Sonia Sotomayor continues her testimony Wednesday before the Senate Judiciary Committee
(Win McNamee/Getty Images)
by James Oliphant
We're back at Hart 216 for the third day of the Sotomayor Supreme Court hearings.
Stay here for real time analysis during the day.
The hearing has concluded for the day and will resume at 9:30 p.m. ET
(5:25 p.m. ET) Again with the empathy
Empathy, one of a few recurring motifs in the (not very fierce) battle over Judge Sonia Sotomayor's nomination to the high court, came up again when Sen. Orrin Hatch (R-Utah) mentioned the nomination by President George H.W. Bush of Supreme Court Justice Clarence Thomas, "a circuit court judge like you."
Back then, said Hatch, Bush lauded Thomas for a number of things, including his sense of empathy. (And President Obama said one of the qualities he would seek in a Supreme Court justice was that quality.) But, said Hatch, "President Bush drew a clear distinction between the human quality of empathy and the judicial quality -- or duty -- of impartiality. This is obviously very different than saying a judge's personal empathy is an essential ingredient in deciding cases. Which is more important?"
Sotomayor, who was first nominated to the bench by Bush in 1991 -- the same year he nominated Thomas to the Supreme Court -- said, "Two presidents have used the word 'empathy,' and each has given it their different meanings. And I can't speak for their choice of the word or make a choice between what meaning is closer to what I believe or not, because I can state what I believe very simply: Life experiences help the process of listening and understanding and argument. The law always directs the result in the case. A judge cannot decide the case based on personal sympathies."
--Robin Abcarian, Los Angeles Times
(4:55 pm. ET) Orrin Hatch wants to know if it's OK to bend the Constitution
Sen. Orrin Hatch (R-Utah) queried Judge Sonia Sotomayor about her judicial philosophy as well as the role and power of a judge in the American system of government.
Sotomayor had said Monday in her opening statement that her judicial philosophy could easily be summed in four words: "fidelity to the law." Good shorthand, he said, but not enough.
He wanted to know whether she thinks that judges can "read new rights into the Constitution."
"The Constitution creates the rights, it's immutable," said Sotomayor.
During her 1998 Senate hearing when she was confirmed for the federal bench, said Hatch, "You said, 'I don't believe we should bend the Constitution under any circumstances. It says what it says.' Maybe you could describe some ways the court could bend the Constitution?"
Replied Sotomayor: "I said you can't. The words are the words. The court can't be looking to ignore the words or to change them. What it does is apply those words to each situation. I stand by that answer today as I did then."
"Would you agree the Supreme Court bends the Constitution when it does read rights into the Constitution?" Hatch asked.
Hard to know what Hatch was driving at, exactly, other than an oblique reference to the fact that the Supreme Court has found, for instance, a right to privacy in the Constitution -- as in its landmark Roe vs. Wade decision -- though the document does not contain that word.
"Courts can't change the meaning of the Constitution," Sotomayor said. "They can apply those words to the facts before them, to see if the facts are within the protection of the Constitutional right at issue."
Hatch turned to a speech Sotomayor gave in 2006 at the University of Puerto Rico Law School, where she made a distinction between what district courts and circuit -- or appellate -- courts do.
"You said ... 'the difference between district court judges and circuit court judges is that district court judges do justice for the party, while circuit court judges do justice for society as a whole.' This is important in light of your comment that the court of appeals is where policy is made. What do Supreme Court justices do justice for?"
She didn't directly answer the last part of his question, about the Supreme Court, but she say that "the district court is looking at two parties; the circuit court is looking at the law, and a holding about the law that will affect many people."
--Robin Abcarian, Los Angeles Times
(4:45 pm. ET)Wiggle room on question of precedent
Sonia Sotomayor pledged allegiance to judicial precedent but also left a door open, just slightly, heading into new legal territory.
It happened as she was being questioned by Sen. Herb Kohl, a Wisconsin Democrat. The judge said that if she were a Supreme Court justice, she would adhere to previous rulings if the issue in question had been previously brought to the high court.
But then Kohl pointed out that Supreme Court justices "have the authority to depart from precedent" and asked Sotomayor to tell him how she would decide when it is appropriate to do so.
"Changing it should be done cautiously," she said. But, she agreed, "precedent can't stand if other things counsel that it should not."
Sotomayor said she would ask a series of questions when weighing whether to change a precedent. She said she would look to see whether the facts that the court assumed in earlier precedents had changed; she also would question whether the precedents are providing enough guidance to the courts below.
(4:30 p.m. ET) Sessions turns Perry Mason
Jeff Sessions just conducted what might be considered a cross-examination of Sonia Sotomayor, rapidly firing off what's seen by some as the GOP's greatest hits with regard to her Supreme Court candidacy -- the "wise Latina" remark, gun rights, the Puerto Rican Legal Defense and Education Fund. In each case, he pushed Sotomayor to confess (a la Perry Mason), to admit that, basically, she is misrepresenting herself before the committee. And when she failed to admit that, he essentially said he didn't believe her.
That's the meme that's emerging today -- the allegation by Republicans that basically Sotomayor isn't being honest about herself, much in the same way that liberal groups accused John Roberts and Samuel Alito of hiding a secret agenda.
Some of it turns on distinctions that don't make all that much difference: Sessions suggested that she was more involved in the litigation activities of the Puerto Rican fund than she had said she was (and she denied ever denying that she wasn't involved, if you can follow that).
But Sotomayor, who was a board member of the committee, may or may not have reviewed particular documents, but those who worked with her at the time, more than 20 years ago, told the Los Angeles Times when she was nominated that Sotomayor was sympathetic to the fund's mission. And Sotomayor herself hasn't said that she wasn't. Her association with the fund is clear. What isn't is whether that makes any difference now with regard to her judicial approach.
Sessions, along with Jon Kyl and other Republicans, also are doing what they can to make this nomination about gun rights and whether the right to own a handgun extends to the states, perhaps to scare moderate, pro-gun Democrats who hail from rural states who might be inclined to support the judge and who fear retaliation from the National Rifle Assn. and other gun groups.
-- James Oliphant
(3:45 p.m. ET)Leahy points to strip search ruling
The Judiciary Committee resumed its hearing after a closed-door break to discuss the nominee's FBI report, as is its tradition.
Chairman Patrick Leahy, the Democrat of Vermont, gave a little speech about how important one's background is to the way one looks at the law.
"One need look no further than the Lilly Ledbetter case," said Leahy, "to understand the impact the decisions of the Supreme Court have on the lives of countless Americans." In the Ledbetter case, the Supreme Court said that Ledbetter, who for years had been paid less than men for the same work at a tire company in Alabama, could not sue because she had not learned about the discrimination until she retired -- long after the statute of limitations had expired. Congress passed the "Lilly Ledbetter Act," a bill to reverse the decision, early this year.
Leahy also mentioned Sotomayor's experience as an appellate-court judge, in which she dissented in an opinion that gave a juvenile detention center the right to strip search girls. "In your dissent, you warned that courts should be especially worried about strip searches of children," said Leahy, mentioning a recent ruling by the Supreme Court that seemed to agree with Sotomayor's dissent. In that case, involving the strip search of a teenage girl by school officials, the court said the school did not have the right to such an intrusive search. During arguments, Leahy said, male justices "compared the strip search to changing for gym class." But, he added, Justice Ruth Ginsburg, "the sole female justice," described the search as "humiliating."
(3:00 p.m. ET) Sotomayor hearing: The case that Perry Mason lost
It turns out that Al Franken and Sonia Sotomayor were both big fans of TV's "Perry Mason" when growing up. And like the judge, the newly minted Democratic senator from Minnesota said he too remembered that, in one episode, the TV lawyer's client was actually guilty.
Lightening the mood, Franken asked which episode that was.
Sotomayor confessed she had no idea.
"Didn't the White House prepare you?" Franken asked.
Sotomayor explained that she "was spending a lot of time on preparing cases."
After a little more back and forth, Chairman Patrick Leahy (D-Vt.) took charge:
"Will the gentleman from Minnesota tell us what episode that was?"
"I don't know," Franken said, to more laughs. "That's why I was asking."
The Obama White House is famous for its rapid response. Well, just minutes after this exchange, the White House has given us an answer. It's (drumroll):
"The Case of the Deadly Verdict," which aired on Oct. 17, 1963.
