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From this week's issue of National Journal:
It was the man who never set foot in Hart 216 who came out on top. President Obama got exactly what he wanted out of his nomination of Sonia Sotomayor to the Supreme Court: a fairly quick, relatively smooth, sort-of-bipartisan process that spent minimal political capital. But the White House's gain could also be the Democratic Party's loss.
With an overwhelming majority in the Senate, a still-popular president, and a nomination that wasn't expected to tilt the Court's ideological balance, the stage seemed set for a full-throated defense of liberal judicial philosophy from Democrats on the Judiciary Committee. According to a White House aide, Obama's goal for the hearings was simple: get his nominee confirmed with bipartisan support. That meant it was in the administration's best interest not to provoke a larger discussion of judicial vision.
Democratic committee senators "had a president and nominee who did not defend or promote the progressive judicial philosophy that they both previously articulated and embraced in speeches and writings," said Leonard Leo, whom George W. Bush tapped to help lead outside groups in supporting the nominations of John Roberts and Samuel Alito. "They had their hands tied and could not make the kinds of statements they would normally make."
During questioning by panel member Jon Kyl, R-Ariz., the nominee herself illustrated the gulf between the White House and Senate Democrats most clearly when she repudiated Obama's analysis of judging. Kyl asked Sotomayor during her confirmation hearings whether she agreed with the empathy standard laid out by then-Sen. Obama in opposing Bush's nomination of Roberts as chief justice in 2005. "No, sir," Sotomayor responded. "I wouldn't approach the issue of judging in the way the president does.... I can only explain what I think judges should do, which is, judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law."
Rachel Brand, who as an assistant attorney general in the Bush administration was also involved with the nominations of Roberts and Alito, said that Sotomayor's direct denial "indicates a belief that it would be hard to get confirmed" if she had embraced Obama's empathy standard. "It's not something that resonates with the American public or senators," Brand said.
Subscribers to National Journal can continue reading this story here.
From National Journal's July 18 issue:
Soon-to-be-Justice Sonia Sotomayor has called herself "a product of affirmative action" who was "accepted rather readily into Princeton" despite test scores that were lower than those of more privileged classmates due to "cultural biases built into testing."
Harvard professor Henry Louis Gates Jr., capitalizing on the avalanche of publicity he touched off by attributing to racism his July 16 arrest at his home by a white police officer, has declared that America is "racist" and "classist" and that "there haven't been fundamental structural changes in America.... The only black people who truly live in a post-racial world in America all live in a very nice house on 1600 Pennsylvania Avenue."
What Sotomayor and Gates share is a habit of drawing dubious lessons about race from their own experiences.
Sotomayor was right to praise the kind of "affirmative action" that may have helped her get into Princeton, and her admission was resoundingly vindicated by her stellar academic performance there. But she has been quite wrong to imply that what affirmative action has become -- a euphemism for giving blacks and Hispanics large preferences based solely on race over better-qualified and often less affluent whites and Asians -- is necessary to open opportunities for talented minorities today.
The young Sotomayor, raised in modest circumstances in the Bronx, N.Y., had shown special promise and drive by becoming valedictorian at a competitive Catholic school. And, by her own account, her test scores were not terribly "far off the mark" set by more privileged applicants from better schools.
In short, while Princeton's admissions office no doubt considered her ethnicity, she was an ideal candidate for the kind of class-based affirmative action that crusading liberal Justice William O. Douglas -- who saw race-based preferences as unconstitutional -- advocated for extraordinarily promising students of all races in his 1974 dissent in DeFunis v. Odegaard.
Continue reading the column here.
On Wednesday, Judiciary Committee Chairman Patrick Leahy derided the National Rifle Association for announcing that it would be scoring senators' votes on the Sonia Sotomayor confirmation. "I would hope all senators would make up their mind based on what they saw or what they heard and not what any pressure group on the either right or left comes up with," the Vermont Democrat said at a press conference, which was co-hosted by Senate Majority Leader Harry Reid, D-Nev., in coordination with progressive interest groups.
But whether or not the NRA is pulling the strings, the Second Amendment is clearly one of the biggest concerns for Republicans voting against Sotomayor. Nineteen of the 26 Republicans who have already pledged to vote "nay" have mentioned the Second Amendment, gun rights or, more specifically, Sotomayor's ruling in Maloney v. Cuomo in official remarks or statements explaining their decision. Not surprisingly, senators from more conservative states were among those who placed the issue front and center in their remarks, including John Thune of South Dakota, Mike Johanns of Nebraska, and Roger Wicker of Mississippi.
The GOP Judiciary members who are voting against the confirmation didn't focus on the Second Amendment as much as other senators in their statements. John Cornyn of Texas, Charles Grassley of Iowa and ranking member Jeff Sessions of Alabama mentioned the Second Amendment only fleetingly, and Orrin Hatch of Utah didn't mention it at all. This suggests to some observers that those senators who are more knowledgeable on the issue rightly see the Second Amendment as less of a concern. "It seems that many Republicans are stretching for reasons to vote against her," said Marge Baker, executive vice president of the left-leaning People for the American Way. "And that's despite the fact that a number of Republicans on the Judiciary Committee concluded that her jurisprudence is totally within the mainstream."
As for the NRA's influence on the other side of the aisle, the votes of a handful of Democrats, especially those hailing from red states, could be telling. Ben Nelson of Nebraska, and Mark Begich of Alaska have both indicated they are still undecided. Blanche Lincoln of Arkansas, up for re-election in 2010, is one senator conservative activists have said could be vulnerable to NRA attacks.
So how much of a threat will the NRA's score be to senators up for re-election either in 2010 or later? "That's not a question for us to answer," said NRA spokesman Andrew Arulanandam. "That's a question for them to answer." He added that it's "relatively early innings in this session of Congress" to start debating how much influence this vote will have compared to other issues that may come up.
Brian Darling, director of Senate Relations at the conservative Heritage Foundation, said Sotomayor's confirmation is "not going to be an easy vote" for Democrats hailing from Western states. "If you get one Western state Democrat to vote no on Sotomayor, that could spell trouble for the nominee," he said. Darling also predicted that recent gun rights legislation widely supported by Democrats could "trickle down" and affect senators' confirmation votes. He pointed specifically to a recently rejected amendment proposed by Thune, which would have made it legal to carry concealed weapons across state lines. Twenty Democrats voted in favor, including Nelson, Lincoln and Begich.
• "Senate Majority Leader Harry Reid (D-Nev.) announced Thursday afternoon that he hoped to begin floor debate on the nomination of" Sonia Sotomayor "on Tuesday as the Senate wraps up work on a series of largely noncontroversial spending and policy bills before the August recess," Roll Call (subscription) reports. "A final vote... will be scheduled for Thursday night, Democratic aides said."
• "Senate Republicans have proposed the idea of a four-day debate on the nominee, with most of their 40 members planning to speak on Sotomayor's fitness for the court," The Hill reports. "But Democrats say no more than two days should be necessary -- and that other Senate business will be on the chamber's to-do list as well."
• "Democratic Senators say their decision about whether to support" Sotomayor's confirmation "is not being swayed by the National Rifle Association's decision to use the vote to evaluate lawmakers," CQ Politics reports.
• "Whether or not the NRA is pulling the strings, the Second Amendment is clearly one of the biggest concerns for Republicans voting against Sotomayor," NationalJournal.com reports. "Nineteen of the 26 Republicans who have already pledged to vote 'nay' have mentioned the Second Amendment, gun rights or, more specifically, Sotomayor's ruling in Maloney v. Cuomo in official remarks or statements explaining their decision."
• In supporting Sotomayor, Senate Republican Conference Chairman Lamar Alexander, R-Tenn., is breaking with most of his party's Senate leadership, Politico reports.
• Keep tabs on which senators have committed to yes or no votes with NationalJournal.com's Vote Tracker.
Continue reading Top Nomination News.
With a Senate Finance Committee agreement on a health care overhaul plan unlikely before the Senate recesses Aug. 7, Democrats will leave town with next week's expected confirmation of Sonia Sotomayor as their main July achievement.
Sotomayor will likely be confirmed in a vote late next week. Republicans and Democrats have yet to agree on how much floor time will be needed to debate her nomination. Senate Republicans, citing debate on past nominees to the top court, have urged four days of debate, but Majority Leader Harry Reid, D-Nev., in acerbic comments several times this week, has said two days is enough.
Late into Sonia Sotomayor's confirmation hearings, the NRA not only formally announced its opposition to the nominee but also said it would include senators' votes for and against her in the next election-year rankings.
While the caution could have factored into the Senate Judiciary Committee's nearly partyline vote -- all but one Republican voted against Sotomayor -- it's worth noting that three of the six GOPers to announce their backing of the judge thus far were endorsed by the NRA during their most recent campaigns.
• Sen. Lamar Alexander received an 'A' rating and was endorsed in 2008 against Robert Tuke in Tennessee.
• Sen. Lindsey Graham was rated 'A' and endorsed by the NRA in 2008 against Bob Conley in South Carolina.
• Sen. Mel Martinez was rated 'A' and endorsed by the NRA in 2004 against Betty Castor in Florida. (Martinez is not running for re-election.)
And one newly-minted Democrat, who served his almost five full terms as a Republican, has received the NRA's support in the past but voted for Sotomayor:
• Sen. Arlen Specter was rated 'A' and endorsed by the NRA in 2004 against Joseph Hoeffel in Pennsylvania.
The three other GOP senators who have said they'll support Sotomayor have not received the NRA's praise in recent years:
• The NRA gave Sen. Olympia Snowe, R-Maine, a 'C+' in 2006 and did not endorse her for election.
• The NRA gave Sen. Susan Collins, R-Maine, a 'C+' in 2008 and did not endorse her for election.
• The NRA gave Sen. Dick Lugar, R-Ind., a 'D+ in 2006 and did not endorse him for election.
Lamar Alexander of Tennessee became the sixth Republican senator to announce he will vote in favor of Sonia Sotomayor's confirmation, in floor remarks this morning.
"Even though Judge Sotomayor's political and judicial philosophy may be different than mine, especially regarding Second Amendment rights, I will vote to confirm her because she is well qualified by experience, temperament, character and intellect to serve as an associate justice of the United States Supreme Court," said Alexander.
Alexander joins Sen. Lindsey Graham of South Carolina and moderate Sens. Richard Lugar of Indiana, Mel Martinez of Florida, and Olympia Snowe and Susan Collins of Maine in pledging to vote in favor of President Obama's nominee. Keep track of which senators vote yes or no with NationalJournal.com's Vote Tracker.
Alexander did not neglect to take a shot at the president and Senate Democrats even as he approved their nominee.
"In 2005, I said on this floor that it was wrong for then-Senator Obama and half the Democratic senators to vote against John Roberts -- a superbly qualified nominee -- solely because they disagreed with what Senator Obama described as Roberts' 'overarching political philosophy' and his 'work in the White House and the Solicitor General's office' that 'consistently sided' with 'the strong in opposition to the weak,'" Alexander said. "Today, it would be equally wrong for me to vote against Judge Sotomayor solely because she is not 'on my side' on some issues."
Obama's votes against Roberts and Samuel Alito have been cited by Republicans voting for and against Sotomayor. Alexander and Graham have used them to decry the politicization of the confirmation process and set themselves apart from the president in this regard. Numerous other GOP senators, on the other hand, have cited them as a precedent for voting against confirmation of a nominee whose judicial philosophy they don't agree with, regardless of qualifications.
Senate Republicans are set to vote overwhelmingly against Sonia Sotomayor next week, and they appear to believe there is little price to pay politically, despite Democratic warnings of a backlash from Hispanic voters.
Senate Majority Leader Harry Reid, D-Nev., predicted Wednesday that Sotomayor will get just "a handful" of GOP votes and warned Republicans will be treated "the same way as they got treated as a result of how they handled immigration."
But the office of Senate Minority Leader Mitch McConnell, R-Ky., who has led GOP opposition to Sotomayor, shot back later, pointing to a recent Gallup Poll that shows the Sotomayor nomination and GOP opposition having no impact so far on the views of Hispanic voters. The poll notes a drop in Hispanics' support for Obama that "comes the week after the confirmation hearings of Hispanic Judge Sonia Sotomayor, something one might predict would earn Obama credit among Hispanic Americans."
GOP aides and political strategists echo this view. "Ultimately, this comes down to the candidates," said a Republican official familiar with GOP Senate campaigns. The official dismissed the political impact of a Sotomayor vote at the state and local levels, calling the idea "absurd."
McConnell's office also pointed to past statements by Reid, Senate Judiciary Chairman Patrick Leahy of Vermont and Sen. Charles Schumer, D-N.Y., decrying Republican attacks on Democrats for opposing female and Hispanic GOP nominees.
• "The Senate debate over Supreme Court nominee Sonia Sotomayor turned bitter Wednesday, after Democrats warned the GOP it would pay a steep price for opposing the judge who would be the first Hispanic justice, and a top Republican charged they were playing destructive racial politics," AP reports.
• Senate Majority Leader Harry Reid, D-Nev., "has become intensely critical of Republican opposition to" Sotomayor, Politico reports.
• "Reid is sick and tired of hearing about Sonia Sotomayor's 'wise Latina woman' remark and her ruling in Ricci v. DeStefano," NationalJournal.com reports. "'How many times do we have to listen to the same speeches on the same brief statements and on the same case?' Reid asked during a press conference" Wednesday.
• "Rounding out next week's agenda will be" Sotomayor's "nomination, which is expected to clear but could take two or more days of floor time," Roll Call (subscription) reports.
• "Sen. Lindsey Graham, R-S.C., drew praise from across the country Wednesday for his speech explaining his Senate Judiciary Committee vote for" Sotomayor, McClatchy Newspapers reports.
• Sen. Bob Corker, R-Tenn., "said late Wednesday he has decided not to support the confirmation of" Sotomayor, the Chattanoogan reports.
• Keep tabs on which senators have committed to yes or no votes with NationalJournal.com's Vote Tracker.
Commentary
• The Las Vegas Review-Journal asserts that the Senate Judiciary Committee's GOP members "did the right thing" in voting against Sotomayor, despite threats from Democrats that a "no" vote would hurt them with Hispanics.
• In the San Francisco Examiner, Tim Phillips and Phil Kerpen of the conservative Americans for Prosperity argue that "Sotomayor's utter -- indeed, intentional -- unpredictability" on the bench "is likely to undermine business confidence."
• "Absent a miracle," Sotomayor "will take a seat on the U.S. Supreme Court," writes Doug Bandow, former special assistant to President Ronald Reagan, in the American Spectator. "Nevertheless, the Republican minority still has an opportunity to use her nomination to educate the American people about the dangers of politicizing the judiciary."
• After conducting interviews with Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and Graham, David S. Broder predicts that "we might avert the ugly partisanship of recent confirmation fights."
• Stuart Taylor Jr. notes that the Sotomayor nomination has sparked a debate among conservatives about judicial philosophy.
Senate Majority Leader Harry Reid, D-Nev., and Senate Judiciary Chairman Patrick Leahy, D-Vt., were joined by nearly 20 progressive interest groups on Capitol Hill today to urge senators to, as Reid said, "put politics aside" and vote to confirm Sonia Sotomayor for the Supreme Court. (Credit: Amy Harder)
Harry Reid is sick and tired of hearing about Sonia Sotomayor's "wise Latina woman" remark and her ruling in Ricci v. DeStefano.
"How many times do we have to listen to the same speeches on the same brief statements and on the same case?" the Senate majority leader rhetorically asked during a press conference today on Capitol Hill.
Reid said the full Senate vote on Sotomayor's Supreme Court nomination will be one of the last things taken up before the summer recess begins on Aug. 7, reiterating what Senate Judiciary Chairman Patrick Leahy, D-Vt., said Tuesday. Hill staffers and others familiar with the process are predicting Aug. 6. Reid added that he is working with Minority Leader Mitch McConnell, R-Ky., to come up with a time line.
The Nevada Democrat said that if all 40 Republicans want to spend an hour talking about the nomination, they can, though he was visibly exasperated by the prospect. "I'm going to make sure that senators can talk about that speech another 30 or 40 times, or maybe about that case another 50 or 60 times," Reid said.
He said it would be "great" to get 20 Republicans but conceded it was doubtful. Based on the latest count in NationalJournal.com's Vote Tracker, it won't happen -- 23 of the chamber's 40 Republicans are on record saying they won't vote for Sotomayor.
In response to a question about whether the National Rifle Association's decision to score the confirmation vote concerns him regarding some senators' votes, Reid replied: "It personally doesn't persuade me; I am going to vote for this very qualified woman."
He also cautioned Republicans that voting against Sotomayor could hurt them with Hispanics. "Voting against this good woman is going to treat them about the same way as they got treated as a result of how they handled immigration," Reid said.
Leahy was also present at the conference, which was in coordination with nearly 20 progressive interest groups. Leaders from the organizations surrounded the two senators throughout the presser. A few of the representatives -- including Wade Henderson, president of the Leadership Conference on Civil Rights, and Lillian Rodriguez-Lopez, president of the National Hispanic Leadership Agenda -- also spoke.
"Many conservatives oppose Judge [Sonia] Sotomayor's nomination because she does not appear to support originalism.... But when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint [by claiming] that the Constitution's 14th Amendment mandated a policy of strict colorblindness by state and local governments.... The historical evidence that it did is weak.... To seek to invalidate laws without a strong argument that the Constitution requires doing so is precisely what conservatives usually mean by 'judicial activism.'"
These words -- which echo criticism of the Supreme Court's conservatives by liberal scholars and Democratic senators -- packed an extra wallop because they came from a leading conservative commentator, Ramesh Ponnuru of National Review.
His June 23 New York Times op-ed clashed with efforts by other conservatives to depict Sotomayor as a liberal activist and themselves as the champions of judicial restraint, provoking a lively exchange among legal experts on National Review Online.
Some reproached Ponnuru for what Roger Clegg of the Center for Equal Opportunity called "an ill-timed, ill-argued" piece implying that white people do not have the same rights as blacks to the equal protection of the laws. Wendy Long of the conservative Judicial Confirmation Network wondered whether Ponnuru had been "taken hostage by some NYT editorial page terrorists who waterboarded him until he agreed to sign that op-ed piece."
Other conservatives, however, concurred in whole or in part with Ponnuru's view that racial preferences are not barred by the Constitution even though "unwise and immoral" as a policy matter. And Ponnuru was far from the first prominent conservative to echo liberal claims that the conservative justices are guilty of judicial activism.
Continue reading Sotomayor Sparks Debate Among Conservatives Over Originalism.
• "A Senate committee endorsed Supreme Court nominee Sonia Sotomayor on Tuesday in a vote that splintered nearly along party lines, signaling that Republicans will not hesitate to oppose the first Hispanic nominee to the nation's highest court when the full Senate decides whether to confirm her next week," the Washington Post reports.
• "After a two-hour debate, the vote was 13-6, with South Carolina Sen. Lindsey Graham the lone Republican joining all the committee's Democrats," Politico reports. "With the GOP vowing not to filibuster the nomination, the Senate is expected to confirm" Sotomayor "to the high court as early as next week -- one of the few successes of late for the party in power as it struggles with its massive health care agenda."
• The Hill reports that "Sotomayor was not present Tuesday -- she went through four days of questioning two weeks ago."
• "Senate Majority Leader Harry Reid (D-Nev.) on Tuesday reiterated his intention to wrap up the confirmation of" Sotomayor "before the August recess," Roll Call (subscription) reports.
Continue reading Top Nomination News.
Lindsey Graham knows how it feels to be a Democrat. At least, a certain kind.
Before voting in favor of President Obama's first Supreme Court nominee, Sonia Sotomayor, in the Senate Judiciary Committee's executive meeting this morning, Graham sought to explain why he chose to break from his fellow Republicans on the committee.
Glancing to his colleagues on either side of him, the South Carolinian said: "To my colleagues who voted no, I understand, I completely understand."
But then he looked across the table at the Democrats and continued: "To my colleagues who voted for Justice [John] Roberts, I'm better understanding what you went through."
Singling out Chairman Patrick Leahy, D-Vt., and Wisconsin Democrats Russell Feingold and Herb Kohl, who all voted in favor of Roberts' confirmation in 2005, Graham said, "You decided to vote for a man you would not have chosen. I am deciding to vote for a woman that I would not have chosen."
Graham also took a subtle jab at fellow Republican Charles Grassley. The Iowa senator had said several minutes earlier that he regretted his vote to confirm David Souter in 1990, that he had doubts about President George H.W. Bush's nominee because of his judicial philosophy and comments he'd made. Grassley voted against Sotomayor's confirmation, citing similar concerns.
"To my good friend Senator Grassley," Graham said, Sotomayor "can be no worse than Souter from our point of view, so there is not going to be a major shift in the balance of power here."
Updated at 4:33 p.m. on July 28.
Wisconsin's two Democratic senators denounced the politicization of Supreme Court nominations during the Senate Judiciary Committee's executive business meeting on Sonia Sotomayor's confirmation vote today.
"I have no reservations about my support for Judge Sotomayor, but I share concerns expressed by many Americans and legal commentators about our committee's ability to have substantive and candid conversations about our nominees," Herb Kohl said in Hart 216.
He said it has become a "familiar pattern" -- regardless of who is in the White House -- for president's nominees to dodge questions on past Supreme Court decisions and how they might handle "close calls" if they're confirmed. "It's understandable that nominees don't want to risk their confirmation that might provoke potential opponents, but it is reasonable for us to ask them to speak more openly," Kohl said.
Russell Feingold said that the hearings "have become little more than theater" and bemoaned "a nominations process that I think fails to educate the Senate or the public about the views of potential Justices on the Supreme Court."
Kohl proposed a bipartisan committee made up of judiciary panel members, American Bar Association members, other legal experts and members of the media who have covered SCOTUS nominations to evaluate what type of issues and cases nominees should be expected to answer in the confirmation process.
Senate Judiciary Chairman Patrick Leahy, D-Vt., told reporters after this morning's meeting that the Senate will likely take up Sonia Sotomayor's confirmation vote as one of its final agenda items before the August recess, which is slated to start Aug. 7.
After nearly two hours of wading through the litany of senators' concerns about and praise of Sonia Sotomayor, the Senate Judiciary Committee officially voted 13-6 this morning in favor of President Obama's first nominee to the Supreme Court.
