel any question about whether she would uphold Roe v. Wade, Sotomayor emphasizes  “the doctrine of stare decisis.” AUL President & CEO Charmaine Yoest’s TownHall.com op-ed gave a preview of why this issue would be central to the hearings.

12:06 p.m. – Sotomayor says Gonzales v. Carhart was asking whether there were safer procedures available than the one at issue in that case. Says the prior precedent set by the court regarding the health and welfare of the woman must be a compelling consideration. For more on Gonzales v. Carhart, in which the court upheld the partial-birth abortion ban, see AUL’s commentary on the case.

12:03 p.m. – Feinstein says the Supreme Court said the law “cannot put a woman’s health at risk.” Says this rule has changed with Gonzales v. Carhart when “the court removed this basic constitutional right from women.”

12:01 p.m. – Sen. Dianne Feinstein (D-Calif.) begins her questioning.

11:59 a.m. – Alabama Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, states for the record that a Washington Post study shows that Sotomayor’s decisions were liberal 59 percent of the time, compared with 52 percent for other judges appointed by Democratic presidents.

11:44 a.m. – Hatch tells Sotomayor that although the Supreme Court overturned Ricci in a 5-4 decision, “all nine justices disagreed with your handling of the case.”

11:41 a.m. – [Back online after technical difficulties:] Sen. Orrin Hatch (R-Utah) is questioning Sotomayor on her Maloney decision, in which she held that the right to bear arms is not fundamental. (For more on this decision, see Robert Alt’s commentary in NRO’s Bench Memos.)

During the time the AUL Blog was offline, Hatch asked Sotomayor whether the Supreme Court decision that upheld the partial-birth abortion ban, Gonzales v. Carhart, was settled law. According to NRO’s Ed Whelan, she responded, “All Supreme Court precedents are settled, subject to respect as stare decisis.” For more on this issue, see AUL President & CEO Charmaine Yoest’s TownHall.com op-ed.

11:08 a.m. – Leahy announces a 10-minute break; liveblogging will start again when the hearing resumes.

11:04 a.m. – [Back online after technical difficulties:] Sen. Herb Kohl (D-Wis.) is questioning Sotomayor now. He is asking about term limits for Supreme Court judges and about antitrust law.

10:36 a.m. – Sessions ends his questioning. Liveblogging will continue in a new post.

10:27 a.m. – Sessions cites Stuart Taylor of the National Journal on the Ricci case. Says Sotomayor wasn’t bound by the case that she claims she saw as a precedent when she made her decision in that case; she must have simply agreed with the earlier verdict.

10:26 a.m. – Sotomayor repeats her earlier claim that the Supreme Court established “a new standard” with its Ricci verdict.

10:23 a.m. -Sessions questions Sotomayor on the Ricci firefighters case. (For background, see Judicial Watch’s statement on the Ricci reversal.)

10:21 a.m. – Sotomayor on “wise Latina comment”: “I was using a rhetorical flourish that fell flat.” Says she was playing on a statement made by Sandra Day O’Connor. But she used the statement repeatedly and published it in a journal — it wasn’t just an offhand comment. Sessions calls her on this — notes that she used the statement many times.

10:17 a.m. – Sessions counters by quoting a “troubling” statement that Sotomayor made yesterday, and notes that she has said in the past, “My experiences affect the facts I choose to see.” He says, “How is it appropriate for a judge ever to say that they will choose to see some facts but not others?”

10:13 a.m. – Sessions is pressing Sotomayor hard on her many past statements on how personal sympathies should influence a judge’s decision-making. She is contradicting him, saying that she  meant just the opposite — that personal sympathies should not affect a judge’s decisions.

10:10 a.m. – Sotomayor’s tone seems resentful as she responds to Sessions. She is practically spitting out her words. Re her statement that the courts are “where policy is made”: “I think if my speech is heard outside of the minute and a half that you present, … it’s very clear that I was talking about the policy ramifications of precedent …”

10:05 a.m. – Alabama Sen. Jeff Sessions, the ranking Republican on the committee, begins his questioning. Says it’s “not just one sentence” of the nominee’s that causes difficulty — it’s her “body of thought.”