-- Steve Padilla and James Oliphant
(2:30 p.m. ET) Sotomayor hearings: Franken talks 'Mason' and judicial activism
Finally (dare we say it), the moment so many fans of "Saturday Night Live" have been waiting for. Sen. Al Franken, the Senate's most junior member, got the chance to query Sotomayor.
He, like the nominee, was a big fan of "Perry Mason" growing up in suburban Minneapolis.
"We'd watch the clock and knew, when it was two minutes to the half-hour, the real murderer would stand up and confess. It was a great show. It amazed me that you wanted to become a prosecutor, because the prosecutor on that show ... lost every week."
Not so, said Sotomayor, who held up one finger.
"With the exception of one week, and we'll get to that later," said Franken. "But I think that says something about your determination to defy the odds."
And then, there was a kind of gee-whiz moment when Franken said, "While you were watching 'Perry Mason' in the South Bronx with your mom and your brother, I was watching 'Perry Mason' in suburban Minneapolis with my folks and my brother, and here we are today. I am asking you questions because you have been nominated to be a justice of the United States Supreme Court. I think that's pretty cool."
And then to business. Franken wanted to know whether Sotomayor agreed with him that unfettered access to the Internet was "a compelling, overriding 1st Amendment right?" He cited a 2005 Supreme Court case -- "Brand X" -- where the court decided that cable companies do not have to allow rivals the ability to offer high-speed Internet access, a blow to those who would like to see more competition in Internet services. Sotomayor agreed that the Internet has revolutionized communication but would not agree to characterize the right the way Franken had.
(2:30 p.m. ET) Specter pushes for answers on court workload
Sen. Arlen Specter, a newly minted Democrat from Pennsylvania, opened the afternoon session. As he mentioned in his opening statement on Monday, Specter said he wanted to talk about the productivity of the court, which, over the decades, if not the centuries, has seriously reduced the number of cases it hears.
"During his confirmation hearings, Chief Justice Roberts said, quote, 'The court could contribute to the clarity and uniformity of the law by taking more cases.' Judge Sotomayor, do you agree with that statement?"
Sotomayor barely got her answer out: "What Chief Justice Robers is saying is the court needs to think about its processes."
"Judge Sotomayor," Specter interrupted. "What about more cases?"
"I don't like making statements about what the court can do until I've experienced the process."
Specter changed the subject, as he would do often when Sotomayor seemed to indicate she would not be answering a question as fully as he wished.
As a former chairman of the Senate Judiciary Committee, he indicated he was miffed that the Bush administration had not informed him -- as he believed was required by law -- about certain surveillance programs that were disclosed by the New York Times. A federal district court in Detroit, he said, found the terrorist surveillance program unconstitutional, but the Supreme Court refused to take up the case.
"I wrote you letters about this and gave you advance notice that I would ask about this case," said Specter. "I am not asking how you would decide this case, but wouldn't you agree" the Supreme Court should have taken up the case?
Sotomayor tried to placate a clearly irritated elder statesman: "I know it must be very frustrating to you."
"It sure is," interjected Specter. "I was the chairman who wasn't notified."
"I can understand your frustration," said Sotomayor, but she said she wouldn't answer his question because it's an issue that could come before her as a Supreme Court justice. "I am not asking you to prejudge," said Specter. "I am asking you what your standards are for taking a case. How can it possibly be justified not to take that case?"
She did mull over the issue, said Sotomayor, but ...
"I can tell you are not gonna answer, so let me move on."
-- Robin Abcarian, Los Angeles Times
(2:15) Specter tries to defuse "Wise Latina" controversy
Arlen Specter, the five-term Senate veteran, just did his best to try to put the "wise Latina" business to rest. He said Republicans (and remember, until this April, Specter was one) have made "a mountain out of a molehill." Specter, a former chair of the Senate Judiciary Committee, said that all Supreme Court justices are products of their background and experience, specifically listing Sandra Day O'Connor, Samuel Alito, Clarence Thomas and Antonin Scalia.
Specter, who has served in the Senate since 1980, said that Alito, during his confirmation hearings, talked about the discrimination his Italian immigrant parents faced in America and that Scalia talked of being "in a racial minority." He quoted Oliver Wendell Holmes, who wrote "the life of the law has not been logic, it has been experience."
Of course, if Specter were still a Republican, his calling out his colleagues on this matter would be more newsworthy. And few expect Jeff Sessions and the other GOP members of the panel to take their cues from a defector.
-- James Oliphant
(12:30 pm ET) Morning press conferences
Before the hearings began, Republicans were more concerned about Sonia Sotomayor's speeches and advocacy with the Puerto Rican Defense and Education Fund and less focused on her record as a judge.Three days along, and that's where we still are.
At a press conference minutes ago, Sens. Jeff Sessions (R-Ala.) and John Cornyn (R-Texas) suggested that Sotomayor isn't giving an honest account of herself. "You can't say one thing in Berkeley and another in Washington," Sessions said. He also said that Sotomayor had not been as "clear or consistent" as nominees John Roberts and Samuel Alito had been during their hearings. And they complained that is remains unclear where Sotomayor stands on abortion and gun rights.
Democrats too are sticking to their message. Sen. Benjamin L. Cardin (D-Md.) said that Sotomayor hasn't shown herself to be a judicial activist, which he defines as judges such as the aforementioned Roberts and Alito, saying "we don't want an activist judge who will turn the clock back" on voting rights and environmental policy. "I think she's been clear. I think she's been consistent," said Sen. Sheldon Whitehouse (D-R.I.). "She has grounded her answers firmly in case law and existing precedent."
Whitehouse praised Sotomayor for not getting drawn into answering questions about her views on abortion and gun rights, saying it "was very appropriate for her not to answer those questions" because cases involving those issues frequently come before the Supreme Court.
-- James Oliphant
(12 pm ET) Senator meets Sotomayor's mother--in the bathroom
As the Judiciary Committee resumed the questioning of Sonia Sotomayor, Sen. Amy Klobuchar (D-Minn.) said she'd been impressed watching not just Sotomayor, but also her mother, Celina, who was watching the sometimes-tough questioning from the front row.
Sotomayor has repeatedly said she rose to where she is today because of the sacrifices made by her mother. Klobuchar said she chatted with Celina Sotomayor in the restroom during a morning break. "She has a lot she'd like to say," Klobuchar said.
"Senator, don't give her the chance," said Sotomayor, laughing.
Klobuchar then mentioned her own mother, citing a comment she made about Sen. Dianne Feinstein (D-Calif.), who questioned the judge Tuesday: "I watched Sen. Feinstein and she was brilliant. What are you going to do?"
-- Steve Padilla, Los Angeles Times
(11:30 pm ET) Sotomayor and guns
In a prickly exchange over gun control, Sen. Tom Coburn tried hard to get Sonia Sotomayor to explain what she actually thinks about the right to bear arms. "As a citizen of this country do you believe ... I have a right to personal self-defense?" he asked her.
Sotomayor said she couldn't think of a Supreme Court case that had addressed the issue in that language. "Is there a constitutional right to self-defense?" she asked. " I can't think of one. I could be wrong."
The Oklahoma Republican said he didn't want to know if there was a legal precedent that would answer his question -- he wanted to know Sotomayor's personal opinion.
She paused. "That is sort of an abstract question," she said. "I don't --"
"Well that's what the American people want to hear," Coburn said. Americans don't want legalese from "bright legal minds," he said. "They want to know if they can defend themselves in their homes."
Sotomayor paused and then apologized. "I know it's difficult to deal with someone who is a judge," she said. "Let me try to address what you're saying in the context that I can, OK?"
She went on to explain a hypothetical case - and the way she'd interpret it under New York law (the state whose law she knows best). The state allows someone to defend themselves if they fear an imminent threat. Let's say, she told the senator, that Coburn threatened her and then she went home, got a gun and shot him.
"You'd have a lot of explaining to do!" Coburn said.
"I'd be in a lot of trouble then," she said, laughing, before explaining that the scenario would not fall under the definition of self-defense in New York state. Why? If she had time to go home and get a gun, the threat was not imminent.
Before moving on to a question about Supreme Court Justice Samuel Alito, Coburn excused Sotomayor's reluctance to offer up her personal opinion.
"Doctors think like doctors, lawyers think like lawyers," he said. "And judges think like judges."
