Sotomayor hearing live analysis

(AP/Gerald Hebert)

by James Oliphant

We are here again in Hart 216 and Judiciary Chairman Patrick Leahy has begun his first round of questions. Each member of the panel will question Judge Sotomayor in 30-minute periods.

Stay with the Swamp today to read real-time analysis of the hearing, which is expected to run late into the day.

*****************

Leahy: Playing defense out of the box

Sen. Patrick Leahy, the Democratic chairman of the Senate Judiciary Committee, has begun his round of questions. Each member of the panel will have 30 minutes today, alternating by party.

Leahy initially has focused on Sotomayor's judicial record--giving the nominee plenty of opportunity to spell out her philosophy and to describe herself as impartial and deferential to precedent. "It's important to remember that as a job, I don't make law," Sotomayor said.

He's also focusing on her most famous case as a prosecutor, the "Tarzan burglar." While Sotomayor was an assistant district attorney in Manhattan in the early 1980s, she prosecuted a man, Richard Maddicks, who literally used ropes to swing into apartment windows to rob and terrorize the inhabitants.

Leahy's inquiry has allowed Sotomayor to detail a significant prosecutorial accomplishment: she strung a bevy of incidents together and convinced the trial judge to let her try Maddicks on a series of crimes in one case. Maddicks was sentenced to more than 65 years in prison.

He has also given her a chance to explain her ruling in the Ricci v. City of New Haven case, the firefighter lawsuit, and focus on the fact that Sotomayor says she followed precedent in the case, later reversed by the Supreme Court.

The court in that case "fashioned a new standard," Sotomayor said.

Leahy is, in essence, playing defense before the offense, first to be personified by ranking member Sen. Jeff Sessions (R-Ala.), can take the field. By casting Sotomayor as a tough-on-crime prosecutor and impartial judge, he's hoping to take the air out of Sessions' inevitable accusations that Sotomayor is a biased, liberal judge who favors disadvantaged minority groups.

Or you might want to consider it direct examination, with Sessions taking the cross. You have to build the witness up before the attempted tearing-down.

It's expected to be a long day here in Hart 216, with senators expected to question Sotomayor late into the day.

Sen. Dianne Feinstein (D-Calif.) questions the nominee Tuesday morning.(Karen Bleier/AFP/Getty Images)

Things got a little testy when Sen. Jeff Sessions, the Alabama Republican, challenged Sonia Sotomayor on her previous statements about how the "biases, sympathies and prejudices" of a judge will affect her decisions.

But first, he wanted to acknowledge her response to Patrick Leahy about the "wise Latina" comment.

"Had you been saying that with clarity over the last decade or 15 years," said Sessions, "we'd have a lot fewer problems today."

He went on: "You have suggested that a judge's background and experience will impact their decision, which goes against the American ideal that a judge will be fair to every party, and every day when they put on that robe they will put aside their personal prejudices."

Sotomayor kept her cool as Sessions pressed her on the famous statement she made to a group of students at Duke University that appellate court judges make policy.

"The job of Congress is to decide what policy should be for society," said Sotomayor. "I was focusing on what district court judges do and what circuit court judges do. District court judges find the facts and their finding doesn't bind anybody else. Appellate judges establish precedent ... that precedent has policy ramifications because it binds not just the litigants in that case, but it binds litigants in cases that may be influenced by that precedent. If my speech is heard outside the few minutes that YouTube presents ... it is very clear I was talking about the policy ramifications of precedent."

Sessions was not buying it. "Judge, I don't think it's that clear."

-- Robin Abcarian, Los Angeles Times

Sessions v. Sotomayor

Give Sonia Sotomayor credit for not backing away from the statements she has made. She has spent much of the last half hour trying to provide the context for her remarks-especially the notion that, as judge, you have to recognize biases, admit you have them, and put them aside in deciding a case.

But Sessions isn't backing down either. What he hears is that when Sotomayor says she recognizes that she may have had life experiences that perhaps create some bias in her is that she cannot be impartial.

Like the lawyers they are (Sessions is a former federal prosecutor), they are both parsing language and finding the meaning they want in it. And in many ways, they are talking past each other.

We are going to hear several versions of this exchange today and tomorrow, but it's possible this is a gulf that cannot be crossed. By admitting that she in effect could have a different point a view as a result of her heritage and background, she may have told Republicans want they want to hear, even as she denies that is what she meant.

