Questions that ought to be asked? I’d start with the ones raised by Charlie Savage on national security versus civil liberties concerns and how to weigh them against one another.

And I’d add in the ones raised by James MacGregor Burns on the rise of the SCOTUS and where it fits — or ought to fit — in the balance of powers considerations.

But even if they are asked? There’s no guarantee they’ll actually be answered. Not the way hearings have tended to go the last few years, anyway.

Day One, Part I

Continuing Senator opening statements on the road to Sotomayor’s which, I’m told, should come around 1:30-ish pm ET today.

FEINGOLD OPENING:   Congratulations, thanks in davnace for the long week you will be spending in this room.  Discusses SCOTUS nomination being widely covered and delved into as well — and Senate responsibility. 

Ultimate responsibiity of SCOTUS is to safeguard the rule of law.  In the last 8 years, SCOTUS has played a crucial role in checking oversteps of the rule of law by the prior administration — said no to setting up a "law free zone" at Gitmo, said no to holding a US citizen without access to a lawyer, said no to creating military commissions without legal safeguards and Congressional okay and said no to President and Congress about gutting habeas.  Refers to O’Connor’s opinion in Hamdi.

In his opinion, SCOTUS justice needs courage — courage to stand up for the rule of law.  Goes through some of the bigger decisions in SCOTUS through the years.  Not simply the result of an umpire calling balls and strikes — SCOTUS gets the tougher cases, not just the mechanical appication of universally accepted principles of law.

The phrase "judicial activism" has lost all usefulness.  Hits current SCOTUS and its activism.  "Judicial activism" means the judge rules in a way you don’t like.  Each of the decisions he talked about previously as being momentous ones was no doubt criticized at the time — but they are now revered by many.

Wants Sotomayor to answer questions.  Glad she will have an opportunity to answer some of the unsubstantiated allegations thrown at her — there is absolutely nothing in her hundreds of opinions to support any insinuation of "racism" against Sotomayor.  Reading the whole Berkeley speech shows a thoughtful attempt to address an incredibly difficult issue that judges deal with every day — reads from the end of her speech, and says they are the words of a thoughtful, humble judge trying to do her very best, and chides critics for cherry-picking inaccurately.

KYL OPENING:  Would hope that every American is proud of an Hispanic woman being nominated.  (CHS notes:  And this has nothing to do with him being from Arizona.  Nope.  No siree.)

Immediately moves to prove Feingold’s point about cherry-picking.  Her gender and Latina heritage and "foreign legal concepts" are thrown out by Kyl, whose emphasis on the word "bias" clearly shows that’s his personal tic for the day.  Pontificating on the proper role for a judge — blah blah blah. 

Going on and on about prejudices.  Basically saying the same thing over and over and lecturing Sotomayor and everyone else about something that, had Kyl bothered to read her opnions, he’d know doesn’t really apply to her judicial philosophy at all.  Criminy I need more coffee.  Blah blah blah rule of law in a sanctimonious tone, and Kyl mercifully finishes.

SCHUMER OPENING:  Welcome — we are so proud of you in NY.  Qualifications are unmatched in recent history.  Schumer making the "moderate appeal" PR argument politically — clearly working for the Broder punditry portion of the folks watching.

Hits all the pundit high points:  mainstream judge, 95% agreement with colleagues on the bench, split evenly on employment cases, follows the rule of law — calling out the false claims of personal bias on her part, saying you can’t find it even in a random samping of her cases because she looks at law, facts, and precendent in individual cases.  Basically calling out Kyl’s entire BS — kind of amusing to watch, just wish we had a split-screen of Kyl at the same time.  Because Schumer keeps looking his way.

Hits the Roberts "judges are like umpires, they don’t make the rules, they apply them."  Roberts is an intelligent man with impeccable qualifications — but we can all debate whether he has called the law as it is, or whether he’s tried to change the rules on SCOTUS in the last four years.  If you look at Sotomayor’s record, you’ll see she doesn’t adhere to a philosophy that looks to results over application of law — because she adheres to the rule of law.

GRAHAM OPENING:  Graham starts with an attempt at a joke that falls flat, then insults Sotomayor by saying no Republican would have chosen her (CHS notes:  except that George H. W. Bush did…you know, except for that).  And goes on to whine about Miguel Estrada, and liberal and conservative politics.  Having said that, there were some of my colleagues on the other side voted for Roberts and Alito and I’ll remember that.  (CHS notes:  Lindsey seems nervous this morning for some reason — he’s a little edgy and stammery.  Maybe too much coffee — or is he contemplating voting for Sotomayor and wondering about the impact of that on him electorally?)

Talking now about PRLDEF cases and attributing them all to Sotomayor.  But America is a special place because I’m not going to hold their awfully liberal bias against you, I’ll just mention it on teevee.