-- Kate Linthicum, Los Angeles Times
(11:30 p.m. ET) The question of viability
Sonia Sotomayor's exchange on abortion got the reporters who cover the Supreme Court buzzing. Why wouldn't the judge simply go along with Sen. Tom Coburn's assertion that the viability of a fetus is a legal consideration when abortion restrictions are concerned?
After all, that legal concept was at the core of Justice Harry Blackmun's opinion in Roe vs. Wade, the opinon that established abortion as a constitutionally protected right, in which the high court defined viability as the point at which the fetus is "potentially able to live outside the mother's womb, albeit with artificial aid." The court placed that moment at 28 weeks.
But it's possible that Sotomayor views viability as a loaded term, especially when a stringent anti-abortion politician such as Coburn is doing the questioning. There long have been efforts in several states to redefine that term legislatively, especially involving the use of life-support machinery. And anti-abortion advocates such as Coburn maintain that modern medical technology has shown that viability occurs much earlier -- hence his "21 weeks" hypothetical.
Sotomayor, either of her own accord or on the advice of the White House, may not have wanted to be drawn into a debate as to when viability occurs -- and by implication, the very contentious legal and moral question about when life begins -- and how medical technology can influence that determination. But given Coburn's passionate views on the subject (he's an OB/GYN), Sotomayor may have to engage in the debate again during the second round of questions.
-- James Oliphant
(11:00 p.m. ET) Coburn tries to corner Sotomayor in abortion
Tom Coburn, the Oklahoma Republican, apologized for the anti-abortion outbursts of various spectators in the last two days and complimented the judge on her poise. But he immediately turned his attention to abortion and Roe vs. Wade and her opinion about what, exactly, the phrase "settled law" means.
Sotomayor said that Planned Parenthood vs. Casey "reaffirmed the core holding of Roe vs. Wade that a woman has a constitutional right to terminate her pregnancy in certain circumstances."
Coburn, a physician, then offered up a theoretical problem faced by a pregnant woman who learns partway into her pregnancy that her fetus has spina bifida. Should she be able to have an abortion?
"I can't answer your hypothetical," said Sotomayor.
Coburn wondered whether the technology that allows a 21-week fetus born prematurely to grown into a healthy child should have any bearing on the law. But Sotomayor refused to get into that debate. The law, she said, "has answered a different question. It has talked about the constitutional rights of women in certain circumstances."
When he kept pressing, Sotomayor demurred: "I can't answer that in the abstract because the question, if it comes before me, wouldn't come in the way you form it as a citizen. It would come to me as judge, in the context of some action that someone is taking, the state, a private citizen being controlled by the state challenging that action."
"All I am asking is should viability be considered as we discuss these delicate issues?"
A third time, Sotomayor refused to be drawn into the debate. "I can't because that's not a question that the court reaches out to answer. That is a question that gets created by a state regulation of some sort, or an action by the state, that may or may not, according to some plaintiff, place an undue burden on her. We don't make policy ...in the court.
Coburn, in a moment of genteel snarkiness, said he was reminded of her infamous quote that appellate courts do make policy (which she instantly disavowed and has been trying to explain ever since). But he didn't dwell on that and turned his attention to the definition of death.
"Does a state legislature have the right to define the definition of death," he asked. "Is it within the realm of the Constitution that states can do that?" That, said Sotomayor, "depends." The actions of states, she said, are "looked at in the context of what the state is trying to do and what the state is imposing." Coburn returned to the influence of technological advances on the discussions around abortion, life and death.
"As recently as six months ago, we recorded fetal heart beat at 14 days post-conception and fetal brain waves at 40 days. We have this schizophrenic rule of the law, we define death as the absence of those, but we refuse to define life as the dependence of those. It concerns me that we are so inaccurate, inconsistent in terms of our application of the logic."
-- Robin Abcarian, Los Angeles Times
EARLIER WEDNESDAY
Sotomayor hearings: Playing softball
Cardin2 As expected, Democratic senators on the Judiciary Committee have been pitching softball questions to Sonia Sotomayor. (The committee seems unable to conduct proceedings without invoking baseball metaphors, so the Ticket will follow its lead.)
The first big softball of the day came from Sen. Benjamin Cardin (D-Md.), who asked her her view on public service.
Sotomayor said if you look at her speeches, public service and pro bono work are the main topics she addresses, whether speaking to students, new citizens or community groups. She added that public involvement doesn't have to be political. She encouraged Americans to get involved somehow, perhaps in their churches and communities.
Public service, she said, "is a core responsibility" for lawyers. Democrats outnumber Republicans on the panel 12 to 7. There's only one Republican left to quiz Sotomayor, so expect more softballs -- at least as the first round of questioning continues.
-- Steve Padilla, Los Angeles Times
Sotomayor hearings: Judicial temperament -- or temperamental?
Cardin Benjamin Cardin, trying to counter comments made Tuesday about Sonia Sotomayor's behavior and demeanor on the bench, quoted surveys of lawyers praising her work as a judge.
A sampling: "She is good.... She is bright.... She is smart...frighteningly smart.... An exceptional judge overall."
Cardin, a Maryland Democrat, was clearly trying to deflect remarks by Republican Sen. Lindsey Graham of South Carolina, who on Tuesday cited other comments by lawyers, who took a drastically different view of Sotomayor. Those lawyers characterized her as hot tempered, impatient and a bully. Graham even suggested the remarks might prompt Sotomayor to reflect on her behavior on the bench.
Not mentioned was that Sotomayor was recently deemed "well qualified" to serve on the Supreme Court by an American Bar Assn. panel -- the highest rating the national attorney organization bestows.
This morning, Sotomayor responded to Cardin by saying that lawyers who argue before her know "how engaged I become" in the proceedings. She allowed that her passion "can appear tough to some people."
She added some judges never ask questions. (She didn't name him, but Supreme Court Justice Clarence Thomas is famous for almost never asking questions from the bench.) Her style, she said, is different.
-- Steve Padilla, Los Angeles Times
Cornyn vs. Sotomayor
Sen. John Cornyn, citing a speech by Sonia Sotomayor, said it appeared she suggested that judges make laws. "Can you explain what you meant by those words?" the Texas Republican asked.
Sotomayor began by saying the speech aimed to inspire students and to battle the cynicism that people sometimes express about the legal system. She then said that, no, judges don't make law, although the public sometimes perceive judges as doing just that.
She did allow that judges interpret laws but added, "We're not lawmakers."
Building on her comments about interpretation, she noted that Congress changes laws all the time and that society changes and evolves. Sometimes, she said, old laws must be applied to new sets of acts. This is what requires interpretation.
"If law was always clear, we wouldn't have judges," she said.
As for judges making judgments that are viewed as radical, as in the desegregation case of Brown vs. Board of Education, Sotomayor said that courts often head into new a direction not on their own initiative, but because they are pointed in that direction by lawyers filing and arguing cases.
--Steve Padilla, Los Angeles Times
Sotomayor hearings: On abortion
Sen. John Cornyn asked Judge Sotomayor about a Washington Post story from May. The story said the White House was scrambling to assure liberal groups about her stance on abortion. He said the story quoted George Pavia, a senior partner in the law firm where Sotomayor worked from 1988 to 1992, as saying that support of abortion rights would be in line with Sotomayor's "generally liberal instincts."
Quoting Pavia, Cornyn read: "I can guarantee she'll be for abortion rights." "On what basis would the White House send a message that abortion-rights groups do not need to worry about how you might rule in a challenge to Roe vs. Wade?"
Sotomayor said she was asked no question by anyone in the White House, including the president, about any single legal issue.
"You just have to look at my record to know that, in cases I address, I follow the law," she said.
Then why would Pavia say that? asked Cornyn.
Beats me, replied the nominee.
"I never spoke with him about my views on abortion or my views on any social issue." She noted that she had voted in favor of anti-abortion groups in a case involving the "Mexico City policy," which forbids the United States from funding foreign groups that provide abortion services.
"Do you agree with his statement that you have generally liberal instincts?" asked Cornyn.
Sotomayor said that if Pavia had been talking about her serving on the board of the Puerto Rican Legal Defense and Education Fund, "a board that promoted equal opportunity for people....you could talk about that being a liberal instinct in the sense that I promote equal opportunity in America and attempts to ensure that."