This is why the Obama White House and Senate Democrats want these hearings to focus on Sotomayor's lengthy record on the bench, because once it begins to turn on the meaning of specific phrases, subjectivity can overwhelm the process. And what we are going to see over the next two days is a push-pull effort by both sides to steer the debate in their desired direction.

-- James Oliphant

Kohl goes fishing, gets no bites

It's hard to tell from the last exchange whether Sen. Herb Kohl (D-Wis.) pursued his own agenda in questioning Judge Sotomayor or whether he simply attempted to give her an opportunity to show she won't take the bait.

Kohl asked Sotomayor about a series of signature Supreme Court cases involving property rights, privacy and abortion, and each time asked her how she personally felt about the issue at hand. And each time Sotomayor deflected it, echoing John Roberts' performance of four years ago.

How about the Kelo case, an eminent domain decision involving the takings clause of the 5th Amendment that conservatives have decried as an overreach?

"Kelo is now a precedent of the court. I must follow it," Sotomayor said.

Kohl pressed her again to tell him her view of the holding of the case.

I don't prejudge issues," Sotomayor said. "I come to every case with an open mind."

The abortion-rights decision in Roe v. Wade, reaffirmed by Casey v. Planned Parenthood?

"That is the precedent of the court and settled," she said.

Sotomayor, in fact, would not even divulge how she personally feels about televising Supreme Court oral argument.

It doesn't make for good drama. But it does mean that Sotomayor is staying on message.

-- James Oliphant

Hatch gets fundamental on guns

Most of America may have just lost their easy access point to the Sotomayor hearings as Sen. Orrin Hatch of Utah and the nominee engaged in a tangled discussion of the value of precedent and standards for constitutional jurisprudence.

Hatch, in pressing Sotomayor for her rulings involving gun rights and the Second Amendment, shows that Sotomayor's Republican critics, in a sense, are trying to have it both ways. They want to condemn the judge as a judicial activist who disregards precedent when it suits her. But Hatch blasted Sotomayor for following what he deemed to be incorrect precedent in deciding whether the Second Amendment right to gun ownership is applicable to the states.

Specifically, Hatch accused Sotomayor of using an incorrect analysis (and by implication, suggesting that she willfully used a certain line of cases to achieve a desired result) under the 14th Amendment to the Constitution.

At one point, when Sotomayor suggested that she was bound by the precedent of her judicial circuit, Hatch interjected, "I'm talking about what should be done here."

Much of the debate concerned what can be considered a "fundamental" right under the Constitution. Once a right is deemed fundamental, in a legal sense, any government regulation that restricts that right is subject to strict scrutiny by a court. Absent that designation, government regulations typically are viewed as reasonable and survive judicial review. In Heller v. District of Columbia, decided last year, a majority of the court declared gun ownership a fundamental and "natural" right.

Hatch seemed to be arguing that Sotomayor, in the Maloney v. Cuomo case, decided after Heller, should have found that that gun ownership is a fundamental right and struck down the state regulation at issue. Sotomayor argued, however, as she has earlier, that the question of incorporation--whether that right extends to the states--is one that still must be decided by the Supreme Court, likely next term. Democrats would argue that for Sotomayor to have gone that way, she would have been the kind of activist that Republicans accuse her of being. Republicans claim her failure to do so shows her hostility to gun rights.

In any event, many Americans were likely left in the dark by much of the exchange. But view the back-and-forth as a bit of a marker. Republicans know that Sotomayor will likely be on the court when the incorporation issue is decided and they are warning her to follow what they consider to be the correct judicial path. Some gun rights groups, in fact, intend to use the final vote on Sotomayor as a symbolic test of whether senators support a broad reading of the Second Amendment.

--James Oliphant

Senate Judiciary ranking member Jeff Sessions and committee chairman Patrick Leahy. (AP/J. Scott Applewhite)

Sotomayor: The morning wrap

The press corps was promised fireworks at Sonia Sotomayor's confirmation hearing Tuesday. But the explosions have yet to materialize.

While Republicans, at times, have scored points, particularly on Sotomayor's rulings in the New Haven v. DeStefano firefighters case and two gun-rights cases, which perhaps suggested that the judge hasn't always been as diligent a jurist as her supporters claim, the larger GOP narrative--that Sotomayor is a freewheeling liberal activist poised to rewrite constitutional law--hasn't quite materialized.