The Senate Judiciary Committee is expected to vote 13-6 this morning in favor of Sonia Sotomayor's confirmation to the Supreme Court, with all Democrats and South Carolina Republican Lindsey Graham voting "yea." The nomination will then go to the full Senate, which will likely consider it next week.
Tom Coburn, the last Republican on the committee to announce his vote, will join most of his GOP colleagues in opposing her. The Oklahoman on Monday cited many of the same concerns as other Republicans, including her position in the Second Amendment case Maloney v. Cuomo and the way she explained her much-discussed comments from the past, notably her "wise Latina woman" remark. His "nay" vote isn't surprising, considering his critical questioning and focus on similar core GOP issues during the hearing.
The vote is taking place in Hart 216, the same room where the panel held Sotomayor's confirmation hearings. Reporters and Senate staffers started filing in nearly a hour before the 10 a.m. start time. The two most junior members of the panel -- Minnesota Democrat Al Franken and Coburn -- were the first to arrive. Franken was nearly 15 minutes early, while Coburn arrived a few minutes before 10. About 20 minutes into Tuesday's meeting, the only two senators not present were Democrats Charles Schumer of New York and Arlen Specter of Pennsylvania. Specter was a late arriver at the hearings, as well.
The press gallery's tables are shorter, the camera crews fewer and the emotion lighter than the confirmation hearings, but the room is still full, with several people standing in the back.
Sonia Sotomayor's supporters -- and even some detractors -- have praised her for her long judicial career. What stands out in particular is that she would become only the second justice to join the Supreme Court since 1937 with any federal district court experience at all, according to a NationalJournal.com analysis.
Sotomayor's 17-year career on the federal bench ranks just ahead of Samuel Alito's 16 years and Stephen Breyer's 14 years among the 43 nominees of the last 72 years, as shown in the graph below. Six of those years were spent in district court, more than the two logged by Justice Charles Evans Whittaker, who joined the Supreme Court in 1957.
Among failed nominees, Nixon pick G. Harrold Carswell had 11 years of federal trial court experience. Johnson selection William Homer Thornberry had two years.
Many legal experts and sitting judges at the appellate and district levels have applauded this part of Sotomayor's resume; they say the high court too often sets precedents without taking into serious consideration how they should apply at the lower levels.
If Sotomayor is appointed, the justices with double-digit years of experience on the federal bench would make up the majority for the first time in the decades covered by this analysis. In addition to Alito and Breyer among current justices, Ruth Bader Ginsburg and Anthony Kennedy both had served 13 years before joining the Supreme Court. Retiring Justice David Souter served a mere handful of months on the federal appeals bench.
Editor's note: This is the fourth in a series examining historical data from a database compiled by Northwestern law professor Lee Epstein and her colleagues. Check back for more context and analysis on Sotomayor.
• "Two leading Republican senators on the Judiciary Committee announced their opposition to the nomination of Judge Sonia Sotomayor on Monday" -- Jeff Sessions of Alabama and Charles Grassley of Iowa, the New York Times reports.
• Sen. Tom Coburn, R-Okla., also plans to vote no, The Oklahoman reports.
• The Judiciary Committee today "is expected to vote overwhelmingly to back the nomination of" Sotomayor, "and conservatives are mobilizing to use the vote against vulnerable Democrats in next year's elections," McClatchy Newspapers reports.
• Keep track of which senators are committing to yes or no votes with NationalJournal.com's Vote Tracker.
• "In deciding to vote in large measure against Sotomayor, despite near-unanimous feeling that she has the résumé to serve, the GOP is perpetuating the argument that qualifications alone are no longer enough to judge fitness for the court," Politico reports.
• Grassley and Sen. Orrin Hatch, R-Utah, "said their votes against Sotomayor would be their first 'no' votes on a Supreme Court nominee, and they pointed to changed standards in the Senate," the Los Angeles Times reports. The newspaper quotes Grassley as saying, "I think it's a whole new ballgame, a lot different than I approached it with" Clinton nominees Ruth Bader Ginsburg and Stephen Breyer.
Continue reading Top Nomination News.
Updated at 12:12 p.m. on Aug. 6 to add Voinovich for Sotomayor.
Between now and when the full Senate votes on Sonia Sotomayor's nomination to the Supreme Court, this blog is tracking which senators officially announce whether they will vote "yea" or "nay." We are compiling the list according to statements only, not general sentiments.
Here's the running tally:
Total for: 38
Total against: 31
Republicans for: 9
Republicans against: 31
Democrats for: 29
Democrats against: 0
Final Judiciary Committee vote: 13-6
After the jump, see a chronological list of which senators have said how they're going to vote along with a brief excerpt from their remarks when available.
Continue reading Tracking The Vote: Who's For And Against.
"My days at Princeton... were the single most transforming experience I have had. It was here that I became truly aware of my Latina identity." -- Sonia Sotomayor in a 1996 speech at Princeton
Does Sonia Sotomayor have a racial bias? The question informed much of the Republican line of query in her recent Senate hearings. Sen. Jeff Sessions of Alabama and his GOP colleagues on the Judiciary Committee pointed out Sotomayor's membership in a Puerto Rican activist group and her now-infamous speeches on diversity. (The phrase "wise Latina" was uttered no fewer than 27 times over the four days, by one blog's count.) Sotomayor's assent on the 2nd Circuit Court of Appeals panel that rejected Frank Ricci's discrimination suit -- which the Supreme Court later overturned -- created even more fodder for her skeptics.
What confounded Sotomayor's critics, despite her record of active involvement in identity politics and head-scratching comments, was her mainstream jurisprudence. Sotomayor is widely considered to be a liberal, but her record "has not been radical by any means," Sen. Lindsey Graham, R-S.C., remarked. This seeming disconnect was the topic of a recent article in Newsweek. As Graham asked Sotomayor during the hearings, "Who are we getting here?"
Understanding Sotomayor's activism requires looking at the place where her lifelong passion for minority rights took root. "My days at Princeton... were the single most transforming experience I have had. It was here that I became truly aware of my Latina identity," Sotomayor said in a 1996 speech at her alma mater. Although Sotomayor had been one of the few minority students at Cardinal Spellman High School, a Catholic school in the Bronx, it was her experience as one of the first women and Latino students at Princeton that seemed to have galvanized her advocacy.
Princeton was one of the last Ivy League universities to accept women, and it was one of the last schools north of the Mason-Dixon to integrate -- and when it did, it was only on the behest of the federal government in the midst of World War II. When Sotomayor arrived at Old Nassau in the fall of 1972, her class was only the fourth to be coed, and men outnumbered women by more than three to one. Furthermore, the school had just begun admitting racial minorities above token numbers.
Princeton was an alienating place for racial minorities, according to Sotomayor and many of her classmates. Sotomayor recalled in 1996, "Although I had some experiences with discrimination in high school, it was limited, and I was protected by my family and friends in the close cocoon we had around us." The difference between Spellman and Princeton, said Sotomayor, was that "when I came to Princeton... that cocoon was gone."
The university was still predominantly white, and for many minority students, arriving at Princeton was a culture shock. The school lacked an institutional support system for minority students. The patrician eating clubs and faculty mentors that white students depended on, but were alien to minority students, further deepened their sense of otherness. Although they rarely experienced overt racism, many minority students say they felt unwelcome. "I remember seeing graffiti on some of the construction sites referring to the coeds as dogs," said Margarita Rosa, a fellow Puerto Rican classmate. Minority students were also aware of the angry alumni letters that flowed into campus. For Rosa, the antipathy "permeated" the campus. "I felt like I was expected to prove myself -- to prove that I had a right to be there," Rosa said.
Continue reading Sotomayor's Princeton Awakening.
• "Sen. Jeff Sessions, the top Republican on the Senate Judiciary Committee, says he will vote against Judge Sonia Sotomayor's confirmation to the Supreme Court in the committee vote scheduled for Tuesday," USA Today reports.
• "South Carolina Republican Lindsey Graham is going to feel awfully lonely on the Republican side of the Judiciary Committee dais during Tuesday's" vote on Sotomayor, Politico reports. GOP Sens. Orrin Hatch of Utah, Jon Kyl of Arizona and John Cornyn of Texas -- "all of whom were undecided as of last week -- will all vote no in committee. It's not clear yet if Graham will be the only Republican 'yes' vote on the panel."
• Keep track of which senators are committing to yes or no votes with NationalJournal.com's Vote Tracker.
• "Sotomayor's installment on the Supreme Court is not yet certain, but the new justice's actual seat on the bench is a sure thing," Roll Call (subscription) reports. "Like many of the high court's procedures, seat selection falls under a long tradition of seniority. The new justice will take the chair at the far left end of the mahogany bench."
Continue reading Top Nomination News.
Sonia Sotomayor has probably made her last Capitol Hill visit as a nominee. Thursday's meetings with GOP Sens. Richard Burr of North Carolina, John Barrasso of Wyoming and John Ensign of Nevada are expected to be her final ones, according to the White House.
She has met with a total of 92 senators, including all Democrats except ailing Sens. Robert Byrd of West Virginia and Edward Kennedy of Massachusetts. The following five GOP lawmakers have not -- and most likely will not -- meet with Sotomayor:
• John McCain, Arizona (has not announced his vote)
• Michael Enzi, Wyoming (has not announced his vote)
• Christopher (Kit) Bond, Missouri (has not announced his vote)
• Richard Lugar, Indiana (announced July 17 he will vote yes)
• Pat Roberts, Kansas (on May 28, became the first senator to announce his intent to vote no)
• James Inhofe, Oklahoma (announced his opposition on June 10 and refused to meet with her)
Enzi spokesman Coy Knobel said in an e-mail that "there is no particular reason" why the senator hasn't met with the nominee: "He will take into consideration all questions and answers and her record before he makes a decision on Sotomayor's nomination."
A White House aide said today that the number of meetings Sotomayor has had with senators is a record, based on the aide's conversations with people who have worked on past nominations. Chief Justice John Roberts and Justice Samuel Alito both met with more than 80 senators as nominees, according to former Bush officials Jamie Brown and Rachel Brand.
GOP Senate Judiciary Committee members John Cornyn and Orrin Hatch announced today that they intend to vote against Sonia Sotomayor's confirmation, despite what both conceded was a strong resume.
Cornyn acknowledged that the nominee is "an experienced judge with an excellent academic background," that she "has the temperament we expect from members of our highest court," and that "for the most part" her decisions have been "within the mainstream of American jurisprudence."
But, Cornyn said, "many of her public statements reflected a surprisingly radical view of the law" -- a view which she seemed to contradict in her statements before the Committee. "So at the end of the hearings," Cornyn said, "I found myself asking: "Will the real Judge Sotomayor please stand up?"
Cornyn then made an implicit jab at another Republican Judiciary member, Lindsey Graham of South Carolina, for his reasoning in deciding to vote in favor of confirmation. "Some have argued that if I am uncertain about what kind of justice she'd be, I should vote to confirm Judge Sotomayor anyway. I disagree," Cornyn said. "Voting to confirm Judge Sotomayor -- despite my doubts -- would certainly be the politically expedient thing to do. But it would not be the right thing to do."
Graham, in his floor speech Wednesday, said he chose to vote "yea" after "looking at her from the most optimistic perspective, understanding I could be wrong..."
As the head of the National Republican Senatorial Committee, Cornyn is the point man for next year's Senate races and therefore is likely facing pressure from the GOP base. At the same time, though, he hails from a state with a large Hispanic constituency and could endure political heat for this vote. Indeed, his fellow GOP Judiciary member Jon Kyl, R-Ariz., is already facing criticism after announcing his "nay" vote Wednesday -- from a fellow Arizona lawmaker, Democratic Rep. Raul Grijalva. "It is disappointing that he dismisses her record, her talent and her extensive experience," Grijalva said in a press release on Wednesday. "Judge Sotomayor brings more federal experience to the court than any justice in the past 100 years."
Hatch's remarks, which were released as an official statement only -- not read on the floor -- were more reserved than Cornyn's. "Arriving at a final decision was particularly difficult because I like and highly respect Judge Sotomayor and, in general, give a great deal of deference to any President's nominee," Hatch said. "The prospect of a woman of Puerto Rican heritage serving on the Supreme Court brought great excitement to me and says a lot about America."
Like Cornyn, Hatch praised the nominee's accomplishments, but said that he believes Sotomayor's "judicial philosophy" is "more important than her stellar resume," and "her statements and record were too much at odds with the principles about the judiciary in which I deeply believe."
"In truth, I wish President Obama had chosen a Hispanic nominee that all Senators could support," Cornyn said. "I believe it would have done a great deal for our great country."
To see how other senators plan to vote, check out our continually updated Vote Tracker.
Sonia Sotomayor's confirmation hearings last week may have topped the news cycle among the mainstream media, but the blogosophere and social media sites were far less impressed.
According to numbers compiled weekly by Pew Research Center's Project for Excellence in Journalism, the hearings didn't make it into the top seven stories among blogs and social media sites, including Twitter. The top seven includes topics that are linked in at least 5 percent of stories on social media sites.
Sotomayor "was such a main part of the dialogue in the mainstream media you would think there would be some pick-up," said Amy Mitchell, deputy director of the Project for Excellence in Journalism. "On the other hand, what folks in social media are drawn to are things that can incite change, impassion them.... Neither of those things really existed in these proceedings."
So, what were bloggers and other social media types focusing on? Sarah Palin, who grabbed a whopping one-third of all linked stories. Meanwhile, Iran dominated the Twitter platform for the fifth week in a row.
• "The split in the Republican base over Supreme Court nominee Sonia Sotomayor grew wider Thursday, with the U.S. Chamber of Commerce endorsing her confirmation while the National Rifle Association amped up pressure for senators to vote no," the Wall Street Journal reports.
• On Thursday, Sotomayor met with "Republican Sens. Richard Burr of North Carolina, John Barrasso of Wyoming and John Ensign of Nevada, who have not said how they will vote," AP reports.
• Ensign "is 'impressed' after meeting for about 45 minutes" with Sotomayor, AP reports. "Ensign spokesman Tory Mazzola says the Republican Nevada senator hasn't decided how he will vote when her confirmation comes to the Senate floor. Still, Mazzola had nothing but compliments for the nominee after Thursday's meeting."
• Sen. John Cornyn, R-Texas, "said he has not decided if he'll vote" on Sotomayor's confirmation, the Dallas Morning News reports. "'I'm trying to be as deliberative about this as I possibly can,' Cornyn said during a conference call with reporters on Thursday."
• Keep track of which senators are committing to yes or no votes with NationalJournal.com's Vote Tracker.
Continue reading Top Nomination News.
The U.S. Chamber of Commerce today endorsed Sonia Sotomayor, giving her nearly certain confirmation some mainstream business community credibility. "The Chamber urges members of the Senate Judiciary Committee to vote in favor of reporting Judge Sotomayor's nomination for consideration by the full Senate," the Republican-leaning lobbying group said in a letter released by the White House and Judiciary Committee Democrats. "Based on the Chamber's evaluation of her judicial record, Judge Sotomayor is well-qualified to serve as an Associate Justice of the U.S.," the letter says.
Since it began its endorsement policy in 1987, the Chamber has endorsed the nominations of Chief Justice John Roberts and Associate Justices Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer, David Souter and Clarence Thomas.
The National Rifle Association will factor senators' votes on Sonia Sotomayor's confirmation into its "future candidate evaluation," Executive Vice President Wayne LaPierre and chief lobbyist Chris Cox said in a letter to Senate leadership today.
The letter intensifies the NRA's formal opposition to the nominee and reiterates the organization's concerns with Maloney v. Cuomo, in which an appellate panel that included Sotomayor affirmed a lower court's ruling that the Second Amendment does not apply to the states. A statement by the NRA last week and a letter to the Senate Judiciary Committee leadership July 7 made similar points.
"We believe any individual who does not agree that the Second Amendment guarantees a fundamental right and who does not respect our God-given right of self-defense should not serve on any court, much less the highest court in the land," Cox and LaPierre wrote in the letter sent today.
With Sotomayor's confirmation seemingly a foregone conclusion, the NRA -- and conservative groups like the Third Branch Conference and Committee for Justice -- are focusing more on something they think they can influence: future judicial nominations. "If several red-state Democrats vote against Sotomayor because of her bad Second Amendment record, it will forever shift the nominations game and you can bet President Obama will be careful not to nominate someone who is hostile to the Second Amendment," said Curt Levey, executive director of the Committee for Justice.
Gun rights are a top concern among Republican senators who have announced they will oppose Sotomayor. It was the first specific issue raised in the remarks by Roger Wicker of Mississippi, John Thune of South Dakota and Robert Bennett of Utah. Judiciary Committee member Jon Kyl of Arizona commented on Maloney with a reference to District of Columbia v. Heller, a 2008 Second Amendment case: "If Judge Sotomayor's decision were allowed to stand as precedent, then states will, ironically, be able to do what the federal District of Columbia cannot -- place a de facto prohibition on the ownership of guns and other arms."
Senators who have announced their intent to vote for Sotomayor haven't placed as much emphasis on the issue. Sen. Lindsey Graham, R-S.C., a key GOP Judiciary Committee member, went so far to say Wednesday that Sotomayor may be "more balanced" than retired Justice David Souter when it comes to the Second Amendment. No red-state Democrats who conservative groups have said could face pressure from the NRA, such as Blanche Lincoln of Arkansas and Byron Dorgan of North Dakota, have announced how they will vote yet.
The bumper-sticker liberal view of constitutional interpretation might begin with President Obama's assertions that "the Constitution... is not a static but rather a living document and must be read in the context of an ever-changing world," and that "we need somebody who's got the heart -- the empathy -- to recognize what it's like to be a young teenage mom" or "to be poor or African-American or gay or disabled or old."
The bumper-sticker conservative view might begin with the standard denunciations of "legislating from the bench" and "judicial activism." Other formulations include: "Judges are like umpires. Umpires don't make the rules; they apply them." "As a judge, I don't make law.... I apply the law to facts." "Judges... don't determine the law. Congress makes the laws. The job of a judge is to apply the law."
It's notable that while the "umpire" analogy came from Bush nominee John Roberts in 2005, the subsequent two conservative-sounding quotes came from Obama nominee Sonia Sotomayor.
Sotomayor worked very hard last week not to sound like a liberal. So hard as to suggest that she and her White House handlers understand that the living-Constitution-plus-empathy approach is seen by many voters -- fairly or unfairly -- as a facade for judges rewriting the law to favor liberal constituencies and causes.
But the simplistic picture painted by many conservatives -- and now by Sotomayor -- of judging as a mechanical exercise with no place for moral and political values is unreal to anyone who understands the subjective nature of the choices that judges, and especially justices, must often make.
The Supreme Court would not split 5-4 on so many of the hardest questions if the answers could be discerned simply by applying the Constitution and other laws to the facts. The legal materials to be interpreted are sometimes so ambiguous or conflicting, and their meaning so debatable, that judges have no option but to "make law" by choosing among two or more equally plausible interpretations. And individual judges' personal values and views of the world unavoidably help shape such choices.
Continue reading Bumper-Sticker Judicial Philosophy.
• "The Obama administration says it won't name those who participated in practice sessions with its nominee, Sonia Sotomayor, refusing even to give a clear reason for keeping the information hidden," the Blog of Legal Times reports.
• Sen. Lindsey Graham, R-S.C., "said Wednesday that he will vote for" Sotomayor, "breaking with his party's conservative leaders to back President Barack Obama's choice to be the first Hispanic justice," AP reports.
• The Washington Post has video of Graham's Senate floor speech Wednesday.
• "Privately, Republicans are now predicting that Sotomayor may receive upward of 70 votes for confirmation by the time the vote happens the first week of August," Politico reports.
• Keep track of which senators are committing to yes or no votes with NationalJournal.com's Vote Tracker.
Continue reading Top Nomination News.
Sen. Lindsey Graham announced today that he will vote in favor of Sonia Sotomayor's confirmation to the Supreme Court, while fellow Senate Judiciary Republican Jon Kyl of Arizona said he intends to vote no.
Graham was one of the toughest questioners during Sotomayor's confirmation hearings last week, but he all but endorsed her Thursday, so his official announcement today was not surprising. The South Carolina Republican began his speech on the Senate floor this afternoon by reiterating a point from the hearings: elections have consequences, and President Obama "deserves some deference on my part." He added, "We're talking about one of the most qualified nominees to be selected for the Supreme Court in decades."
For his part, Kyl's opposition could signal that Republicans hailing from states with large Hispanic populations may not be worried about the political aftermath of opposing the country's first Hispanic Supreme Court nominee. The senator took issue with how Sotomayor explained her "wise Latina woman" remark, and other comments, during the hearings. "Her attempt to re-characterize these speeches at the committee hearing strained credulity," Kyl said on the Senate floor today. "... I remain unconvinced that Judge Sotomayor believes judges should set aside biases, including those based on race and gender, and render the law impartially and neutrally."
To see which other senators have officially announced how they're going to vote, check out this blog's continually updated Vote Tracker.
A Nexis search finds more than 50 mentions of "kabuki"-- a form of Japanese theater that has become journalese for empty, stylized ritual -- in news stories about the Senate Judiciary Committee's hearings on Judge Sonia Sotomayor.
The most common explanation for why judicial confirmation hearings have become such empty rituals is that the Senate's rejection of Judge Robert Bork in 1987 -- after the conservative Reagan nominee had answered dozens of questions about his "originalist" judicial philosophy -- proved that candor could be fatal for any nominee.
Since the Bork nomination, "the goal for judicial nominees has been to skate through by saying as little as possible as politely as possible," the New York Times observed in an editorial Tuesday.
There is much truth in this. But Bork's fate did not prove that nominees have to hide or misrepresent their judicial philosophies in order to get confirmed.
For one thing, Bork probably would have been defeated even if he had ducked the questions about his judicial philosophy, as subsequent nominees have done.
For another, Sotomayor very probably would have been confirmed by a wide margin -- albeit with a bit more difficulty -- even if she had been far more forthcoming about her views of the law, and less determined to deny the apparent meaning of her controversial past statements.
Continue reading The Lessons Of Bork.