But, she added, she's pretty sure that Pavia has not read a thing she's written for 17 years because "he is a corporate litigator and my experience with corporate litigators is that they only look at the law when it affects the matter before them."
Cornyn returned to a topic that dominated part of Tuesday's hearing, the New Haven, Conn., firefighters case. He wanted to know, as other Republican senators did yesterday, why she and her fellow appellate court judges upheld the ruling in that case (recently reversed by a split Supreme Court) with a brief order, rather than a full review. Sotomayor said the appellate-court panel often ruled that way, particularly when it was upholding a lower-court decision, one that had generated in this case a 78-page decision.
The workload, she said, was such that 75% of the court's decisions are decided that way.
-- Robin Abcarian and Kate Linthicum, Los Angeles Times
Sotomayor hearings: 'If law was always clear, we wouldn't have judges'
Sen. John Cornyn, citing a speech by Sonia Sotomayor, said it appeared she suggested that judges make laws. "Can you explain what you meant by those words?" the Texas Republican asked.
Sotomayor began by saying the speech aimed to inspire students and to battle the cynicism that people sometimes express about the legal system. She then said that, no, judges don't make law, although the public sometimes perceived judges as doing just that. She did allow that judges interpret laws but added, "We're not lawmakers."
Building on her comments about interpretation, she noted that Congress changes laws all the time and that society changes and evolves. Sometimes, she said, old laws must be applied to new sets of acts. This is what requires interpretation.
"If law was always clear, we wouldn't have judges," she said.
As for judges making judgments that are viewed as radical, as in the desegregation case of Brown vs. Board of Education, Sotomayor said that courts often head into new a direction not on their own initiative, but because they are pointed in that direction by lawyers filing and arguing cases.
-- Steve Padilla, Los Angeles Times
Sotomayor hearings: Remember, Sen. Cornyn, there are Latinos in Texas
Judiciary Chairman Patrick Leahy just stuck it to Sen. John Cornyn pretty good.
After Cornyn finished a tough round of questions of the nominee, Leahy stated that he was entering "into the record" a letter of support from Latino chambers of commerce across the nation. But Leahy specifically mentioned the chambers from Odessa, Dallas, Houston -- all in Texas.
It couldn't be lost on Cornyn, a Texas Republican, that Leahy was warning him that there could be a political price to pay for opposing Sotomayor. Leahy also threw in an Arizona reference, no doubt for the benefit of Sen. Jon Kyl (R-Ariz).
-- James Oliphant
Sotomayor hearings: Don't talk about the 'Marshall Effect'
Tott-thurgood_e2635ngw With Sen. John Cornyn again locking onto Judge Sotomayor's "wise Latina" remarks, the nominee has had to step back from gender and ethnic identity, which she has said many times define her. So don't expect Sotomayor -- or the Democrats defending her on the Senate Judiciary Committee -- to discuss what was considered to be a major benefit that the Latina would bring to the bench.
When Sotomayor was nominated, much was made of the "Marshall Effect," the term coined for the effect of his presence on other justices. Marshall often said he served as reminder to the white men on the court of the African American experience and the problems confronting the poor and disadvantaged.
Last week, Nan Aron, the president of the Alliance for Justice, a liberal advocacy group, wrote a letter to Sens. Patrick Leahy and Jeff Sessions saying Sotomayor could have a similar effect on this Supreme Court:
In sum, our examination of Judge Sotomayor's record demonstrates her consistency and restraint as a jurist. Importantly, her very presence on the Court may have a "Marshall effect": justices who sat with Justice Thurgood Marshall have noted that his presence in conference and on the bench changed their conversations and informed their decisions. As the Court's first Hispanic and only its third woman, Judge Sotomayor may have a similar effect on the activist justices on the Court who appear intent on weakening our core constitutional, civil rights, environmental, and labor protections.
But you aren't like to hear much about that today, as this hearing has proved that airing such issues seem to be radioactive where Sotomayor is involved.
-- James Oliphant
Coming up: Big Bad John
Judge Sotomayor is being questioned by Republican John Cornyn. The former Texas Supreme Court justice likes the idea of walking tall and carrying a big stick, Texas style, as a campaign video from last year illustrates:
But Big Bad John has a big problem. He hails from a state where Latinos make up about 36% of the population and where some might not take too kindly if he's a bit rough with the Supreme Court's first Latina nominee. And he has another (Texas-sized) headache: As chairman of the National Republican Senatorial Committee, he's charged with the unenviable task of trying to win more Senate seats for the GOP -- which won't be easy without Latino voters on board.
In his opening statement Monday, Cornyn was almost abstract in his approach to Sotomayor -- speaking at length about his concern over the state of the American judiciary writ large and not upbraiding the nominee as others on his panel have done. That's different today, however, as Republicans clearly want to paint the New York federal judge as both a beneficiary and a practitioner of identity politics. That means another healthy dose of "wise Latina" and the Connecticut firefighters case. Right now, Cornyn and Sotomayor, both lawyers, are debating the meaning of Sotomayor's words in several speeches.
Comments
Sotomayor was raised a Catholic. Most Catholics are against Roe v . Wade. Why aren't the Senate Pugs more happy? Why aren't the Dems questioning more about Roe v. Wade? The 'Wise Latina' hammering is a time consuming smoke screen for both.
Posted by: Vivian | July 15, 2009 10:45 AM
Can you guys let us know what's going on with comment posting these days?
Is there a technical problem, or are the comments only going to be updated 2 or 3 times a day from now on?
Thanks!
Posted by: A Swamp Rat | July 15, 2009 12:22 PM
"Sotomayor was raised a Catholic. Most Catholics are against Roe v . Wade."
Not that big of an issue; it's settled law; 54% of Catholics voted for Obama.
Posted by: Flo | July 15, 2009 1:38 PM
Just in case you thought Vivian had some respect for latinas I thought I'd post these as a reminder of the true disdain that she holds them in:
--------------------------------------
Jeb Bush is married to Columba Garnica Gallo, born in Mexico--and educated there. Jeb's half Mexican children and wife most likely still have blood relations in Mexico--and how many Mexican relatives here in the states? Of course Jeb and his Mexican wife want immigration reform--where all illegals and their many straggling relatives are given amnesty in America--and then by extension free health care when the time comes. No, no reform. Just enforce the law. Illegals were able to walk into our country. They can walk out. It's actually not the great logistical nightmare in sending them all back to their own nation. Just enforce the laws. By not upholding the laws of the USA, Obama has lied in taking the presidential oath. I don't want to give amnesty to anyone whose first act on American soil was a calculated illegal act. There is every reason not to trust them for anything if they came in unlawfully. Jeb wants us to give someone--who broke into our house and stayed--a free pass. Aren't property owners allowed to shoot in Texas when someone breaks in?
Posted by: Vivian | July 11, 2009 7:51 PM
=--------------------------------------
How much will Obama listen to his wife re our immigration policy? It seems like a conflict of interest for Jeb to have chaired the policy given his Mexican wife and Mexican family ties. Everyone here should search, if they can actually find lists, to see who are members of the CFR. A few that can be found by name look like some of the weirdest of bedfellows. I'm, again, wondering how different Obama is from what we just voted out of office. Political parties. Political schmarties.
Posted by: Vivian | July 12, 2009 10:32 PM
------------------------------------
Posted by: Nick | July 15, 2009 2:09 PM
Quite an amusing article, I will say - surprised. If there is no secret at all where bloggers derive material for the articles? I understand that they were written by hand, but the "plot" find somewhere.
Posted by: Nebojsa Stefanovic | July 15, 2009 3:12 PM
Racist, Republican and Stupid is no way to go through life, Senator Sessions
Posted by: Dean Wormer | July 15, 2009 3:52 PM
* * * * *
Posted by: Vivian | July 15, 2009 10:45 AM
.
Actually, Vivian, Sotomayor addressed this issue twice yesterday. When asked about it by Senator Kolh, she acknowledge that there is a right of privacy, and that, "[t]he court's decision in Planned Parenthood vs. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled in terms of the holding of the court." When Senator Graham took up the subject, she attempted to lecture him on the holding in Roe. After he got her to admit that “abortion” isn’t mentioned in the Constitution, she stated that reproductive rights are part of, and implicit in, the Due Process Clause.
.