10:00 a.m. – In answer to a Leahy question, Sotomayor says “I understand how important the Second Amendment is to many, many questions.” Apparently, not to her! She notes that one of her godchildren is a member of the NRA. That doesn’t sound like it would reassure gun owners. Speaking of her Heller decision, she says, “In Supreme Court parlance, the right [to bear arms] is not fundamental.”

9:54 a.m. – Sotomayor continues her defense of her “wise Latina woman” comment: “I do not believe that any ethnic, racial, or gendered group has an advantage in sound judging. … What the words that I used, I used agreeing with the sense that Justice Sandra Day O’Connor was attempting to convey.” Says O’Connor’s sentiment was that both men and women were equally capable of being both wise and fair judges. (But that’s not what Sotomayor herself said. She said she hoped a wise Latina woman would come to a better conclusion than a “white male who has not lived that life,” not an equally good conclusion. See her original statement, with a link to its source — the essay “A Latina Judge’s Voice” on AUL’s summary of her decisions and writings.)

9:53 a.m. – Sotomayor says she gave a variant of her speech to many different groups, most often young Latina lawyers and students. “I was trying to inspire them to believe that their life experiences would enrich the legal system, because different experiences and backgrounds always do.”

9:50 a.m. – Leahy raises the “outrageous charges of racism” that some commentators have applied to her. He quotes her “wise Latina” comment she made in a “speech” (which she also published in a journal article — it was no offhand comment) and quotes other comments from the same speech. “Here’s your chance — you tell us what’s going on here, judge.”

9:48 a.m. – Sotomayor claims the Supreme Court “applied a new standard” in overturning the Ricci decision.

9:46 a.m. – Leahy asks Sotomayor how she responds to the Supreme Court’s decision in the firefighters case, overturning her Second Circuit decision. Sotomayor says her court was “following precedent.”

9:40 a.m. – Sotomayor says it’s important to understand that, as a judge, she doesn’t make law. Clearly, she is conscious of having to counter her much-cited past statement that “the courts are where policy is made.”

9:38 a.m. – Leahy’s question about Sotomayor’s experience with Morgenthau gives her the opportunity to retell graphic details of the “Tarzan” murder case, detailing the killer’s “acrobatic feats.” She seems to have rehearsed this story very carefully; she declaims gravely and dramatically about how a family “was destroyed” by the criminal.

9:36 a.m. – In answer to a question about her experience in NYC prosecutor Robert Morgenthau’s office, Sotomayor talks about how she “became a lawyer” working for Morgenthau. She stresses again that each case is decided by the law according to “the facts before you.” (To learn why her record sparks concern that she judges based on feelings rather than facts, see AUL’s Sotomayor411.com.)

9:33 a.m. – Sotomayor answers by stressing a judge should understand the Constititution and the limited jurisdiction of the court. “The process of judging is the process of keeping an open mind,” she says, “… and that reaching a conclusion has to start with understanding what the parties are arguing, but understanding in all situations the facts … and then making a decision that is limited to what the law says on the facts before the judge.” She is clearly very conscious of the accusations that she judges based on feelings rather than facts, and is trying to reassure people that she judges based on constitutional principles.

9:33 a.m. – Judiciary Committee Chair Sen. Patrick Leahy (D-Vt.) begins questioning the nominee. His first question: “What are the qualities a judge should possess?”

3:02 p.m. – The nominee ends her statement in less than the ten minutes she was allotted. Leahy calls a break in the hearing until 9:30 a.m. tomorrow morning. Liveblogging will resume then. In the meantime, check back at the AUL Blog for more commentary on the Sotomayor nomination and other life issues in the news today.

3:01 p.m. – Sotomayor speaks about how the Constitution made her family’s American dream possible. Between the lines, she is again attempting to address criticisms that she would not uphold the Constitution.

2:59 p.m. – [Back online after technical difficulties:] Sotomayor is giving her statement now: “In each case that I have heard, I have applied the law to the facts at hand.” This is her way of addressing accusations of judicial activism.