• "Calling her Judiciary Committee testimony 'evasive, lacking in substance and, in several instances, incredibly misleading,' Arizona Sen. Jon Kyl said he will vote against Sonia Sotomayor's nomination to the Supreme Court," ABC News reports. "Kyl, the Senate's No. 2 Republican, will announce his decision on the Senate floor" this morning.
• Two GOP senators announced on Tuesday how they intend to vote, the Washington Post reports. Susan Collins of Maine said she will vote yes and Roger Wicker of Mississippi said he will vote no.
• In North Carolina, Democrat Kay Hagan supports Sotomayor while Republican Richard Burr "isn't ready to commit," the Raleigh News & Observer reports.
• "Several Republicans on the Senate Judiciary Committee are struggling with a sticky political dilemma," Politico reports. "Do they vote 'no,' please the conservative base and send a message that liberal justices will be opposed at every turn? Or do they vote 'yes' and dampen Democratic attacks over their opposition to a nominee who will almost certainly become the first Latina Supreme Court justice?"
• "The abortion rights group NARAL Pro-Choice America endorsed Sotomayor, breaking months of silence on her nomination that stemmed from uncertainty about where the judge stands on the legal underpinnings of a woman's right to terminate a pregnancy," AP reports.
Commentary
• "The bulk of Tuesday's nearly three-minute" Senate Judiciary Committee "hearing was a playground-style argument between" Chairman Patrick Leahy, D-Vt., and ranking member Jeff Sessions, R-Ala., "about which party confirmed the other side's nominees faster," Dana Milbank remarks.
• Sotomayor showed during her hearings that she "does not know the truth about the constitutional law of abortion in our country, or that she is willing -- for whatever reason -- to mischaracterize the matter before a national audience," writes Matthew J. Franck, political science director at Radford University, in an online publication of the conservative Witherspoon Institute.
After drawing criticism from a Republican foe for not taking a position on Supreme Court nominee Sonya Sotomayor, Florida Republican Gov. Charlie Crist Tuesday announced he opposes her nomination.
"While I have not had the opportunity to meet personally with Judge Sotomayor -- a crucial step in the selection process -- I have reviewed and reflected upon her testimony before the Senate Judiciary Committee, and come to the conclusion that I cannot support her appointment to the United States Supreme Court," said Crist, who is seeking retiring GOP Sen. Mel Martinez's seat.
While saying she deserved respect for her accomplishments, Crist said he had concerns Sotomayor would not strictly and objectively construe the Constitution and "lacks respect for the fundamental right to keep and bear arms."
Crist had said he was too busy with his post to weigh in on the Sotomayor nomination.
Crist's Republican rival, former state House Speaker Marco Rubio, has said he would not support Sotomayor and criticized Crist for not taking a position.
More Americans oppose Sonia Sotomayor's confirmation to the Supreme Court than any other successful nominee in the last two decades, according to two new polls conducted immediately after her confirmation hearings last week.
Nonetheless, support for Sotomayor's confirmation has remained steady throughout the nomination process, hovering at least a few percentage points above the 50 percent mark the entire time, trend data from the USA Today/Gallup and ABC/Washington Post polls show. At the same time though, the percentage of these surveys' respondents who oppose confirmation rose from last week, while support remained largely the same. USA Today/Gallup pollsters found that 36 percent now oppose Sotomayor's confirmation, compared to 33 percent last week. In the ABC/Post survey, 30 percent now oppose, up 5 percentage points from last week.
So, what accounts for the opposition? According to both polls, respondents who once indicated they were undecided are now lining up to oppose Sotomayor. "With only 9 percent of Americans expressing no opinion about Sotomayor's fate, the lowest seen for any nominee, she now garners more opposition than any Supreme Court nominee of the past two decades, except for the unsuccessful Harriet Miers," Gallup senior editor Lydia Saad explains in the USA Today/Gallup analysis. Trend data from both polls shows comparative numbers for past nominees, specifically looking at polling before and after each nominee's hearings. According to the numbers by USA Today and Gallup, Sotomayor's 36 percent opposition is well above all other nominees since Clarence Thomas' nomination, excluding Miers (who withdrew before the hearings would have taken place). In the ABC/Post survey, dissatisfaction with Sotomayor tops all recent nominees. Still, that doesn't compete with the 57 percent of respondents who the poll said opposed Robert Bork's nomination in 1987.
Legal experts on both ends of the ideological spectrum have emphasized how much more politicized the Supreme Court confirmation process has become over the last several nominations. This could explain the amount of opposition against Sotomayor's nomination, despite how comparatively calm and predictable her hearings were and the growing consensus on both sides of the aisle that she will be confirmed. Saad speculates: "While, perhaps, not a deterrent to her winning confirmation, it [the increased opposition] signals that the Republican criticisms of her that were aired starting before the hearings began have had some effect."
The media consensus about the recently completed hearings on Judge Sonia Sotomayor's nomination seems to be that it was a waste of everybody's time, with Republican senators asking "gotcha" questions and the nominee sticking to cautious bromides of the I-just-apply-the-law variety.
"While her confirmation hearings drew plenty of coverage last week," wrote Howard Kurtz in the Washington Post, "the level of media excitement hardly matched that surrounding Mark Sanford's Argentine affair, Sarah Palin's Alaskan exit or Michael Jackson's untimely departure."
True enough. But it's also true that most of the media missed a major opportunity to use the hearings as a peg for background pieces and news analyses explaining to readers and listeners some of the big issues on which so little light was shed by the senators and the nominee.
The media know how to do that sort of thing in other contexts. Consider the way in which the New York Times and others have used the 40th anniversary of the first moon landing for fascinating explorations of the past, present and future of space travel, including everything from the lunar lander's technology to the astronauts' subsequent lives.
But how much insight did the media offer on the complex but important issues that came up during the Sotomayor hearing? Issues such as these:
Continue reading Big Issues That Got Short Shrift.
Despite a lack of controversy and an emerging consensus that she will be confirmed, Sonia Sotomayor's confirmation hearings dominated the news cycle last week.
The hearings grabbed the largest portion of the news hole -- 22 percent, according to numbers compiled weekly by the Pew Research Center's Project for Excellence in Journalism. This amount falls just short of the 24 percent garnered by the nomination announcement in the last week of May, but it comes after several weeks in which Sotomayor did not make it into Pew's news index at all.
"When you look at the content of what the news coverage was about, it does suggest there was a certain amount of sense on part of the news media saying that 'this is something we need to cover historically,' " said Amy Mitchell, deputy director of the Project for Excellence in Journalism. "They devote staff and [space in] the news hole whether there are significant headlines that come out of the day's proceedings or not."
Continue reading Hearings Top The News Cycle.
As expected, the Senate Judiciary Committee this morning delayed the panel vote of Sonia Sotomayor's confirmation to the Supreme Court one week, until 10 a.m. on July 28. Chairman Patrick Leahy, D-Vt., used the brief moments in which the committee convened today to urge a quick confirmation.
"We all know that Judge Sotomayor will be confirmed," Leahy said. "I hope that once she's passed out of this committee, there will be no delay on the floor because she will have very, very few weeks after being confirmed to move to Washington, to set up her law clerks, set up her office and prepare for a major case on the McCain-Feingold bill on September 9."
Leahy was referring to Citizens United v. Federal Election Commission, a case examining whether the Bipartisan Campaign Reform Act -- commonly known as the McCain-Feingold bill -- applies to a 2008 documentary that was highly critical of then-presidential candidate Hillary Rodham Clinton. In a rare move, the Supreme Court decided at the end of its 2008 term to rehear arguments in this case on Sept. 9, even though its 2009 term doesn't start until the first week in October. "A delay will not help either Sotomayor or the Supreme Court," Leahy concluded.
Ranking member Jeff Sessions, R-Ala., said that the GOP has "tried to fulfill our responsibility without any unnecessary delay."
Also as expected, Republican Susan Collins of Maine announced this morning her intent to vote for Sotomayor, becoming the sixth senator -- and fourth Republican -- to do so.
"I know that I will not agree with every decision Justice Sotomayor reaches on the court, just as I disagree with some of her previous decisions," Collins said in a statement. "However, upon reading these decisions, talking personally with her, and hearing her responses to probing questions, I have concluded that Judge Sotomayor understands the proper rule of a judge and is committed to applying the law impartially without bias or favoritism."
• "Senate Republicans, divided over whether to confirm Supreme Court nominee Sonia Sotomayor as the first Hispanic justice, aren't planning a drawn-out floor debate on her nomination," AP reports.
• "Senate Minority Leader Mitch McConnell," R-Ky., "said Monday he would not support any effort to block a floor vote on" Sotomayor's nomination "and does not expect any of his fellow Republicans to do so either," CQ Politics reports.
• Sotomayor "responded to written questions from five GOPers on the Senate Judiciary Committee" Monday, but she rarely expanded on the details provided during last week's confirmation hearings," Hotline On Call reports. "And two GOP senators -- Lindsey Graham (SC) and Orrin Hatch (UT) -- apparently declined to take the opportunity to pose additional questions."
• The National Law Journal explores how the six members of the Senate Judiciary Committee who don't have law degrees prepared "to participate in the biggest legal spectacle in the nation."
• Sen. John Thune, R-S.D., "announced Monday that he will vote against Sotomayor's nomination, the Sioux Falls Argus Leader reports. "Having said last week that he thought Sotomayor was doing a good job before the Senate Judiciary Committee, Thune now says he won't vote for her because she has ruled in the past that the Second Amendment isn't a fundamental right and because he doesn't agree with her opinion on the role of judges."
Continue reading Top Nomination News.
While accepting the near inevitability of Supreme Court nominee Sonia Sotomayor's confirmation before Aug. 7, Senate Republicans are using her nomination to assert broader leeway to oppose future Democratic nominees while continuing to take procedural steps to slow her progress.
Republicans today are expected to delay Sotomayor's Judiciary Committee confirmation vote by one week. And a top Senate Republican said Monday that the party might object to an up or down vote on Sotomayor if they are not given four days of floor time to discuss her nomination.
In a speech Monday announcing his opposition to Sotomayor, Senate Minority Leader Mitch McConnell, R-Ky., argued that Democratic opposition to GOP judicial nominees during the Bush administration has reduced the deference senators are obliged to give a president's judicial picks, freeing them to oppose nominees on philosophical, not just personal grounds.
"Deference is still an important principle," McConnell said. "But it was clearly eroded during ... the Bush administration."
Republican aides and senators said McConnell's speech, which echoes arguments he has made since November, is part of an effort to lay out a loosened standard for opposing judicial nominations. While Republicans cannot block Sotomayor, they are laying groundwork for future judicial fights.
Subscribers to CongressDaily can continue reading the story here.
Sen. John Thune, R-S.D., announced today that he will vote against Sonia Sotomayor's confirmation to the Supreme Court, becoming the seventh senator to do so.
"Her statements during the confirmation hearing before the Judiciary Committee do not always match the philosophies she has expressed prior to this hearing, such as her application of foreign law," Thune said in a statement released this evening.
Thune has been one of the more outspoken GOP senators throughout the nomination process, even going so far to launch a Web site tracking Sotomayor's confirmation. After meeting with her in late June, Thune said he had his concerns but was reserving judgment until after the hearings. In his statement today, he criticized her "narrow view" on the Second Amendment and what he sees as her tendency to inject personal feelings into judicial decision-making.
Thune is the ninth senator since the hearings ended Thursday to officially announce how he will vote. He joins Minority Leader Mitch McConnell, R-Ky., and Sen. Robert Bennett, R-Utah, who also announced their opposition. Other senators to officially say "no" so far are Jim Bunning of Kentucky, James Inhofe of Oklahoma, and Sam Brownback and Pat Roberts of Kansas.
Assuming that all Democrats line up to vote yes (none have said they will vote no), the three Republicans who announced Friday their intent to vote yes -- Mel Martinez of Florida, Olympia Snowe of Maine and Richard Lugar of Indiana -- have guaranteed at least 61 votes for Sotomayor (assuming that ailing Democratic Sens. Edward Kennedy of Massachusetts and Robert Byrd of West Virginia miss the vote). Two Judiciary Committee Democrats, Arlen Specter of Pennsylvania and Ben Cardin of Maryland, also released statements on Friday expressing their intent to vote yes.
Moderate Republican Sen. Susan Collins of Maine told reporters today that she will announce her vote tomorrow morning. She is expected to support Sotomayor, despite raising some concerns about the nominee's "wise Latina woman" remark after their meeting in early June.
Judiciary Chairman Patrick Leahy, D-Vt., has scheduled a committee vote for Tuesday morning, but ranking member Jeff Sessions, R-Ala., appearing on CNN Sunday, sounded confident that the GOP members would seek to delay it a week, which they are allowed to do under committee rules. "I think the July 28 date will be the day that we'll look to have that vote," Sessions told CNN's John King.
Perhaps the most remarkable exchange during the Senate Judiciary Committee's hearing came on Tuesday, when President Obama's nominee flatly repudiated his judicial philosophy.
This is all the more striking because it's a good bet that the Obama team knew it was coming. White House lawyers spent days prepping Judge Sonia Sotomayor for the hearings, and it was quite predictable that she would be asked about Obama's "empathy" criterion for choosing nominees.
Indeed, I wonder whether the Obama team itself may even have suggested to the nominee that rejecting the Obama philosophy -- as well as disavowing the apparent meaning of her years of "wise Latina woman" speeches -- would be the best way out of a tight spot, for reasons explained below.
Sotomayor's three days of "I just apply law to facts" testimony may evidence a tacit recognition by smart liberals such as Obama and Sotomayor that the American public is either too unsophisticated or too sensible -- take your pick -- to buy the undiluted liberal judicial philosophy that pervades her speeches, and his.
The predictable question came from Sen. Jon Kyl, R-Ariz., who asked whether Judge Sotomayor agreed with Obama's repeated assertions that "the critical ingredient in [hard] cases is supplied by what is in the judge's heart," including empathy for the powerless.
Sotomayor's stunning response: "No, sir. That's -- I don't -- I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is, judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law."
Wow. Has anyone ever before delivered such a sharp rebuff to the president who nominated her? And on national television, no less?
(White House press secretary Robert Gibbs later told reporters that "the president is not troubled" by his nominee's testimony.)
And has any Democratic nominee ever rejected so clearly the "living Constitution" vision championed by the liberal legal establishment -- while appearing to embrace the conservative dogma that judges must be strictly bound by the Constitution's text?
"Do you believe the Constitution is a living, breathing, evolving document?" asked Sen. Lindsey Graham, R-S.C.
Sotomayor's response: "The Constitution is a document that is immutable to the sense that it's lasted 200 years. The Constitution has not changed except by amendment. ... It doesn't live other than to be timeless by the expression of what it says. What changes is society."
This, and similar answers, caused understandable lamentation in the liberal legal establishment, some of it quoted by Jan Crawford Greenburg of ABC News in her perceptive "Legalities" blog.
What's going on here?
Continue reading Repudiating Obama's Judicial Philosophy.
• On CNN Sunday, "the two top members of the Senate Judiciary Committee hotly debated the undercurrent of ethnic/racial/identity politics that rippled through four days of the panel's confirmation hearings for Judge Sonia Sotomayor this past week," the New York Times reports. "And on NBC's 'Meet the Press,' Senate Minority Leader Mitch McConnell," R-Ky., "reiterated his opposition to the judge's confirmation to the Supreme Court."
• "Senate Judiciary Committee Chairman Pat Leahy accused Republicans Sunday of playing the race card on Supreme Court nominee Sonia Sotomayor," Politico reports. "'You have one leader of the Republican Party call her the equivalent of the head of the Ku Klux Klan. Another leader of the Republican Party called her a bigot,' the Vermont Democrat said on CNN's 'State of the Union.'"
• "A competent and cautious performance at her Senate Judiciary Committee hearing is positioning" Sotomayor "headed for virtually certain confirmation to the Supreme Court," CQ Politics reports.
• "At least three" Sotomayors "were portrayed before the Senate Judiciary Committee at its four-day confirmation hearing last week," the National Law Journal reports. "All three versions... are caricatures born of the political dynamics of modern-day confirmation hearings, which seem to require nominees to disavow all emotions and opinions."
• Roll Call (subscription) reports that Sen. Robert Bennett, R-Utah, became the first GOP senator to oppose her who voted in favor of her confirmation to the appellate bench in 1998. There are seven current Republican senators who voted "yea" at that time.
Continue reading Top Nomination News.
In recognition of the political theater that is a Supreme Court confirmation hearing -- on the part of nominee and senators alike -- NationalJournal.com asked more than a dozen legal experts to grade key players' performances this week in Hart 216. Most of the poll respondents attended the hearings and did some form of coverage, whether it was live-blogging, partisan tweeting or traditional news reporting.
The experts graded nominee Sonia Sotomayor and a handful of senators: Judiciary Chairman Patrick Leahy, D-Vt.; ranking member Jeff Sessions, R-Ala.; and committee members Al Franken, D-Minn., Lindsey Graham, R-S.C., and Arlen Specter, D-Pa. Who got the best reviews? The two newcomers, Sotomayor and Franken, who each got B averages. The committee's veterans, Leahy and Specter, scored the lowest, at C+. The two Republicans, Sessions and Graham, each got a B-.
Poll respondents were: Tony Mauro, National Law Journal reporter; Dahlia Lithwick, Slate senior editor; Tom Goldstein, founder of SCOTUSblog and Supreme Court litigator at Akin Gump; Curt Levey, executive director of the Committee for Justice; William Marshall, University of North Carolina law professor; Doug Kendall, founder and president of the Constitutional Accountability Center; Ellis Cose, Newsweek columnist; Leonard Leo, Federalist Society executive vice president; Cristina Rodriguez, New York University law professor; Carl Tobias, University of Richmond law professor; Wendy Long, general counsel for the Judicial Confirmation Network; Kristina Moore, who was covering the hearings for SCOTUSblog; and National Journal's own Stuart Taylor Jr. In order to encourage frank and open speculation, contributors were given anonymity.
After the jump, see some highlighted grades and responses.
Continue reading Making The Grade: Experts Evaluate Hearing Performances.
Updated at 2:11 p.m. on July 17.
Not 24 hours after Sonia Sotomayor left the hot seat in Hart 216, three Republican senators have announced their intent to vote for her confirmation. Assuming Democratic senators are uniformly lined up for the nominee, these Republicans' support guarantees 61 "yea" votes.
Republicans Mel Martinez of Florida, Olympia Snowe of Maine and Richard Lugar of Indiana announced today they support President Obama's first Supreme Court nominee.
Nonetheless, Minority Leader Mitch McConnell, R-Ky., today announced his opposition to Sotomayor, expressing concern that she wouldn't be bound by precedent on the high court. "She could act more freely on the kinds of views that animated her troubling and legally incorrect ruling in the Ricci [v. DeStefano] case," McConnell said in a statement dated for Monday. "That's not a chance I'm willing to take."
McConnell's opposition suggests a sizable block of Republicans will likely vote against Sotomayor (four have already announced their plans to: Jim Bunning of Kentucky, James Inhofe of Oklahoma, and Sam Brownback and Pat Roberts of Kansas).
There will likely not be any effort to delay, though. Senate Judiciary ranking member Jeff Sessions, R-Ala., said Thursday during the hearings that he would not lead or support a filibuster and is looking forward to a vote before the August recess.
CORRECTION: The original version of this report misstated when McConnell made his remarks.
From National Journal's July 18 issue:
As one who had hoped for a moderately liberal, intellectually honest nominee and feared the possibility of an unprincipled left-liberal ideologue steeped in identity politics, I am having trouble figuring out Judge Sonia Sotomayor.
Sen. Lindsey Graham, R-S.C., captured my own puzzlement when he told Sotomayor on Tuesday that although her 17-year judicial record struck him as "left-of-center but within the mainstream, you have these speeches that just blow me away.... Who are we getting here?"
Graham was talking mainly about a succession of at least five very similar speeches between 1994 and 2003 in which Sotomayor appeared to glorify ethnic and gender identity repeatedly at the expense of the judicial obligation to be impartial and suggested that "a wise Latina woman" would be a better judge than "a white male."
In response to questions such as Graham's, Sotomayor and her supporters have touted her judicial decisions as proof that she has been a solid, impartial judge.
They have a point. Sotomayor's more than 3,000 mostly unremarkable rulings have not been ultra-liberal, have not displayed any broad pattern of bias in race or gender cases, and have closely followed precedent. Ordinarily, a judge's record on the bench is the best guide to what she would do on the Supreme Court. She has also lived an admirable life.
But how persuasive were Sotomayor's efforts to explain away those jarring speeches? I juxtapose excerpts from a typical speech -- in October 2001, to an audience of Hispanic activists and others at the University of California (Berkeley) -- with portions of her testimony on Tuesday and Wednesday.
Continue reading the column here.
From National Journal's July 18 issue:
Republicans on the Senate Judiciary Committee knew going into the hearings on Sonia Sotomayor's nomination to the Supreme Court that they had a weak hand. Given their party's 60-40 disadvantage in the Senate, her confirmation has never been in much doubt -- unless she had a "complete meltdown," as Sen. Lindsey Graham, R-S.C., acknowledged on the first day of the hearings.
So, with the final outcome near-certain, the seven Republicans on the panel this week chose to emphasize the high stakes at issue in considering Supreme Court nominees, took potshots at President Obama for suggesting that judges must have "empathy" in grappling with difficult cases, and tried to reinforce public doubts, reflected in some polls, about what the GOP portrays as Sotomayor's out-of-the-mainstream views.
Even before the nominee was sworn in to testify on July 13, committee Republicans pledged to be respectful but, at the same time, to pull no punches. The obvious political reality is that they had to thread the needle by aggressively questioning Sotomayor to mollify their conservative base, while avoiding looking like bullies and further damaging their party's deteriorating position with Hispanics, the fastest-growing demographic group among voters.
"At the end of the day, Supreme Court nominations are what ring the bell for social conservatives," said Scott Reed, a Republican strategist who managed Bob Dole's 1996 presidential campaign. "Supreme Court nominations are for life; they are vitally important."... "That firefighters' issue is big," he said. "That hits every lunch-pail guy and woman in this country. It breaks the commonsense rule -- doesn't make common sense."