But you are still correct in asserting that something is going on that doesn’t meet the eye. Neither exchange necessarily reflected Sotomayor’s full view on the issue. In fact, Judge Sotomayor has done a wonderful job of telling the Senate panel what the law currently is, rather than her own views are.
.
Judge Sotomayor effectively dodged the abortion issue - and many others - by resort to the truism that Supreme Court decisions are “precedent” and, thus, settled law. What she isn’t saying, and what no one has challenged her on, is the fact that Supreme Court precedents aren’t binding on the Court, and would not be binding on her if she was elevated to the Court. As a knowledgeable lawyer and jurist, she has to know all of this. In which case, her resort to the “precedent” rhetoric is some indication that she’s playing hide-the-ball with her real views. So, yes, reasons exist for your concern.
.
However (and far be it from me to pass judgment on her religious views), I wonder whether your concern over her Catholicism might be unwarranted. Justice William Brennan was a Roman Catholic (“RC”), and he voted with the majority in Roe. Judge Anthony Kennedy is also RC, but he voted to uphold Roe in Planned Parenthood v. Casey. Chief Justice John Roberts, also RC, stated in his confirmation hearing that “there is nothing in my personal views that would prevent me from fully and faithfully applying … [Roe] … as well as Casey." Thus far, Gonzales v. Cahart has been the only abortion-related case in which he has voted. There, the Court upheld the 2003 federal ban on partial birth abortions because it did not conflict with Roe and Casey. Roberts voted with the majority, but did not join Justice Thomas’ concurring opinion which advocated the overruling of Roe. Thus, I am unsure that being RC is as much a proxy for being anti-pro-choice as you seem to think.
.
On the other hand, I am not sure that anyone has asked Sotomayor any of the real tough questions. President Obama is presently working on an unprecedented expansion of the federal government. I am sure, as a student of history, Obama realizes that he might get some opposition from the Supreme Court on all of this change. After all, FDR got a lot of push-back from the Supreme Court on parts of his “New Deal” before he threatened to “pack” the Court. Thus, I wonder whether Sotomayor is, how shall we say, “Machiavellian enough” to support his agendum and whether he selected her for that purpose. Moreover, a Machiavellian type might allow the restriction of recognized constitutional rights with less compelling justification than a non-Machiavellian. Thus, while she’s told us all about the holdings in Roe and Casey, she hasn’t told us where she thinks they could be made to yield. Unfortunately, I am unsure anyone will have the prescience to ask her about any of this.
Posted by: John W. | July 15, 2009 4:52 PM
Stop the hearing, send her home and Obama can find a conservation Republican for the position that will side with the American people.
Posted by: annjilly | July 15, 2009 5:22 PM
Her confirmation is a slam dunk. She distanced herself from the "wise Latina" statement, as well as Obama's silly empathy standard. Those were the only real obstacles, and the latter was easy to dodge as she did not even say it. She obviously has the education and experience as a judge, and since I don't see her being significantly left of Souter, the make up of the SCOTUS is unchanged. Confirm and move on. Not a place for the GOP to draw battle lines; even if by some miracle her nomination is derailed, it's not like Obama is going to nominate a conservative.
Posted by: Herbie H. | July 15, 2009 5:33 PM
Maybe there will be a second Justice Roberts who will be the switch in time who saves nine.
If you thought the primary campaign ended up with an amazing result, and then thought the general election campaign ended up with another, then hold on to your earmuffs, because by Labor Day you may find Barack has achieved some major parts of his agenda.
And the right wingers on the Court might want to take note as well.
They've been for cutting back Congressional authority when it suits their own right wing world view.
How "executive privilege" and the "unitary executive; gambits on reducing Congressional power will fare is unclear, given that W is out and a Hyde Park liberal is in like Flynn.
But I think the right wingers need to proceed with caution.
Thus far they've only seen Obama the Nice Guy.
They might be shocked to learn that there is an iron fist inside that velvet glove.
For starters: that raise they're always asking for?
That can be tabled for a few years.
I wouldn't rule out a major overhaul of the federal courts.
After all, during the Civil War the Supreme Court had 13 members, not 9 as today.
That number could be restored. After all, the population of the US is several times what it was in 1860,
Posted by: ornery | July 15, 2009 5:59 PM
* * * * *
Posted by: annjilly | July 15, 2009 5:22 PM
.
Oh no, not a conservation Republican! We couldn’t have that! Besides, Republicans aren’t supposed to agree with Obama’s views on greenhouse gasses or global warming.
Posted by: John W. | July 15, 2009 6:31 PM
she hasn’t told us where she thinks they could be made to yield. Unfortunately, I am unsure anyone will have the prescience to ask her about any of this.
Posted by: John W. | July 15, 2009 4:52 PM
*******************************
.
Pass the popcorn, you narcissist clown!
I'm really enjoying the show that your conservative heroes are putting on here.
The trainwreck that is the Libertarian/Republican party, who are questioning Sotomayor, are a direct result of the purifying of what's left (the South) of your shrinking base. If the only people you meet and work with are base racists wingnuts, and you have no connection to people outside of your own group-think, it's no wonder you nuts think this is the way to connect to people. You don't have any, dare I say the word, "empathy", with how people outside your Ron Paul fanclub think.
Posted by: unemployed lawyer | July 15, 2009 6:42 PM
Flo--How loopy. The fact that 54% of Catholics may have voted for Obama has nothing to do with how Sotomayor would vote if the Supremes were forced to revisit Roe v. Wade. Once she is in, she is independent and on her own.
Posted by: Vivian | July 15, 2009 6:45 PM
Flo--How loopy. The fact that 54% of Catholics may have voted for Obama has nothing to do with how Sotomayor would vote if the Supremes were forced to revisit Roe v. Wade. The issue was not discussed enough . Nothing was discussed enough--or in depth due to the smoke screen on both sides. Once she is in, she is independent and on her own--as is the plan for all Supremes.
Nick--I have disdain (your word) for those who break the law--then expect to have the end justify the means. And, I have disdain (your word) for those wanting to give lawbreakers a free pass--while calling others who do not "disdainful" or hateful. Why twist other people's words? I assume Sotomayor and her family came in the legal way--and she is probably better than someone McCain would have offered for the bench. No need to extrapolate in a negative way on my words unless you are a proven clairvoyant. It's highly unlikely that you are. I'll speak for myself. Thanks anyway.
Posted by: Vivian | July 15, 2009 7:17 PM
Yeh. So. She'll be confirmed. Can we bypass the rest of this boring mess and maybe pick up something more interesting? I'd thought we were through with MJ's boondoggle but I guess not; how about we move on????
Is anyone interested in finding out why the Palestininans think the Pres. may be implicated in Arraft's death? His death was very strange; sort of like he got put inside a microwave. Any comments?
Posted by: irene | July 15, 2009 7:36 PM
Today she's talking way too much.
She assumes a modicum of good faith on the part of the likes of Coburn and other R's.
Wrong.
All the questions are trick questions.
She'd be better off just side stepping all the hot button issues like Roberto did. Just say "I'm sorry that is likely to come up before the Ct. and I will keep an open mind until it does but it wouldn't be appropriate to address it here because it might, among other things, suggest an outcome shaped by my trying to tell you what I think you want to hear..." etc. etc.
Just give them the ole Replican rope-a-dope answers Roberto and Scalito gave the last 2 times around. Make the Senators use up their time trying to "narrow" and "rephrase" the questions.
Posted by: ornery | July 15, 2009 8:28 PM
They won't revisit Roe v. Wade, Vivian. I think you're the loopy one. And nominees won't promise how they will vote on it anyway.
Posted by: Flo | July 15, 2009 11:22 PM
And the prize for best photo from the hearings goes to...... the Swamp. ; ) Way to scare the hoods. You don't know if she's being attacked, or casting a spell. Must say I'm confident in her experience but I can't say I'm impressed with how she answers questions. Just something about it.
Posted by: there goes Africa... | July 16, 2009 12:24 AM
* * * * *
Posted by: unemployed lawyer | July 15, 2009 6:42 PM
*
Listen up you psycho, fruit-loop boob:
.
1. The Republicans in the room questioning Sotomayor are not Libertarians, and neither do they have any Libertarian leanings. If there were any Libertarians in the room, I can assure you they wouldn’t be questioning her forever about the “wise Latina” comment and some of the other, racist ramblings going on there.
.
