The End

The last panel consists of one Congressman -- Jose Serrano of the Bronx (who represents Judge Sotomayor's old neighborhood) and more dueling lawyers -- representatives of the Association of the Bar of the City of New York and of the National Association of Women Lawyers in support of the nominee. David Rivkin, who served in the George H.W. Bush Administration and frequently writes on national security-related legal issues, criticizes the Supreme Court's recent decisions on these matters. Stephen Halbrook, an expert on the Second Amendment, attacks Judge Sotomayor's Second Amendment decision. No surprises from this group.

Interesting fact: Presiding is Senator Kaufman of Delaware, who for many years was Joe Biden's chief of staff -- and would have been one of the staffers sitting behind Biden at a hearing like this. He was appointed to fill Biden's senate seat until the end of 2012, and now he's front and center.

Thanks again to Josh and everyone at TPM for giving me an opportunity to try the world of blogging. Fun, but exhausting. Getting back to full-time law practice may be a bit of a vacation. I have a newfound admiration for those who do this every day.

Hearing Winding Down

Another panel: three witnesses favorable to the nominee, three opposed.

Most interesting fact: Ted Shaw, former head of the NAACP Legal Defense Fund, now a professor at Columbia Law School, and a long-time leader of the civil rights bar was a high school classmate of Judge Sotomayor at Cardinal Spellman High School in the Bronx.

Potpourri

Remember the potpourri category on Jeopardy? There is a similarly odd mixture of witnesses on this panel.

Former FBI Director Louis Freeh and Professor Kate Stith (Yale Law School), both of whom know Judge Sotomayor well, talk about her outstanding qualities as a judge.

David Cone talks about the baseball case. He was a union representative and has a very impressive command of the facts and law relevant to Judge Sotomayor's 1995 decision ending the baseball strike. He doesn't completely credit Judge Sotomayor with saving baseball, but comes close.

The national president of the Fraternal Order of Police lauds the Judge for her service as a prosecutor and talks favorably about her criminal law rulings.

Then the Judge's views are attacked with a fair degree of intensity by a former President of the National Rifle Association, who focuses on the Second Amendment; and a representative of Americans United for Life, who discusses abortion. Finally, a law professor criticizes her property rights decision (Didden, the post-Kelo case discussed in one of yesterday's posts).

We also learn that the NRA just issued a statement opposing Judge Sotomayor's confirmation.

The Ricci Witnesses and Empathy

Republicans' decision to ask Mr. Ricci and Lt. Vargas to testify is interesting, given the concerted attack on the idea that "empathy" has anything to do with judicial decisions. The two witnesses' testimony focused on the extraordinary effort that they put into studying for the promotion exam, their disappointment at the city's decision, and their unhappiness that the district court and court of appeals rejected their claim, the latter without issuing an opinion. It does not denigrate their testimony to point out that it is an explanation of the actual impact on their lives of the lower court rulings -- essentially an appeal for empathy, and therefore precisely what Republicans claim should not be relevant to judicial decisionmaking.

Lightning Round

Each Republican Senator takes advantage of the opportunity to ask a few questions.

Senator Hatch returns to the topic of the PRLDEF briefs. He gets the nominee to state that as a Board member she had no role in reviewing a variety of amicus briefs filed by the organization. (As noted in a post yesterday, her fellow Board members sent a letter to the Committee confirming that the Board had no role in litigation matters.)

Hatch asked constituents to submit possible questions and he asks a few of those. One is whether the Judge believes that the Justices on both sides of the Heller case based their ruling on fidelity to the law. She says she does and agrees that the Justices in the majority were not engaged in "activism" but were conscientiously deciding the issue before them on the basis of law. Hatch also asks which is more important in judicial decisionmaking, the text of the Constitution or the Court's precedents. She says the Constitution's "words are the most important aspect of judging."

Senator Grassley returns to the question he asked yesterday about the Baker v. Nelson decision regarding state regulation of marriage. The Judge says that she can't talk about the precedential weight to be accorded to the case because that is a question now being litigated in the lower courts. (As discussed in yesterday's post, this decision by the Court not to hear a case is not accorded the same precedential weight of a Supreme Court decision on the merits.)

Senator Kyl returns to the Second Amendment, asking the Judge to address the effect of a decision that the Amendment's protections do not apply to the states. She notes that the Heller decision did not address the standard to be applied in determining whether a law is permissible under the Second Amendment, so she could not address the effect of a ruling that subjected state gun regulations to only rational basis review.

Senator Graham uses his time to emphasize the distinctions between military law and criminal law, apparently to sensitize the Judge: the Supreme Court almost certainly will hear the inevitable constitutional challenge to a new military commission statute enacted by Congress to provide a procedural framework for adjudicating the status of detainees held in Guantanamo Bay and elsewhere.

Senator Cornyn returns to the question of foreign law, asking the nominee to repeat her earlier statement disavowing its use in all cases but those involving treaties or where its use is appropriate under US law.

Senator Coburn focuses on states' rights, urging the nominee to take account of the Framers' plan for a federal government with limited powers. Not really a question, more of a speech about the importance of respecting the states. The Judge's response indicates that this issue is more in Congress's sphere than in the Court's.

Senator Leahy asks the last question, referring to the Court's practice in death penalty cases. Because it takes the votes of four Justices to grant review in a case, but the votes of five to grant a stay of execution, it is possible that the Court could decide to hear a case on the merits but that the defendant would be executed before his or her case was decided. For that reason, a practice was adopted that a Justice not voting to grant review would supply a "courtesy" fifth vote so that a stay would be granted. Senator Leahy says that both Chief Justice Roberts and Justice Alito agreed during their confirmation hearings that the practice made sense, but cited a New York Times story indicating that the "courtesy" vote practice may not be followed today. The nominee agreed that the practice was a sensible one.

With that, Judge Sotomayor's testimony is concluded.

A very strong performance. The Judge addressed every question confidently and answered every charge. Nothing in her answers provides additional ammunition for her opponents; to the contrary, she was quite effective in responding to the questions about the Ricci case and her speeches -- which were the key areas of focus.

Now the Committee turns to the other witnesses. We'll cover all significant developments.

Setting the Scene for Mr. Ricci

Starting a third round of questions, Senator Sessions returns to the Second Circuit's handling of the Ricci case -- following on similar questions asked earlier this morning by Senator Kyl. Perhaps seeking to lay the groundwork for the New Haven firefighters who will testify later today, he suggests that the panel somehow sought to disguise the importance of the case in order to insulate its ruling from scrutiny.

The problem with this argument - as discussed in prior posts - is that 75% of the Second Circuit's cases are disposed of in unpublished orders like the one issued in Ricci, and that an entirely separate court dealing with the same issue - a panel of the Sixth Circuit that included a judge appointed by President Bush - also resolved the case through an unpublished order. Both courts of appeals thought the reasoning of the Ricci district court provided a sufficient basis for their decisions.

Moreover, another Second Circuit judge, Barrington Parker, Jr. (nominated to the Second Circuit by President George W. Bush), voted against a rehearing of the panel opinion by the full Second Circuit and wrote an opinion for himself and other judges explaining that the district court had correctly found that "there was controlling authority in [the Second Circuit's] decisions," that the panel's decision to rely on the reasoning of the district court was "anything but novel," and that the Second Circuit "has followed this practice on numerous occasions in appeals covering myriad issues."

The reality is that a court of appeals panel cannot "hide" a case. Litigants have the right to seek further review from the full court of appeals, which means that each of the dozen or more judges will receive a brief explaining why the panel decision was wrong. That is precisely what happened in this case.

Foreign Law and Vague US Law

Senator Coburn runs through four issues key to conservatives - use of foreign law, interpretation of federal statutes, the Second Amendment, and abortion.

On foreign law, he gets the nominee to say "I will not use foreign law to interpret the Constitution or American statutes" except where American law directs a court to do so. Note that this might be a stricter standard than the one applied by Justice Kennedy, who has referred to foreign law in a broader range of circumstances, although he has not rested a decision on that ground.

Could Congress do a better job in conveying its intent by writing clearer statutes? Not wanting to be "presumptuous," the Judge dodges the question, but does say that many senators had raised this issue in her private visits with them.