But Bill Greener, another veteran GOP strategist, worried before the hearings that if Republicans were perceived as attacking Sotomayor -- the first Latina nominated to the Supreme Court -- the party would face an even deeper hole among Hispanics, who voted 2-1 for Obama in last year's presidential race. "If the Republican Party achieves a level of weakness among Hispanics the equivalent to what exists among black voters," Greener said, "I just don't see how the numbers add up" to win a national election....
By midweek, Greener applauded the Judiciary Committee Republicans for their "very respectful and somewhat circumspect" approach and their willingness "to put on the table serious items, but to make certain it's done in a way that's respectful." Clearly, R-E-S-P-E-C-T was a well-circulated GOP talking point this week.
Subscribers to National Journal can continue reading the story here.
Amy Harder gets Stuart Taylor Jr.'s take on this week's hearings.
• Sonia Sotomayor's "path to becoming President Obama's first Supreme Court appointment was enhanced by a two-pronged strategy: During more than 15 hours of questions from members of the Senate Judiciary Committee, she revealed little about the type of justice she would be, declining to disclose her views on the most significant and polarizing legal matters working their way through the courts," the Washington Post reports. "In addition, she deflected critics' allegations that her public speeches showed a bias based on her sex and ethnicity, assuring the committee she is a moderate jurist and not a liberal judicial activist."
• "The two sides of" Sotomayor -- "a privately warm, smiling everywoman who likes baseball and eating out, and the serious, well-studied and steely jurist -- both held up under three days of questions from 19 senators," AP reports.
• "The final day of the judge's testimony did not go entirely smoothly," the Washington Times reports. "The National Rifle Association (NRA) came out strongly in opposition to her nomination, and the New Haven, Conn., firefighter who has become the public face of one of her most fiercely debated decisions testified before the panel."
• "Whether or not the cordial ending of three days of grilling will translate into more than a handful of Republican votes for Sotomayor is unclear," the National Law Journal reports. "But confirmation seems assured, as Republicans pledged not to filibuster her nomination and a committee vote is likely to come before the end of July."
Continue reading Top Nomination News.
The Senate Judiciary Committee wrapped up outside testimony in Sonia Sotomayor's confirmation hearings this evening, thus concluding the week's events.
Chairman Patrick Leahy, D-Vt., has scheduled a committee vote for Tuesday, but ranking member Jeff Sessions, R-Ala., along with other Republicans have signaled that they will seek a week-long delay, which they are allowed to do under committee rules. Nonetheless, Sessions said earlier today that he is looking forward to a full Senate vote before the August recess.
Check this blog tomorrow for a video Q&A with National Journal's Stuart Taylor Jr. discussing his take from the hearings.
Frank Ricci, Ben Vargas and Peter Kirsanow (Credit: Rick Bloom)
New Haven firefighter Frank Ricci took the stand this afternoon to speak out against Sonia Sotomayor's ruling in Ricci v. DeStefano, the case that bears his name. But he wouldn't go so far as to pin his misgivings on the nominee herself.
"Despite the important civil and constitutional claims we raised, the Court of Appeals disposed of our case in an unsigned, unpublished summary order that consisted of a single paragraph that mentioned my dyslexia and thus led to everybody to think that this case was about me and a disability claim. This case has nothing to do with that," Ricci said in his statement. Fellow firefighter and Ricci plaintiff Ben Vargas, who was also called as a witness by ranking member Jeff Sessions, R-Ala., was sitting beside him.
In response to a question by Sen. Arlen Specter, D-Pa., Ricci wouldn't speak out against the nominee herself. "Do you have any reason to think that Judge Sotomayor acted in anything other than good faith in trying to reach a fair decision in this case?" Specter asked Ricci.
"That's beyond my legal expertise," Ricci promptly responded. "I'm not a legal scholar." He went on to say that speaking before the committee this afternoon was "the first time we've gotten to testify about this story."
Both firefighters emphasized how much time and effort they put into passing the promotion test that was at issue in Ricci. The city of New Haven, Conn., decided to discard the results of the test because no black applicants qualified for promotions. The suit was brought by 17 white firefighters and one Hispanic firefighter -- Vargas -- who said they were discriminated against when the city threw out the tests.
In his statement, Vargas also disparaged Sotomayor's brief ruling in Ricci, which she joined as part of a three-person panel. "I expected Lady Justice with the blindfolds on and a reasoned opinion from a federal Court of appeals, telling me, my fellow plaintiffs and the public what that court's view on the law was and do it in an open and transparent way," Vargas said. "Instead, we were devastated to see a one-paragraph unpublished order summarily dismissing our case and indeed even the notion that we had presented important legal issues to that Court of Appeals."
Sen. Tom Coburn, R-Okla., made Sonia Sotomayor's confirmation hearings a local issue today.
"My constituents in Oklahoma understand, as do most Americans, that the right to own guns hangs in the balance," Coburn told the nominee in his second round of questioning, referring to Sotomayor's role in the appellate Second Amendment case Maloney v. Cuomo. "It may very well hang in the balance with your ascendancy to the Supreme Court. For us, one wrong vote on what we consider -- regardless of what you consider -- but what we consider a fundamental right could gut the holding of [District of Columbia v.] Heller."
Sotomayor concluded her response: "I can assure your constituents that I have a completely open mind on this question. I do not close my mind to the fact and the understanding that there were developments after the Supreme Court's rulings on incorporation that will apply to this question or be considered. I have a completely open mind."
Coburn, who is up for re-election in 2010, was similarly focused on core GOP issues -- most notably gun rights and abortion -- Wednesday, as well. Today, though, he went a step further by explicitly mentioning his constituents.
The National Rifle Association has been active in the days leading up to and during the confirmation hearings. "As the Senate considers the nomination of Judge Sonia Sotomayor, Americans have been watching to see whether this nominee -- if confirmed -- would respect the Second Amendment or side with those who have declared war on the rights of America's 80 million gun owners," NRA Executive Vice President Wayne LaPierre wrote in a statement posted on the organization's Web site Wednesday.
This statement follows the NRA's letter to the Senate Judiciary Committee last week expressing concern with the ruling of Sotomayor's 2nd Circuit panel in Maloney.
Conservative interest groups said before the hearings that red-state Democrats should be concerned with Sotomayor's ruling in Maloney. For their part, Democrats have maintained that Sotomayor and the panel were simply applying precedent the high court set in Heller.
In addition, Senate Judiciary Chairman Patrick Leahy, D-Vt., has highlighted the endorsement another gun rights group, the American Hunters and Shooters Association, has given to Sotomayor.
UPDATE: Sen. Orrin Hatch, R-Utah, said he expected Republicans will force a week delay on the Senate Judiciary Committee's confirmation vote, pushing it back to July 28. Hatch said voting this Tuesday would not give senators time to submit written questions.
Hatch, who has never voted against a Supreme Court nominee, said he was considering opposing Sotomayor. "I'm troubled," said Hatch, a former Judiciary chairman.
Updated at 3:00 p.m. on July 16.
Senate Judiciary Chairman Patrick Leahy, D-Vt., has scheduled a committee vote on Sonia Sotomayor's confirmation for Tuesday, he said during a recess of today's hearings.
According to committee rules, Republicans can move to delay the vote a week, which means the latest a committee vote could occur is July 28. Ranking member Jeff Sessions, R-Ala., was noncommittal on the date, but didn't explicitly say what Republicans were planning to do. He did make clear earlier today, though, that he wants a full Senate vote before Congress leaves for recess Aug. 7.
Sen. John Cornyn, R-Texas, asked Sonia Sotomayor this morning whether President Obama -- by getting elected in large part from private fundraising -- "can say with credibility that he's carrying out the mandate of a democratic society."
The question was asked in the context of campaign finance, specifically referring to a 1996 Suffolk University Law Review article in which Sotomayor raised concerns about the propriety of political contributions. At the time, she wrote:
Our system of election financing permits extensive private, including corporate, financing of candidates' campaigns raising again and again the question of whether -- of what the difference is between contributions and bribes and how legislators or other officials can operate objectively on behalf of the electorate.
Cornyn initially asked Sotomayor what she thinks that difference is. When she deflected the question, Cornyn rephrased it by mentioning the president.
She again dodged, saying, "That wasn't what I was talking about" in the article. Cornyn fired back: "What I'm getting at is, are you basically painting with such a broad brush when it comes to people's rights under the First Amendment to participate in the political process, either to volunteer their time, make in-kind contributions, make financial contributions? Do you consider that a form of bribery or in any way improper?"
Sotomayor simply replied: "No, sir."
Senate Majority Mitch McConnell, R-Ky., raised the same concern last week in remarks on the Senate floor. "The suggestion that such contributions are tantamount to bribery should offend anyone who's ever contributed to a political campaign -- including the millions of Americans who donated money in small and large amounts to the presidential campaign of the man who nominated Judge Sotomayor to the Supreme Court," McConnell said.
Some legal experts predicted gay marriage would be a hot topic during Sonia Sotomayor's confirmation hearings, considering the handful of states that have adopted laws allowing it in some form and the California Supreme Court's recent ruling against a challenge to its ban on gay marriage. But until today, only Sen. Charles Grassley, R-Iowa, had mentioned the issue at all.
This morning, Sen. Lindsey Graham, S-C., argued that the high court has become more instrumental in social issues, taking cases that decide "who should get married." He went on to say that "people now understand the role of the court in modern society when it comes to social change. That's why we fight so hard to put people on the court who see the world like us." But this was more an assertion than a question; the senator didn't ask Sotomayor specifically about marriage or the court's role in it.
Sen. John Cornyn, R-Texas, then brought up the issue during his questioning, but he stressed he did so only to address his concern about a speech in which he said Sotomayor implied that judges can make policy. "If the Supreme Court holds that there is a right to same-sex marriage, would that be interpreting the law or would that be making the law?" Cornyn asked.
The nominee, as could be expected, deflected the question. "I understand the seriousness of this question," Sotomayor conceded. "I understand the seriousness of same-sex marriage. It's being hotly debated, debated in various courts on the state level. This is the type of situation where even the characterizing of whatever the court may do one way or another suggests that I have prejudged an issue and that I come to that issue with my own personal thoughts."
Later, Grassley also repeated his question from yesterday about whether the Baker v. Nelson ruling prevented the federal government from overruling the states in marriage cases. Sotomayor again demurred, saying that the question was pending in the courts.
Senate Judiciary Committee ranking member Jeff Sessions, R-Ala., said this morning he is "looking forward" to voting on Sonia Sotomayor's confirmation before Congress recesses in August.
Prior to saying that, he emphasized that he "will not support a filibuster or any attempt to block" Sotomayor's nomination. Congress is scheduled to recess Aug. 7.
Sonia Sotomayor gave her definition of "identity politics" this morning in an exchange with Sen. Lindsey Graham, R-S.C. She then sought to distance herself from the term.
While the term is a perennial in the national political conversation -- and especially in the weeks since Sotomayor was nominated -- senators had not brought it up during the hearings until today.
Identity politics is "politics based simply on a person's characteristics, generally referred to either race or ethnicity or gender, religion." Sotomayor said. Do you embrace it? Graham asked. "I don't as a judge," she replied. "As a person, I do believe that certain groups have and should express their views on whatever social issues may be out there."
She emphasized, though, that as she understands identity politics, it's a term that's "usually denigrated. And that I don't believe in. Whatever a group advocates, obviously it advocates on behalf of its interests, but I would never endorse a group advocating something that's contrary to some basic Constitutional right as it's known at the time."
Sen. Lindsey Graham, R-S.C., went right up to the brink of saying he will vote for Sonia Sotomayor this morning. He has fired some of the most heated questions of the week at the nominee, but he is also the GOP senator who has come closest to signing on with her.
In a discussion with Sotomayor about Second Amendment rights and how they apply to the states, he said he believes that she will decide cases in a way that are contrary to her personal views.
"You are more acceptable as a judge and not an activist, because an activist would be chomping at the bit to take their view of life and impose it on the rest of us," Graham said. "You're broad-minded enough to understand that America is bigger than the Bronx, bigger than South Carolina."
To be sure, his last 20 minutes continued his tough questioning on what he sees as a discrepancy between Sotomayor's controversial speeches and what he called her "mainstream" 17-year judicial record. Still, he has also struck a continual tone of openness to the nominee's case, something he started on Monday.
In one of the frankest comments on the opening day, Graham remarked: "Now, unless you have a complete meltdown, you're going to get confirmed." He also hearkened back to the presidential election and his strong support of GOP nominee John McCain. He implied that, while he doesn't agree with Sotomayor's speeches, he may be inclined to defer to President Obama: "I don't know how I'm going to vote, but my inclination is that elections matter."
Sen. Jon Kyl, R-Ariz., sparred with Sonia Sotomayor this morning over her ruling in Ricci v. DeStefano. Democrats have continually said that Sotomayor was applying precedent in this case, so the Supreme Court's reversal shouldn't be a point against her. Kyl isn't so sure, though.
"Isn't it true that 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?" Kyl asked. "I don't know what the precedent would be in the 2nd Circuit."
After he pressed Sotomayor again and again to name a specific case, she finally repeated the precedent she has cited to senators in previous questions this week: the 2nd Circuit decision in Bushey v. New York State Civil Service.
In one sense, Kyl's questions today echoed his questions on Tuesday, when he chose to spend nearly a third of his time asking her whether or not as a Supreme Court justice she would recuse herself from the Second Amendment case Maloney v. Cuomo. Both times, Kyl focused on highly controversial rulings by Sotomayor but chose to delve into the legalistic aspects of those cases instead of their more contentious political aspects.
Sen. Dianne Feinstein, D-Calif., who followed Kyl, opened by defending Sotomayor. She emphasized that the high court's reversal in Ricci was a 5-4 vote, to illustrate the idea that the merits of the case were not as clear-cut as Republicans have portrayed it.
The Senate Judiciary Committee has divided the witness list for Sonia Sotomayor's hearings into five panels. What time they appear depends on how many questions they're asked by senators and how many senators show up, a spokeswoman said.
Among the high-profile figures: New Haven, Conn., firefighter Frank Ricci, New York City Mayor Michael Bloomberg and New York County District Attorney Robert Morgenthau in the second panel; former baseball star David Cone, former FBI Director Louis Freeh and former National Rifle Association President Sandy Froman in the third panel.
Read the full list after the jump.
Continue reading Judiciary Committee Breaks Down Witness List.
Lindsey Graham (Credit: Rick Bloom)
Sen. Lindsey Graham thinks Sonia Sotomayor has a "temperament" problem. The South Carolina Republican grilled the nominee Tuesday over complaints from attorneys who have appeared before her in 2nd Circuit cases, and he raised the issue again with reporters Wednesday.
During a recess Wednesday afternoon, NationalJournal.com's Amy Harder spoke with the senator about Sotomayor's temperament, and about charges that his questioning of the nominee on this issue had sexist undertones. Edited excerpts follow.
NJ: You've been one of the GOP senators to ask the toughest questions of Sotomayor. Yet you've also said you may very well vote for her. How do you reconcile those two?
Graham: What I have done is try to point out things that I think the public needs to know and she needs to answer, like her temperament.
NJ: Is that one of your main concerns?
Graham: Well, as something people who practiced in front of her had to say about her, that's different than anybody else on that Circuit.
NJ: How would you answer the charges that your questions on her temperament are sexist?
Graham: I think there are female judges on that court who didn't have those criticisms. I think it's unique to her. I think if a Republican president picked a female nominee who had those things said about her, in terms of her temperament, the Democrats would have every right to confront that person.
NJ: Do you think the same thing would happen with a male nominee?
Graham: Yeah, absolutely. How can you look at it and not say, 'Hey, wait, what's going on here?' There are women on the 2nd Circuit, there are men on the 2nd Circuit. She stands out like a sore thumb when it comes to temperament.
• Sonia Sotomayor "spent Wednesday fending off Republicans' efforts to pin down her views on abortion and gun ownership," the New York Times reports. "In pursuing this line of questioning, Republicans were addressing issues of particular concern to their party's conservative base."
• The National Law Journal also reports on senators' efforts to ask Sotomayor about abortion.
• "As she progressed through the third day of her confirmation hearings, with no sign of a major mishap so far that would derail her approval by a heavily Democratic Senate, Sotomayor relaxed -- yet took no chances," the Washington Post reports. "She joked openly with members of the Judiciary Committee while increasingly avoiding their questions."
• Politico lists five arguments Sotomayor "returned to again and again."
• AP defines some of the legalese that is coming up in her exchanges with senators.
• AP also compares what Sotomayor has said so far compared to what John Roberts and Samuel Alito said during their hearings.
• The Washington Post has excerpted key exchanges between senators and Sotomayor.
• "After three days of testimony, Judge Sotomayor appeared to have made no major mistakes that would jeopardize her confirmation in a Senate dominated by Democrats," the New York Times reports in an analysis. "So both sides are trying to use the Judiciary Committee hearings to define the parameters of an acceptable nomination in case another seat opens up during" Barack Obama's "presidency."
Continue reading Top Nomination News.
White House press secretary Robert Gibbs sought to explain Sonia Sotomayor's comment Tuesday in response to a question about judicial empathy that she "wouldn't approach the issue of judging the way the president does.... Judges can't rely on what's in their heart."
Sotomayor was responding to a question by Sen. Jon Kyl, R-Ariz., who asked her whether she agreed with the empathy standard President Obama has put forth.
"The president picked the person that he believed was the best possible nominee to fill a very important vacancy on the court," Gibbs said in Wednesday's White House press briefing. "I'm pretty sure that over in the White House residence there's not complete agreement on everything that's discussed."
When a reporter pressed him on exactly what those disagreements would be, Gibbs said, "I appreciate the opportunity to expand. But the president is not troubled."
Day four of Sonia Sotomayor's confirmation hearings bring with it 12 senators' second round of questioning -- at 20 minutes each -- and then the beginning of outside testimony. Senate Judiciary Chairman Patrick Leahy, D-Vt., and ranking member Jeff Sessions, R-Ala., have each requested more than a dozen witnesses, plus two representatives from the American Bar Association are set to testify. Click here for a list of the witness lists.
On Wednesday, we rounded up some of the best sources for minute-by-minute coverage and commentary.
In the third day of her confirmation hearing Wednesday, Sonia Sotomayor continued to evade efforts by senators from both parties to pin her down on the sensitive legal issues of the day, including abortion rights, gun control and campaign finance.
She used the traditional argument that she could not comment on cases that are or could be coming before the court when she refused to say whether the Second Amendment provided a "fundamental right" to gun ownership that precluded state restrictions.
Senate Judiciary ranking member Jeff Sessions, R-Ala., insisted that a ruling she helped write for the 2nd U.S. Circuit Court of Appeals held that the Second Amendment does not apply to the states and that gun ownership was not "a fundamental right."
"This is a big issue," said Sessions, who suggested she would have to recuse herself if the case came before the high court.
But Sotomayor said she had not "prejudged the case" and that she had not spoken to the question of "fundamental right."
She similarly avoided direct responses to questions whether the Roe v. Wade decision firmly established a woman's right to abortion, while noting that the court has found numerous times that the concept of privacy in the Constitution's equal justice clause applies to a woman's decision to terminate a pregnancy.
When pressed by Sen. Arlen Specter, D-Pa., Sotomayor refused to comment on different views from current Supreme Court justices on separation of powers, but said, "I have a 17-year record of showing my deference" to the authority of Congress.
Subscribers to CongressDaily can continue reading the story here.
Ranking member Jeff Sessions, R-Ala., took Sonia Sotomayor to task this afternoon over her role as a board member in LatinoJustice PRLDEF for 12 years starting in 1980. Republicans are concerned with memos and briefs the organization has signed onto that take positions on abortion, affirmative action and the death penalty.
During questioning on Tuesday by Sen. Lindsey Graham, R-S.C., Sotomayor emphasized that the main duty of PRLDEF board members was fundraising. "To the extent that we looked at the organization's legal work, it was to ensure it was consistent with the broad mission statement of the fund," she said.
"But clearly, board members are supposed to serve other functions," Sessions countered today. Sotomayor reiterated that the legal memos in question were a "moment in our 12-year history" and that, as she said yesterday, her focus had been on the broader goals of the group.
Sessions also revisited nearly all of the GOP's other main concerns, including the "wise Latina woman" remark, judicial activism and gun rights. The next Republican up for his second round of questions -- Sen. Orrin Hatch of Utah -- grilled Sotomayor on gun rights too, as well as the "empathy" question. Chairman Patrick Leahy, D-Vt., has emphasized that he doesn't want the same senators to ask the same questions, but not surprisingly, his colleagues across the aisle have not complied. All 19 committee members will receive another 20 minutes each to ask questions of the nominee, if they want it.
When asked by reporters during a recess about the timetable of the hearings and the repetitive questioning, Leahy said that he is a "very patient man. I have a six-year term. I'll stay here as long as they want."
Once the second round of questioning is complete, the committee will hear from outside witnesses, including more than a dozen called on by Sessions and Leahy, and two from the American Bar Association.
Republican concerns about speeches given by Sonia Sotomayor appear unlikely to keep the nominee from winning unanimous Democratic and some GOP support.
Senate Minority Whip Jon Kyl, R-Ariz., said before the hearing today that he did not believe all the Republicans would vote against her, and Sen. Lindsey Graham, R-S.C., has said he may back her.
"It's been going very well," Chairman Patrick Leahy, D-Vt., said during a break this afternoon.
Leahy wants to wrap up the second round of questioning this afternoon and is encouraging committee members not to use all allotted time. But questioning still looks likely to slip into Thursday morning. After that, Sotomayor will be dismissed and witness testimony will commence.
While pressing Sotomayor, GOP senators took steps to extend courtesies.
Sen. Tom Coburn, R-Okla., apologized to the nominee for anti-abortion protesters who have interrupted her testimony several times. "Anyone who values life as I do recognizes if you want to change someone's mind you don't yell at them," Coburn said.
Cornyn, chairman of the National Republican Senatorial Committee and someone who represents a state with a large Hispanic population, told Sotomayor she will not face a filibuster "if I have anything to say about it."
But that promise may have limited impact. Any senator can and probably will force a cloture vote on the confirmation once it reaches the floor, but Democrats and some Republicans seem almost sure to have the votes to end debate.