2:33 p.m. – Another eruption in the audience. Leahy requests that audience members creating a disturbance be removed. Several people are shown the door.

2:31 p.m. – Sen. Al Franken (D-Minn.) begins his statement. He seems to be making a great effort to look senatorial.

2:19 p.m. – Sen. Arlen Specter (D-Pa.) begins his statement by emphasizing the importance of diversity. For me, as an American, it is disturbing to see how much her race is brought front and center by her supporters. What happened to Obama’s claim during his presidential candidacy that our nation had to move beyond race?

2:15 p.m. – Sen. Ted Kaufman (D-Del.) takes aim at “empty code words like ‘judicial activist,’” echoing previous comments by senators supporting her. As I wrote earlier, supporters of the nominee realize that charges of her judicial activism are causing Americans to question her fitness for the court. AUL’s “Top Ten Questions for Judge Sotomayor” at AskSotomayor.com delineates why Sotomayor’s past support for judicial interference in the democratic process is a genuine concern.

2:05 p.m. – Sen. Amy Klobuchar (D-Minn.) highlights how Judiciary Committee members benefit from their “different background and perspectives.” Yet another example of how Sotomayor’s supporters are playing up her race and their belief that she has “empathy,” which is what Obama said was his main criteria for a Supreme Court judge.

This morning’s start to the Sotomayor hearings featured multiple references to the life issue, underscoring what we expected — that life would be a hot-button issue with this nominee. 

The above-the-fold “news” on life coming out of the morning, however, was the interruption of the proceedings twice from pro-life protesters.  While I think it’s important to observe the decorum of a formal hearing and give due respect to the Senate, the protesters’ passion does underscore what we have been saying in our meetings with senators: The grassroots are paying attention to these hearings. They want to see careful, rigorous questioning of this nominee. Most importantly, as I told Politico, we are all “looking for heroes” — people who are willing to stand on principle, uncowed by challenging political circumstances.

12:38 p.m. – Leahy announces lunch break. Liveblogging will continue in a new post when the hearing resumes.

12:36 p.m. – Durbin is the second Sotomayor supporter to bring up Gonzales v. Carhart, the decision upholding the partial-birth abortion ban, attacking the Supreme Court for “disregarding a woman’s health.” (See AUL’s page on that case.)

12:34 p.m. – Durbin brings up the umpire analogy again, saying, as did other supporters of the nominee, that we don’t want an umpire. ( If there were a drinking game every time a Sotomayor supporter used that analogy, I’d be under the table now.) Again, this goes back to the Roberts hearings, when Roberts likened the judge’s role to that of an umpire. Sotomayor’s supporters oppose the analogy because an umpire role does not allow for feelings, empathy, etc.

12:33 p.m. -  Another eruption: A young man in a red polo shirt shouts as Sen. Durbin (D-Ill.) begins his statement. He is removed from the courtroom. He is removed. Leahy repeats that no outbursts will be allowed.

12:27 p.m. – Coburn brings up Obama’s “empathy” standard. “I believe that standard is antithetical to the proper role of a judge,” he says; the American people expect all judges to treat people equally.

12:24 p.m. – Coburn continues critiquing Sotomayor’s past statements. “You’ve taken the oath already twice, and if confirmed, will take it again.” Reminds her of what the oath says — “I will faithfully and impartially discharge all the duties …” Notes that it doesn’t reference foreign law, whereas Sotomayor has said we should take foreign law into consideration.

12:23 p.m. – Coburn says concerns over Sotomayor’s past statements will guide his questioning. Is “deeply concerned” by Sotomayor’s saying the law is “uncertain” and her praise for an “unpredictable” system of justice. We want justice to be predictable, he says.

12:21 p.m. – Sen. Tom Coburn (R-Okla.), begins his statement and adds a response to Whitehouse’s critcism of Roberts, observing that the partial-birth abortion ban was a law passed by Congress that was upheld by the court.

12:19 p.m. – Whitehouse: ”The empathy that President Obama saw in you has a constitutionally proper place.”