On the Second Amendment and abortion, he does no better than others in getting the nominee to state her views.

Summing up, he compliments the nominee but also says "I believe your speeches reflect your passions" and they conflict with her decisions.

Specter Still Focused on Substance

Senator Specter doggedly returns to the topics he raised yesterday -- increasing the number of cases reviewed by the Supreme Court, cameras in the courtroom, whether the Court should be more willing to hear disputes between Congress and the Executive Branch -- but the nominee still is not willing to express her views, because some issues will arise in cases and because others are matters on which she wants to consult with her colleagues if she is confirmed.

He says it is his hope that she'll bring her litigation experience to battle out ideas with her colleagues on the Court. "Don't let the issues of seperation of powers slip by": they are important and should be decided by the Court, he says. He compliments her on an "outstanding job" as a witness.

Speeches Again

Senator Cornyn picks up the tough questioning style employed by Senator Kyl. He goes through a series of quotes from the nominee's speeches and her explanations before the Committee, asking what he should tell a constituent who thinks you "say one thing around the country but at hearings you are saying things that are contradictory."

Judge Sotomayor says, "look at my decisions for 17 years" that have "proved my fidelity to the law. I don't permit sympathies, prejudices to influence my view of the law." "Look at my record." Cornyn agrees that her judicial record is in the mainstream by district court and court of appeals judges, but says she appears to be a different person in her speeches and comments.

Cornyn asks "if the Supreme Court holds that there is constitutional right to same sex marriage - would that be making the law or interpreting the law?" She does not take the bait, saying that answering that question would be forecasting her view on the legal issue, and it is one that might well come before the Court.

He then moves to the theoretical level - is there a difference between making law and interpreting law? Yes, she says. Laws are written by Congress. The judge's role is only to interpret.

Thoughtful Conversation with Lindsay Graham

Senator Graham seems to begin to lay the groundwork for a vote in favor of the nominee. He first says he wants to make sure that the nominee understands the difference between the role of the courts and the role of the political branches. Judge Sotomayor says she understands the Constitution. Graham says that he believes that the courts have moved away from their proper role, and that is why the left and right fight so much over these nominations.

He returns to the Second Amendment and the question whether the rights it protects will be found "fundamental" and therefore apply to the states. "What binds you" in making that decision, Graham asks. "The rule of law," she replies. But won't your decision just be based on your opinion of the importance of the right, he responds. No, says the nominee, fundamental is "a legal term" that is given content by the Court's precedents evaluating whether other constitutional rights met the "fundamental" standard. It is not a subjective judgment. Those precedents would govern the decision, she says.

Graham then says that he believes Judge Sotomayor is "able to embrace a right that you do not want for yourself. . . that is what makes you more acceptable as a judge"; she is not an "activist" who is "looking to impose her view of life on the rest of us." He concludes, "you are broadminded enough to understand that America is bigger than the Bronx and bigger than South Carolina."

Graham points out that former Solicitor General and federal appellate judge Ken Starr has sent a letter supporting Judge Sotomayor.

Finally, he returns to the "wise Latina" comment, asking "to those who may be bothered, what do you say"? She responds: "I believe that my life demonstrates it was not my intent to leave the impression that some have taken from my words."

"You know what judge," Senator Graham says, "I agree."

Ricci Cross-Examination

Senator Kyl cross-examines Judge Sotomayor on the Ricci decision. He first embarks on a line of questioning designed to show that, contrary to what Judge Sotomayor has said about her Ricci decision, there was no Second Circuit precedent compelling the result reached by the three-judge panel that included Judge Sotomayor. He says that the Supreme Court said in its ruling that there were no precedents on the issue. The nominee responds that there were Second Circuit precedents, and names the key case. (Note that what the Supreme Court majority in Ricci actually said was that there were "few, if any, precedents in the courts of appeals discussing the issue." And, as I've discussed in prior posts, the Sixth Circuit federal court of appeals had reached precisely the same conclusion as Judge Sotomayor's panel - based entirely on the Ricci district court opinion and even though the Sixth Circuit was not bound by the prior Second Circuit decisions.)

Senator Kyl also says that there were no Supreme Court precedents compelling the result reached by Judge Sotomayor in Ricci. Judge Sotomayor responds that there were Supreme Court decisions relevant to the issue. Indeed, the four dissenting Supreme Court Justices discussed a number of Supreme Court precedents relating to Title VII (the employment discrimination statute that was the basis of the plaintiffs' claim in Ricci), principally its decisions in Griggs and Albermarle Paper, and said that the majority's decision ignored "the Griggs line of cases Congress recognized as pathmarking." They also relied on the Supreme Court's Johnson ruling, which approved an employer's plan permitting consideration of gender in employment decisions.

Senator Kyl next reads a passage from the opinion of the Supreme Court majority in Ricci, saying that the standard applied by the Second Circuit and endorsed by the four dissenting Justices, would "amount to a de facto quota system." He asks whether the nominee would support that result. She says she would not, but that she disagrees with the characterization.

Of course, the four dissenting Justices wrote about the damaging consequences of the legal standard adopted by the majority in Ricci, in particular the costly burdens of litigation and delay imposed on government employers: "an employer who discards a dubious selection process can anticipate costly disparate-treatment litigation in which its chances for success--even for surviving a summary-judgment motion--are highly problematic." [Full disclosure: I filed an amicus (friend of the court) brief in Ricci on behalf of the National League of Cities and several other organizations representing local governments nationwide, which strongly supported the Second Circuit decision. Our brief explained that under a legal standard like the one that the Supreme Court majority adopted, cities would face a dramatic increase in expensive and burdensome litigation, and delays in filling jobs -- because in virtually every situation in which a test was used for hiring or promotion (and tests typically are mandated by state law), the city would face a lawsuit, either from disappointed applicants arguing that a test was discriminatory and should be thrown out or from successful applicants arguing that throwing out the test would be discriminatory.]

Finally, Senator Kyl says that all nine Justices disagreed with the Second Circuit decision. The nominee says that is not how she reads the dissent. In fact, what the dissent says (in footnote 10) is that the Supreme Court majority erred by refusing to remand the case to allow the lower courts to assess the facts under the new legal standard adopted by the majority. The dissenters go on to discuss the facts to show that in their view New Haven should have prevailed even under the new legal standard. The dissenters make clear that they would have affirmed the lower court decision.

Day 4 Preview

Judge Sotomayor should finish her testimony sometime this morning. Four Republican senators are entitled to twenty minutes each of questioning and probably will use all of that time. The eight or so Democrats remaining are unlikely to take anything close to their full allotments.

Then the Committee turns to the outside witnesses. First, the American Bar Association representatives will present the ABA's assessment of the nominee. Then 29 others -- 15 for the majority and 14 for the minority. The list includes elected officials, bar association representatives, organization heads, law professors, with a few wildcards thrown in as well. The testimony of the Democrats' witnesses is likely to be fairly predictable, lauding the achievements of the nominee and emphasizing her life story and judicial experience. Probably the most interesting: former FBI Director Louis Freeh who served as a federal trial judge on the same court as Judge Sotomayor and is something of an icon for conservatives because of the independent stances that he took as FBI director during the Clinton Administration, and former Yankee David Cone. Sentimental favorite: Manhattan District Attorney Robert Morgenthau, who has served in that post for 34 years and was Judge Sotomayor's first boss after she graduated from law school.

The testimony by the Republican witnesses is likely to be more lively. Again, the list is mostly law professors and organization representatives. How far will they go in criticizing the nominee? And what will Frank Ricci and his fellow firefighter say? Their testimony is likely to be the most-watched moment of today's hearing.

Double Standard for Sotomayor?

The three-column headline across the top of the front page of this morning's Washington Post: "Sotomayor Avoids Pointed Queries" "Supreme Court Nominee Is Elusive About Abortion and Other Issues." But read down to the story's tenth paragraph (which appears over on page A6) and you'll learn that there is no news here: "In not allowing senators to pin her down on concrete matters of law, Sotomayor, 55, borrowed an approach that has been used by most nominees to the nation's highest court . . . . Like her, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., at their confirmation hearings in 2005 and 2006, respectively, said they could not address many of the questions senators raised because they involved areas of the law that were settled -- or on which they might be asked to rule in the future."