Most of the heat came from an initial testy exchange between Sen. Jeff Sessions and Sotomayor, in which Sotomayor denied that her infamous "wise Latina" remark indicated that she would be anything less than impartial on the bench. (And Sessions simply seemed to decide to not believe her.) But the episode also gave Sotomayor the opportunity to frame herself as an even-tempered, dispassionate and knowledgable jurist. And since that point, it's that image that--so far--seems to have carried much of the day.

And Sen. Orrin Hatch, grilling Sotomayor after Sessions, engaged in a bit of a legalistic ping-pong match involving constitutional standards that, albeit important, fizzled at the end and ended up more as an advisory to Sotomayor to treat gun rights and reverse-discrimination claims with appropriate deference. Buried in the exchange was the implication that Sotomayor had been either an inattentive or result-oriented jurist, but that didn't surface with clarity.

Democrats, on the other hand, worked what could largely be called a four-corners offense, running the clock, and asking Sotomayor's views on a variety of subjects, from property rights, to privacy, to national security. The overall effect is to allow Sotomayor to speak at length in a technical, button-downed fashion that places attention squarely on her record and less on her speeches and statements.

But there is a long afternoon ahead and plenty of time for charges and counter-charges, starting with Republican Sen. Charles Grassley, who will speak after the lunch break.-- James Oliphant

Sotomayor hearings: A protest -- then a punch line

In the middle of a somewhat austere colloquy between Sen. Charles Grassley and Judge Sonia Sotomayor over property rights, yet another anti-abortion protester leaped to his feet. A stocky man in a business suit issued a warning to Republicans if they support Sotomayor: "The GOP is done!" he screamed. "Baby killers!"

Officers struggled to pull the man out of the hearing room.

"People always say I have the ability to turn people on," the low-key Grassley joked to loud laughter.

-- James Oliphant

Jab and dodge on the 'taking clause'

Sen. Charles Grassley of Iowa, a Republican, who told Judge Sonia Sotomayor in his opening statement Monday that he had doubts about her ability to be an impartial judge, pressed her on her philosophy about individual property rights and the right of the government to take property, as provided by the Constitution.

He asked her for her "general understanding" of the "taking clause," particularly as it applied to the Kelo case, in which the Supreme Court upheld the right of a city to take private property for a shopping mall.

Sotomayor, not about to forgo the opportunity for deference to a Republican senator, began by saying, "Good afternoon, senator. It's good to see you again."

"With respect to the importance of property rights," she said, "I just point out to you that another case involving that issue that came before me. ... In a series of cases involving a village in New York, I ruled in favor of the property owner's rights to challenge the process that the state had followed in his case and to hold that the state had not given him adequate notice, an adequate opportunity to express his objection to the public taking in that case."

Grassley pressed on. "The Kelo case talked about taking private property for public purposes. Is public use and public purpose the same thing?"

Sotomayor didn't directly answer the question: "The two informed each other."

But Grassley was not satisfied. "Do you believe the Supreme Court overstepped?"

Sotomayor deflected again. " I know there are many litigants that have expressed that view, and many state legislatures....The question of whether the Supreme Court overstepped the Constitution ... I have to accept because it is precedent ... and I can't comment further than to say that I understand the questions and what state legislatures have done and would have to wait another situation to apply the holding in that case. ...

"It's the court's holding and so it's entitled to stare decisis deference." (Stare decisis is the legal term for the tradition of the court respecting legal precedents.)

-- Robin AbcarianLos Angeles Times

Sotomayor hearings: Judge looks for a trap

Arizona Sen. Jon Kyl, a Republican who voted against Sonia Sotomayor's appellate court confirmation in 1998, read back long portions of Judge Sotomayor's now-famous speech and asked her to explain exactly what she meant. First, though, he asked her whether she agreed with President Obama when he said that 95% of cases faced by a judge will be handily rendered by relying on the law, and the remaining 5% "is supplied by what's in the judge's heart."

Sotomayor flatly denied that she would rely on her emotions to decide a case. "No sir, I would not approach the issue of judgment in the way the president did.... Judges shouldn't rely on what's in their heart, they don't determine the law. Congress makes the law. The job of a judge is to apply the law. Its not the heart ... it's the law." There was a somewhat odd exchange in which Kyl asked Sotomayor if she'd ever been in a situation where a lawyer had argued a case to her by saying, "I don't have any legal argument to make here, judge, go with your gut."