Your speeches bother me a lot.  Your "wise Latina" comment would have ended my political career, and it bothers me, but I’m not going to hold it against you — it just doesn’t make you better than anyone else.  What Sen. Schumer said is true — you haven’t taken the opportunity on the circuit to make policy, but what will you do once you are on SCOTUS when you have the opportunity to make policy?

Obama won, McCain lost, despite my best efforts for McCain, and that means something in terms of who gets appointed.  

Have to say, have no idea what’s in your heart, just as you have no idea what’s in mine.  But there was a time when Scalia got 95 plus votes, as did Ginsburg — but if you were confused about what Scalia or Ginsburg were going ot vote like, then you shouldn’t have been voting.

But Obama has noinated someone of good character, who is passionate, you’ve stood out and stood up and been a strong advocate and you will speak your mind.  One thing that concerns me is that if we keep doing what we are doing, we’ll end up with milquetoast judges.  I want people to stand up and speak out — but I have to say when you have given speeches, they have disturbed me.  Don’t know how I’m going to vote — but my inclination is that elections matter.

Lindsey is now rambling back and forth on this.  And we’re back to Estrada and Janice Rogers Brown and griping.  Have a chance to start over, and I hope we’ll take that chance.  Has said she’s pretty much a slam dunk for confirmation.  

LEAHY NOTES:  Estrada was nominated when the GOP was in charge of the Senate, not given a hearing.  When Dems took over, was given a hearing, asked to answer questions from both the GOP and Dem senators, declined to answer questions and then withdrew for a private firm offer.

SESSIONS DISPUTES:  Dispute was over legal memoranda fromSolicitor General’s office which they said was not appropraite for him to provide.  So there.

LEAHY RETORTS:  Then he should ahve had a hearing when the GOP was in charge, is that what you are saying?  Moving on.

CARDIN OPENING:  SCOTUS has recently had very critical decisions by 5-4 vote.  New justice could have a profound impact in direction of the Court.  Goes through own family history — family immigrated to US not just for economic opportunities, but also for religious freedoms (Jewish faith) and also be able to fully participate in their communities.

Attended public school system, part of segregated school system at that time.  Segregation was not only condoned against blacks, Jews, hispanics and others in the community, but actively encouraged, in Baltimore.  Then came Brown v. Board of Education and my entire world changed.

Talks about Thurgood Marshall’s impact.

Now on to constitution and bill of rights as "living documents" — talks about changes to allow votes for women and bringing blacks forward from initial constitutional separation.  Hits Loving v. Virginia; Roe v. Wade; and other difficult questions to come before the Court that the Framers could not have anticipated.  Need to work toward a "more perfect union" — didn’t start out perfect.

Nominee needs to understand the constitution and the protection it provides all Americans; strong passion to balance civil rights; advance protections of constitution but not disregard civil liberties and respectbalance of powers in branches of government.  Not put personal philosophy ahead of duties of office.

Now going through Sotomayor’s background and history.  Taught early in life that education was key to success and had a strong work ethic.  For 17 years has been a distinguished jurist.  Important to question her on guiding principles she would use on reaching decisions.  Wants to know how she feels about precedents and a number of other issues.

Break.

11:56 am ET:  About to reconvene — hearing room refilling.  Hatch taking his time and glad-handing folks in the audience and staffers on the way to his seat. 

LEAHY:  You may have a broken ankle, but you beat me back to the hearing room.  Cornyn next, then Whitehouse.

CORNYN OPENING:  Justice Jackson said "we’re not final because we’re infallible.  We’re infallible, because we’re final."

Being really nice about people of humble origin who, through the sacrifice and support of their families, achieve great things.  Only 110 people have ever served on the SCOTUS, in the history of this entire country — huge moment of reflection for advice and consent.

Goes on to the Framers creating a written constitution to create rights that were fixed and certain.  Rights written down, not floating in the ether.  (CHS notes:  Cornyn obviously missed that whole Bill of Rights thing that got enacted after the Constitutional Congress.  Maybe he thinks it’s a fleeting nuisance?)

It’s his opinion that SCOTUS has veered off the course envisioned by the Framers.  Objects to SCOTUS micromanaging the death penalty, punitive damages and sexual activity. 

And now Cornyn has issues on governmental power grabs.  Not shockingly, the 2nd amendment and personal property rights come up with him.

Cornyn says we need to know more about her record and her judicial opinions.  (CHS notes:  because the 17 years she’s had on the bench and the hundreds of opinions issued say nothing?)  The GOP talking point clearly is "your courtroom demeanor thus far gives us no guidance on how you might actually judge."  Which is a complete reversal from the talking points they advancedfor both Roberts and Alito.

Oh look — the 14th amendment and the Equal Protection clause get a mention from Cornyn — so he does know they exist.  More cherrypicking from her speeches in a "many Americans wonder" smear tactic concerned tone.  Classy.