Day 3 Ends

The last questioner of the day is Senator Cardin who asks some general and genial questions about predatory lending and religious freedom cases. He seems to be favoring "empathy" for some categories of litigants, in contrast to other members of the Committee, including Democrats, who have taken pains to show that the Judge has ruled against potentially empathetic defendants.

Another strong day for Judge Sotomayor. The hearings reconvene tomorrow morning at 9:30 am to conclude the questioning of the nominee and, presumably, begin hearing the testimony of the other witnesses.

Precedent Trap

Senator Grassley asks whether the nominee believes that marriage is a question for the states to decide, based on the Supreme Court's decision in Baker v. Nelson. The Judge says that the issue is the subject of pending cases and that she shouldn't discuss it. Grassley asks why she can't talk about Baker the way she has spoken about other Supreme Court precedents, and confirm that she will give it the same weight as other precedents. She says that she isn't familiar with Baker, and will have to provide a written answer.

The reason the Judge isn't familiar with Baker is that it is not a decision by the Supreme Court on the merits; it is a decision by the Court not to hear the case on the merits. In the 1970s, when Baker was pending, a party that lost a case in state court could in certain circumstances file an appeal to the Supreme Court (as opposed to a petition for a writ of certiorari, the typical method for seeking review). Because the Supreme Court did not have the resources to hear every such appeal on the merits, it developed the practice of winnowing out appeals by dismissing those cases not warranting full review "for want of a substantial federal question." That is what the Court did in Baker.

Chief Justice Rehnquist wrote an opinion in 1969 saying that these summary dispositions "obviously . . . are not of the same precedential value as would be an opinion of the Court treating the question on the merits." The Court subsequently has said that its "cursory consideration" in a summary disposition like Baker "does not, of course, foreclose th[e] opportunity to more fully consider th[e] question."

Judge Sotomayor was therefore correct in declining to say that Baker is entitled to the same weight as the other cases she has discussed, all of which were decided on the merits.

Campaign Finance Law

Senator Feingold asks a question about the interaction between the Constitution and campaign finance laws (of course, he is the author of the key federal legislation in this area), noting that the Court has ordered reargument in the Citizens United case, and has asked the parties to address whether the Court should overrule two prior decisions upholding statutes restricting the use of corporate funds for campaign-related purposes. The Judge says that in view of the impending argument, which has been set for September 9 (and would be the first case she hears if she is confirmed), she believes it would be improper to say anything about these issues. Senator Feingold says he'd probably say the same thing in her position.

And he ends his questioning with time remaining.

What's in the Constitution?

Senator Hatch pursues a line of questioning that tries to distinguish between "the Constitution" and decisions recognizing rights embodied in the Constitution. Can judges "create constitutional rights" or "change the meaning of words in the Constitution"? No, Judge Sotomayor responds, "The Constitution creates the rights. It is immutable." She explains that judges don't create rights, but rather decide what the Constitution's words mean in particular factual situations. What protects against erroneous rulings? The diligence of Supreme Court Justices. And the nominee cites Justice Jackson's famous statement that the Supreme Court is not final because it is infallible, it is infallible because it is final.

Asked whether her comments in several speeches mean that judges set policy, she points out that an appellate court must consider more than the impact of its decision in a particular case -- it must examine the effect in the range of cases to which the legal rule will apply. (And this is especially important for the Supreme Court; indeed, most Supreme Court arguments involve questions by the Justices seeking to understand how the legal rule the party advocates will apply in contexts different than the one before the Court, so that they can assess the consequences of the rule they are being asked to adopt.)

Hatch asks the Judge to reaffirm yet again that personal biases should not influence judicial decisions. She does so, and says that it is a judge's "duty " to avoid the influence of personal biases, not merely an aspiration.

The PRLDEF Briefs

Senator Sessions also raises the briefs filed by the Puerto Rican Legal Defense Fund while Judge Sotomayor was a board member. She explains that her role did not include reviewing briefs, but only assisting with fundraising and providing high-level direction. Several individuals who served on the PRLDEF board with Judge Sotomayor have written a letter to the Judiciary Committee confirming that point. They explain that "[n]either the Board as a whole nor any individual member selects litigation to be undertaken or controls ongoing litigation" and that legal ethics rules provide "that Board members have no attorney-client relationship with the clients of a legal services organization and therefore do not control the activities of staff lawyers in individual cases." The letter is available here.

Test for Overruling Precedent

Senator Kohl asks the Judge what test she would apply in deciding when it is appropriate to overrule precedent. She returns to the test that the Court applies: whether the precedent is long-settled, the existence of reliance interests in the existing rule, the strength of the arguments that the existing precedent is wrong, etc.

Kohl then turns to antitrust law, making clear that he dislikes the Court's recent ruling in the Twombly case, which addressed the standard for assessing the legal sufficiency of an antitrust conspiracy claim. Judge Sotomayor says the decision is a precedent that is entitled to the same weight as other precedents. Kohl believes the Court's standard was too strict, and that it will harm the ability of plaintiffs to bring antitrust claims.

Last Gasp of the "Wise Latina"?

Senator Sessions also returned to the "wise Latina" statement, again stating that the nominee's comment appeared to state that judges should take personal characteristics into account when making their decisions. Judge Sotomayor responded with her most definitive statement on this topic. She gave the Committee her "complete assurance" that "judges shouldn't use their personal biases or prejudices in reaching their decisions." She continued: "To the extent my words have led some to believe that I think a particular group has it better than another in reaching a decision based on their experiences, then my rhetorical device failed.: "[I]t was a bad choice by me because it has left an impression that I didn't intend." That clear statement will make it much more difficult for Republicans to argue that she has failed to explain the comment sufficiently.

Recusal Trap II

Second Amendment advocates seem to be trying to get Judge Sotomayor to say something during the hearing that will result in her recusal when and if the Supreme Court hears one of the cases now working their way through the courts concerning the application of the Second Amendment to the States. How else to explain Senator Kyl's recusal questions yesterday (discussed in my first Recusal Trap post), and Senator Sessions' repeat attempt today?

Sessions says that the Judge's Second Amendment ruling (recall that she joined an opinion following Supreme Court and Second Circuit precedent to hold that the Second Amendment does not apply to the states) is "a big deal" because it means that people throughout the United States would not have a right to bear arms. (That is not correct - they would have a right protected against interference by the federal government. The Seventh Amendment protects the right to trial by jury, but it does not apply to the States. People throughout the country have a right to a jury trial, but only in federal court.)

He then says "haven't you mind up your mind? Shouldn't you recuse yourself on this issue." The Judge responds with the correct phrase: "I have not prejudged the question that the Supreme Court left open in Heller." It is only prejudgment that would provide a basis for recusal here. Indeed, the Judge didn't even address that question in her own court of appeals decision, because that decision rested on precedent, not on the examination of the underlying issue that would be undertaken by the Supreme Court.

The Supreme Court and the Real World

We're back.

Chairman Leahy focuses on the real world effect of Supreme Court decisions, talking about the Ledbetter case (involving the statute of limitations for discrimination claims) and the Wyeth v. Levine case (involving claims by persons claiming injury from prescription drugs), and cases in the Supreme Court and Second Circuit regarding strip searches of girls by school authorities.

He asks: How does it affect young women when they see only one woman on the Supreme Court? The Judge responds that the benefits of diversity are a reason why every recent President has sought to increase the diversity of the lower courts and the Supreme Court.

Leahy then asks about the right to counsel, and whether it requires assurances that it can be exercised effectively. The nominee agrees, pointing out that courts have required that counsel must be competent and that the right is enforceable in court. (Note: the Supreme Court's recent decisions on the ability of defendants to raise the ineffective assistance of counsel have significantly diminished the real-world protection for this right. But that is a question to be addressed in another post.)

Leahy stops short of his twenty minutes, no doubt hoping to set an example for the rest of the Committee.

Franken's also a Perry Mason Fan

Newly-arrived Senator Franken is the last questioner. (He also was a Perry Mason fan, and expresses amazement that Judge Sotomayor would have wanted to become a prosecutor, because on that show the prosecutor lost every case but one.)

