Gorgeous shell on the beach via mysza831.

Continuing the liveblogging of Day 2 of the Sotomayor confirmation hearings.  Part I can be found here.

11:27 pm ET  LEAHY gavels the hearing back into session.   Talking about schedule due to questions from the press.  Hatch is next, then Feinstein, and then roughly to 12:30.  Because of the caucuses, they’ll break at 12:30 and then resume at 2:00 pm ET.

And now, we’ll be treated to the dulcet tones of Sen. Hatch. 

HATCH QUESTIONS:  Hatch starts out with a welcome for her lovely family.  Settled law — do you believe Gonzales v. Carhart is settled law?  She considers all precedents of SCOTUS settled law with the caveat of how stare decisis would apply.

US v. Sanchez V.R. — firearms case — where it wasn’t a settled right to bear arms.  Goes on to the Heller case — doesn’t the SCOTUS cast doubts on relying on Miller?  Sotomayor says she believes that Scalia implied that in his fn. 23, but she says SCOTUS didn’t believe it as being fundamentally applied to the states.  She understood Scalia to understand that it was not applicable to the states — it was a different inquiry on federal statutes.  Asking her if Heller had already been decided, would she have decided Miller differently?  Sotomayor says that there are 3 cases addressing this issue in the circuit courts at the moment and is the very question that SCOTUS will likely be addressing, so she can’t answer that specifically — but she brings an open mind to each case.

Going on about her footnote in Miller — she says no, that’s not what she’s saying, because it is an open question at the moment.  Courts have been addressing that question.  Scalia’s footnote implies it is a question SCOTUS should answer, but it isn’t one that has been answered.  Saying "would the states have a rational basis for a regulation it has in place?" and the question in Miller was whether a prohibition against felons owning firearms — even Justice Scalia recognized that was a rational basis for a state under all circumstances.  Hatch going back and forth and cherry-picking quotes — "natural right" on fundamental right to bear arms.  Sotomayor says her conclusion in Maloney and Sanchez-Velar was based on precedents in both cases.  Hatch says he’s not asking about hypotheticals, he’s asking about her interpretation of precedents.  (CHS notes:  the felon prohibition has a public safety rational basis as the argument for it, in case anyone is wondering its a weighing of public safety versus the 2nd amendment and even Scalia — Cheney’s hunting buddy – thinks it’s a valid consideration.).

Do you think the 1st amendment rights are fundamental rights?  Those rights have been incorporated against the states, and to the extent that SCOTUS has applied that, then they are incorporated against the states as that terms is apllied legally.  Same with Fourth Amendment and SCOTUS application thereof.

Maloney — 2nd amendment applies only to federal government, not the states.  Sotomayor says that Presser was one ofthe reliant cases as well as some 2nd cir. precedents.  Heller involved DC, so it didn’t decide applicability to the states.  Did later cases involve 14th amendment?  Hatch says he’s talking about what should be done here.  Privileges and immunities versus 14th amendment due process – Sotomayor says in Maloney they were addressing a very, very narrow question.  SCOTUS is going to address that question if it accepts cert. in one of the three cases, and she can’t answer.   Hatch isn’t letting this go with that, and continues on Maloney.  Sotomayor tries to explain how courts function and what standards they apply in rational basis versus strict scrutiny — and how her case was a spcific fact pattern narrow case.  You can’t have an arbitrary and capricious decision — rational basis does look more broadly than strict scrutiny may.  In Maloney, we were talking about numchuck sticks — when the sticks are swung, if there’s anyone near you, there is a potential for injury — can break arms, can break bones — to the extent that a state government would address the potential for injury, did the state have a "rational basis" for applying this regulation?  Since SCOTUS hasn’t applied 2nd amendment to states, then that was the standard we were required to apply. 

Hatch goes back to whining about the 19th century case, totally missing the whole point of the 2nd amendment not yet being applied to the states by SCOTUS as yet.  Which really is the whole point.