12:10 p.m. – Sen. Whitehouse (D-R.I.) targets complaints re “activist judges.” Supporters of the nominee are very sensitive about this criticism. He is using practically the same words as Feinstein, arguing that a judge is not an umpire. In heated language, he takes the opportunity to criticize Chief Justice Roberts and other “right-wing” Supreme Court justices. Singles out for criticism the court’s upholding the partial-birth abortion ban in Gonzales v. Carhart, saying it’s the first Roe v. Wade ruling that “disregards women’s health and safety.” (See AUL’s page on that case.)

12:05 p.m. – The Supreme Court’s “pulling ideas from the ether” are pretty far from framers’ ideal, Cornyn says. Says there are two choices for the future: First, the Supreme Court could demonstrate renewed respect for our original plan of government, returning to the Constitution. Or, the court could veer off course once again and “follow its own star.” It could invent even more brand-new rights not rooted in the text. Says the purpose of this hearing is to determine the path on which Sotomayor would take us.

12:03 p.m. – Cornyn notes the Supreme Court has even intervened in defining rules of golf!

12:01 p.m. – Cornyn: “We have to ask ourselves … what is the proper direction of the Supreme Court. Notes that the Constitution’s framers gave judges a role that was intended to be self-restrained and limited. Judges’ role is not to invent new rights, he says — rather they are to support the Constitution’s text and leave lawmaking to the people. Says the Supreme Court has often veered off this course, inventing new rights, micromanaging the death penalty, for example.

12 noon - Hearing is resuming after a 20-minute break. Sen. Cornyn (R-Texas) begins his statement.

11:39 a.m. – Cardin goes into nominee’s family background. As with other supporters, he is touting her being a “real American success story.”

11:37 a.m – Cardin says the Constitution and Bill of Rights should be ”living documents.” That is a code phrase for an activist philosophy, AUL Counsel Mary Harned notes to me.

11:33 a.m. – Sen. Cardin (D-Md.) begins his statement. Whenever the camera pans to Sotomayor, her smile looks pained.

11:30 a.m. – Graham says he doesn’t know how he will vote, but will not oppose colleagues who think Sotomayor is “a bridge too far.”

11:29 a.m. – Graham says, “Generally speaking, the President has nominated someone of good character, someone who has lived a very full and fruitful life” … but says that when she gave those “wise Latina” speeches as a sitting judge, it disturbed him.

11:28 a.m. – Graham on Obama’s “empathy” standard: “If we start applying that to nominees, it will ruin the judiciary.” Notes that he has no idea what’s in Sotomayor’s heart.

11:26 a.m. – Graham says re “wise Latina” comment: ”If I had said anything remotely like that, my career would have been over.” Says one shouldn’t say one’s life experience makes one “better” than anyone else.

11:24 a.m. – Graham is bringing up the PRLDEF briefs. Notes that the fund, on which Sotomayor was a board member, argued for taxpayer funding of abortions. (Much more on this at AUL’s Sotomayor411.com.)

11:24 a.m. – Sen. Graham (R-S.C.): “Unless you have a complete meltdown, you’re gonna get confirmed.”

11:19 a.m. – Schumer is citing the nominee’s past cases to argue that she judges based on the facts. He’s attempting to counter opponents’ allegations she brings her feelings and opinions into judging.

11:17 a.m. – Sen. Schumer (D-N.Y.) is splitting up his statement so that he may introduce Sotomayor’s statement. He’s giving a quick five-minute statement now.

11:16 a.m. – Kyl says the Supreme Court has reversed about 80 percent of Sotomayor’s opinions. For more on this, see AUL’s Sotomayor411.com.

11:13 a.m. – Kyl notes many of Sotomayor’s public statements, e.g. “wise Latina woman” quote, suggest she believes judges should allow personal opinion to guide them. He also notes that in the same lecture where she made that statement, Sotomayor said there is “no neutrality” for judges — neutrality is an “aspiration,” she said.