He asks a lengthy question about the Internet, strongly endorsing the principle of net neutrality. The Judge shows that she is well aware of the importance of the Internet, and Congress's role in setting the rules for the telephone, and then for television, and now for the Internet; but she expresses no views about the legal issue.

Franken turns to "judicial activism". The nominee refuses to define the term, and says that it is a term that she does not use because it is inconsistent with her approach to judging. He says that Justice Thomas' dissenting opinion in the Voting Rights Act case, in which he concluded that the statute is unconstitutional, is an example of activism given Congress's power under the Fifteenth Amendment ("[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude) and Congress's detailed findings when it reenacted the statute. Because the issue is likely to come before the Court, the Judge declines to express a view. She does point out that in several decisions she has deferred to findings by Congress.

Franken then picks up on Republicans' questions about whether the word "abortion" appears in the Constitution -- questions that were designed to imply that the abortion right rests on an improper foundation. He asks whether "birth control" or "privacy" appear in the Constitution; obviously they don't, and Franken is making the point that these rights nonetheless are well established. He gets the nominee to agree that a right does not have to appear in the text of the Constitution in order to be protected by the Constitution. Here's one obvious example: separation of powers limitations (which prevent the executive branch from intruding on Congress and vice versa) are not mentioned in the Constitution's text, but the Court has recognized them on the ground that they are implicit in the Constitution's structure.

He then goes on to ask about her views on the existence of a right to privacy. Judge Sotomayor says that there are "rights under the liberty provision of the Due Process Clause that extend to the right to privacy in certain situations," pointing out that the first such case involved parents' right to direct their education of their children (and precluding states from requiring that children be sent to public schools). She states that the Court has recognized that this privacy right includes the right to abortion.

Franken ends with a critical question: what was the one case that Perry Mason lost? But neither he nor Judge Sotomayor could name it. (Senate and White House staffers will be doing some intense googling over the next few minutes.)

The Committee has gone into private session for a routine review of Judge Sotomayor's FBI background report. It should reconvene later this afternoon for the next round of questioning -- starting again with Chairman Leahy.

Update: A friend tells me that Perry Mason's one defeat was "The Case of the Deadly Verdict" (10/17/1963). But it wasn't his fault. His client withheld evidence needed to win.

TV in the Court? We'll see

Despite Senator Specter's helpful comments on "wise Latina" and "empathy," he does no better than any other Senator in getting the nominee to express her views on particular legal issues. He brings up national security wiretapping, privacy/abortion, the standard for assessing the constitutionality of legislation, the Voting Rights Act, and the appropriate level of judicial deference to congressional determinations. The Judge is happy to talk about what the Supreme Court decided in these area, and about her own rulings, but refuses to express a view on the particular questions propounded by Senator Specter. (Interestingly, Senator Specter expresses some dissatisfaction with Chief Justice Roberts' view of the appropriate amount of deference to Congress, at least as expressed in the Voting Right Act decision issued by the Court last month, saying that the Chief Justice had stressed deference to Congress in his confirmation hearing but seemed to give Congress less deference in the context of that case.)

He also hits a stone wall on televising Supreme Court arguments. Judge Sotomayor says that she has experience with cameras in court and will confer with her colleagues if she is confirmed.

Senator Specter's Voice of Experience

Formerly one of the first Senators to question a nominee (because of his Republican seniority), including as chairman of the Judiciary Committe, Senator Specter is now one of the last. Notwithstanding his change in status, Senator Specter still speaks with experience and authority on Judiciary Committee issues, especially when it comes to Supreme Court confirmation hearings.

After complimenting the nominee on her "intellect, humor, and charm," he goes on to address one of the key issues in the hearing -- the "wise Latina" comment -- saying that the questions about that statement were making "a mountain out of a molehill." Specter talks about a "consistent line of nominees who made reference to their own background," quoting comments by Justices O'Connor, Alito, Thomas, and Scalia. Given the history of discrimination against women, and others, he can "see how someone would take pride [in their background] and assert that."

Specter next defends President Obama's reference to "empathy," saying that it is not out of place in judicial decisionmaking. He points to Justice Holmes' statement that the life of the law is "experience" not logic.

Specter then contrasts this hearing with the one on Judge Bork's nomination (Specter voted against Bork's confirmation), saying that it was Bork's "own approach to the law" that led to the Senate's rejection of his nomination. Specter said that Judge Bork believed that the Equal Protection Clause did not reach gender discrimination and was "an advocate of original intent" in interpreting the Constitution when the "galleries were segregated" of the Senate that adopted amendments to the Constitution.

From Prosecutor to Commercial Litigator

Senator Kaufman says he wants to focus on Judge Sotomayor's time as a commercial litigator. Why did she leave her job as a prosecutor? Because she realized that creating economic opportunity was the way to address the needs of disadvantaged communities. She became active in civic affairs, serving on a variety of government boards, and took on pro bono work (legalese for volunteer legal work). And she decided to go to a smaller firm, not wanting to be "the fifth person on a case." This line of questioning gives the Judge a chance to provide more detail about her life story, one of her most powerful assets, as well as to discuss her range of legal experience. She is taking full advantage of that opportunity.

Kaufman asks about Congress's power to regulate financial markets, but the Judge declines to answer, pointing out that as soon as Congress enacts a statute, someone will challenge it in court. She agrees with Kaufman that a judge's personal view regarding the policy choices made by Congress should have no role in evaulating the constitutionality of legislation. "Policy choices are Congress's choices. In all areas deference has to be given to those choices."

He then walks the nominee through several securities and antitrust cases, making clear his concern about what he sees as the pro-business outcomes of some of those cases.

It Started with Perry Mason

Senator Klobuchar, another experienced litigator, begins with a few quick questions, plainly designed to clarify the record. Following up on Senator Whitehouse's PRLDF question, she points out that ABA rules bar an organization's board members from being involved in litigation. She asks whether the Judge will "keep an open mind" on the issue of the Second Amendment's application to the States if that issue should come before the Court (a response to Senator Cornyn's effort yesterday to get the nominee to recuse herself from the issue). And she points out that the "wise Latina" speech was not even mentioned during the Judge's confirmation hearing for her nomination to the Second Circuit.

Klobuchar says her focus is going to be the nominee's time as a prosecutor. Judge Sotomayor was influenced to become a prosecutor by the TV show "Perry Mason" (most readers are probably too young to remember the show; it was one of the first courtroom dramas and Perry was a defense attorney who just about never lost). The prosecutor in the show said that his "job as a prosecutor is to do justice" and that focus very much appealed to her. She goes on to describe a case in which she had the charges dismissed because there was not sufficient evidence against the defendant (the charges had been filed by another prosecutor before she began working on the case).

Then the discussion turns to cases in which the Judge permitted evidence to be introduced even though it was obtained in violation of the Fourth Amendment (applying what is termed the "good faith" exception to the rule that evidence obtained in violation of the Fourth Amendment ordinarily cannot be used in the defendant's trial; the exception applies when the violation is not the officers' fault and suppressing the evidence therefore would not serve the purpose of deterring future constituitonal violations). The Supreme Court recently expanded this exception in the 5-4 decision in the Herring case; Senator Klobuchar says that Judge Sotomayor's decision ten years ago in United States v. Santa reached the same result as the Supreme Court this year.

Next, sentencing of white collar defendants. "Crime is crime" the Judge says. So sentencing is governed by the statutory framework set by Congress. She believes that the number of victims should be considered, not just the amount of the fraud.

A Little More from the Liberal Perspective

Senator Whitehouse follows the same approach as Senator Cardin - a little defense, and then focusing on legal issues more of interest to liberals.

The defense related to the Judge's service as a board member of the Puerto Rican Legal Defense Fund. Recall that PRLDF was mentioned yesterday by Senator Graham, who said he'd be asking questions in his second round about the briefs filed by the organization that in his view took extreme positions. Senator Whitehouse engaged in a bit of what lawyers call innoculation -- mentioning an issue first in a friendly setting before the attack comes from the other side. He elicited the fact that the Judge served as a board member but had no role in preparing briefs.