WHITEHOUSE OPENING:  Welcome to you and your family.  Talks about her remarkable legal career. 

Your record leaves no doubt that you have the intellectual ability to serve as justice.  Your demeanor and collegiality are well-established and I appreciate your years as a prosecutor that you bring to your judging.

In the last 2 1/2 months, the GOP has talked about judicial modesty and restraint.  These have been slogans, not real critiques of your own record.  These are code words seeking a particular kind of judge who will achieve a particular set of judicial outcomes — the pretense that  Republican nominees embody restraint while Democratic nominees are activists runs counter to what has actually happened in the real world.

What judges really do is tackle incredibly difficult issues — and come up with a definition of a strike zone, not actually referree.  Cites a Toobin piece on Roberts’ judicial philosophy being a contemporary Republican party reflection, not one of following precedent and sticking with Congressional lawmaking.  References Ledbetter, Heller, restrictions on women’s health, etc.  Fundamental changes in the law from the Roberts’ court.

Avoid code words and look for a simple pledge:  respect the Congressional role in making laws, respect precedent, and use the broad discretion of a SCOTUS justice wisely.  Quotes Justice Stevens:  being a justice sometimes requires the application of fairness.  As Marshall said, "liberties in our Constitution have their gray areas to overlap that judges must define."

Been this way since Marbury vs. Madison. 

Will you bring good judgment to that wide field?  Will you understand and care how your decisions impact Americans?  I believe your expertise as a judge and litigator will bring you that judgment.  That experience is important.  Talking about real world experiences for Americans.

The Founders set up the judiciary as a check on the passions of the elected branches, and as a protection against the excesses of the majority.  Quotes Hamilton from the Federalist Papers on protections for the minority in a community.  "No man can be sure that he will not tomorrow be a victim of injustice against the decision in which he finds himself a gainer today."  A courtroom is supposed to be a place where the status quo can be upended when the law and the evidence require — and it is worth remembering that the courts are where things have been upended from time to time for the betterment of the whole of this country. (a href="http://judiciary.senate.gov/hearings/testimony.cfm?id=3959&wit_id=6151" mce_href="http://judiciary.senate.gov/hearings/testimony.cfm?id=3959&wit_id=6151">Whitehouse’s statement is already up for the reading if folks want the full written copy.)

COBURN OPENING:  Assure you that you’ll be treated with the utmost respect and kindness.  You have a stellar resume.  (CHS notes:  Coburn is a bit hoarse this morning.  Someone get him some water.) 

Thinks nation is at a critical point:  thing that binds us together is an I-Nate trust that when you come before a court, there is blind justice.  And that allows us to overlook other areas where we are not so good, because you ahve a chance for a fair hearing in the courts.  (CHS notes:  but Coburn doesn’t bother to contemplate causation for this disruption)

Says Sotomayor was very straightforward with him in his meeting with her, and hopes she’ll be so forthcoming in testimony.  Coburn wants the judicial system to be predictable.  (CHS notes:  Good lord, heaven save me from people who haven’t really grasped the nuances and points of the nation’s legal system being the selfsame people who make our laws.  Ugh.)  The court is to be a check, not a policymaker.  More blah-bity-blah from cherry picked crapola from speeches.

Now going on and on about foreign law — reading from the oath — but not bothering to note that the US constitution requires that treaties and other foreign law obligations to which the US is a signatory and which are ratified by Congress DO become US law. 

You must demonstrate that you will strictly interpret the Constitution and the laws — and ignore your biases, which you are entitled to, but need to ignore.  If you don’t adhere to this, you reject the role dictated by the constitution and should not be confirmed.  (CHS notes:  Coburns staffers need to work on not smirking and smiling behind him.)

DURBIN OPENING:  More shouting from the gallery.  Leahy has to stop and have someone removed.

Need justices to have an understanding of the real world and their impact on everyday people.  Sadly this important qualityseems to have been in short supply with several of the recent SCOTUS opinion.  It’s a little tough to see home plate from right field.  Talks again about Ledbetter — calls it putting activism over common sense — goes through fact pattern of the case.  And Safford.  And Gonzales v. Carhart.

Judge Sotomayor, you have overcome a lot of obstacles in your life that give you a solid understanding of what everyday Americans have to go through in their lives.  Goes through her personal background.

In 17 years as a federal judge, you’ve earned a reputation of being able to see both sides of the issues.  Until Thurgood Marshall’s appointment, every other justice had been a white male.  To be the first — and you’d be the third woman ont he court — you have to meet a higher standard.  (CHS notes:  no idea where Durbin is trying to go with this.)

Lunch break.  Hearing will restart at 2 pm ET.  We’ve got 4 more Senators to finish up, an intro of Sotomayor, and then she finally gets to speak.  I’m hearing they are projecting somewhere around 2:30 pm ET for Sotomayor today at this point.