Now on to Ricci.  (CHS notes:  Oh, good lord, Hatch is going with the "all nine justices disagree with you" talking point.  Does he have no staff?  Or is this deliberate obfuscation?)  This case dealt with "dis-parrot" impact and "dis-parrot" treatment.  (CHS notes:  If he keeps saying "dis-parrot" I’m going to start giggling.)  Didn’t the district court say this was actually a very unusual case?  Sotomayor walks through the "disperate impact" legal precedent standards again.  Hatch asks about the Hayden case — didn’t that actually present a challenge to the test form.  Sotomayor says again, that’s not the test that the court is required to look at — it was, at that time, the standard of "disperate impact."  The employees could bring suit challenging under Title VII.  District court noted that it was a different scenario, and the panel in 2nd cir. agreed with district court opinion and adopted their opinion.  The SCOTUS decision was a new standard — as she understood the dissenters, if you are going to apply a new standard, then give the 2nd cir. a chance to re-look at the case and apply the new standard (CHS notes:  which is the usual procedure on a case like that.) 

Hatch still going on about Cabranes not knowing about the case until he read about it in the newspaper.  (CHS notes:  Given that Cabranes wasn’t on the panel, then that’s not exactly a shocker, but maybe that’s just me.)  Hatch trying to make a big deal of the SCOTUS reversal.  Sotomayor says Kennedy’s opinion was talking about looking at the case as establishing a different choice in how the city should evaluate these types of questions — not how the 2nd cir. and lower district court had previously looked at them.  It was a re-evaluation of the standard.  Hatch continuing to go on and on about per curium opinions, and doing his disingenuous befuddled act about it, when he knows full well that a per curium opinion in something like this is not remotely unusual in any of the circuits.

Hatch moves on to the "rumor" that PFAW is smearing Frank Ricci because he may be willing to be a witness in these proceedings.  And I know you have nothing to do with it, so don’t think I’m trying to make a point against you.  Sotomayor says that she would never, ever endorse or approve smear tactics.  (CHS notes:  the minority are the ones who’ve added Ricci to their witness list — he’s been on it from the get go, just FYI.)

LEAHY notes:  Tom Goldstein’s SCOTUSblog evaluation of Sotomayor’s racial cases, which are very even-handed.  Adds the report to the record.

SESSIONS notes:  Adds a WaPo study where Sotomayor’s decisions came out 57% liberal, compared to others who were 52% liberal.  Not a huge difference, but offers it for the record.  And a correction for the record, has a statement from Estrada into the record as well as an explanation of howhis nomination was blocked by consistent filibusters by Democrats.  Leahy says he’s an exceptionally good lawyer — the argument was with the Bush Administration withholding documents from the committee, something he could not control

FEINSTEIN QUESTIONS:  Gripes at Sessions about continuing on Estrada.  Congratulates Sotomayor for her ability to maintain her temper in the face of questions designed to be quite provocative.  With regard to Ricci, isn’t it a fact that several of the Justices said the 2nd cir. case should have been affirmed in their dissent?  Yes.

Feinstein’s understanding is that a majority of the 2nd cir. voted not to rehear the case.  Yes.  SCOTUS in Ricci recognized that it was creating a new standard?  Yes.  Feinstein says this very considered and factual nominee is being characterized as being an activist when she is anything but.  Feinstein going on about precedent, application thereof, and where Sotomayor stands.

Let me ask you about a difficult area of the law.  SCOTUS has said on more than 7 occiasions that a woman’s health cannot be put at risk:  Roe in ’73, Danforth in ’76, Planned Parenthood in ’83, Thornburg in ’86, Casey in ’92, Carhart in ’00 and Iote in ’06.  With Roberts and Alito, in Carhart II, the SCOTUS removed this essential basic right from women.  When this happens, are all the previous decisions discard — or should the Court examine all the available precedents?  Sotomayor says it’s difficult to answer, because the Court has to look at the individual factual situation.  Says that in Carhart II, the Court was looking at whether there were equally effective and safer means than the individually, fact-specific method involved.  Sotomayor doesn’t see that as a rejection of the "health of the woman" standard.  You mentioned many cases where this was part of SCOTUS jurisprudence, and those cases must be given great deference in any consideration of those cases.

Let me ask about precedents.  In a rare public rebuke, in the Hine case, Scalia talked about trying to weaken precedent without acknowledging that they were doing so — rebuking Roberts for trying to practice "faux judicial restrint" when it’s really "judicial obfuscation."  Is it important that a Court says outright that it’s overruling prior precedent?  Sotomayor says stare decisis has a basic premise:  there is a value to society for fairness, even-handedness and settled practice inthe law.  That judges will not change the law based on a personal whim, but will give deference to judges who have thought through established precedent.  There are circumstances where a court should re-examine precedent, but that should be done very, very cautiously because the presumption is in favor of precedent.  What are teh factors you should look to for changes?  There is a balancing test that courts have discussed — the development of the law is step by step, case by case, and there are principled ways of distinguishing precedent from changes.  Deference should be given to precedent under stare decisis and the law should be developed case by case, but it’s always a very fine balance.