Then another gentle tour of some legal issues -- the role and importance of juries, constitutional limits on executive power (which gives Judge Sotomayor a chance to refer again to Justice Jackson's Youngstown opinion, discussed extensively yesterday), and the Fourth Amendment's protection against unreasonable searches and seizures. The latter questions focus on the impact of technology, allowing Judge Sotomayor to discuss a recent decision holding that a warrant is required when law enforcement officers use thermal imaging to detect marijuana growing in a home. She did make clear that she was "not an expert in marijuana growing."

No Republican Senators left. Four more Democrats in a row.

Dr. Coburn is as Good as any Lawyer

Although Senator Coburn is a doctor not a lawyer, his questioning has been some of the most intense of the hearing. Not surprisingly, he begins with abortion. His questions are designed to show that the legal framework developed in the Supreme Court's decisions may not fit current medical realities, in which the point at which the fetus can survive outside the womb is earlier and earlier. The Judge sticks with general legal principles, pointing out that many of the issues posed by Coburn's questions could come before the Court -- and that judges don't consider issues in the abstract, but only in the context of particular cases. He concludes the line of questioning by pointing to what he says is a stark inconsistency: states have the ability to define death, but that the Court's abortion decisions prevent the states from defining life.

Coburn next turns to the Second Amendment, and his questioning is just as sharp. His goal, as with prior questions on this topic, is to get the nominee to acknowledge that that the rights protected by the Second Amendment are "fundamental" and therefore restrict state gun control laws. She sticks with her position of pointing out the precedent that limited the Second Circuit panel (on which she sat) in deciding that question.

Coburn's concluding question on this topic is a clever curve ball - "do Americans have a right to personal self defense"? Not a pressing legal question, but could produce a good headline: "Supreme Court nominee says Americans can't defend themselves." The Judge pauses and says she is not familiar with a Supreme Court ruling on the subject. Then she gives exactly the right answer: this is an issue governed by state law. State criminal laws all include a principal of self-defense that in specified circumstances precludes a charge of murder or assault. She points out that the defense is limited -- there generally must be an immediate threat (in addition, the use of defensive force generally must be reasonable). Also, as the Judge points out, self-defense cannot be invoked by a person who leaves the threat, goes home and gets a weapon, and returns to "teach the perpetrator a lesson."

Finally, Coburn takes the nominee through the same series of questions about use of foreign law that were asked yesterday. He ends with a new one, whether we should look to please people outside America in making judicial decisions. The Judge has the perfect answer: judges shouldn't make decisions to please anyone, domestic or foreign.

Questions from the Liberal Perspective

Senator Cardin begins by reading lawyers' favorable comments about Judge Sotomayor's style on the bench, countering the negative comments recited yesterday by Senator Graham. He concluded by observing that one of the nominee's Second Circuit colleagues, Judge Miner (a Reagan appointee) said that she is an "outstanding judge." Given an opportunity to comment on these favorable reviews, the Judge says most lawyers "know how engaged I become" during oral argument, but that style can be misunderstood as toughness by those who are not familar with her. "My style is to engage as much as I can so I assure myself that I understand what a party is intending to tell me."

Then Senator Cardin takes the nominee through a series of issues of concern to liberals -- voting rights, discrimination, environmental protection, right to privacy. Judge Sotomayor restricts herself to talking in general terms about the relevant legal principles, their importance, and the relevant precedents. Senator Cardin makes clear that he wants a Supreme Court that is more protective of these rights.

Speeches and Ricci (yet again)

Senator Cornyn devoted the bulk of his thirty minutes to quizzing Judge Sotomayor about passages from her speeches. She vigorously parried the questions in each case talking about the context of the speech, and explaining that the quoted passage, viewed in context are consistent with her view that judging turns on fidelity to the law.

Cornyn pushed the nominee to disavow the "wise Latina" remark. She would agree only that her rhetorical attempt "fell flat" and that "some have understood [the words] in a way I never intended." She said she would regret it if a listener had understood her remarks to say that the qualify of justice depended on the sex or race of the judge. But she stands by the view that different life experiences can improve the quality of judging, because it helps the judge listen to and understand the arguments being made (and points out that Justices O'Connor and Alito have said the same thing). She repeats that the goal of the speech was to encourage students to participate in law, and in government.

Next quote, which refers to the ability of judges to change the law and society. She says that in context she was referring to the fact that Congress is passing new laws, that what was viewed as settled can be changed by Congress; that old laws must be applied to new facts because of changes in technology, for example; and that lawyers can make new arguments that can lead courts to reconsider precedent. Asked again whether judges can change the law, she says that they can change their view of how to interpret the law, and points to the factors courts use to decide whether to overturn or limit a precedent: new facts, or a new theory for interpreting the relevant provision, society's reliance on the old rule, whether the old rule has been workable, etc. She regrets that there is a popular misconception that judges are changing the law rather than considering whether the prior decision got the issue right.

Of course, this process happens all the time, and it is hard to say that "liberal" rather than "conservative" interests are the beneficiaries of such judicial reconsideration. In the context of federal antitrust law, for example, the last 10-20 years have seen the reevaluation, and overturning, of a number of precedents because modern economic analysis indicated that those rules were more likely to harm competition than promote it. Those changes in precedent have been applauded by many with "conservative" political views. Another example is the Heller decision regarding the meaning of the Second Amendment that has been the focus of attention during the hearings -- that ruling reconsidered prior decisions regarding the meaning of the constitutional provision. And finally, the movement to increase the protection of "property rights" under the Constitution also rests on the view that past precedents are wrong and should be reconsidered so that provisions of the Constitution such as the Contract Clause (which has been interpreted to have only a limited effect in protecting contract rights) are given broader effect.

Judge Sotomayor says that the purpose of this speech was to encourage students to reject the cynical view that the legal system was closed and instead to engage in the legal system.

Next, quotes to the effect that the law is in a "necessary state of flux" and referring to "indefiniteness" in the law. Why is this a positive, Cornyn asks. Judge Sotomayor responds that if the law was clear, there would be no need for judges. She says that people bring cases to court because the relevant precedents are not clear, but that the public doesn't understand the process of judging. Her speech was an effort to explain the process.

Again a return to the "wise Latina" speech, and a statement that "gender and national origins" may make a difference in judging. She explains that experience "helps you listen and understand, it doesn't change what the law is or what the law commands. A life experience as a prosecutor may help me listen and understand an argument in a criminal case, or it may have no relevancy in an antitrust suit." (Not claiming credit, but that's a point I mentioned in a post yesterday.)

Cornyn asks whether anyone in the White House, including the President, asked her about her position on abortion issues. She responds that she was not asked about her views about any issue.

Next, Ricci decision, Cornyn says he was "shocked" that the claims were disposed of in an unpublished order. Judge Sotomayor points out (again) that there was a 78-page lower court opinion and that three-quarters of appellate cases are decided through unpublished orders. Responding to a question about whether the unpublished order "hid" the case from other Second Circuit judges, the nominee points out that the party that loses before a three-judge panel has the right to file a petition asking the entire court to hear the case (referred to as an "en banc" hearing); indeed, that's what happened in Ricci. So it simply is not possible to "hide" a decision.

Finally, Cornyn asks why Judge Sotomayor did not require "strong evidence" before permitting New Have to throw out the tests. But the governing Second Circuit precedent did not adopt that standard, and the panel on which Judge Sotomayor sat was required to apply the lesser test that had been adopted in the Second Circuit. The "strong evidence" standard was adopted by the Supreme Court majority, which itself recognized that the standard was a new one in this context.

When Senator Cornyn's time expires, Chairman Leahy introduces several letters of support from Hispanic Chambers of Commerce, noting the chapters in several Texas cities that had signed the letters. Just a friendly reminder to Senator Cornyn of the large Hispanic population in Texas.

In response, Senator Sessions introduced a letter from the National Rife Association expressing "increased concern" about the nomination.

Day 3 Preview

Judge Sotomayor is getting excellent reviews for yesterday's seven hours of questioning. As several Senators mentioned, Republicans have focused almost entirely on her speeches and public statements; her opinions are providing little fodder for attack. The one exception, of course, is her ruling in the Ricci case (New Haven firefighters). But she had effective answers for the questions asked about that case.