Indeed, she had been in a similar situation, said Sotomayor. " I have actually had lawyers say something similar. ... I had one lawyer throw up his hands and say, 'But it's just not right!' 'But it's just not right' is not what judges consider." Sotomayor seemed to have trouble figuring out exactly what he was getting at. "This is not a trick question," said Kyl. " I would imagine the answer is yes, you have always found some legal basis for a decision."

But Sotomayor, seemingly fearful of a trap, said, "When you use the phrase 'Some legal basis,' it sounds like you are saying a judge says, 'I think the results should be here' " -- she moved her hand to the left -- "so I am gonna use something to get here' " - she moved her hand to the right.

"Have you always been able to have a legal basis for decisions you have rendered and not rely on such extralegal concept such as empathy?" he asked, alluding to President Obama's now-famous statement that empathy was one of the qualities he would seek in a Supreme Court nominee.

"Exactly, sir," said Sotomayor. "We apply law to facts, we don't apply feelings to facts."

-- Robin Abcarian, Los Angeles Times

Sometimes secrecy is appropriate, judge says

Yes, Sonia Sotomayor told the Senate Judiciary Committee, there might be times when secrecy is appropriate in judicial or government proceedings.

The answer was in response to a question by Sen. Russell D. Feingold of Wisconsin, who brought up the Foreign Intelligence Surveillance Act. Or, as Feingold referred to it, "FISA."

The act allows the government to conduct electronic surveillance if it obtains an order from a special FISA court. Feingold suggested that secrecy has shrouded the activities of the court and surveillance. And without saying so directly, he criticized surveillance activities under the Bush administration.

Sotomayor did not get into specifics but said that, in such issues, a judge would have to look at the intent of Congress in crafting such legislation.

She also added that there are times when "openness can't be had for a variety of different reasons." She cited, for example, the practice of impaneling juries anonymously for their protection. Sometimes, she said, that is necessary.

-- Steve Padilla, Los AngelesTimes

Sotomayor hearings: Refusing to be pinned down

Judge Sonia Sotomayor may be indeed impartial and even-handed: She hasn't given senators from either party much to work with.

First she bobbed and weaved with Sen. Charles E. Grassley, an Iowa Republican, over property rights and environmental cases, avoiding articulating a specific judicial standard for when a government taking is appropriate when private uses are involved.

Then she has similarly disappointed Democratic Sen. Russell D. Feingold of Wisconsin by declining to offer a critique of Bush administration anti-terrorism policies that were tossed by the Supreme Court. In fact, she refused to label such policies "mistakes," even though some were ruled unconstitutional. Judges don't look at actions, that way, she counseled.

But one interesting point: Sotomayor affirmatively stated that she would sit out a Supreme Court review of Maloney vs. Cuomo, a gun rights case for which she has been criticized by Republicans, if the court takes the case. But she didn't go far as to say she would recuse herself from a similar case, such as one out of the U.S. Court of Appeals in Chicago, if that were to be taken up by the high court.

If the court does, indeed, take up Maloney, then Republicans might have less to worry about.

For a moment, that was one of the most definitive moments of the day, but it lasted only a moment. It seems clear now, as Sotomayor showed this morning with Sen. Herb Kohl (D-Wis.), that she does not intend to spell out her personal philosophy with regard to specific issues that may come before the high court (which could be just about anything, of course).

-- James Oliphant

Sotomayor takes a punch

What just transpired at Hart 216 might have been the sharpest Republican critique of Judge Sonia Sotomayor as Sen. Jon Kyl (R-Ariz.) clearly articulated the GOP's main concern about Sotomayor and gave this hearing perhaps its defining moment to date.

Kyl first asked whether Sotomayor would agree with President Obama's analogy about judging that suggested there is place in decision-making for empathy for certain disadvantaged groups. But Sotomayor rejected that approach flatly. "We apply law to facts," Sotomayor said. "We don't apply feelings," evoking a grateful response from Kyl. (For a moment, he almost made it sound like they were simpatico. For a moment.)