Balance of powers questions — executive branch not giving due deference to Congress, FISA surveillance without warrants, signing statements questions.  Most egregiously in 2005, when Congress passed bi-partisan bill outlawing torture, there was a signing statement referring to the unitary executive branch and consistent with limitations on judicial power, commonly interpreted as him saying he was asserting the right not to follow the law.  What do you think of signing statements?  Sotomayor says its a very broad question — not only is Congress grappling with this issue, but so are courts who are dealing with cases brought by litigants that the President has exceeded Congressinal authorization or his powers under the law.  The best that I can do is to say something Justice Jackson said in the Youngstown Steel cases:  there Justice Jackson set up the framework and articulation that no one has been able to say better.  You always have to look at an assertion by the president that he or she is acting within executive power in the context of what Congress has or has not done — has Congress authorized the president to act in that way?  If so, then he’s acting in his highest act of power.  If Congress has expressly prohibited?  The the president is acting at his lowest ebb of power.  If Congress hasn’t spoken, then as Jackson said, it’s the zone of twilight.  You look at presidential power minus what Congress has said about the powers n that particular area.  The president cannot act in violation of the constitution — no one is above the law — but what that is has to be looked at in the particular factual context under the laws that are applicable.

Feinstein talking about this being a most important consideration in looking at matters of national security and elsewhere.

You joined a 2nd cir. opinion last year on National Security letters.  Balancing deference on national security matters versus courts responsibility to enforce constitution and liberty concerns and enforce the laws?  This was Doe v. Mukasey.  Sotomayor says she can talk about the considerations in Doe — the district court had invalidated a congressional statute altogether, reasoning the statute had violated the consittution in a number of ways and that Congress could not act in the manner that it did.  Deference to the executive was important, as was deference to Congress, and we had, as an appellate court, to be very cautious in how we acted with due deference.  Given that, we upheld most of the statute.  But there were two areas which didn’t pass constitutional muster — one was that the law required if they were going ot stop an individual from speaking, that the government had to come to court immediately to get court approval to take that step.  If you have a right to speak, you should know what the grounds for that right are — and you should ahve an opportunity to go to court to have that restriction lifted.  The other was a question of who bore the burden — the statute held that the individual had the burden.  The court saw that this burden violated established SCOTUS precedent and we tried to balance the statute against that right ot free speech and the shifting burden.

Feinstein moves onto commerce clause.  Used in a variety of contexts, as you know.  In the last decade, the Court has changed its interpretation of the Commerce Clause, and has struck down a number of cases involving the Commerce Clause when it hadn’t for decades.  Asking about the Court’s role.  Sotomayor says that question asks for a prejudgment on cases — and therefore one that she can’t answer broadly.  There is a framework that those cases have addressed, and it would have to be considered for each case which comes before the court.  If you have a case in particular, I could talk about that.  Feinstein talks about restriction of distance on guns to school (Lopez).  Sotomayor says in that case and in subsequent cases, SCOTUS was looking at whether government was trying to regulate and economic or non-economic interest, whether states had an interstate commerce element of the crime, and question on substantial effect on commerce — and determined that particular statute was not within Congressional power.  Would note that most recent case in this area, SCOTUS upheld the broader statute in which that provision was passed and regulation of market in illegal drugs.  Broad principles established in those cases — most recent holding suggested another factor for courts to apply.

Feinstein says one of the main concerns is how this would impact environmental laws.  Sotomayor says there are cases pending before the courts on that issue, and she can’t speak more specifically on that for that reason.  Feinstein says Congress needs to have the ability to regulate in those areas — perhaps with more care toward addressing more specific findings, then the Court would uphold more of those cases with enumerated rationale from Congress as to the need.  Sotomayor says the Court pays particular attention to Congressional findings.

SESSIONS says he doesn’t have letter from Estrada — it wasn’t a letter. 

LEAHY says again, Estrada isn’t the nominee here. 

Lunch break.  Will be back at 2:00 pm ET.