Eight Senators have not yet had an opportunity to question the nominee -- two Republicans and six Democrats. If each uses his or her 30 minutes, that means four hours of questioning. My guess is that there will be some pressure on the Democrats to use less than all of their time -- just as Senator Durbin did yesterday. Then the Committee will adjourn for a closed session and return to public session for a second round of twenty minute question periods. Presumably, only some Senators have additional questions -- Chairman Leahy almost certainly wants to end questioning of the nominee today and turn to the other witnesses tomorrow.

Questioning begins with Senator Cornyn at 9:30. He has posted 20 questions for the nominee on his website. It will be interesting to see whether those are the questions he decides to ask. (No real surprises in his list -- it recapitulates topics covered yesterday, such as judicial philosophy, constitutional interpretation, Ricci, the Second Amendment, property rights, foreign law.)

Death Penalty

Senator Durbin asks a series of questions on the death penalty, beginning by reading from Justice Blackmun's opinion in the Callins case, in which he took the position that the death penalty was unconstitutional. He famously stated: "From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed."

Judge Sotomayor declined to discuss her personal views on the death penalty, noting that she had addressed these issues as a judge and upheld the federal death penalty statute. And she pointed out that death penalty issues would continue to come before the Supreme Court.

The Committee is in recess until tomorrow at 9:30 am eastern time.

Unusual Discussion with Senator Graham

Senator Graham and Judge Sotomayor are having the some of the most candid, and by far the most unusual, interchanges of the hearing.

After Judge Sotomayor says - as she must in light of the Supreme Court's decisions - that the Constitution limits the government's power to regulate abortions, Graham makes clear that his concern about her speeches relate to the possibility that she will base constitutional interpretation on her personal views and experiences - "alot of us are concerned that unelected judges are very quick to change society in a way that's disturbing."

He then asks about her temperament, quoting a series of lawyers' evaluations including one labeling her a "bully." She admits to asking tough questions. Graham suggests "maybe these hearings are a time for self reflection. This is pretty tough stuff we don't see about other judges on the Second Circuit." An oddly personal moment in the middle of the hearing.

Graham says he's in favor of including more women and minorities in the law to make a better America, not to change the law. He then turns to the "wise Latina" comment: "If I had said anything like that and my reasoning was that I was trying to inspire somebody, they would have had my head." "Others could not come close to saying it and survive. Right or wrong that's a fact." But "I am not going to judge you by that one statement." Judge Sotomayor says that she hopes for an America in which no one would be judged on the basis of one statement. Graham agrees: "Some people deserve a second chance when they misspeak. If that comes from this hearing then we've probably done the country some good."

Finally, Graham previews his next round of questions, which relate to friend-of-the-court briefs filed by the Puerto Rican Legal Defense Fund, while Judge Sotomayor sat on the organization's board. These briefs, which are likely to receive substantial attention before the hearing ends, involve a variety of issues including public funding of abortions for poor women.

Schumer for the Defense

Judge Sotomayor has been a very effective witness. Leaving nothing to chance, however, Senator Schumer is using his question period to rebut the arguments advanced by Republicans.

First, he attacks the charge of bias by saying that instead of looking at speeches, he'd rather look at her 17 years of decisions. He then takes the nominee through a series of cases in which she ruled against sympathetic plaintiffs -- in each case, she says, because the law requires it. Then he mentions the studies of her decisions showing that the outcomes of her immigration decisions put her at the median among judges of the Second Circuit.

Second, he deals with the question of foreign law and the nominee affirms that foreign law cannot control US law. She says she has never even cited foreign law outside the treaty context. That addresses another conservative charge.

Finally, Schumer gives her a chance to discuss her landmark ruling ending the baseball strike in 1995. (Remember, former Yankee David Cone coming on Thursday.)

Bias, Empathy and Experience (Take 2)

Senator Kyl returns to the theme of bias, picking up where Senator Sessions stopped. He begins by asking about President Obama's statement that a judge ultimately has to decide a case based on what's in his heart. Judge Sotomayor says she disagrees; that's not how she deicdes cases. She applies the law.

Senator Kyl then reads from a number of the nominee's speeches, and concludes by saying that his concern is that her comments seem to endorse the idea that a judge's race or gender may make a difference in a case's outcome; why didn't she point out that judges shouldn't be influenced by those factors. Judge Sotomayor replies that the proof of her own approach is in her decisions, in which she has ruled on the merits. But she points out that -- as she said in response to Senator Sessions' questions -- that her experiences sometimes made her better able to understand the arguments being made. She also mentions that Justice Alito in his confirmation hearing stated that his heritage made a difference in his rulings. (Here's what he said: "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.")

Recusal Trap

Senator Kyl begins by asking Judge Sotomayor whether she would recuse herself (legalese for not participate) if she were confirmed and the Second Amendment case in which she participated came before the Supreme Court (that is the case presenting the question whether the Second Amendment's limitations on firearm regulation apply to the States or only to the federal government). She says yes -- indeed, all Justices have followed that practice. Surprisingly, Senator Kyl then asks whether she also would recuse herself in the other cases raising the same Secoond Amendment issue, even though she had not participated in those cases. Judge Sotomayor says she would decide after considering other Justices' practices. Kyl continues to press, asserting that Chief Justice Roberts had committed to recusal in "matters in which he particpated" during his confirmation hearing. But those other cases, which were decided by the Seventh and Ninth Circuit, are not matters in which Judge Sotomayor participated. And the fact that a case presents a legal issue that a Justice has addressed in a prior decision on a lower court has never been thought to be a basis for recusal. Indeed, Chief Justice Rehnquist reached this precise conclusion in an opinion addressing recusal issues. He observed that Supreme Court Justices coming to the Court from a lower court had in their lower court opinions expressed themselves on numerous legal issues and that "it is not and could not rationally be suggested that, so long as the cases be different, a Justice of this Court should disqualify himself for that reason." At the end of the exchange, Judge Sotomayor held her ground and refused to commit to an overbroad recusal standard.

Update: A friend points out that Chief Justice Roberts participated in the Allison Engine case, decided by the Supreme Court in 2008, which involved an issue that he had decided as a court of appeals judge in 2004

Law and War

Senator Feingold focuses on the terrorism-related issues that courts have been addressing in the post-9/11 era, asking the nominee's views on the Supreme Court's decisions in this area. He presses hard, but is unable to get Judge Sotomayor to respond in detail.

Feingold also asks about "secret law" -- decisions of the FISA court (which deals with surveillance issues) and opinions of the Justice Department's Office of Legal Counsel that are not released to the public. He asks about Judge Sotomayor's view of this practice. She says that the initial inquiry is to look to the policy decisions made by Congress. She points out that these issues arise in a variety of contexts, such as decisions whether to identify the members of a jury in a criminal case in which there might be a fear of reprisals, and says that the key is "balance."

Feingold picks up on the "empathy" issue, asking how a city-dweller like Judge Sotomayor can empathize with the people who live in small town and rural Wisconsin. She talks about her travels through the country and her preference of staying with people, rather than in a hotel, in order to better understand them. "I try very very hard to introduce in my life as much experience with other peoples' lives as I can."

Finally, he asks about the Korematsu case, in which the Supreme Court upheld the internment of Japanese-Americans during World War II. Judge Sotomayor says the decision was wrong, and Feingold asks how Justices can avoid such errors. "A judge should never rule from fear. A judge should rule from law and the Constitution." How does a judge resist fears? "By having the wisdom to understand always no matter what the situation that our Constitution has held us in good stead for over 200 years and that our survival depends on upholding it."

Property Rights

Senator Grassley begins with the subject of property rights, a topic of great importance in an agricultural state like Iowa. In its 2005 Kelo decision the Supreme Court considered the question whether the government may use the power of eminent domain to condemn private property for the purpose of transferring it to a developer implementing a government-sponsored redevelopment plan. In legal terms, the question was whether the property was being taken "for public use" within the meaning of the Fifth Amendment's Takings Clause. The Court divided 5-4, with the majority holding that the taking was permissible. Property rights advocates have condemned the decision vigorously, arguing that it allows the government to favor one private party over another by broadly permitting takings for a "public purpose" even though there will be no public use of the property. Grassley tries without success to get the nominee to express her views on the decision, and on the scope of the Takings Clause generally.