Subscribers to CongressDaily can continue reading the story here.
Newly minted Sen. Al Franken, D-Minn., likes the fictional defense lawyer Perry Mason just as much as Sonia Sotomayor does.
Franken opened up his questioning this afternoon with a reference to something Sotomayor said in her earlier exchange with the other Minnesota senator, Amy Klobuchar: that the popular 1950s and '60s TV series inspired her to become a prosecutor.
"I was a big fan of 'Perry Mason', too," Franken said. "It amazes me that you wanted to become a prosecutor based on that show, because in 'Perry Mason', the prosecutor lost every week." Sotomayor, along with the audience, got a good laugh. "That says something about your determination to defy the odds," Franken added.
Discussing a TV series in his first Judiciary Committee hearing may not have been the best way for the former "Saturday Night Live" star to distance himself from his previous career, but after this brief exchange, Franken touched on several noteworthy issues not yet discussed in the hearings. He asked the nominee about net neutrality, the Supreme Court's role in regulating Internet service providers, and the Voting Rights Act.
He also asked Sotomayor how she would define "judicial activism." She replied, "I don't use that term because I don't describe the work that judges do in that way. I assume the good faith of judges in their approach to the law come in good faith to an outcome that we believe is directed by the law."
Continue reading Franken On Judicial Activism And 'Perry Mason'.
Republicans Tom Coburn of Oklahoma and John Cornyn of Texas (Credit: Mark Wilson/Getty Images)
Republicans are zeroing in on Sonia Sotomayor's past speeches, expressing concern that they reveal how a Justice Sotomayor would rule once unrestrained by any higher court.
"We're trying to reconcile the Sonia Sotomayor that we've come to learn about in her speeches and that approach in judging and compare that with what we know about her judicial record," Sen. John Cornyn told reporters during a morning recess today. "And we're left with a lot of questions."
"As a district judge and a Court of Appeals judge, all of her decisions have been reviewed by the Supreme Court," the Texas Republican continued. "Whereas as a member of the Supreme Court she would have no one review her decisions and she would be free to do basically whatever she wants. And if that means she would embrace some of the policies and approaches she has in her speeches, that would be very troubling indeed."
Cornyn's concerns echo those raised by South Carolina Republican Lindsey Graham in his relentless questioning of Sotomayor on Tuesday. While he acknowledged that her 17-year record on the federal bench is impressive and "within the mainstream," he then said -- referring to her address that included the now-famous "wise Latina woman" remark -- that she has "speeches that just blow me away."
"Don't become a speechwriter if this law thing doesn't work out," Graham quipped to the nominee.
Democrats, for their part, are focusing on Sotomayor as a "mainstream judge," as Judiciary Chairman Patrick Leahy, D-Vt., described her to reporters when the hearings recessed for lunch. Legal experts coming from both the right and left have said it's hard to predict how a judge will rule once he or she is on the court, as evidenced by former Justice David Souter's leftward drift after his appointment by President George H.W. Bush. It's just that unpredictability -- coupled with Sotomayor's speeches -- that worries conservatives.
Conservative interest group leaders have been making a similar case for weeks. Wendy Long, general counsel at the Judicial Confirmation Network, said the hearings only make her more worried. In a statement recapping Day Two, Long said that Tuesday's story should be called the "Two Faces of Sonia Sotomayor."
"The first face is the one we know from three decades of her life as a lawyer and judge," Long said. "The second face is like a mask she donned today, and can only be chalked up to a 'confirmation conversion': She is saying things today that are irreconcilable with what she's said for the last 30 years."
In the first significant mention of the economy in the confirmation hearings so far, Sonia Sotomayor said she would not answer a question on whether Congress has the constitutional authority to regulate financial markets.
"You've just raised the very first question that will come up when Congress passes an act," Sotomayor replied to the questioning senator, Ted Kaufman, D-Del. "Because I can assure you, knowing every time Congress passes an act, there's a challenge by somebody."
She dodged the question, though: "As soon as it's applied to someone and in a way that they don't like, they're going to come into court. So I -- I can't answer that question."
When Kaufman pressed her again -- albeit in a slightly more general way -- she said, "Congress has certain constitutional powers. One of them is to pass laws affecting interstate commerce."
Various Republican senators and allied commentators have suggested that Judge Sonia Sotomayor's "wise Latina" statements are passive assertions of racial or ethnic bias. But there's a simpler explanation: Sotomayor may simply have been rallying female, Latino and African-American lawyers to her cause.
"I was trying to inspire," she told senators about the speeches, in which she sometimes pointed to herself as a model for breaking through barriers.
In her long climb up toward the Supreme Court, Sotomayor routinely tailored her stump speeches for each audience. For example, in 1998, when she took her seat on the 2nd Circuit Court of Appeals, she pitched her speech at two very different audiences. For her supporters in the courtroom, she declared that "hundreds of lawyers, many of whom are in this room today, not only sent letters but called upon their personal contacts to assist in my confirmation process.... The outpouring of affection and support I received from the legal, women's and Hispanic communities in New York, Puerto Rico and nationally has been, quite frankly, overwhelming. Without this combined effort, this day would never have happened."
But for her judicial peers in the courtroom, she emphasized the example set by her hard-working mother. "To this day, I can remember how devoted she was to getting her [nursing] degree. My Mom was like no student I knew. She got home from school or work and literally immersed herself in her studies, working until midnight or beyond, only to get up again before all of us. She was a straight-A student who took the nursing test and passed all five parts on her very first try. With an example like that, none of you have to wonder why my brother and I had no choice but to do well in school."
Continue reading On The Stump With Candidate Sotomayor.
The final two Republican senators in the first round of questioning for Sonia Sotomayor -- John Cornyn of Texas and Tom Coburn of Oklahoma -- have focused a good portion of their time on a topic that has largely been considered a non-issue in these confirmation hearings: abortion.
Coburn, who wrapped up the Republican side of the Judiciary Committee's questioning this morning, asked Sotomayor what she believes to be settled law on abortion. Sotomayor replied that the Supreme Court's ruling in Planned Parenthood v. Casey has "reaffirmed the core holding of Roe v. Wade that a woman has a constitutional right to terminate her pregnancy in certain circumstances."
Cornyn, the first questioner today, probed Sotomayor about her "scant record" on abortion and asked her if there was any reason the White House moved to reassure abortion rights groups that there was no need to worry about her record on the issue. "You just have to look at my record to know that, in the cases that I addressed on all issues, I follow the law," she said.
Anti-abortion sentiment has been present around the fringe of the hearings -- evidenced by signs and banners outside the Hart Office Building and the five protesters who have been escorted out of Hart 216. Coburn's and Cornyn's focus on the issue could be a sign they're focusing more on appeasing the GOP base than scrutinizing Sotomayor's judicial record. In fact, in opening up his questioning, Coburn said: "A lot of Americans are watching this hearing. I want to use words that the American people can truly understand."
A few minutes later when probing Sotomayor about her ruling in the Second Amendment case Maloney v. Cuomo, Coburn also looked beyond the beltway. He argued that her ruling in Maloney and the Supreme Court's ruling in D.C. v. Heller deny Oklahomans a fundamental right to bear arms. Sotomayor reiterated that in Maloney, she was simply following the precedent set by Heller, which was that the Second Amendment protects an individual's right to bear arms. The Heller decision fell short of addressing whether that is a right incorporated to the state, though, which was what generated Coburn's persistent questioning on the issue.
The lights briefly dimmed and the air conditioning in Hart 216 went off while Sonia Sotomayor was answering a question by Sen. Amy Klobuchar, D-Minn.
"I have certain powers as chairman, but not that kind of power," quipped Senate Judiciary Chairman Patrick Leahy, D-Vt.
With the air conditioning temporarily off, a sense of relief swept through media types, Senate staffers and others who have been here since Monday. Complaints about the cold temperature in the room have been common among regular attendees of the confirmation hearings.
Once Klobuchar completed her questioning, Leahy addressed the lack of air conditioning. "I'm sure it's welcome news for some of the press up in the sky boxes," Leahy acknowledged, "but it's not welcome news here with the crowd going on." He said it would be fixed as soon as possible.
Sonia Sotomayor insisted today that the White House -- including President Obama himself -- has never asked her about her views on abortion, or any other issue.
In the first interview round on Day Three of Sotomayor's Senate confirmation hearings, Texas Republican John Cornyn then asked the nominee if there was any reason the White House moved to reassure abortion rights groups that there was no need to worry about her record. "You just have to look at my record to know that, in the cases that I addressed on all issues, I follow the law," she responded.
Cornyn then brought up the law firm Pavia & Harcourt, where she worked from 1984 until 1992, when she left to become a federal trial judge. The firm's partner, George Pavia, said he "guaranteed she was for abortion rights. On what basis did he say this?" Cornyn asked Sotomayor.
She replied that she "never spoke to him about my views on any social issue." She then briefly mentioned her ruling in a case where she denied a claim in 2002 brought by a reproductive rights group challenging the constitutionality of the so-called Mexico City policy, which bans U.S. aid to organizations that perform or promote abortions abroad. While only barely touching on it, she has been the first to mention this case -- one of the few she's decided that deals with abortion -- since questioning started Tuesday morning.
Regarding Pavia's comment, Sotomayor said, "He's a corporate litigator, and my experience with corporate litigators is they only look at the law when it affects the case before them."
New Haven, Conn., firefighters file into Hart 216 as Supreme Court nominee Sonia Sotomayor (right) greets well-wishers Wednesday. (Karen Bleier/Agence France-Presse/Getty Images)
Updated 8:30 p.m., July 15
Roughly a dozen New Haven, Conn., firefighters filed into Hart 216 this morning for the third day of Sonia Sotomayor's confirmation hearing. Frank Ricci is among the firefighters in attendance, but he is not sitting with the rest; he is standing near a TV on the side of the room.
Ricci, the lead plaintiff in the discrimination case that has fueled much of the debate over Sotomayor, has been called upon as a witness by ranking member Jeff Sessions, R-Ala. Ben Vargas, another firefighter from New Haven, is also scheduled to testify. The Judiciary Committee will begin questioning outside witnesses -- 15 for Chairman Patrick Leahy, D-Vt., and 14 for Sessions -- on Thursday.
Nearly every senator who has questioned Sotomayor so far -- all but Tom Coburn, R-Okla. -- has probed her about the Ricci v. DeStefano case (though it has received less attention than her "wise Latina woman" remark). Sotomayor hasn't elaborated much beyond her participation on the three-judge panel ruling that reaffirmed (in a one-paragraph opinion) a lower court's ruling. She, along with the Democratic members of the committee, have emphasized that she is simply following precedent. In his questioning this morning, Texas Republican John Cornyn -- like Sessions on Tuesday -- touched on how short the panel opinion was.
CORRECTION: The original version of this report incorrectly reported that Sotomayor shook hands with the New Haven firefighters. She shook hands with several members of the armed services.
• "Sonia Sotomayor sought" Tuesday "to reframe critics' portrayal of her as a judge swayed by her gender and ethnicity," the Washington Post reports. "On the second day of her confirmation hearings, she stressed the primacy of legal precedents and distanced herself from her most controversial public remark, saying her line that a 'wise Latina' judge might reach better decisions than a white man was 'a rhetorical flourish that fell flat.'"
• "During eight hours of questioning," Sotomayor "offered views on a range of issues, ranging from support for a right of privacy under the Constitution to 'positive experiences' with cameras in her own court, the U.S. Court of Appeals for the 2nd Circuit," the National Law Journal reports.
• Republicans "say they plan to keep up their questioning of Sotomayor's true feelings on the role of ethnicity and gender in the law at" today's "hearing -- and edged right up to the line of saying that Sotomayor was being dishonest in her answers," Politico reports.
• "For all of the buildup, the second day of her confirmation hearings produced few of the anticipated fireworks as senators moved from opening statements to questions and answers," the New York Times reports. "At times, it had more the feel of a law school seminar about statutes of limitation and strict scrutiny standards."
• "Judge Sotomayor approached the" hearings "as a seasoned advocate," the Times also reports, in an analysis. "She struck a tone of attentive deference, avoided needless argument, said no more than she needed to prevail, stuck almost entirely to uncontroversial points and avoided antagonizing her questioners."
• The Blog of Legal Times has a roundup of photos from Day Two.
• The Washington Post has key excerpts from various exchanges Tuesday.
Continue reading Top Nomination News.
Sen. John Cornyn, R-Texas, will start off day three of Sonia Sotomayor's confirmation hearing.
Eight senators, including Cornyn, are still left to go in the first round of questioning, during which each lawmaker receives 30 minutes. Oklahoma's Tom Coburn is the only other Republican remaining, along with Democrats Benjamin Cardin of Maryland, Sheldon Whitehouse of Rhode Island, Amy Klobuchar of Minnesota, Ted Kaufman of Delaware, Arlen Specter of Pennsylvania and Al Franken of Minnesota.
Specter and Franken should be particularly interesting to watch considering the former's recent party switch and the latter's scant time as a senator.
As is customary in Supreme Court confirmation hearings, the Senate Judiciary Committee will break for a brief closed session to discuss with Sotomayor her FBI check. The open hearings will resume after that, when senators will get a second round of questions, this time for 20 minutes each.
We've rounded up some minute-by-minute coverage and commentary:
• C-SPAN is live-streaming the hearings and providing constant live TV coverage.
• The New York Times is live-blogging the hearings at its Caucus blog.
• ABC News is offering live video coverage and periodic commentary by legal correspondent Jan Crawford Greenburg on the blog Legalities.
• PBS is covering the hearings live and also providing streaming video. National Law Journal's Marcia Coyle will provide legal analysis.
• The Washington Post has live video coverage and commentary from its correspondents.
• SCOTUSblog is live-blogging.
• The Federalist Society is hosting an ongoing debate this week among prominent legal experts, including Tom Goldstein, founder of SCOTUSblog and Supreme Court litigator at Akin Gump, and Wendy Long, general counsel of the Judicial Confirmation Network.
• The American Constitution Society is hosting an online symposium of legal experts and law professors about the hearings.
Following the path of other recent Supreme Court nominees, Sonia Sotomayor dropped into a defensive crouch Tuesday afternoon, declining to offer her views on most legal issues raised by Senate Judiciary Committee members.
She sidestepped philosophical questions by citing pending court cases that come before the Supreme Court and avoiding the policy implications of her rulings by discussing only the limited legal questions she weighed and saying broader questions belonged to Congress.
"It is frustrating, I know for you and probably the other senators, when a nominee for the court doesn't engage directly with the societal issues that are so important to you," Sotomayor told Sen. Richard Durbin, D-Ill., when he asked her views on the disparity between crack and powder cocaine sentences.
Subscribers to CongressDaily can continue reading the story here.
Sen. Lindsey Graham, R-S.C., fired off the toughest set of questions by any senator yet today, grilling Sonia Sotomayor on judicial philosophy, her temperament on the bench, abortion, the "wise Latina woman" comment, military law and her involvement with LatinoJustice PRLDEF -- a contentious issue not brought up in questioning until now. He cut her off time and again, switching from one topic to another quickly, while simultaneously appearing at ease, resting his head on his propped-up elbow.
Graham asked her if she was aware of a PRLDEF legal brief that supported taxpayer-funded abortions. "No," she replied. "I never reviewed those briefs." She went on to say that, as a board member, she didn't participate directly in the legal activities of the committee. The main duty of the group's board members is fundraising, she said. "To the extent that we looked at the organization's legal work," she added, "it was to ensure it was consistent with the broad mission statement of the fund."
Graham then asked her if that mission statement includes support for taxpayer-funded abortion. "Our mission statement was broad, like the Constitution," Sotomayor replied, almost with a chuckle. She was hearkening back to a comment she made earlier in her exchange with Graham, when she said that while the Constitution doesn't explicitly address abortion, it "does have a broad provision concerning a liberty provision..." Graham had interrupted her at that point to assert that it was this interpretation of the Constitution, coupled with the "wise Latina woman" remark, that he and other Republicans find troubling. "That's what drives us here, quite frankly. That's my concern," the senator said.
Graham also expressed concern about Sotomayor's judicial temperament. He rattled off several negative anonymous comments that attorneys have made about her, according to the Almanac Of The Federal Judiciary: "terror on the bench," "not very judicial," "does not have a very good temperament."
Among the judges on the 2nd Circuit, "you stand out like a sore thumb in terms of your temperament," Graham said.
Sotomayor acknowledged that she does ask tough questions in oral arguments, but that she isn't the only judge to do so. "Do you think you have a temperament problem?" Graham asked. "No sir," Sotomayor answered. "I believe that my reputation is such that I ask hard questions, but I do it evenly on both sides."
Sen. Jon Kyl, R-Ariz., spent the first eight minutes of his 30-minute window questioning Sonia Sotomayor about whether or not she would recuse herself from three gun rights cases, including Maloney v. Cuomo, that the Supreme Court may agree to hear next term.
While her confirmation may still not be set in stone, a Republican spending this much time on a matter that would only happen if she is confirmed does solidify the notion just a bit more. Kyl was one of the GOP senators many legal experts predicted would focus on Sotomayor's position on gun rights. And he did, but he chose to focus on procedural matters.
Next term, the high court may hear Maloney, which Sotomayor decided as part of a three-judge panel on the 2nd Circuit, and two similar cases from the 7th and 9th Circuits that touch on the issue of whether the Second Amendment applies to the states. Kyl wanted to know whether Sotomayor would recuse herself if the high court chose to take up all three cases at once.
"I hadn't responded to that question [before], and you're right for posing it," Sotomayor told Kyl. She went on to say that the issue of recusal is always up to the individual judge or justice, but that she would recuse herself "on any case involving Maloney."
She stopped short of saying, though, when pressed further by Kyl, that she would recuse herself if the high court chose to address this issue by taking up any one or two of these three related cases.
"It's hard to speak about recusal in the abstract because there are so many different questions one has to look at," Sotomayor said. "I appreciate that," Kyl responded. "You shouldn't commit yourself to a particular decision in a case."
Senate Judiciary ranking member Jeff Sessions, R-Ala., pressed Sonia Sotomayor about speeches in which she questioned judges' ability to be fully objective. In 1999, she called impartiality "an aspiration rather than a description" and said "our experiences as women will in some way affect our decisions."
Sotomayor stopped short of those claims today, saying personal views have never affected her decisions and repeatedly saying her "record of 17 years" on the bench shows faithfulness to the law.
While leaving room for judges' experience to affect the evaluation of arguments, Sotomayor said recognition of bias is necessary to overcome it. "We have to recognize those feelings and put them aside," she said.
Subscribers to CongressDaily can continue reading the story here.
Sonia Sotomayor said this afternoon that she doesn't agree with the analysis of judicial decision-making laid out by then-Sen. Barack Obama in opposing the nomination of John Roberts as chief justice in 2005.
At the time, Obama said that "what matters on the Supreme Court is" the "5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."
But today, in response to a question by Sen. Jon Kyl, R-Ariz., Sotomayor said that she "wouldn't approach the issue of judging the way the president does," adding, "It's not the heart that compels conclusion in cases, it's the law."
A young man was escorted out of Hart 216 shortly after the lunch break today, becoming the fifth anti-abortion protester this week to be removed from Sonia Sotomayor's confirmation hearings. The man's outburst interrupted Sen. Charles Grassley's questioning of the nominee.
The protester, who managed to stay in the room several seconds longer than the four people removed on Monday, yelled "filibuster Sotomayor." Unlike the earlier protesters, who stuck to straight abortion comments, this man connected the issue to Republicans. "The GOP will lose the pro-life vote! The GOP is done!" he yelled.
Once the man was ushered out and Senate Judiciary Chairman Patrick Leahy, D-Vt., requested Grassley resume his questioning, the Iowa Republican quipped: "People always say that I have the ability to turn people on." The audience erupted in laughter.
The morning was absent any similar outburst. In fact, abortion has yet to be mentioned by name with five senators having completed their 30-minute back-and-forth. But during questioning by Sen. Herb Kohl, D-Wisc., Sotomayor did touch on the issue of whether the Constitution provides a right to privacy, the backbone of Roe v. Wade. When Kohl asked her if Roe is settled law, Sotomayor replied that Planned Parenthood v. Casey "reaffirmed the holding in Roe. That is the Supreme Court's settled interpretation of what the core holding is." She didn't elaborate beyond that.
While acknowledging little chance of blocking Sonia Sotomayor's confirmation, Senate Republicans, led by Minority Leader Mitch McConnell of Kentucky, are pulling few punches in questioning Sotomayor's qualifications in a coordinated effort aimed at their conservative base and future nomination fights, aides said.
McConnell, who is not on the Judiciary Committee, has opened something like a second front against Sotomayor on the Senate floor and in news releases, taking up the issue with the persistence and focus he has used in opposing a public option in health care reform and the proposed closure of the detainee facility at Guantanamo Bay, Cuba.
In nine floor speeches since June 23, McConnell has questioned the role of Sotomayor's personal views in her decisions, particularly in a ruling recently overturned by the Supreme Court where she upheld a New Haven, Conn., decision not to promote 18 firefighters after no black applicants scored high enough to qualify on a job test. On Monday, McConnell said the New Haven case and others "strongly suggest a pattern of unequal treatment in Judge Sotomayor's judicial record, particularly in high-profile cases."
The Senate Republican Communications Center, overseen by McConnell, also today sent seven e-mails as part of what aides said will be a hearing-long "rapid-response" effort aimed at making confirmation "a tough vote for moderates."
For more than three hours on Monday, at the outset of the Sonia Sotomayor confirmation hearing, the Senate Judiciary Committee's 19 members talked. And they talked. There were no surprises, and many a reporter found it to be a boring prelude to the questioning of the nominee on Tuesday and Wednesday.
But a few of us Supreme Court geeks found it all pretty interesting, if undramatic. I quote below, and add brief comments about, some of the more notable remarks by 10 of the 19 committee members -- first five Democrats, then five Republicans.
Sen. Patrick Leahy, D-Vt.: "Those who break barriers often face the added burden of overcoming prejudice, and it's been true in the Supreme Court. Thurgood Marshall graduated first in his law school class. He was the lead counsel for the NAACP Legal Defense Fund.... He won a remarkable 29 out of 32 cases before the Supreme Court. But despite all of these qualifications and achievements, when he was before the Senate for his confirmation, he was asked questions designed to embarrass him, questions such as 'Are you prejudiced against the white people of the South?'... The confirmation of Justice Louis Brandeis, the first Jewish American to be nominated to the high court, was a struggle rife with anti-Semitism.... Let no one demean this extraordinary woman."