But then Kyl, a lawyer, got to the heart of the matter, reading aloud several passages from a speech Sotomayor delivered at Seton Hall University in 2003. "To judge is an exercise in power. There is no objective stance. No neutrality. No escape from choice," Kyl quoted Sotomayor as saying.

Kyl is in the Republican leadership in the Senate -- and was expected to question Sotomayor aggressively. He didn't disappoint, although it was clear that he was attempting to be respectful, if sometimes he sounded a bit patronizing. "Let me try to help you along here," he said at one point.

Sotomayor's response was plain.

"I have a record of 17 years, decision after decision after decision," she said. "It is very clear that I don't base my judgments on my personal experiences or my feelings or my biases. All of my decisions show my respect for the rule of law."

Although Kyl's critique was the sharpest and most aggressive of the day, Sotomayor also appeared more comfortable, even joking at times, and more secure with her answers than during a similar exchange with Jeff Sessions earlier today.

"The words I chose, the rhetorical flourish," she allowed. "A bad idea." And she again maintained her words were about the importance of diversity on the bench. "I believe every person, regardless of their background, can be good and wise judges," she concluded.

At the end of the exchange, there was a feeling that Sotomayor had been hit with perhaps the hardest punch she may take. Although more will surely come her way.

Sen. Patrick Leahy called for a break afterward. And Sen. Dick Durbin (D-Ill.), the Senate assistant majority leader, slammed the narrowness of the Republican attacks, saying it was about "one case and one speech."

-- James Oliphant

Schumer: Sotomayor didn't follow her heart

Sen. Charles Schumer, in his effort to show that Judge Sonia Sotomayor uses her head, not her heart, raised one of her previous cases, Pappas vs. Giuliani. The case involved a police officer who was fired for sending racist and anti-Jewish leaflets through the mail.

The case, said Schumer, involved "a repugnant litigant."

And yet ... although the court upheld the firing of the officer, Sotomayor dissented, saying the termination violated his right to free speech.

"You wrote that the literature was patently offensive and insulting," said Schumer. "But you also noted the employee's right to free speech had to be respected."

Sotomayor agreed. "That's what I believe. ...The 1st Amendment commands we respect people's rights to engage in hateful speech."

Added Schumer, "We could do this all day long -- where sympathy, empathy would be on one side, but you found rule of law on the other side, and you sided with rule of law. To me, analyzing a speech and taking words maybe out of context doesn't come close to analyzing the cases as to what kind of judge you will be."

And, indeed, Schumer proceeded to go on, if not all day long, then for his allotted time, to describe her cases, not her speeches.

-- Robin Abcarian, Los Angeles Times

A question of temperament

Before Sonia Sotomayor was even nominated to the Supreme Court by President Obama, an article in the New Republic appeared to damage her chances critically. The article, titled "The Case Against Sotomayor," by George Washington University law professor Jeffrey Rosen, quoted the Almanac of the Federal Judiciary, a guidebook to federal judges.

The almanac solicits comments from lawyers who practice before the judges profiled in the book -- and because of the delicate nature of the feedback, the comments are anonymous. The lawyers quoted complained that Sotomayor was a "bully" and a "terror" on the bench, suggested she wasn't "that smart" and was rude to lawyers who made arguments she didn't like.

The article sparked an Internet firestorm. And Sotomayor's defenders suggested she was being portrayed as an irrational, overly emotional Latina in a way that a man in her position would not be.

After the retirement of Justice David Souter was announced, it was thought by many observers that the piece had harmed Sotomayor's candidacy for the high court. (The White House apparently didn't agree.) And after she was announced, the issue of temperament surfaced briefly and slowly disappeared, buried beneath issues such as the "wise Latina" speech and the New Haven, Conn., firefighter case.

This afternoon, Sen. Lindsey Graham (R-S.C.) brought those old remarks up again, asking Sotomayor flatly whether she had a "temperament problem." Sotomayor didn't apologize for asking tough questions of lawyers in her court and said that her circuit is what's called a "hot bench," in which judges routinely question litigants aggressively.

It should be noted that being tough on advocates is de rigeur for the Supreme Court. Lawyers there often barely begin their presentations before they are interrupted by one of justices. Being able to survive that sort of intense questioning and still deliver your argument is viewed as a badge of honor. If anyone ever asked Antonin Scalia if he had a temperament problem, he'd probably readily agree -- and be proud of it.

-- James Oliphant