He then turns to the Didden v. Village of Port Chester, a decision by a Second Circuit panel that included Judge Sotomayor, that presented an fact pattern similar to Kelo. The case was decided on statute of limitations grounds, and the panel devoted only a paragraph or so to the Kelo issue. Senator Grassley wonders why the opinion didn't go into Kelo in more detail; Judge Sotomayor explains that there was no need to address the constitutional issue because the property owner's claims were untimely and therefore had to be dismissed.

Next, the Riverkeeper decision, which involved judicial review of an EPA decision regarding regulation of power plant cooling water intake structures. The question was whether EPA could consider costs-benefit analysis in making its decision. The Second Circuit panel (which included Judge Sotomayor) held that the agency had acted impermissibly in the way it took account of costs and benefits. The Supreme Court reversed by a 6-3 vote. Judge Sotomayor says the different decisions reflect different conclusions over the meaning of the statute. Senator Grassley asks why the panel did not defer to the regulatory agency's decision (as generally required when a statute is unclear by the Supreme Court's landmark Chevron decision); she replies that there was a disagreement over the meaning of Congress's words - the panel thought the statute was sufficiently clear. She points out that she has in a number of cases deferred to decisions by regulatory agencies.

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Abortion, Precedent and Executive Power

Senator Feinstein begins by giving the nominee a chance to answer some of Senator Hatch's concluding comments about Ricci. And Feinstein compliments the nominee for her demanor -- almost for being too nice -- noting that her own adrenalin was rising based on some of the prior questions.

With respect to Ricci, Feinstein asks a series of questions to demonstrate that the Second Circuit did have precedent that controlled the decision in Ricci (although the nominee does not mention it, one of her Second Circuit colleagues, Judge Barrington Parker, explained the governing precedent and the reasons for denying rehearing en banc in an opinion issued upon the denial of rehearing en banc). She also observes that the Supreme Court split 5-4 in the case, so four Justices agreed with the Second Circuit's approach.

Feinstein raises the issue of abortion, noting that a long line of Supreme Court decisions focused on the health and welfare of the woman as a key element of the constitutional standard, but that the Court's recent decision in Carhart (upholding the partial birth abortion prohibition) took a different approach. She asks whether the woman's health and welfare remains relevant to the constitutional test. (There have been reports that some abortion rights groups have been concerned about Judge Sotomayor's views about abortion issues.) Judge Sotomayor states that the health and welfare of the woman test is embodied in the relevant precedents and would be given deference, but - as with other legal issues - does not venture into expressing her own views.

Senator Feinstein asks a question building on her opening statement's criticism of the current Court, asserting that some have argued that the Court is engaged in the "stealth" overruling of precedents. She quotes from a concurring opinion by Justice Scalia in the Hein case (involving the ability of taxpayers to challenge government expenditures as establishments of religion in violation of the First Amendment) to the effect that it sometimes is better for the Supreme Court to forthrightly overrule precedents rather than narrow them out of existence. Justice Scalia was criticizing the majority's decision to refuse to extend a prior decision in the area, rather than overrule it. (Full disclosure: I argued Hein on behalf of the taxpayers challenging the government action.) Judge Sotomayor remained neutral, saying that in some contexts precedents can be narrowed, but in other contexts overruling is appropriate.

Senator Feinstein then turned to executive power, asking about the limits on executive power in areas related to the war on terror, such as surveillance of communications, detention of enemy combatants, etc. Judge Sotomayor recognizes the importance of the issues, but declines to express any views because they are pending, or almost certainly will be pending, before the courts. The same is true of the last topic -- the scope of Congress's power under the Commerce Clause. Some conservatives have argued for limits on the scope of this authority, and the Court did strike down one federal statute on the ground that it exceeded Congress's power. In recent years, however, the Court has not been particularly receptive to these arguments.

Lunch break. The Committee returns at 2 pm eastern.

Guns and Firefighters

Senator Hatch focuses on the Second Amendment. He presses Judge Sotomayor on her view of whether the right to bear arms is "fundamental" (which is the legal test for determining whether it limits state authority because it is incorporated against the states via the Fourteenth Amendment). She says she can't respond because that is an issue that is likely to come before the Supreme Court. He then asks Judge Sotomayor about the decision in which she took part holding that the Second Amendment does not limit state authority, which relied on a nineteenth century Supreme Court decision and on prior Second Circuit decisions. Turning the hearing into a bit of a constitutional law class, Hatch says that the older Supreme Court decision should have been found irrelevant because it was based on the privileges and immunities clause rather than on the due process clause. Of course, if Judge Sotomayor got this decision wrong (she doesn't remember the particulars of the Supreme Court decision), then Judges Easterbrook and Posner did too, because they also concluded that the Supreme Court decision tied their hands on the question whether the Second Amendment applies to the states. (A bit of background. The Supreme Court has made very clear that lower courts may not determine that Supreme Court decisions have been eroded and are no longer "good law." Justice O'Conner wrote an opinion for the Court in a 1997 antitrust case saying "it is this Court's prerogative alone to overrule one of its precedents.")

Senator Hatch points out that the effect of Judge Sotomayor's ruling is to permit any state gun regulation that has a rational basis. But that is a consequence of the Supreme Court's old Second Amendment decision, and can only be addressed by the Supreme Court.

Next, back to Ricci. Senator Hatch argues that the prior Second Circuit cases that Judge Sotomayor's panel relied upon actually didn't govern the legal issue in Ricci. But Judge Sotomayor seems to have the better of that exchange. Again, questions about why the panel did not issue a precedential opinion.

Senator Hatch seemed to say that all nine Justices in Ricci concluded that the Second Circuit panel had adopted an erroneous standard. Actually, the Court divided 5-4, with the four dissenters endorsing the Second Circuit's approach. (Justice Ginsburg went on in her dissent to criticize the Supreme Court majority for refusing to remand the case so that lower courts could assess the facts under the majority's new legal standard.)

Round 1 - Sotomayor Way Ahead

Quick assessment while the Committee is in recess. Judge Sotomayor seems completely at ease before the Committe, even to the extent of injecting humor into some of her answers. She has been prepared for every question she's gotten. No surprises on the Republican side thus far, but we've only had one questioner thus far.

No Comment on Cases

Senator Kohl is the first Senator to try to get the nominee to express her views on Supreme Court cases and issues -- from Bush v. Gore, to affirmative action, Roe v. Wade, antitrust law,and Kelo, a case involving the government's property condemnation power that is anathema to many conservatives. As expected, Judge Sotomayor follows the patented Roberts/Alito approach: an explanation of the legal issues involved followed by a polite - but very firm - refusal to express any views about the substance of the issue/decision. She even refuses to identify Justices that she admires or to comment on whether cameras should be permitted for Supreme Court arguments.

Ricci Redux

Senator Sessions' also focuses on the Ricci decision, provoking an angry retort from Senator Leahy when he asserts that Leahy misrepresented the facts of the case. Sessions wonders why the court of appeals issued only an order given the importance of the issues involved. In fact, 75% of the Second Circuit's cases are resolved by unpublished orders like the one issued in Ricci. Courts of appeals are simply too busy to write opinions in anything close to every case. And the Second Circuit's own rules say that where the decision is unanimous and there is no precedential purpose to be served by an opinion, issuance of an unpublished order is appropriate. That was precisely the situation in Ricci, which had the additional benefit of a comprehensive lower court decision (so comprehensive that, as noted in an earlier post, convinced a panel of appellate judges in the Sixth Circuit to affirm a decision presenting the same legal question on the basis of the Ricci district court's opinion).

Sessions then turns to the Second Circuit's decision to deny rehearing en banc in Ricci (a process under which all of a court of appeals' judges (usually a dozen or more judges) vacate the opinion of a three-judge panel and hear the case as a group). He wonders why Judge Sotomayor did not consider the issue important enough for rehearing en banc when a number of other judges did, including Judge Cabranes (Senator Sessions notes that Judge Cabranes is of Puerto Rican descent, but he can't believe that's relevant to the decision). The Second Circuit has a tradition of almost never hearing cases en banc, so Judge Sotomayor's decision was fairly traditional for that court.