Comment: These allusions to the "prejudice" that Marshall and Brandeis encountered were a stretch. There is no public evidence that Sotomayor has ever been subjected to serious prejudice or discrimination. Far from demeaning her, Republican senators have celebrated her inspiring personal story and the idea of a Hispanic woman sitting on the Supreme Court. And it is Sotomayor, not her critics, who has engaged in stereotyping by suggesting repeatedly that a "wise Latina woman" would make better decisions than a white male.
Sen. Dianne Feinstein, D-Calif.: "Several past nominees have been asked about the Casey decision, where the court held that the government cannot restrict access to abortions that are medically necessary to preserve a woman's health. Some nominees responded by assuring that Roe and Casey were precedents of the court, entitled to great respect.... But once on the court, the same nominees voted to overturn the key holding in Casey, that laws restricting a woman's medical care must contain an exception to protect her health. Their decision did not comport with the answers they gave here.... As a matter of fact, in just two years, these same nominees have either disregarded or overturned precedent in at least eight other cases."
Comment: Feinstein initiated what became a major Democratic theme: attacking Chief Justice John Roberts, Justice Samuel Alito, and the court's other conservatives. The theory seems to be that the best defense of Sotomayor includes a good offense against the conservatives. But in fairness to Roberts and Alito, both took care to avoid giving in to demands by Democratic senators that they vow never to overturn Planned Parenthood v. Casey. And liberal justices are no less prone than conservatives to overturning precedents they don't like.
Continue reading Senatorial Speeches: Points Of Contention.
Sen. Orrin Hatch, R-Utah, used the last few minutes of his allocated half-hour of questioning this morning to take a second jab at the left-leaning People for the American Way for its comments on Frank Ricci.
PFAW sent an e-mail on Friday claiming that the lead plaintiff in the Ricci v. DeStefano case (he's also a key GOP witness this week), has a "litigious" history that suggests he has continually sued claiming employment discrimination.
"There is this rumor that the People for the American Way, this organization has been smearing Frank Ricci. He is only one of 20 plaintiffs in this case," Hatch said. "I hope that's not true. And I know you have nothing to do with that. And don't think I'm trying to make this a point against you. That's the type of stuff that doesn't belong in Supreme Court hearings. And I know you would agree."
Sotomayor responded adamantly: "Absolutely. I would never endorse or approve or tolerate that kind of conduct." Hatch answered, "I appreciate that."
Hatch initially raised this concern in his opening remarks on Monday.
PFAW Executive Vice President Marge Baker responded to Hatch's remark in a statement to this blog: "With all due respect, I don't understand how pointing out that an individual used civil rights laws to protect their own interests is a smear. It's time to get past this distraction and have an honest discussion about the importance of anti-discrimination laws for all people."
Sonia Sotomayor said she would offer a "new voice to the discussion" of whether or not cameras should be allowed in the Supreme Court. "New voices often see new things and consider taking new approaches," she said.
She fell short of explicitly supporting the idea, but her response to a question by Sen. Herb Kohl, D-Wisc., suggests she may be open to it. Sen. Arlen Specter, D-Pa., was the first to bring this issue up Monday.
"I have had positive experiences with cameras," Sotomayor said to Kohl. The Second Circuit has had cameras in its courtroom for quite some time. "When I have been asked to join experiments using cameras in the courtrooms, I have participated. I have volunteered," she added.
The first question Sonia Sotomayor deflected outright wasn't by a Republican senator, but by Herb Kohl, D-Wisc., the second most senior Democratic Judiciary member.
When Kohl asked Sotomayor which sitting Supreme Court judge she most admires and would most likely agree with if confirmed, Sotomayor gave a hesitant smile. Answering this question "would put me in the position that by picking one justice I was disagreeing or criticizing another," Sotomayor said. "And I don't wish to do that."
She did, however, offer a name she admires among former justices: Benjamin Cardozo, who was on the high court from 1932 until his death six years later. Sotomayor said she admires Cardozo for his diligence in applying precedent, something that she says is the backbone of her judicial decision-making as well.
Kohl's questions about property rights -- specifically the Supreme Court's ruling in the eminent domain case, Kelo v. City of New London -- were also dismissed by Sotomayor. Kohl asked her about how she would have ruled in that case, and she simply replied: "I don't prejudge cases." In what was a friendly exchange of questions and non-answers, Kohl said: "That's good. Let's leave it at that."
Answering probing questions by ranking member Jeff Sessions, R-Ala., Sonia Sotomayor said her "wise Latina woman" remark was "bad."
She explained that she was trying to "play" on the words of retired Justice Sandra Day O'Connor, referencing an axiom that "a wise old woman and a wise old man" would reach the same conclusions in a given case.
"I was trying to play on her words. My play fell flat," Sotomayor said. "It was bad. It left an impression that I believed that life experiences commanded a result in a case. But that's clearly not what I do as a judge. It's not what I intended."
Sonia Sotomayor may be the one facing questions this morning about Ricci v. DeStefano, but liberal groups supporting her have made sure others involved in that case also come under scrutiny this week.
People for the American Way sent out an e-mail Friday claiming that Frank Ricci -- the lead plaintiff in the case and a key witness of Senate Judiciary ranking member Jeff Sessions, R-Ala. -- has a "troubled and litigious work history." A string of lawsuits brought on his behalf suggest he has continually sued claiming employment discrimination, the group claimed.
In an interview Monday outside of Hart 216, Marge Baker, the organization's executive vice president, said her group has "simply pointed out the fact that Frank Ricci, on his own behalf, has used employment discrimination laws to help him."
Sen. Orrin Hatch, R-Utah, doesn't see it that way. Speaking Monday during the hearings, he expressed concern that a "smear campaign" is forming against Ricci. "If that is true, and I hope it is not, it is beneath both contempt and the dignity that this process demands," he said.
Ricci is set to testify either Thursday or Friday, when the Judiciary Committee concludes its questioning of Sotomayor and begins with the outside witnesses Chairman Patrick Leahy, D-Vt., and Sessions have called upon.
Baker said she doesn't think Ricci's litigation history should be the focal point of his testimony. Instead, she said, she wants a more frank discussion about the case that bears his name. "The hope is that we get away from these labels, this notion, buzzwords like 'reverse discrimination' and focus on what employment discrimination laws that are at the heart of the Ricci case."
Senate Judiciary Chairman Patrick Leahy, D-Vt., put all the criticism of Sonia Sotomayor on the table as hearings began today. After briefly talking about Sotomayor's record on criminal cases, Leahy pre-emptively asked her about many of his GOP colleagues' concerns, including the "wise Latina woman" remark, Ricci v. DeStefano and the gun rights case Maloney v. Cuomo.
After Leahy gave Sotomayor the floor to respond to critics of the "wise Latina" comment -- including the earlier charges of racism by the likes of Rush Limbaugh and Newt Gingrich -- Sotomayor smiled. The audience took in a collective breath, anticipating her response that has been building for the last several weeks.
"Thank you for giving me an opportunity to explain my remarks," Sotomayor said. "No words have I ever spoken or written ever received so much attention."
She said the comment was meant as an encouragement to audiences of women lawyers and young Latino and Latina lawyers. "I was trying to inspire them that different life experiences and backgrounds would enrich the legal system, because different backgrounds always do."
"I want to give everyone assurances," she added. "I want to state up front unequivocally and without doubt: I do not believe that any ethnic, racial or gender group has an advantage in sound judging."
Leahy disparaged the critics who have called Sotomayor racist and maintained that she was simply applying precedent in Ricci and Maloney. Sotomayor didn't elaborate much beyond that on the two cases.
She did, however, go out of her way to demonstrate respect for gun owners when Leahy mentioned Maloney. "I understand how important the right to bear arms is to many, many Americans," Sotomayor said. "In fact, one of my godchildren is a member of the NRA, and I have friends who hunt." Ranking member Jeff Sessions, R-Ala., has urged the National Rifle Association to mobilize during the hearings.
• "Answering criticisms that her heritage and gender will influence her judging, Supreme Court nominee Sonia Sotomayor told the Senate Judiciary Committee on Monday that her judicial philosophy is 'simple: fidelity to the law,'" the National Law Journal reports. "She spoke on the first day of a historic confirmation hearing that is likely to result in her becoming the first Hispanic justice -- and third woman -- on the nation's highest court."
• "Democrats portrayed Sotomayor as a role model 'for all Americans,' a seasoned jurist with a modest and restrained approach who, if anything, might balance a court that has swung too far to the right," the Washington Post reports. "Republicans sought to cast doubt on Sotomayor's impartiality, saying her statements and rulings have forecast the activist approach she would take when freed of having to follow precedent."
• "Republican senators, who are outnumbered 12-7 on the committee, focused much of their opening statements on Judge Sotomayor's remarks that a 'wise Latina woman' would make better judgments than a 'white male,' saying they could not vote for a nominee who could not be impartial on the bench," the Washington Times reports.
• Today's "hearing is shaping up as more legal seminar than showdown," Politico reports. "Nothing has emerged that's likely to derail a future Madam Justice Sotomayor, and no one seriously expects anything to in this week's hearings, either."
• Republicans "must tread carefully, balancing their desire to use the hearings to frame a debate over legal philosophies that their constituents want to see with their concern that they do nothing to show insensitivity or disrespect toward the fastest-growing minority group in the country," the Washington Post reports.
• "The session also quickly became a proxy for a larger struggle over the court," the New York Times reports. "At times, it seemed the hearing was devoted more to refighting past battles and setting the stage for future ones, a recognition that barring an unforeseen development, Judge Sotomayor's confirmation seems assured in a Senate with a commanding Democratic majority."
• "The plaintiff in the landmark abortion-rights case Roe v. Wade," Norma McCorvey, "who became an abortion protester in recent years, was among four demonstrators arrested Monday for disrupting" Sotomayor's hearing, AP reports.
Continue reading Top Nomination News.
Now the real fun begins. This morning, senators will have their first opportunity to ask Sonia Sotomayor questions, receiving 30 minutes apiece. Senate Judiciary Chairman Patrick Leahy, D-Vt., will be the first up, followed by ranking member Jeff Sessions, R-Ala.; the questioning will then roughly alternate between the Democratic and Republican members of the committee.
Here's a roundup of some minute-by-minute coverage and commentary:
• As is traditional during Supreme Court confirmation hearings, C-SPAN is live-streaming the hearings and providing constant live TV coverage.
• ABC News is offering live video coverage and periodic commentary by legal correspondent Jan Crawford Greenburg on the blog Legalities.
• PBS is covering the hearings live and also providing streaming video. National Law Journal's Marcia Coyle will provide legal analysis.
• The Washington Post has live video coverage and commentary from its correspondents as well.
• SCOTUSblog is live-blogging.
• The Federalist Society is hosting an ongoing debate this week among prominent legal experts, including Tom Goldstein, founder of SCOTUSblog and Supreme Court litigator at Akin Gump, and Wendy Long, general counsel of the Judicial Confirmation Network.
Sonia Sotomayor may be the one in the spotlight, but this is also a special moment for Sen. Amy Klobuchar. The Minnesota Democrat, one of two women on the Senate Judiciary Committee, is taking part in her first Supreme Court confirmation hearings, which she calls a "great honor." NationalJournal.com's Amy Harder caught up with Klobuchar for a few minutes after the committee recessed for the day on Monday to get her take on the Republicans' comments so far and what she plans to ask Sotomayor in the coming days. Edited excerpts follow.
NJ: What is your reaction to Day One? Was there anything that struck you?
Klobuchar: How well she did when she spoke. In very succinct words, she not only told her life story but also, most importantly, her view -- her judicial philosophy of applying the law. And I think people have to hear that directly from her because there have been all these attacks that just aren't warranted by her record....
I thought Senator [Charles] Schumer's words about her -- when he choked up talking about her mom and her background -- was also very moving.
NJ: Have you been surprised by some of the issues the Republicans have and have not focused on? They didn't bring up Ricci v. DeStefano as much as one may have thought, considering the attention that case has received.
Klobuchar: They've made some oblique references to it. The one thing that I see that was interesting -- even though they disagreed and were using this as something of a platform for some political issues -- I thought they treated her with dignity and respect, which is important. Secondly, I thought that Sen. [Lindsey] Graham's comments were extremely interesting, because he clearly remains open to supporting her.... Even though he again said that he disagreed with many of her opinions and some of her statements in speeches, he made a point of saying that overall her record wasn't cause-driven and that he was open to supporting her.
NJ. He also focused a good deal on President Obama, and referenced the notion that elections have consequences.
Klobuchar: No one more than him in this country worked to get John McCain elected. But, he said, in the end Obama won, and that goes into his decision in terms of the fact that this is the president's nominee.
Continue reading Klobuchar: GOP Treated Nominee With 'Dignity' .
While acknowledging little chance of blocking the confirmation of Supreme Court nominee Sonia Sotomayor, Senate Republicans, led by Minority Leader Mitch McConnell, R-Ky., are pulling few punches in questioning Sotomayor's qualifications in a coordinated effort aimed at their conservative base and future nomination fights, aides said.
McConnell, who is not on the Judiciary Committee, has opened something like a second front against Sotomayor on the Senate floor and in news releases, taking up the issue with the persistence and focus he has used in opposing a public option in healthcare reform and the proposed closure of the detainee facility at Guantanamo Bay, Cuba.
In nine floor speeches since June 23, McConnell has questioned the role of Sotomayor's personal views in her decisions, particularly in a ruling recently overturned by the Supreme Court where she upheld a New Haven, Conn., decision not to promote 18 firefighters after no black applicants scored high enough to qualify on a job test.
Subscribers to CongressDaily can continue reading the story here.
Sotomayor is sworn in during her confirmation hearing. (Win McNamee/Getty Images)
Sen. Arlen Specter, D-Pa., wants TV cameras in the Supreme Court and wants to know what Sonia Sotomayor thinks about that. While she hasn't taken a position on this issue, as soon as Specter brought up the topic, a smile spread across the nominee's face.
During his opening remarks in the afternoon of Sotomayor's confirmation hearings, Specter touched on a variety of topics, including presidential powers and the high court's impact on cap-and-trade legislation. He concluded by addressing the especially relevant topic of TV cameras in the courtrooms. After all, dozens of TV cameras are flanking Room 216 of the Hart Senate Office Building -- the location of Sotomayor's hearings -- and the clicking of still cameras has been ubiquitous since 10 a.m.
House and Senate proceedings are televised, and "a lot of people are fascinated by this confirmation," Specter said, noting the number of cameras in the room. He added that Sotomayor should be accustomed to having cameras in the courtroom, since the Second Circuit has long allowed such coverage. He then hearkened back to something retiring Justice David Souter has said: that if a TV camera were ever allowed inside the Supreme Court, it would have to "roll over my dead body."
"If you're confirmed, they won't have to roll over his dead body," Specter quipped to Sotomayor, prompting laughter from the audience.
Republicans on the Senate Judiciary Committee used the first day of Sonia Sotomayor's confirmation hearings to focus as much on President Obama's "empathy standard" as on the nominee's judicial record.
In opening statements, GOP senators said Obama's stated preference for judicial nominees with "empathy" could introduce subjectivity into the judiciary. "The question is whether Judge Sonia Sotomayor agrees with President Obama's theory," said Sen. Jon Kyl, R-Ariz.
Democrats, meanwhile, argued Sotomayor's long record as a careful, fact-bound jurist will make her a more restrained jurist than Chief Justice John Roberts, who has proven willing to reject precedent to push the court rightward.
"We do not have to speculate on what kind of a judge she will be because we've seen what kind of judge she has been," said Judiciary Chairman Patrick Leahy, D-Vt.
Subscribers to CongressDaily can continue reading the story here.
A protester is led away during the confirmation hearings. (Mark Wilson/Getty Images)
Four anti-abortion protesters have already been escorted out of Hart 216 on Day One of the Sotomayor hearing. That doesn't surprise Charmaine Yoest, the president of Americans United for Life and one of 14 witnesses called by ranking member Jeff Sessions, R-Ala. Anti-abortion protesters have been demonstrating outside the Hart Building throughout the day as well.
The outbursts "underscore that the grassroots really are energized about this and are paying attention," Yoest said in an interview during the lunchtime break at today's hearing.
"They're grasping at straws," said Marge Baker, executive vice president of People for the American Way. "But I guess it's something that feeds their base."
Yoest is scheduled to testify on Thursday, primarily to highlight Sotomayor's involvement with LatinoJustice PRLDEF and make the argument that, as she put it, "a vote for Sotomayor is a vote for unrestricted abortion on demand." PRLDEF has taken positions in opposition to parental notification and bans on partial birth abortion, Yoest said.
Yoest also said she has heard rumors that Sens. Dianne Feinstein, D-Calif., and Al Franken, D-Minn., will be "pretty aggressive in their questions" when she takes the stand Thursday, but "we're welcoming the opportunity to get out her record."
"If people are surprised about how much abortion is coming into play, maybe that's because they haven't been paying attention to her record," Yoest said.
For more on abortion stakeholders' role in the hearings, see this NationalJournal.com video.
Sotomayor addresses the Judiciary Committee. (Nicholas Kamm/AFP/Getty Images)
As provided by the White House:
Thank you, Mr. Chairman. I also want to thank Senators Schumer and Gillibrand for that kind introduction.
In recent weeks, I have had the privilege and pleasure of meeting eighty-nine gracious Senators, including all the members of this Committee. I thank you for the time you have spent with me. Our meetings have given me an illuminating tour of the fifty states and invaluable insights into the American people.
There are countless family members, friends, mentors, colleagues, and clerks who have done so much over the years to make this day possible. I am deeply appreciative for their love and support. I want to make one special note of thanks to my mom. I am here today because of her aspirations and sacrifices for both my brother Juan and me. Mom, I love that we are sharing this together. I am very grateful to the President and humbled to be here today as a nominee to the United States Supreme Court.
The progression of my life has been uniquely American. My parents left Puerto Rico during World War II. I grew up in modest circumstances in a Bronx housing project. My father, a factory worker with a third grade education, passed away when I was nine years old.
Continue reading Opening Statement Of Judge Sonia Sotomayor.
On the first day of Sonia Sotomayor's hearings, senators on both sides of the aisle have taken the opportunity to revive old battles, including the Democrats' successful filibuster of appellate court nominee Miguel Estrada in 2001.
"If a compelling life story, academic and professional excellence, and a top ABA [American Bar Association] rating make a convincing confirmation case, Miguel Estrada would be a U.S. Court Circuit Judge today," said Sen. Orrin Hatch, R-Utah. "But he was fiercely opposed by groups, and repeatedly filibustered by Democrat senators, the ones who today say these same factors should count in Judge Sotomayor's favor."
Hatch's argument was echoed by Sen. Lindsey Graham, R-S.C., in his opening remarks, and later Judiciary Chairman Patrick Leahy, D-Vt., and ranking member Jeff Sessions, R-Ala., briefly squabbled over what -- if anything -- Republicans could have done to make sure Estrada was confirmed.
Democrats filibustered Estrada, many say, because George W. Bush was likely to pick him for the high court down the road. Graham noted today that Estrada rather than Sotomayor might have been the nation's first Hispanic justice.
ABC News' Jan Crawford Greenburg has an interesting take on the revived battle here.
Committee Chairman Sen. Patrick Leahy, D-Vt., smiles during the confirmation hearings for Judge Sonia Sotomayor. (Nicholas Kamm/AFP/Getty Images)
Sotomayor laughs during opening remarks by Leahy. (Mario Tama/Getty Images)
The man charged with keeping order in Hart 216 has managed to slip in a joke or two. After returning from a 10-minute break, Senate Judiciary Chairman Patrick Leahy, D-Vt., said to Sonia Sotomayor: "You may have a broken ankle, but you made it back to the hearing room before me." Sen. Arlen Specter, D-Pa., may be thinking the same thing: His seat remained empty this morning.
To be sure, though, Leahy is also keeping order. When a protester yelled out "abortion is murder" during the opening remarks of Dianne Feinstein, D-Calif., police quickly ushered him out and Leahy declared, "No outbursts are allowed in this committee, either for or against the nominee, or for or against any position. This is a hearing in the United States Senate. We will have order."
As night follows day, the spectacle unfolding as 19 senators pose their questions to Judge Sonia Sotomayor will include a succession of demands for candor about her views -- especially from Republicans -- which the nominee will meet with ducking, dodging and evasion.
Sotomayor will steadfastly claim, as did all of the current justices, that it would be improper to disclose her views on issues that might come before her, except at a high level of generality. And she will be right.
I have not always held this view, and I hold it now even though there are very strong reasons for demanding candor from a nominee who is effectively running for a lifetime appointment that will give her far more power than any member of Congress, and with no accountability to voters, ever.
Once confirmed, as seems almost assured, Sotomayor will likely spend three or more decades setting national policy (when in the majority) on issues including racial quotas and preferences; discrimination law; war powers of the president, Congress and the judiciary; abortion; church-state relations; gay rights; campaign finance; environmental law; property rights; gun control; whether judges should change the meaning of the U.S. Constitution to conform to foreign law; the death penalty; and other criminal law issues.
It's unimaginable that any serious candidate for Congress or the presidency could refuse to tell us what he or she thinks about any -- let alone all -- of these issues.
So why should there be an exemption for a nominee who seeks to sit on the only body with power to strike down presidential and congressional acts?
Then-Sen. Joe Biden's frustration was understandable when he said to John Roberts in 2005, "We are rolling the dice with you, judge.... You've told me nothing... as if the public doesn't have a right to know what you think about fundamental issues facing them."
Of course, there are obviously strong political incentives for nominees to refuse to disclose their views. Washington is bursting with interest groups that have impassioned views on all sides of every issue. In such a world, every candid answer would offend this or that group. And dozens of candid answers strung together would create formidable coalitions of opponents.
Continue reading Why Sotomayor Should Not Say What She Thinks.