11:11 a.m. – Kyl quotes Obama’s statement re empathy. Says the problem arises when emotions in judge’s heart become critical ingredient to deciding a case.

11:08 a.m. – Sen. Kyl (R-Ariz.) begins his statement in direct contrast to Feingold, saying judges should be chosen on their merits, not on the basis of ethnicity.

11:06 a.m. – Feingold says Sotomayor is “living proof that this country is moving in the right direction” with regard to race. Her supporters make no secret that her race is a factor.

11:04 a.m. – Feingold urges viewers to be wary of the term “judicial activism.” Says it is used to describe judges who make decisions you don’t like. AUL Counsel Mary Harned notes to me that the nominees’ supporters are targeting the “judicial activism” label to try to defang GOP criticisms of Sotomayor’s record.

11:00 a.m. – Sen. Feingold (D-WI) is beginning his statement. Unlike Feinstein and Kohl, he begins by talking about the role of the Supreme Court rather than running down Sotomayor’s list of accomplishments. He is running down a list of times the court said “no” to Bush Administration decisions.

10:52 a.m. – Sen. Grassley says the “most critical qualification” is “the capacity to set aside one’s own feelings so that he or she can blindly and dispassionately administer” justice for all. So much for Obama’s beloved “empathy”!

10:51 a.m. – Sen. Grassley (R-Iowa) begins speaking. C-SPAN notes in graphic, as it did with Sessions, that he voted against Sotomayor’s Second Circuit nomination in 1998.

10:50 a.m. – Feinstein says Supreme Court justices are not merely umpires, but bring their own individual experiences and philosophies to the court. Odd for her to reject a baseball comparison, given how the Dems are playing up how Sotomayor “saved baseball.”

10:45 a.m. – Eruption! A man starts shouting as Feinstein acclaims Sotomayor’s “mainstream legal reasoning.” Judiciary chair Sen. Leahy calls for his removal and gives speech urging order. Says he will direct police to remove anyone who comes out either for or against the nominee or for or against any member of the committee.

10:41 a.m. - Sen. Feinstein (D-Calif.) begins statement, with the (to be expected) exuberance for Sotomayor’s life achievements.

10:39 a.m. – Hatch alludes to the smear campaign a group backing Sotomayor is waging against the plaintiff in the Ricci case. Says if it is true, it shows contempt for the dignity of the confirmation process.

10:36 a.m. – Hatch notes Obama today urges us to look at a judge’s empathy.

10:35 a.m. – Hatch is quoting Obama’s statements as a senator, when he said what kind of judge should be sought for the court. He said Obama called it “offensive and cynical” to suggest a nominee’s race or gender should be a factor.

10:32 a.m. – Sen. Hatch (R-Utah) says (1) Senate owes some deference to qualified nominees. (2) Qualifications include not only legal experience, but judicial philosophy. (3) This standard must be applied to a nominee’s entire record.

10:31 a.m.  – Sen. Kohl (D-WI) is attempting to excuse Sotomayor’s “wise Latina” comment.

10:20 a.m. – Alabama Sen. Sessions, ranking GOP member of the Judiciary Committee, lists Sotomayor’s past actions that should be brought up in hearings, including her association with a group (the Puerto Rican Legal Defense and Education fund) that urged federal funding for abortion. (For more information on Judge Sotomayor’s PRLDEF ties, see Sotomayor411.com.) C-SPAN’s graphics note Sessions voted against Sotomayor’s confirmation to the Second Circuit in 1998.

Starting tomorrow morning — Monday, July 13, at 10 a.m. — the AUL Blog will feature live commentary on the Senate Judiciary Confirmation hearings for Supreme Court nominee Judge Sotomayor. Bookmark this site to read the latest on the hearings from AUL staff, including President & CEO Dr. Charmaine Yoest, and special guests.

MORE:

• See our Top Ten suggested questions for Judge Sotomayor, and vote on the one you would most like to see senators pose to her, at AUL’s AskSotomayor.com.
• AUL’s Sotomayor411.com features background from our legal team on the nominee’s record, including why she would likely be worse on the life issues than retiring Justice David Souter.