Experience, Empathy and Bias

Senator Sessions devotes his first round of questioning to the question of bias that he raised in this opening statement. He argues that a jurist who brings her life experiences to bear in judging is not impartial. Judge Sotomayor responds that her personal views, prejudices, and sympathies will not influence her rulings.

Sessions then quotes from a Sotomayor speech: "my experiences affect the facts I choose to see." Isn't that unfair, he asks, and the opposite of unbiased decisionmaking. Sotomayor says that our life experiences permit us to understand different perspectives. She won't ignore facts because she hasn't had the relevant experiences, but believes life experiences are important to judging.

The issue at the heart of this exchange is perhaps too complex to explain in a hearing, with the attendant political constraints, but it is critical to an understanding of how courts operate. No one wants judges whose decisions are based on prejudices or sympathies. And there is no evidence that Judge Sotomayor has allowed bias to infect her rulings. Numerous studies show that she has often ruled against discrimination plaintiffs, individuals raising immigration claims, and criminal defendants.

But there is an important, albeit difficult-to-explain, difference between basing decisions on bias and basing them on experience. Take an easy example. In interpreting provisions of the Constitution the Supreme Court often applies a balancing test that takes account of the burden that various legal rules would impose on the government -- in criminal cases, on the prosecution. Parties argue about the extent of that burden in their briefs. If a Justice has experience as a prosecutor, she will be able to assess those arguments differently -- and almost certainly more incisively -- than a Justice who has no experience with the criminal justice system. Should that Justice be permitted to bring that experience to bear? Of course (and there would be no way to stop her from doing so). That Justice is not biased in favor of the prosecution; she is using her life experience to evaluate the arguments being made. That is why there is a huge benefit to having a Court with Justices of different experiences -- there is more likely to be at least one, hopefully more, Justices with experience relevant to the legal issues presented in the case.

This is not a novel concept. When Justice Marshall retired from the Supreme Court, Justice O'Connor explained that the life experiences he shared with the other Justices helped her better understand the legal issues that came before the Court.

The phenomenon was displayed starkly in a recent Supreme Court decision, Scott v. Harris, which addressed whether a law enforcement officer acted reasonably during a car chase when he bumped the perpetrator's car off the road. The majority based its decision that the officer acted reasonably on the danger posed by the perpetrator's driving, which is rested on its review of a videotape taken with a camera in the officer's car. Justice Scalia wrote that the videotape showed a "vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast." But Justice Stevens (the Court's oldest member) dissented based in part on his different view of what the videotape showed, and he hypothesized that his different reaction was based on a difference in experience, saying that if the majority had "learned to drive when most high-speed driving took place on two-lane roads rather than on superhighways--when split-second judgments about the risk of passing a slow-poke in the face of oncoming traffic were routine--they might well havereacted to the videotape more dispassionately." Experience matters. And experience has nothing to do with bias.

Leahy For the Defense

Senator Leahy used his questioning to try to preempt Republicans' lines of attack. He started with Ricci, enabling Judge Sotomayor to set out in detail her explanation of the ruling she joined, which subsequently was reversed by the Supreme Court. She explained -- correctly -- that the Second Circuit panel was bound by two prior Second Circuit decisions that required it to rule in favor of the City of New Haven and against the plaintiff firefighters. I am sure we will hear later today that a separate federal court of appeals -- the Sixth Circuit -- reached the same conclusion as Judge Sotomayor's panel, relying on the reasoning of the lower court in the Ricci case that Judge Sotomayor's panel pointed to in its ruling.

Then Leahy turned to the "wise Latina" comment. The Judge explained that she was not at all disagreeing with Justice O'Connor's statement that wise men and wise women would reach the same decision, but rather trying to say that different life experiences enrich the legal system. She affirmed clearly that she believes that no group has an advantage in sound judgment.

Finally, the Second Amendment case. Sotomayor explains that the Second Circuit panel on which she sat was bound by prior Supreme Court precedent regarding the application of the Second Amendment to the States. It is worth nothing that a Seventh Circuit panel -- including Judges Posner and Easterbrook, two icons of the conservative movement -- reached the very same conclusion.

Sotomayor Day 2 Preview

Yesterday's opening statements pretty clearly delineated the lines of attack, and lines of defense, that we can expect in today's questioning.

Repubicans are not going to try to show that Judge Sotomayor is unqualified to sit on the Supreme Court. They lauded her academic achievements and her experience as a prosecutor, trial judge, and appellate judge. They are not arguing that she lacks a judicial temperament. (Before she was nominated, there was some sniping that Judge Sotomayor was too tough in her questioning of lawyers during oral argument; but those claims have fallen by the wayside -- claims that may well have been the product of gender stereotyping by the (male) lawyers surprised to be on the receiving end of intense questioning from a female jurist).

Finally, there appears to be little criticism directed at Judge Sotomayor's decisions. Out of the thousands of cases that the Judge has decided, only the Ricci case and a recent Second Amendment ruling have gotten much attention.

One area of focus will be the Judge's public statements, which seem likely to be put together in several bundles. First, "bias" and "empathy." Republicans will use the "wise Latina" quote, President Obama's "empathy" quote, and other comments, as well as the Ricci decision, to argue that Judge Sotomayor will favor some groups of litigants over others. They will try to paint the Judge as opposed to fair, even-handed justice.

Second, her comments regarding the use of foreign law in interpreting US statutes and the Constitution. This somewhat obscure issue is extremely important to conservative legal groups. But the Supreme Court has frequently looked to foreign law -- not as dispositive of an issue under US law, but rather one of many relevant factors in determining how to interpret US law.

Finally, Republicans will argue that Judge Sotomayor's trial and appellate decisions provide little insight into her views of legal issues because she was bound by Supreme Court precedent. They will try to get her to opine on a variety of legal issues -- the death penalty, abortion, gun control, etc. But there is a long tradition of nominees refusing to express views on legal issues that might come before the Court. Look for Judge Sotomayor to follow the approach taken consistently by Chief Justice Roberts in his hearing: very general statements about the legal issues involved coupled with a firm refusal to state a view

Democrats will be focusing on a few key defensive strategies. First, giving the Judge a chance to address the "hot button" issues -- Ricci, "wise Latina," etc. -- in a friendly context. Second, providing opportunities for her to talk about her experience as a prosecutor and judge. Third, running interference when necessary by portraying Republicans' questions as improper attacks. Finally, it will be interesting to see the extent to which Democrats repeat their attacks on the current Court in the course of defending Judge Sotomayor.

Hearing Homework: Justice Ginsburg Speaks

The best preparation for tomorrow morning's questioning of Judge Sotomayor, and antidote for the generalities of Senators' opening statements today, is this unusually revealing interview of Justice Ginsburg conducted by Emily Bazelon, which appeared in yesterday's New York Times Magazine. Justice Ginsburg speaks candidly about her own life experiences and how they've affected her judicial decisions, and provides several anecdotes indicating that the same has been true of her colleagues, including Chief Justice Rehnquist. It's an inspiring conversation with a woman who reveals the toughness, practicality and legal acumen that made her one of the leaders of the successful effort to convince the Court to rule that the Equal Protection Clause prohibits gender discrimination.

Sotomayor Speaks

Finally, after several hours of senatorial scene-setting, Judge Sotomayor is delivering her opening statement. It is short and personal, focusing on her family, her experiences as a mentor, her life story, and the messages of support she has received from throughout the country. It also says that judges don't make the law, but rather apply the law by looking to governing language and precedent.

Tomorrow morning the questioning begins.

Franken: Low-key and local

Newly-arrived Senator Al Franken, who is not a lawyer, views the hearing as a teaching opportunity enabling Americans to better understand the Court's role and its impact. Consistent with his plan to focus on the needs of Minnesotans, he goes out of his way to focus on Minnesota, even naming several cities and towns in the course of his statement. Franken does pick up the "activist" theme, asserting that Justice Thomas voted to strike down more federal statutes than the "liberal" Justices. And he highlights the impact on "real people" of the Court's rulings.