This morning, in the opening session of Sonia Sotomayor's confirmation hearings, Sen. Orrin Hatch, R-Utah, took aim at President Obama for his opposition to the 2005 appellate court nomination of Janice Rogers Brown, an African American judge now sitting on the D.C. Circuit. Hatch said Brown has a "compelling life story" much like Sotomayor's.
Hatch said that when Obama opposed Brown, he "argued that the test of a qualified judicial nominee is whether she can set aside her personal views and, as he put it, 'decide each case on the facts and the merits alone." Hatch added that Obama said then "that while a nominee's race, gender and life story are important, they cannot distract from the fundamental focus on the kind of judge she will be."
Hatch continued: "But today, President Obama says that personal empathy is an essential ingredient in judicial decisions. Today, we are urged to ignore Judge Sotomayor's speeches altogether and focus only on her judicial decisions. I do not believe that we should do that."
Hatch's comments, along with opening remarks by Jon Kyl, R-Ariz., and Lindsey Graham, R-S.C., which also focused a good deal on Obama's standard for selecting judges, suggest Republicans' real target in the hearings is the president. In fact, Graham said that the hearings are "mostly about conservative and liberal politics."
"Unless you have a complete meltdown, you will be confirmed," Graham quipped to Sotomayor.
The Supreme Court nominating process can be a minefield for senators, too, observers say in a video presentation by NationalJournal.com's Michelle Williams.
(This is the last of four videos in a series examining key players in Sotomayor's hearings. The series also looks at the role of abortion opponents, the White House and conservative interest groups.)
President Obama talks with Sonia Sotomayor on the phone Sunday. Sotomayor's Senate confirmation hearings begin today. (Credit: White House)
• "Just back from his trip abroad, President Obama called Supreme Court nominee Sonia Sotomayor on Sunday to wish her luck," The Hill reports.
• The hearings, which begin today, are "only partly about the fate of Sotomayor's nomination, as both sides predict she will win confirmation easily," the Washington Post reports. "The battle over" Obama's "first court nominee is also likely to have broad and long-lasting political implications for the president and both political parties."
• The Post also reports on five senators to watch during the hearings.
• "When a national television audience tunes in to the Senate hearings... it will get a crash course in the law beginning with the perennial three R's: race, religion and Roe," USA Today reports.
• "A nearly century-old battle over what questions can be asked and answered likely will continue with undiminished fervor," the National Law Journal reports. "This battle triggers repeated complaints that the hearings are meaningless or useless because nominees and their supporters on the Senate Judiciary Committee use the shield of judicial ethics to fend off substantive questions by other senators."
• On Sunday, "Republicans on the Senate Judiciary Committee signaled... that they would question" Sotomayor's "ability to be impartial, based on previous statements she has made about her background," the New York Times reports.
Continue reading Top Nomination News.
Today will be all about opening statements, with senators taking up the morning and Sonia Sotomayor taking the seat in the afternoon. The key days of testimony will be Tuesday and Wednesday, when Sotomayor will take multiple rounds of questions from senators. Her testimony might spill into Thursday, after which witnesses will testify, potentially consuming Thursday and Friday.
New York Democratic Reps. Jose Serrano and Nydia Velazquez will highlight Sotomayor's personal story and her chance to be the court's first Hispanic.
Former FBI Director Louis Freeh, former New York County District Attorney Robert Morgenthau and National Fraternal Order of Police President Chuck Canterbury will highlight Sotomayor's work as a prosecutor.
Republicans will call Frank Ricci, the firefighter from New Haven, Conn., who won a discrimination case when the Supreme Court overturned a ruling by a panel of judges that included Sotomayor, to bolster their contention that she has let her personal views affect her decisions. Former National Rifle Association head Sandy Froman will likely take shots at Sotomayor's rulings on the Second Amendment.
Republican members have said they will question Sotomayor about her past position on the board of a group providing legal advocacy for people of Puerto Rican descent that often sued cities over employment issues.
But it remains unclear if Republicans will unveil any unannounced lines of questioning or oppose Sotomayor strongly enough to risk political fallout. Democrats, including Senate Majority Whip Richard Durbin, D-Ill., have said blanket opposition to Sotomayor could alienate Hispanic voters.
National Republican Senatorial Committee Chairman John Cornyn of Texas and Senate Minority Whip Jon Kyl of Arizona might offer barometers of the GOP's disposition. Both sit on the committee and represent states with large Hispanic populations. And as members of leadership, both, and Cornyn in particular, must weigh the political needs of Senate Republicans.
Updated at 6:30 p.m.
For all the publicity about the Supreme Court's 5-4 reversal of Judge Sonia Sotomayor's decision (with two colleagues) to reject a discrimination suit by a group of firefighters against New Haven, Conn., one curious aspect of the case has been largely overlooked.
That is the likelihood that but for a chance discovery by a fourth member of the 2nd Circuit Court of Appeals, the now-triumphant 18 firefighters (17 white and one Hispanic) might well have seen their case, Ricci v. DeStefano, disappear into obscurity, with no triumph, no national publicity and no Supreme Court review.
The reason is that by electing on Feb. 15, 2008, to dispose of the case by a cursory, unsigned summary order, Judges Sotomayor, Rosemary Pooler and Robert Sack avoided circulating the decision in a way likely to bring it to the attention of other 2nd Circuit judges, including the six who later voted to rehear the case.
And if the Ricci case -- which ended up producing one of the Supreme Court's most important race decisions in many years -- had not come to the attention of those six judges, it would have been an unlikely candidate for Supreme Court review. The justices almost never review summary orders, which represent the unanimous judgment of three appellate judges that the case in question presents no important issues.
The 2nd Circuit and other appeals courts hear cases in three-judge panels, which almost always write full opinions in all significant cases. Those opinions, which are binding precedents, are routinely circulated to all other judges on the circuit, in part so that they can decide whether to request what is called a rehearing en banc by the entire appeals court.
Not so summary orders. They do not become binding precedents, and in the 2nd Circuit they are not routinely circulated to the judges except in regular e-mails containing only case names and docket numbers. Those e-mails routinely go unread, on the assumption that all significant cases are disposed of by full opinions, according to people familiar with 2nd Circuit practice.
In any event, any 2nd Circuit judge who had chanced to find and read the panel's summary order in Ricci would have found only the vaguest indication what the case was about.
But the case came to the attention of one judge, Jose Cabranes, anyway, through a report in the New Haven Register. It quoted a complaint by Karen Lee Torre, the firefighters' lawyer, that she had expected "'a reasoned legal opinion,' instead of an unpublished summary order, 'on what I saw as the most significant race case to come before the Circuit Court in 20 years.'"
Continue reading How Ricci Almost Disappeared.
Where will Republican senators focus their attention in Sonia Sotomayor's confirmation hearings? And, after all is said and done next week, will the GOP seek a delay?
In NationalJournal.com's poll of several Supreme Court observers, the Ricci v. DeStefano discrimination case and the Maloney v. Cuomo Second Amendment case were judged most likely to face scrutiny. The 10 experts in the survey seem to be on the same page as Senate Judiciary Committee ranking member Jeff Sessions, R-Ala., who has included on his list of witnesses two plaintiffs from the Ricci case -- Frank Ricci and Ben Vargas -- as well as former National Rifle Association President Sandy Froman.
The experts are split right down the middle as to whether Republicans will seek a delay. They all agree on one thing, though: The move wouldn't succeed, considering the large Democratic majority.
NationalJournal.com asked the experts to rank what issues, out of the following seven, Republican senators will likely focus on: Ricci; Maloney; the Didden v. Village of Port Chester property rights case; Sotomayor's involvement with a Puerto Rican civil rights group; her "wise Latina woman" comment; her remark that Court of Appeals is "where policy is made"; and abortion.
We then weighted the responses, with seven points for a first-place selection down to one point for seventh place. When respondents didn't rank issues, we simply didn't give those issues a point.
Not surprisingly, Ricci was at the top of most experts' lists: six out of 10, with a total of 58 points. The Maloney case (a three-judge panel opinion Sotomayor sat on that affirmed a lower court's ruling that the Second Amendment doesn't apply to the states) came in second with 49 points. The other race-oriented issues -- her "wise Latina woman" remark and her involvement in the group now known as LatinoJustice PRLDEF -- were the next most popular ones, coming in with 41 and 37 points, respectively. Despite abortion's traditional role as a hot-button judicial issue, it came in last with only 20 points. Most experts listed it last or not at all.
Poll respondents were: Dahlia Lithwick, Slate senior editor; Paul Cassell, University of Utah law professor and Volokh Conspiracy blogger; Tom Goldstein, founder of SCOTUSblog and Supreme Court litigator at Akin Gump; Adam White, D.C. lawyer; William Marshall, University of North Carolina law professor; Doug Kendall, founder and president of the Constitutional Accountability Center; Cristina Rodriguez, New York University law professor; Carl Tobias, University of Richmond law professor; Wendy Long, general counsel for the Judicial Confirmation Network; and National Journal's own Stuart Taylor Jr. In order to encourage frank and open speculation, contributors were given anonymity.
After the jump, see experts' explanations for their rankings, divided up by issue, and their comments on whether the GOP will seek a delay.
Continue reading Experts Predict Where GOP Will Focus.
From National Journal's July 11 issue:
Sonia Sotomayor has repeatedly said that female and minority judges should over time issue more-compassionate and caring courtroom decisions than white males, but a review of two decades' worth of legal and scientific literature shows that gender and race may not have a significant influence on verdicts. In fact, research finds little difference in decisions made by men and women even though those decisions can be reached in different ways by each gender.
Judge Sotomayor has over the years consistently presented her view that gender and race certainly could, and probably should, affect the way judges make decisions, if only because women and minorities are likely to have had different experiences than their white male counterparts. In a 2001 speech at the University of California (Berkeley), she said, "Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague [U.S. District Court Judge Miriam] Cedarbaum, our gender and national origins may and will make a difference in our judging."
Subscribers to National Journal can continue reading the story here.
From National Journal's July 11 issue:
Sonia Sotomayor may be the one in the hot seat at her confirmation hearings next week, but that's not where the real spotlight will be shining. To Senate Republicans and conservative interest groups, these confirmation hearings are less about Sotomayor as the next Supreme Court justice and more about, well, everyone else.
They're about President Obama, red-state Democrats, the GOP base, and future high court nominees. After all, barring any major slipups, Sotomayor is almost guaranteed to be confirmed. That was the consensus from the outset among Democratic senators and liberals; and in the past few weeks, GOP senators and conservatives have begun to agree. Their focus has since shifted to finding other ways to make the most of the hearings.
Subscribers to National Journal can continue reading the story here.
• Sonia Sotomayor "has endured weeks of insults, obnoxious questions and unwelcome drilling into her work as a judge and a lawyer -- and it was all on purpose, essentially a dress rehearsal for her confirmation hearings," AP reports.
• "In a CNN/Opinion Research Corp. survey released" today, "47 percent of people questioned would like to see the Senate vote in favor of Sotomayor's confirmation, with 40 percent opposed and 13 percent unsure," CNN reports.
• "More than 1,200 pages of Clinton-era White House communications about" Sotomayor "were withheld from public release by the former president's adviser, a National Archives spokeswoman said," the Wall Street Journal reports.
• The New York Times reports that "National Archives officials determined that the hundreds of pages of other documents were exempt from release under the Freedom of Information Act because the material relates to appointments to federal office and internal decision-making processes."
• "Republicans on the Senate Judiciary Committee are becoming increasingly concerned about Sotomayor's positions on gun rights," the Washington Examiner reports.
• "As conservative interest groups zero in on" Sotomayor's "stances on lightning rod social issues, Senate Republicans are pursuing a separate line of attack pegged to a less polarizing issue: campaign finance regulation," Politico reports.
Continue reading Top Nomination News.
Liberal women's groups may not be out in front pushing for Sonia Sotomayor's confirmation, but according to Sen. Barbara Boxer, D-Calif., "they're all for her."
In a press conference today with Sens. Amy Klobuchar, D-Minn., and Kirsten Gillibrand, D-N.Y., Boxer emphasized that women's groups are on board, despite a relative lack of visibility during the process so far. "I have heard from them," Boxer said. "They're all for her. Things are going really well. There is no need for groups to get all geared up." She added that if "things take a turn for the worse," they would be ready to fill a more public role.
Abortion rights groups such as NARAL Pro-Choice America and Planned Parenthood have been largely silent on the nomination. Sotomayor has never ruled directly on the constitutionality of abortion, and her only ruling of note on the issue was a dismissal of a claim brought by a reproductive rights group in 2002 challenging the so-called Mexico City Policy, which banned U.S. aid to organizations that performed or promoted abortions abroad. In that case, she ruled that the policy was within the confines of precedent. Still, the White House has signaled that she subscribes to its view of a constitutional right to privacy, which is the backbone of Roe v. Wade.
A coalition of conservative women's groups released statements this morning expressing concern about Sotomayor's record, which they said does skew in favor of abortion rights. "Sonia Sotomayor's record of support for judicial activism and her work for the pro-abortion Puerto Rican Legal Defense Fund offer little comfort that she will be a friend to the unborn on the Supreme Court," wrote Susan B. Anthony List President Marjorie Dannenfelser.
New Sen. Al Franken praised Supreme Court nominee Sonia Sotomayor's experience and life story after meeting with her today, saying he was "thrilled" to be joining the Senate in time for her confirmation hearings.
The Minnesota Democrat's assignments include the Judiciary Committee, which will begin its confirmation hearings Monday.
"Judge Sotomayor will be the most experienced appointee in 75 years, and has a great life story," Franken said. "... The current Supreme Court has been sliding back on the rights of Americans as employees, as parents, as consumers, and as investors, and it is critical that the next appointee understand the importance of these protections."
Today's meeting was Sotomayor's 89th with a senator. She has met with every member of the chamber except for ailing Democrats Edward Kennedy of Massachusetts and Robert Byrd of West Virginia, and nine Republicans: John McCain of Arizona; John Barrasso and Michael Enzi of Wyoming; Richard Burr of North Carolina; Christopher (Kit) Bond of Missouri; Richard Lugar of Indiana; Pat Roberts of Kansas; James Inhofe of Oklahoma; and John Ensign of Nevada.
Roberts and Inhofe have announced plans to vote against Sotomayor, as has Sen. Sam Brownback, R-Kan.
Today, the Senate Judiciary Committee leadership announced the majority and minority witnesses for Sonia Sotomayor's confirmation hearings. Two witnesses from the American Bar Association will also testify.
Many of the names on the majority list have already spoken at events coordinated with either the White House or Senate Democrats, including Robert Morgenthau, who worked with Sotomayor as a district attorney in New York City, and Ramona Romero, president of the Hispanic National Bar Association -- who sent ranking member Jeff Sessions, R-Ala., a letter Tuesday expressing outrage at Republican attacks on the nominee.
Also on the majority list are New York City Mayor Michael Bloomberg, former FBI Director Louis Freeh and former baseball player David Cone (presumably to discuss Sotomayor's adjudication of the 1994-1995 baseball strike).
Judging from his list, Sessions intends to focus a good deal on Sotomayor's ruling in Ricci v. DeStefano. The list includes Frank Ricci, the first plaintiff in that case; Ben Vargas, another firefighter who joined in the suit; and Linda Chavez, president of the Center for Equal Opportunity, who recently wrote an op-ed taking Sotomayor to task over Ricci.
The following is the complete list, per a committee press release:
Continue reading Witness List Includes Bloomberg, Ricci.
President Obama has just as much at stake in Sonia Sotomayor's confirmation hearings as she does -- if not more -- legal experts say in a video presentation by NationalJournal.com's Theresa Poulson.
(This is the second in a series of four videos examining key players in Sotomayor's hearings. The series will also look at the role of conservative interest groups and senators. The first video was on abortion opponents.)
• "Legal experts said" Sonia Sotomayor's "rulings fall within the mainstream of those by Democratic-appointed judges," the Washington Post reports. "But some were critical of her style, saying it comes close to overstepping the traditional role of appellate judges, who give considerable deference to the judges and juries that observe testimony and are considered the primary finders of fact."
• The Post also highlights statements from some of Sotomayor's key rulings.
• "Sotomayor's thin record on the limits of presidential power suggests she will be neither reflexively hostile to broad expansion of a president's authority nor a reliable rubber stamp in support of it," AP reports.
• "The Brennan Center for Justice at New York University law school is completing an analysis of nearly 1,200 rulings by the United States Court of Appeals for the Second Circuit," the New York Times reports. "The study found that" Sotomayor "has a slightly higher rate of striking down governmental actions than her appeals court's average rate, but that the gap is small."
• "Former directors of a Latino legal advocacy group have attacked Alabama Republican Jeff Sessions' emphasis on the group's work as a means to criticize" Sotomayor, CQ Politics reports.
• The McClatchy News Service quotes Senate Judiciary Committee member Lindsey Graham, R-S.C., as saying, "I honestly think I could vote for her."
Continue reading Top Nomination News.
In playing up Sonia Sotomayor's judicial record on criminal law, the White House and Senate Democrats are making a solid non-ideological case for her as a Supreme Court nominee, a handful of law professors said in a conference call today.
"In a way, the White House seems to be going on the offense when there is no defense," said Robert Weisberg of Stanford Law School. "I think that's the point: She has a long and very solid record on criminal law. It demonstrates the continuity in her past and current career."
Indeed, Sotomayor's critics haven't focused on Sotomayor's criminal law record unless asked specifically about it -- even after three recent press conferences by the administration and others touting Sotomayor's credentials. The most recent was by Senate Judiciary Chairman Patrick Leahy, D-Vt., on Tuesday.
Weisberg and six other professors were speaking in coordination with a letter to the Senate Judiciary Committee signed by nearly 1,200 professors from every state (except Alaska, which has no law school). In the letter, the professors describe Sotomayor as a "fair-minded" jurist who has a history of bipartisan support. (Click here to see a full list of law schools represented. A list of names is at the end of the letter.)
Harvard Law School professor Charles Ogletree went so far to describe Sotomayor as a "conservative judge" in criminal cases. He also echoed a point that Vice President Joe Biden addressed to law enforcement personnel in the first press conference June 9 -- that "as you do your job, know that Judge Sotomayor has your back as well. And throughout this nominating process, I know you'll have her back." Ogletree said during the call that Sotomayor "is exactly what the police are looking for," given her experience as a prosecutor. "I'm not surprised the White House is waving this flag because it's a very encouraging one," Ogletree said.
In a separate Web chat today, Brookings Institute fellow Russell Wheeler expressed similar sentiments. "It's an area in which her decisions have been especially balanced -- some for prosecution, some for defense," Wheeler wrote. "It is still a hot-button issue and a point of contention with the general public."
This weekend's New York Times Magazine will feature an interview with Justice Ruth Bader Ginsburg in which she discusses the role of women in the courts and the nomination of Sonia Sotomayor. Click here to read the full interview. A few highlights:
On Sotomayor's nomination: "I feel great that I don't have to be the lone woman around this place."
On whether criticism of Sotomayor is gender-based: "I can't say that it was just that she was a woman. There are some people in Congress who would criticize severely anyone President Obama nominated. They'll seize on any handle."
On the "wise Latina woman" comment: "I thought it was ridiculous for them to make a big deal out of that. Think of how many times you've said something that you didn't get out quite right, and you would edit your statement if you could. I'm sure she meant no more than what I mean when I say: Yes, women bring a different life experience to the table. All of our differences make the conference better. That I'm a woman, that's part of it, that I'm Jewish, that's part of it, that I grew up in Brooklyn, N.Y., and I went to summer camp in the Adirondacks, all these things are part of me."
On Sotomayor's acknowledgment that she is a product of affirmative action: "So am I. I was the first tenured woman at Columbia."
(Hat tip: Hotline On Call)
Democrats shouldn't necessarily relax if Sonia Sotomayor wins confirmation to the Supreme Court. There's the matter of how long she'll be there.
In a NationalJournal.com analysis of Supreme Court nominees going back to the Franklin Delano Roosevelt administration, justices picked by Democrats have served about five years less on average than those picked by Republicans. Not counting current members of the court, GOP nominees have served about 20 years each, compared to about 15 for Democratic picks.
At 55, Sotomayor is close to the average of all nominees since 1937: about 53.5 years. But those closest to her in age have tended to serve less time yet. There have been 11 justices who were 53 to 57 as nominees; three are on the current court (John Paul Stevens, Stephen Breyer and Samuel Alito) and two left the court early (Arthur Goldberg to become ambassador to the United Nations, and Abe Fortas in a controversy over a past honorarium). The other six averaged about 14 years on the court.
Of course, these numbers don't take an individual's own circumstances into account, and they can't account for the many reasons why justices might step down. In 1942, longtime FDR ally James Byrnes left after 16 months to become Roosevelt's "assistant president."
But Democrats seeking good news in these stats can point to two numbers. The average age for a justice leaving the court going back to the FDR era is 71. And if you don't count Alito or John Roberts, the two newest justices, every confirmed nominee going back to Thurgood Marshall has served at least 15 years.
Editor's note: This is the third in a series of posts examining historical data from a database compiled by Northwestern law professor Lee Epstein and her colleagues. Keep checking back for more context and analysis on Sotomayor.
In a video presentation, NationalJournal.com's Theresa Poulson examines the role that abortion could play in Sonia Sotomayor's confirmation hearings, and how this debate could unfold in the future if she is confirmed.
(This is the first in a series of four videos examining key players in Sotomayor's hearings. The series will also look at the role of the White House, conservative interest groups and senators.)
• "Conservatives stepped up their criticism of Supreme Court nominee Sonia Sotomayor on Tuesday, but it was unclear how far Senate Republicans were willing to go to create bumps in what appears to be a smooth road to confirmation for President Barack Obama's first high-court choice," AP reports.
• "Senate Republicans are finalizing their line of attack on" Sotomayor, "casting the nominee as a biased, closed-minded judge who's on the wrong side of gun rights and affirmative action cases," Politico reports. "In other words, they want to fire up the culture war issues heading into next week's confirmation hearings -- and perhaps awaken an apathetic conservative base that has been sluggish in its reaction to the Supreme Court nominee."
• "A senior Senate GOP aide who worked closely with the Bush administration during the 2005 and 2006 nominations of Chief Justice John Roberts and Justice Samuel Alito said Republicans haven't been able to find one galvanizing issue around which to build opposition," Roll Call (subscription) reports.