2. Republicans and Libertarians are not the same at all. Republicans, like Democrats, are statists. That means they give preference to the power of the state over the individual, and they accept that the government has a legitimate, major role in controlling social and economic development. Libertarians are just the opposite. They reject the notion that State power is preferred to, or more important than, individual freedom; and they believe that society and the free market have sufficient and better controls than any government could impose. Indeed, to a Libertarian, the proper role of government is limited to protecting people in the quiet enjoyment of their rights and to enforce equality. The only place where Republicans and Libertarians have any overlap is in their views on “small government” - to which the Republicans only give lip service anyway. They disagree on just about everything else - including war, foreign policy, trade, civil rights, and fiscal policy.
.
I’m sorry I had to explain this at length, but you are such a boob and a blockhead that you would continue to confuse Libertarians and Republicans until someone tacked a list of differences to your forehead. In any event, Libertarians aren’t racists or fascists. If anyone is a racist or fascist, it’s someone like YOU - who believe that older, white men are evil (as you keep telling me), that everyone else is good; and that the State represents the best interests of the people, and has both the power and inclination to rescue them from themselves. It is exactly that kind of blind faith in the collective, progressive dream that has already led one nation (i.e. Germany) to embrace the worst government the world has ever seen. It is the same vision that could lead to a collective repeat of that mistake on our own soil.
.
What I find truly amazing is how you are able to read and digest all of the BS propaganda that you find out there - from places like the DailyKos - and even believe it. Yet you cannot even bring yourself to investigate the claims of anyone from any other source. You share in the kind of closed-minded, un-analytical group think that could make fascism work for real here in the United States. You should be very afraid of your own tendencies. No kidding.
Posted by: John W. | July 16, 2009 12:30 AM
All the questions are trick questions.
She'd be better off just side stepping all the hot button issues like Roberto did. Just say "I'm sorry that is likely to come up before the Ct. and I will keep an open mind until it does but it wouldn't be appropriate to address it here because it might, among other things, suggest an outcome shaped by my trying to tell you what I think you want to hear..." etc. etc.
Posted by: Moremony services | July 16, 2009 12:45 AM
I believe the panel is trying to find out what type of judge she will be not interviewing for a BFF. Her answers should have nothing to do with her personal feelings - I thought the empathy thing (which many are confusing with sympathy) was a no-go for Republicans therefore, she is correct in keeping her personal opinions to herself as other nominees have done so before her.
Posted by: lochnesssmonster | July 16, 2009 7:10 AM
Vivian- Have either Jeb Bush or his wife broken the law? Nope, yet simply because of her Mexican heritage you laim he should be barred from participation in political debate. It's not about the law to you, it aboiut race and ethnicity. In your twisted world view even being related to a person of mexican heritage makes you a second class citizen, not to me trusted.
Posted by: Nick | July 16, 2009 9:12 AM
The longer these hearings go on, the more Republicans draw negative attention to themselves. While Sotomayor proves herself patient, calm, intelligent, thoughtful, respectful, articulate, experienced, and savy with a sense of humor, the clan of white Republican men reveal themselves as racist, mesogynist, narrow-minded, and ignorant. Senators Sessions, Graham, Cornyn, Coburn, Kyl, Hatch, and other Republicans on the committee have ignored Sotomayor's lengthy record to focus hot button social issues: guns, abortion, affirmative action, immigration, voting rights, emminent domain, etc. To tell Sotomayor she has some "'splainin' to do" was unbelieveable! Republicans don't listen when her answers are not what they want to hear. Now they are all distancing themeselves from the "Sotomayor is a terrorist ad" and the other nastiness spewed by the likes of Rush Limbaugh and Pat Buchanan. Rather than make Sotomayor look incompetent or unsuitable, Republicans have made themselves look like total fools. They are out of their league.
Posted by: CarolA | July 16, 2009 9:21 AM
I think it's a shame that people want to "move on" from the Sotomayor hearings. This is a VERY important piece of news. Easily, for the next 20 years, she will be making laws that affect you, your children and maybe even your children's children. You can't compare nomination to the Supreme Court to MJ's death. One's based on the US checks and balances system while the other is a dead celebrity. The sad truth is our checks and balances system is so skewed currently that Sotomayor could say anything and still get the nomination. http://www.newsy.com/videos/sotomayor_running_wise_latina_into_the_ground
Posted by: Caitlin | July 16, 2009 11:35 AM
ornery, Clinton nominee Ginsburg started the "I can't answer questions about what may come before the Court . . .". It is known to the rest of the world as the "Ginsburg Precedent", but in whatever world you are living in, I guess it is known as the "Republican rope-a-dope", which was invented by the evil Roberts and Alito.
Posted by: Herbie H. | July 16, 2009 11:39 AM
Nick--Jeb is too close to the situation--in many respects-- to be co-chair in making immigration policy. Immigration policy = don't enforce existing laws. Flo--Roe v. Wade keeps creeping back in. Arizona is slowly pushing it back with new laws. And, didn't McCain write on his campaign web site that he would ultimately like to see Roe v Wade overturned?
Posted by: Vivian | July 16, 2009 11:42 AM
"I assume Sotomayor and her family came in the legal way"
She and her family didn't need to "come in the legal way" Puerto Ricans are United States Citizens, just the same as you Vivian. Of course, you see a person of latin heritage and you assume "immigrant". That's just ignorance. Many latinos have been living in this land long before the new commers at Plymouth Rock. This is OUR land just as much as it is yours.
Posted by: Wise Latina | July 16, 2009 11:42 AM
"They won't revisit Roe v. Wade, Vivian. I think you're the loopy one. And nominees won't promise how they will vote on it anyway."
Posted by: Flo | July 15, 2009 11:22 PM
.
What makes you think so, Flo? They've revisited Roe before, and they have narrowed it over time. The Casey decision may have reaffirmed Roe, but it narrowed it at the same time. Furthermore, Justice O’Connor, who wrote the plurality opinion in Casey is no longer on the court. A difference of one vote could make Roe go away. In addition, there’s a lot of pressure to keep revisiting the issue because a number of State legislatures continue to express hostility to the Roe decision by passing laws which attempt to erode it. That’s unlikely to stop unless one nukes Missouri and every state with a like minded legislature.
Posted by: John W. | July 16, 2009 12:10 PM
"If anyone is a racist or fascist, it’s someone like YOU - who believe that older, white men are evil (as you keep telling me), that everyone else is good"
#$$#$$#$$#$$#$$$#
Thank God for activist like John W, willing to advocate for that most downtrodden class, the old white guy. Old white guys have never gotten a fair break in our society. They have been held down for centuries by the more powerful minorities, women and youth. When will the old white guy get a fair shake? When will the old white guy get his moment in the sun.? Has any group in the history of humanity been as cruelly oppressed as the old white guy? It's hard to concieve that such a thing could be true.
Perhaps, if we listen to folks like John W more we can have a future where an old white guy could have an equal chance to be a CEO, a Supreme Court Justice or, even, if we dare to dream big, President of the United States. Listen to John W's call: the time has come for Old White Guy Liberation. We are old White Guys, hear us roar!
Posted by: Old White Guy Liberation Front | July 16, 2009 12:15 PM
John W, Not to intrude on your debate, but I've heard described as "libertarian" the nutty doctor from OK, Coburn's the name, I believe.
Posted by: Flo | July 16, 2009 1:05 PM
Nick--Jeb is too close to the situation--in many respects-- to be co-chair in making immigration policy. Immigration policy = don't enforce existing laws. Flo--Roe v. Wade keeps creeping back in. Arizona is slowly pushing it back with new laws. And, didn't McCain write on his campaign web site that he would ultimately like to see Roe v Wade overturned?
Posted by: Vivian | July 16, 2009 11:42 AM
Too close + related to a Mexican. So what you youre saying is that American citizens of Mexican heritage, or who are related to those of mexican heritage, should be completely shut out of the immigration discussion? What other citizens don't have the right to participate in your opinion Viv? Perhaps women shouldn't have anything to do with the abortion debate because they are just too close to the situation. Perhaps, to make sure that they don't infect the discussion we should require all American citizens of mexican heritage and their spouses to wear badge so that we can tell them apart for the real americans like you whose opinions matter. I'm sure that would make your life easier Viv, since you are so intent on blocking out the voices of your fellow citizens whose heritage differs from yours.
Posted by: Nick | July 16, 2009 2:23 PM
* * * * *
Posted by: Old White Guy Liberation Front | July 16, 2009 12:15 PM
.
Hatred or animosity toward ANYONE because of their color constitutes bigotry and racism. It is not less than bigotry and racism just because the target of the animosity lacks a historical record of being an oppressed class. In fact, it takes a racist to excuse animosity toward someone based on the lack of a historical record of oppression. True equality, untainted by racism, requires that people be treated as individuals and not as part of some larger racial class or category. The remedy is color-blindness, not color consciousness. Thus, not only is your snarky little reply stupid, it is racist too. You should be ashamed of yourself for such idiocy.
Posted by: John W. | July 16, 2009 2:26 PM
* * * * *
Posted by: Flo | July 16, 2009 1:05 PM
.
I don’t mind the intrusion, Flo. An exchange with you is more challenging and more interesting than anything coming from John E. in his character role as “unemployed lawyer,” or in any of his other avatars.
.
As for Coburn, I had not heard of his “libertarian” leanings. I would tend to disregard them inasmuch as Coburn has been known to acquiesce in the Republican Party’s statist positions. Many of those statist positions are diametrically opposed to Libertarian principles. It’s kind of like Coburn is a “libertarian” for the same reasons Ronald Reagan was graced with that epithet - more because of his “small government” talk than his actions. That’s what I was talking about when I mentioned the Republican Party’s lip service to small government.
Posted by: John W. | July 16, 2009 2:36 PM
My impression, John W, is that the Chief Justice will do his best to avoid deciding anything controversial for at least the next 15 years; they will let the Circuits handle it all, except maybe incorporation of the 2nd amendment.
Posted by: Flo | July 16, 2009 5:06 PM
The ones in recent years who said they wouldn't discuss things were Scalito and Roberto.
Yes, others have used that in the past.
As far as who started the "Borking", refer to the treatment of Thurgood Marshall, who was Borked and filibustered a long while before he was confirmed.
Roberts actually lied to the Judiciary Committee, e.g., about the Voting Rights Act.
He tried to scuttle parts of it in the case last month. He's far right, just like his old boss, the one Nixon referred to on tape as "that clown Renchberg".
Posted by: ornery | July 16, 2009 5:15 PM
Posted by: John W. | July 16, 2009 2:26 PM
John, I recommend that you do exactly what the conservatives usually tell African Americans when they complain about racism: Get over it. Quit Complaining. Quit always blaming your problems on society. Take responsibility for your own problems. It's all in your head anway. It's not our fault.
There does that make you feel better? It doesn't does it? That what African Americans hear constantly to their legitimate complaints or racism in pour society. It's alot more serious when it happens to you, isn't it?
Posted by: Jack | July 16, 2009 6:04 PM
“Roberts actually lied to the Judiciary Committee, e.g., about the Voting Rights Act.
“He tried to scuttle parts of it in the case last month. He's far right, just like his old boss, the one Nixon referred to on tape as ‘that clown Renchberg.’”
.
Posted by: ornery | July 16, 2009 5:15 PM
.
You know, I will never attempt to deny you your right to express your opinion. The problem comes from those pesky little things called facts. They don’t go away even if they don’t match people’s opinions.
.
Your opinion about Roberts suffers from the same problem. The 8-1 opinion in the case of Northwest Austin Municipal Utility District Number One v. Holder, 557 U.S. ___ (2009) - which Roberts wrote, and which is the only VRA case decided last month - left the Voting Rights Act entirely intact. In fact, the Court intentionally avoided the entire question of whether section 5 of the VRA exceeded Congress’ enforcement power under the Fifteenth Amendment. The holding in that case merely said that a Water District can seek an opt-out of the pre-clearance requirements for voting changes; a result which is consistent with some of the more recent amendments to the VRA itself. That’s hardly what I would call trying to scuttle the VRA. In which case, your claims about Roberts are entirely inexplicable.
Posted by: John W. | July 16, 2009 10:21 PM
* * * * *
Posted by: Jack | July 16, 2009 6:04 PM
.
Thanks for the recommendation, Jack. I am sure it was well intended, even if your assumptions are totally wrong. You make it sound like I’ve never stood on the side of African-Americans or Hispanic-Americans (or even just blacks or Mexicans or other minorities and non-Americans) in their battle against racist government activities. If that’s your assumption, you are wrong. I’ve defended many people of color since I started practicing law.
.
Furthermore, I don’t particularly appreciate your patronizing tone. It’s NOT a lot more serious when racism is directed at me. Racism directed at me is JUST AS SERIOUS and JUST AS BAD as when it is directed at anyone else. It is bad under all circumstances. This was the point of my previous post. It bears repeating that being the victim of racism is no excuse for practicing racism. The problem with “victims” is that they often forget to judge the morality of their own conduct. They forget that two wrongs don’t make a right. And, to the extent you are expressing a noted lack of sympathy, excusing the racism of others, or trying to teach me some lesson about the evil of racism (as if I didn’t know it already), you are doing no better.
.
BTW - even though I am white, I belong to a racial minority group (Slavic) that has had more racist things said about it than the average. Or maybe you’ve never heard a Polish Joke, seen Dan Akroyd’s and Steve Martin’s spoof on Czechs on Saturday Night Live, sat in a Judge’s chambers where Russians are spoken of as a race of criminals and thieves, or watched a movie where a bunch of men with Slavic accents are portrayed as a bunch of terrorists. In which case, I really didn’t need a mini-lecture from you on how to be “sensitive” toward racism.
Posted by: John W. | July 16, 2009 11:14 PM
* * * * *
Posted by: Jack | July 16, 2009 6:04 PM
.
ERRATA
.
The first sentence of the last paragraph of my post should read: “BTW - even though I am white, I belong to a racial minority group (Slavic) that has had more racist things said about it than the average group of white people.” The last four words didn’t make it because I was trying not to use another phrase to describe white folk.
Posted by: John W. | July 16, 2009 11:43 PM
Libertarian/John W - people who are ashamed to call themselves what they are: a Republican
Posted by: angry old white guys AKA Conservatives | July 17, 2009 5:05 AM
Sorry JW.
Listen to Roberto in the oral argument in the Austin Utility District case.
He's completely transparent in his disdain for the Voting Rights Act. In particular that line about the "elephant whistle". He views the Voting Rights Act as an "elephant whistle". A meaningless, burdensome piece of legislation that "keeps the elephants away" when it's blown.
Two little things derailed his campaign to scuttle the Act:
One, that state senator from Hyde Park made a little speech at the University of Cairo, Egypt.
And then something I called, earlier in Swampland, the Obama Effect:
Shortly thereafter, the younger demographic in Iran took to the streets to "vote with their feet" against the same kind of ballot box stuffing the Voting Rights Act has detered in places like Alasippi for the past 40 years.
So Roberto beat a strategic retreat.
Because he didn't have the votes.
Not because he didn't want to scuttle the Voting Rights Act.
Iran's dictators' tactics gave living proof of the continuing need for the Voting Rights Act in the US to prevent suppression of minority rights, particularly in the only remaining stronghold of Replican bigotry, the Deep South.
Listen, however, to Roberto in the oral argument (still posted on the web site I believe) and you'll hear pretty plainly what he really thinks and where he wants to go.
Fortunately, there's a man in the White House who presents quite an obstacle.
Posted by: ornery | July 17, 2009 10:24 AM
John W.. check out Exiles in the Garden by Ward Just.
Posted by: Flo | July 17, 2009 10:36 AM
* * * * *
Posted by: angry old white guys AKA Conservatives | July 17, 2009 5:05 AM
.
The Republican Party and the Libertarian Party are separate parties. I am not a Republican. I have registered as a Libertarian, which is allowed in my State. That excludes me from being a Republican. Nice try. No kewpie doll.
Posted by: John W. | July 17, 2009 1:00 PM
* * * * *
Posted by: Flo | July 16, 2009 5:06 PM
.
I’m sorry, Flo. You’ve already directed two posts at me to which I haven’t replied. My bad.
.
You first comment about the Chief Justice doing his best not to decide anything controversial for 15 years. I would be interested to know what gives you this impression.
.
You then recommend the book “Exiles in the Garden” by Ward Just. From the reviews I’ve read, everyone seems to think it’s a wonderful book. I am, however, still unsure how it fits into the discussion. I am a voracious reader, so I may take your advice regardless.