• The New York Times examines the new roles members of the Senate Judiciary Committee members will be taking in next week's confirmation hearings.
Continue reading Top Nomination News.
Senate Democrats received some hefty reading material from the White House today during their caucus luncheon. According to a spokesman for Senate Majority Harry Reid, D-Nev., the administration distributed briefing books -- about one-inch thick -- on Sonia Sotomayor. Aimed at helping prep Democrats for her confirmation hearings next week, they delve into her rulings and biography.
The National Rifle Association may not be taking an official position on Sonia Sotomayor yet, but in a letter sent to the Senate Judiciary Committee leadership today, the group went right up to the edge of announcing its opposition.
NRA Executive Director Chris Cox expressed his organization's "very serious concerns" about the nomination, particularly involving Maloney v. Cuomo, in which Sotomayor affirmed a lower court's ruling that the Second Amendment does not apply to the states.
Cox wrote that the nominee's rulings in Maloney, along with United States v. Sanchez-Villar, "have been dismissive of the Second Amendment and have troubling implications for future cases that are certain to come before the court. Therefore, we believe that America's eighty million gun owners have good reason to worry."
If Sotomayor makes "hostile or evasive" statements on gun rights during confirmation hearings, Cox added, "we will have no choice but to oppose her nomination to the court."
Continue reading NRA: Sotomayor 'Dismissive' Of Gun Rights.
Senate Democrats today touted Sonia Sotomayor's record of backing law enforcement and her top rating from the American Bar Association while Republicans pressed claims that her personal views have influenced her decisions.
"Judge Sotomayor's criminal justice record proves that she is a moderate judge, whose decisions in criminal cases rarely differ from those of her colleagues on the federal bench," Senate Judiciary Chairman Patrick Leahy, D-Vt., said at a news conference with the heads of nine law enforcement groups that have urged Sotomayor's confirmation.
Leahy released a review by his committee's majority staff of 800 criminal cases handled by Sotomayor, saying it shows she "is unquestionably a consensus judge on criminal justice issues." The study says she agreed with Republican-appointed judges 97 percent of the time and affirmed criminal convictions in 92 percent of cases.
Subscribers to CongressDaily can continue reading the story here.
A perennial feature of judicial confirmation hearings is watching Senate Democrats and Republicans alike invert their approaches to various issues depending on the party of the nominating president. Look for some of that during next week's Judiciary Committee hearings on Judge Sonia Sotomayor.
Sotomayor is expected to emulate the last seven nominees to face confirmation hearings -- five picked by Republican presidents and two by Democrats -- by refusing to disclose her specific views on issues likely to come before the court. And she should refuse, for reasons that I will discuss in a future post.
But will the Democrats who pronounced themselves mightily frustrated by the unresponsive ducking and dodging of John Roberts and Samuel Alito in 2005 and 2006 be similarly annoyed when Sotomayor ducks and dodges next week? Don't bet on it.
And will the Republicans who lauded the content-free testimony of Roberts and Alito take a similarly benign view when Sotomayor parries their efforts to pin down her views? Don't bet on that, either.
Consider, for example, the positions of Sen. Dianne Feinstein, D-Calif., and then-Sen. Joe Biden, D-Del., in 2005 on the need for nominees to be forthright. In explaining her opposition to Roberts to reporters, Feinstein focused on his deft evasions of questions about privacy, women's rights and other issues. "So he really lost [your vote] in the hearings?" a reporter asked. "In my view, he did," Feinstein replied.
Similarly, after hearing Roberts claim that his conservative policy memos as a Reagan Justice Department staffer did not necessarily reflect his personal views, Biden complained to National Journal: "He didn't answer the questions. I had to bet either my hopes or my fears. I thought, quite frankly, he was somewhat disingenuous."
It seems most unlikely that Feinstein or Biden will take similar offense when Sotomayor does more or less what Roberts did.
Across the aisle, Republicans including Sens. Sam Brownback of Kansas and Lindsey Graham of South Carolina took a benign view of Roberts' refusal to show his cards. Brownback rhapsodized about "sitting there and listening to a brilliant constitutional scholar discuss the Constitution"; Graham asserted that Roberts "will be a justice for the ages."
Next week, I predict, Judiciary Committee Republicans will be complaining that Sotomayor didn't answer their questions. And most or all Democrats will be delighted with non-answers and full of praise for the nominee's brilliance.
In a letter sent today to White House Counsel Greg Craig, the American Bar Association announced its unanimous rating of Sonia Sotomayor as "highly qualified," the highest level of qualification the organization gives out.
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said in a statement that this rating "should eliminate the doubts of naysayers who have questioned Judge Sotomayor's disposition on the bench."
Throughout the process of evaluation, which began shortly after Sotomayor's nomination at the end of May, a team of law professors, lawyers, Supreme Court law clerks and other experts familiar with the high court examined Sotomayor's legal writings. The evaluation doesn't take into account a nominee's philosophy or ideology and has three tiers: not qualified, qualified and highly qualified.
A rating of "well qualified" is the norm among Supreme Court nominees. The last four -- John Roberts, Samuel Alito, Stephen Breyer and Ruth Bader Ginsburg -- all received this rating by a unanimous vote as well.
Last week, the New York Bar Association also rated Sotomayor highly qualified.
Senate Judiciary Chairman Patrick Leahy, D-Vt., today will hold the Democrats' third press conference touting Sonia Sotomayor's record on criminal law cases. Sen. Robert Menendez, D-N.J., held one last month with two Hispanic groups, and Vice President Joe Biden hosted one at the White House a few weeks prior to that with eight major law enforcement agencies in attendance.
This latest presser, scheduled for 11:30 this morning, will include organizations from both previous events, including the Fraternal Order of Police and the National Latino Peace Officers Association.
So why are the administration and Senate Democrats holding so many events about Sotomayor's record on criminal law cases? Legal experts say the issue is one that resonates with most Americans. Conservative groups, not surprisingly, see the press conferences as a way of distracting from Sotomayor's views on more controversial issues. "Her judicial philosophy looks through a race-colored lens, and that raises doubts about her ability to inflict equal justice on law and order issues," Gary Marx, executive director of the Judicial Confirmation Network, told this blog several weeks ago.
When Sonia Sotomayor appears before the Senate Judiciary Committee next week and is later considered by the full Senate, she won't face many strangers.
Headed into the hearing, Sotomayor has met with 88 senators, including every Democrat but ailing Sens. Robert Byrd, D-W.Va., and Edward Kennedy, D-Mass., and Sen.-elect Al Franken, D-Minn., and all but nine Republicans.
The weeks of courtesy visits are more than photo opportunities, White House and Senate aides currently and previously involved in the process said. The meetings help prepare the nominee for the questions they will face in their confirmation hearing, the aides said.
Subscribers to CongressDaily can read the full story here.
• As Sonia Sotomayor "moves through the confirmation process," she "has explained very little about one facet of her legal life: Sotomayor & Associates, the solo law practice she ran out of her Brooklyn apartment for several years in the 1980s," the New York Times reports.
• "Finally joining the Senate, Democrat Al Franken envisions playing the 'people's proxy' during" Sotomayor's confirmation "hearings. Franken, awaiting 'an awfully emotional' Tuesday when he is sworn in, is joining the Senate Judiciary Committee," AP reports.
• Senate Judiciary ranking member Jeff Sessions, R-Ala., "said Monday that he wants to find out whether" Sotomayor "would let racial bias affect her decisions as a justice," AP also reports.
• Sessions also said Monday that "his party might throw up procedural roadblocks to delay next week's planned confirmation hearing," CQ reports.
• But Roll Call (subscription) reports that "earlier rumors of GOP-led delay tactics to stall" Sotomayor's "nomination now appear all but dead."
Continue reading Top Nomination News.
There's Sonia Sotomayor's 17 years on the federal bench and then there's her judicial philosophy. The White House has continually touted the former as one of the main reasons to confirm her. The Republicans have taken issue with the latter, claiming that she's a "judicial activist" who embodies President Obama's liberal interpretation of the role of the courts.
Chapter 4 of the 2005 book "Advice and Consent," by Stony Brook University political science professor Jeffrey Segal and Northwestern law professor Lee Epstein, examines these two factors -- qualifications and ideology -- in the context of the Ruth Bader Ginsburg and Robert Bork nominations. The following passage is excerpted here as part of the Ninth Justice's ongoing book series:
Virtually from the day George W. Bush nominated Janice Brown to the all-important D.C. Circuit, controversy swirled around her. "Powerful liberal groups," to use Orrin Hatch's phrase, opposed her at least in part because, as a California Supreme Court justice, she had upheld restrictions on abortion rights and opposed affirmative action. Overall, they said, she was "even further to the right than the most far-right justices now sitting on the U.S. Supreme Court, Antonin Scalia and Clarence Thomas." Liberal interests, along with some senators, also asserted that she was unsuited for office. ...
The Senate eventually confirmed Brown by a 56-43 vote -- but two years after Bush initially nominated her. She was the target of a Democratic filibuster that ended only after moderate members on both sides of the aisle drafted a compromise that enabled her confirmation.
Clearly, Brown's political values, not to mention her potential as a Supreme Court nominee, energized opposition from prominent liberal interest groups, which in turn lobbied senators to oppose her. But questions about her professional merit may have played a role too. In other words, all the factors we have considered -- qualifications, partisanship, and ideology -- probably contributed to the long delay and, ultimately, to the divided vote.
But was it merit or politics that exerted the greater influence? That is a hard question to answer for lower court nominees because the Browns are relatively few and far between. The overwhelming majority of lower court nominations that reach the Senate's floor attain consensual confirmation.
But this is not true of candidates for the Supreme Court. Prior to the 1900s, the Senate rejected twenty of eighty-five candidates. And while senators' votes over most nominees since the mid-twentieth century have been unanimous or nearly so, of the 2,451 votes we examined, 378 were nays, or on average about 14.8 per nominee. Nor was dissensus wholly uncommon. In fifteen of the twenty-six cases the candidate caused some degree of division among the senators.
Continue reading How Nominee Qualifications, Ideology Affect Senators' Votes.
• "Colin Powell stuck up for Sonia from the block on Sunday, labeling as bogus the 'reverse racist' charges aimed at Supreme Court nominee Sonia Sotomayor," the New York Daily News reports. "Powell, who's from the same South Bronx neighborhood as Sotomayor, said the first Hispanic woman nominated to the high bench should be confirmed in Senate hearings beginning later this month."
• RealClearPolitics.com has the transcript of Powell's interview with John King on CNN's "State of the Union" on Sunday.
• AP reports that Powell "noted that Obama had a significant advantage with Hispanics and African-Americans in the November elections. He criticized Republicans who are not elected to office and 'immediately shout racism' against Sotomayor."
• AP reported over the weekend that the "civil rights group on whose board" Sotomayor "served filed racial bias lawsuits over employment examinations that resemble" those at the heart of Ricci v. DeStefano. "The case unfolded as Sotomayor chaired the organization's board of directors' litigation committee, although there is no evidence that she had any role in the group's decision to participate in the lawsuits, or in formulating or drafting any of their legal arguments."
Commentary
• "A week before her Senate hearings, Republicans are floundering in their efforts to trip up" Sotomayor, "unable to find an effective message about why she's not fit to serve," AP writes in an analysis.
Continue reading Top Nomination News.
If confirmed, Sonia Sotomayor will change the dynamics of the Supreme Court more than most people think, agreed the panelists at a discussion held in Washington this morning and hosted by the American Constitution Society.
"A new justice changes the dynamic of the way the justices react to each other," said Paul Clement, former solicitor general and current partner at King & Spalding. He predicted Sotomayor's presence would be especially consequential in business cases, where retiring Justice David Souter "has not been a reliable vote for the so-called liberal wing of the court."
John Payton, president and director-counsel of the NAACP Legal Defense Fund, echoed Clement's thoughts about the dynamics of the court. "You really are going to see a changed court," he predicted. "That will be evident in not just outcomes in specific cases. She is not Justice Souter, because everybody is different. I think it will change oral arguments."
The panel was held to review the high court's recently-concluded term, but inevitably, Sotomayor's nomination crept into the discussion. Still, she wasn't mentioned as much as she might have been: "You know you're at an ACS discussion and not a Federalist Society discussion because every other sentence doesn't begin with 'Sotomayor's ruling in Ricci' or 'Sotomayor's ruling in that case or this case,'" quipped panelist Tom Goldstein, a Supreme Court litigator with Akin Gump and the founder of SCOTUSblog.
Goldstein went on to argue, as he has elsewhere, that Sotomayor's confirmation hearings will be a non-event because at this point her confirmation seems inevitable. "I don't expect a thermonuclear war over Sotomayor," he said, predicting a final vote somewhere in the ballpark of 75-25.
Speaking more broadly about the court in the Obama era, Andrew Pincus, a partner at Mayer Brown and professor at Yale Law School, wondered "about a conservative court confronting a much more liberal Congress and administration -- how that interaction works with respect to deference and whether the court will feel pushed or push itself to adopt constitutional limits."
The panelists also made sure not to forget Souter in the discussion. David Frederick, a partner at Kellogg, Huber, Hansen, Todd, Evans & Figel who argued three cases in front of the high court this term, praised the "gentlemanly" way Souter posed questions and said the justice "brought to the court a strength of character and civility that our justice system needs. The court is all the worse with his retirement."
Turnover on the Supreme Court has led to increasingly conservative nominees and likely a more conservative court, according to an analysis of nominees' ideological ratings dating back to 1937.
This study measures a nominee's ideology according to the Segal-Cover score, a 0-1 system that uses major newspapers' editorials to gauge perception of a nominee (0 is the most conservative). The graph below expands on Tuesday's analysis of nominees since the Franklin Delano Roosevelt administration.
The green line tracks the average score of nominees serving on the court since 1950, the first year the entire court was made up of justices in the S-C system. The chart begins a shift from liberal to middle-of-the-road to conservative at the same time Republican presidents began to make most of the picks, starting with Richard Nixon.
The trend underscores the notion laid out by several SCOTUS observers since Justice David Souter announced his retirement: that no nominee President Obama was likely to pick would shift the court's conservative slant. In a review of the high court's term today, the Washington Post describes "a patient and steady move to the right led by Chief Justice John G. Roberts Jr., one that is likely to continue even if" Obama "is successful in adding Judge Sonia Sotomayor to the high court -- and perhaps two others like her."
Since the scores are based on editorials written before the nominee is confirmed, the system is by no means foolproof. Assumptions or bias in the media could skew the results, and justices sometimes change while serving. John Paul Stevens and Harry Blackmun scored as safely conservative nominees, but both became known as strong liberals. Souter himself scored as more conservative than either Sandra Day O'Connor or Anthony Kennedy but later joined Blackmun and Stevens in the court's liberal bloc.
Jeffrey Segal, a political science professor and half of the duo that developed the system, told NationalJournal.com last month that the ideology ratings do "an excellent job of predicting justices' overall liberalism or conservatism once they're on the Supreme Court." He said he's found a 0.79 "correlation coefficient." This means that you can predict the justices' overall voting behavior "fairly accurately simply by knowing their ideology," Segal said.
Segal has said Sotomayor would likely score near Ruth Bader Ginsburg's 0.68. That's comfortably in the liberal side but not far from the median in the S-C system.
Editor's note: This is the second in a series of posts examining historical data from a database compiled by Northwestern law professor Lee Epstein and her colleagues. Check back next week for more context and analysis on Sotomayor.
• "Republicans scouring Supreme Court nominee Sonia Sotomayor's affiliation with a Latino advocacy group contend that documents released Wednesday show she played an active role in an organization they consider radical," CQ reports.
• "The 350-plus pages of material offer little evidence about Sotomayor's role in the cases and causes the organization, now known as LatinoJustice PRLDEF, took up while she served on its board from 1980 until 1992," AP reports.
• "Sotomayor has concluded all her requested meetings with senators so far, according to the White House and the Senate Judiciary Committee," NationalJournal.com reports.
• Sotomayor "has recused herself at least 141 times since becoming a judge in 1992," the New York Times reports. "In many of those cases, she has told Senate investigators, her withdrawals were prompted by simple reasons: one of the lawyers was a friend; a former law clerk was involved; or she had represented a party in private practice. Only once, in a case from 1997, did her explanation say, 'I had personal knowledge regarding the claims.' The information the judge gave to the Senate offered no clue as to what that knowledge might have been."
• AP reports on the benefits Democrats may see with incoming Sen. Al Franken of Minnesota, "even though Franken has not said outright that he will support Sotomayor."
• "The US public may attend hearings on" Sotomayor's confirmation -- "but not with weapons or clothing bearing profanity, the Senate Judiciary Committee said Wednesday," Agence-France Presse reports.
Continue reading Top Nomination News.
Updated at 2:30 p.m. on July 2.
Sonia Sotomayor has concluded all her requested meetings with senators so far, according to the White House and the Senate Judiciary Committee. She has had a total of 88 meetings, a White House spokesperson said.
NationalJournal.com has confirmed -- by way of official press releases and news reports -- that all Democrats (except for ailing Sens. Robert Byrd, D-W.V., and Edward Kennedy, D-Mass., and incoming Sen. Al Franken, D-Minn.) and all but nine Republicans have met with her. Since Franken has been told that his committee assignments will include the Judiciary Committee, he will likely meet with Sotomayor soon.
A White House spokesperson said Sotomayor will continue to meet with senators up until the confirmation vote, if they request a meeting. The nine Republicans who apparently have not met with the nominee are:
• John McCain, Arizona
• John Ensign, Nevada
• John Barrasso, Wyoming
• Richard Burr, North Carolina
• Michael Enzi, Wyoming
• Christopher (Kit) Bond, Missouri
• Richard Lugar, Indiana
• Pat Roberts, Kansas (who announced he'll vote against her)
• James Inhofe, Oklahoma (who refused to meet with her and also said he'd vote no.)
The other Republican senator who has announced he'll vote against Sotomayor is Sam Brownback of Kansas, who did meet with her.
NationalJournal.com reached out to each of the nine Republicans' offices for confirmation that they have not requested a meeting, and at time of publication we have heard back from only three.
A McCain spokesperson said in an e-mail that the senator "is more than happy to meet with Judge Sotomayor at any time -- a meeting has not been requested." The White House has said, though, that it's up to the senator, not the nominee, to request a meeting. A spokesperson for Lugar confirmed the senator has not met with Sotomayor and said he is waiting until the hearings to decide how he will vote. Ensign "wants to meet with her and plans to do so," his office said Wednesday, and hopes "to have it scheduled soon."
CORRECTION: Sotomayor will meet with senators up until the confirmation vote. The original version of this report had an earlier cutoff.
A spokesman for Sen. Jeff Sessions, R-Ala., says the documents that the Senate Judiciary Committee has received from an advocacy group that Sonia Sotomayor once belonged to raise "several red flags, including a link between [LatinoJustice] PRLDEF and ACORN."
A statement released today by Sessions' office said the committee should have received these documents last week instead of Tuesday evening, and they amount to about half the material that the White House reviewed -- and a sliver of what's available. Sessions is ranking member of the Judiciary Committee.
"What we have now is just the tip of the iceberg," Sessions' office said. "We know that more than 300 boxes remain and their contents have not been shared with the committee....
"If these dilatory tactics continue, it will be increasingly more difficult for the hearing to go forward on July 13."
A day after the Supreme Court reversed the Second Circuit's ruling in Ricci v. DeStefano, the left-leaning Alliance for Justice issued its fourth and final report analyzing Sonia Sotomayor's opinions. The group saved the most controversial cases for last, focusing this time on Sotomayor's constitutional and civil decisions, including Ricci, the gun rights case Maloney v. Cuomo, the voting rights case Hayden v. Pataki and a handful of decisions touching on the issue of abortion. Prior Alliance reports have examined her rulings in criminal law and business and consumer cases.
While the group doesn't officially take positions on nominations, the Alliance's legal experts were quick to come to Sotomayor's defense on Ricci.
"There are two obvious points" making it "hard to see how Ricci would be much of an issue in the confirmation process," said the group's legal director, William Yeomans. Since the Supreme Court majority opinion in the case announced a new standard for interpreting Title XII of the Civil Rights Act of 1964, Yeomans said, there was no way Sotomayor could have applied it as an appellate judge at the time she heard the case. Yeomans added that the justice she will replace if confirmed, David Souter, ruled with the liberal dissenting judges.
As evidence that Sotomayor does not always side with any one ethnic group, Jennifer Meinig, a researcher with the Alliance, pointed to King v. American Airlines Inc., in which Sotomayor wrote the opinion of a unanimous panel rejecting a claim of racial discrimination brought by two African Americans after they were bumped from a flight.
Continue reading Alliance Report Examines Ricci, Maloney And Other Controversial Cases.
• Senate Judiciary Committee member Charles Grassley, R-Iowa, said Tuesday that "he did not expect" the Supreme Court's reversal of the Second Circuit's Ricci v. DeStefano case "to play a significant part in his decision-making about" Sonia Sotomayor's "fitness to serve on the nation's high court," the Des Moines Register reports.
• Incoming Sen. Al Franken, D-Minn., "said he had been told his assignments would include the Judiciary Committee, a role that would put him immediately in the thick of confirmation hearings over" Sotomayor, AP reports.
• "Latino Justice PRLDEF sent the" Senate Judiciary Committee late Tuesday "more than 350 pages of documents from the 12 years Sotomayor spent on its board, opening what could be an ugly new chapter in the debate over confirming the federal appeals court judge as the first Hispanic justice," AP also reports.
• On Tuesday, "the left-leaning Alliance for Justice issued its fourth and final report analyzing" Sotomayor's opinions, NationalJournal.com reports. "The group saved the most controversial cases for last, focusing this time on Sotomayor's constitutional and civil decisions, including Ricci, the gun rights case Maloney v. Cuomo, the voting rights case Hayden v. Pataki and a handful of decisions touching on the issue of abortion."
• "The Supreme Court's unusual order Monday delaying a decision in Citizens United v. Federal Election Commission and setting it for re-argument Sept. 9 may introduce more pressure on the Senate to confirm" Sotomayor "and have her on the bench by then," the Blog of Legal Times reports.
Continue reading Top Nomination News.