Posted by: John W. | July 17, 2009 1:22 PM
Hey now don't you go picking on angry old white guys, around the angriest old white guy of them all, John W. He would happily turn the clock back to 1952, the good ole days when everyone knew their place.
Posted by: Strom | July 17, 2009 1:33 PM
* * * * *
Posted by: ornery | July 17, 2009 10:24 AM
.
I downloaded the oral argument, listened to it, and then read and re-read the transcript of the oral argument. After all that, I still believe you are wrong in suggesting that “he tried to scuttle parts of” the VRA. I also believe you are wrong in suggesting, from the evidence of the oral arguments, that “[h]e's completely transparent in his disdain for the Voting Rights Act.”
.
I agree that he expressed misgivings with regard to the pre-clearance enforcement provision of the Voting rights act, because there is a question as to whether it exceeds the power of Congress under the enforcement provisions of the Fourteenth and Fifteenth Amendments. However, having less than a glowing opinion of a small part of a law hardly qualifies as an attempt to scuttle it. It is also less than total “distain” for the whole VRA. The elephant whistle remark, in context, was a comment on the whether the portion of the VRA that requires pre-clearance sweeps too broadly - rather than the entire VRA. The entire exchange regarding the “elephant whistle” comment illustrates this:
.
Chief Justice Roberts: Counsel, the … our decision in City of Bourne said that action under section 5 has to be congruent and proportional to what it’s trying to remedy. Here, as I understand it, one-twentieth of one percent of the submissions are not precleared. That, to me, suggests that they are sweeping far more broadly than they need to, to address the intentional discrimination under the Fifteenth Amendment.”
.
Mr. Katyal: I disagree with that, Mr. Chief Justice. I think what that represents is that Section 5 is working very well; that it provides a deterrent. This was a debate in Congress. Indeed, Mr. Coleman himself testified before Congress and said the low objection rate is evidence that it isn’t congruent and proportional. The Congress disagreed with that. What it found instead was that Section 5 was deterring the problem.
.
Chief Justice Roberts: Well, that’s like the old, you know, it’s the elephant whistle. You know, I have this whistle to keep away the elephants. You know, well, that’s silly. Well, there are no elephants so it must work. I mean, if you have 99.98 percent of these being precleared, why isn’t that reaching far too broadly?
.
So, you see, Roberts wasn’t referring to the entire VRA as an “elephant whistle.” The comment was about only a small part of the enforcement mechanism. Furthermore, he explains his criticism as being based on the enforcement mechanism’s lack of congruence and proportionality to the real world. That becomes clearer if one considers the rest of the statistics (also mentioned during oral argument), that show the “covered” states under the VRA have lower disparity in minority voter registration and voting than in a number of non-covered states like Massachusetts and California. Why, then, doesn’t the VRA apply only to the covered jurisdictions and not some of these other states as well?
.
The rest of your explanation as to why Robert’s didn’t “scuttle” the VRA is a real head-scratcher. As President, Barack Obama has exactly one power with regard to the Supreme Court: To nominate a justice to fill a vacancy. He otherwise has no power to influence the outcome of any of its decisions; and he is certainly no obstacle (regardless of the super-human powers people ascribe to him). The events in the rest of the world, and particularly those in Iran, don’t have any real-world influence on the decisions of the Court. Just take a look at how well the rulings of the ICJ have influenced the Supreme Court (i.e. not at all.). Furthermore, there is no evidence that any of these things influenced his opinion, and you can’t point to any evidence of such influence. The fact remains that Roberts wrote the lead opinion in which all of the Court’s liberals concurred. In the final analysis, you have taken one of Roberts’ comments regarding a miniscule part of the VRA and blown it entirely out of proportion.
Posted by: John W. | July 17, 2009 3:21 PM
“Hey now don't you go picking on angry old white guys, around the angriest old white guy of them all, John W. He would happily turn the clock back to 1952, the good ole days when everyone knew their place.”
.
Posted by: Strom | July 17, 2009 1:33 PM
.
Nothing I have ever written or submitted to the Swamp could ever begin to justify this comment. In which case, it is ignorant, mean-spirited and stupid. You’ve either been taking lessons from John E., drinking the same Kool-Aid he does, or you are that despicable kook yourself.
Posted by: John W. | July 17, 2009 3:26 PM
JW,
as has been noted by FPDunne and others over the years,
"The Supreme Court follows the eliction returns."
In this case, the Iranian election returns as well as Barack's victory in November.
Posted by: ornery | July 17, 2009 4:53 PM
John W, I mentioned the book because of your mention of being Slavic; I'm only partway thru it, but it seems it might interest you. As for Justice Roberts, I get the impression (just generally) that he's not that interested in taking on social issues like abortion and the like. I do think he's a right wing ideologue, but he also knows how to count votes; but I won't say that I've studied him closely.
Posted by: Flo | July 17, 2009 7:11 PM
* * * * *
Posted by: Flo | July 17, 2009 7:11 PM
.
Thanks. If you like the book so much, I will definitely give it a try. I noticed, in the reviews, that the story’s protagonist had a Czech wife who then left him for the old country. It’s strange, because I know a lot of Slavic people who have gotten sick of America, and have already begun the process of pulling up stakes and returning to the old country. They told me I should go too; that I would like it there. I told them I couldn’t go because I was born here and I have to make this place better. Besides, I appreciate living where it doesn’t freeze as often.
Posted by: John W. | July 17, 2009 10:33 PM
* * * * *
Posted by: ornery | July 17, 2009 4:53 PM
.
I’m not terribly convinced by Dunne’s dictum. I can think of a number of times when the Court determined issues in the teeth of extreme protest and volatile events. But, if you want to thinks so, go right ahead.
Posted by: John W. | July 17, 2009 10:38 PM
Preclearance is the chief enforcement tool in the Voting Rights Act.
Take that away, and you're left with prosecuting low level "election judges" and the like for "voting irregularities" for misdemeanors or low level "felonies" with no real consequences.
So by trying to scuttle the main enforcement mechanism of the Voting Rights Act, Roberto in effect was trying to turn it into "feel good" legislation, like Daddy Bush's Americans with Disabilities Act.
And Act which sounded good on paper but which was ineffective and was "interpreted" into meaninglessness by the Reagan/Bush judiciary.
What's the difference between Barack's Inauguration and W's?
About 2 million people in the mall.
And moving the dias to the other side of the Capitol.
When the President delivers a smashing address at the University of Cairo and shortly thereafter the youth demographic takes to the streets in Tehran against the mullahs, you better believe Roberto/Nino/Scalito take note.
Proving once again, as Bartender Dooley observed:
"The Supreme Court follows the eliction returns."
Posted by: ornery | July 18, 2009 9:30 AM
* * * * *
Posted by: ornery | July 18, 2009 9:30 AM
.
I must disagree again. Section 5 is not the main enforcement mechanism of the VRA. Sections 2, 3, & 12 are. There have been numerous suits under section 2 and 12 to stop political subdivisions in non-covered jurisdictions from engaging in illegal practices. They can be used in covered jurisdictions too.
.
In addition to civil and criminal sanctions, the VRA provides for declaratory and injunctive relief to prevent the implementation of any plan or device to deprive people of their voting rights under the Fourteenth and Fifteenth Amendments. Injunctive relief can be had within hours or days, and it permits a judge to stop any alleged violation before it causes harm. It doesn’t take long, drawn out litigation to make it happen. Furthermore, a judge can retain jurisdiction over the action for a time to prevent similar recurrences. Thus, contrary to your claim, the VRA without the pre-clearance requirement would not limit the government to “prosecuting low level ‘election judges’ and the like for ‘voting irregularities’ for misdemeanors or low level ‘felonies’ with no real consequences.”
.
As such, your basic premise for Robert’s intent to scuttle the VRA falls again. The VRA would still have substantial teeth without the section 5 pre-clearance mechanism. Roberts knows this, as does anyone else who knows anything about the VRA.
Posted by: John W. | July 18, 2009 2:19 PM
Seems Senator Specter does not agree with JW, judging from his questions of Judge Sotomayor Thursday.
I'm with Snarlin' Arlen on that one.
Also, he asked her what should be done with a candidate who lied to the Judiciary Committee to get confirmed, obviously in reference to Roberts.
Posted by: ornery | July 20, 2009 12:24 AM