Monarch butterfly via Creativity+ Timothy K Hamilton.

Liveblogging the Sotomayor confirmation hearings continues. 

The endless political posturing is getting on my last nerve. Who doesn’t know that whomever the president nominates for a seat on any federal bench is going to meet with right-wing pushback?

I mean, honestly — what kind of dolt would you be if you were not expecting that given past actions and campaign tactics on judicial nominations? And yet? So it goes.

The Senate Judiciary Committee plans five panels of witnesses at this point.  They’ve published the full witness and panel list here.

I want to send out personal condolences to Prairie Sunshine for her loss.  Thoughts and prayers are with her, and her family, today.

Three things of note as the eharing room begins to fill:  (1) people in the hearing room are addicted to their crackberries, and a few seem to go out of their way to find a camera to stand in front of and browse e-mail and stand around looking busy and important.  It’s cracking me up.   (2) ooh, good lord, is it seersucker day again?  and (3) there seems to have been a memo to GOP senators to wear red striped ties.

9:33 am ET:  LEAHY gavels things back into session.  Welcomes back in for day 4.  Sotomayor still in the hot seat.  Halfway through the follow-up round.

KYL:  Would note that they haven’t put Sotomayor on the hot seat with their questions, but definitely did with the temperature in the room.  If there is ever a question about her stamina in a very hot room, that question has been settled. 

LEAHY just glad the mics are working.

KYL SECOND ROUND QUESTIONS:  We’re back to Ricci yet again.  Shoot me.  Not surprisingly Kyl disagrees with Sotomayor’s interpretation of the law on the questions addressed in the case — and in prior precedents.  Sotomayor has to walk Kyl back to the context of the case before the 2nd cir.  Did they have a right to bring a suit based on a prima facie case — up to that point had been concluded from SCOTUS precedents, a little back and forth on need to meet the summary judgment considerations.  Kyl interrupts to get to SCOTUS and 2nd cir. precedent.  What was it?  Sotomayor does the analysis on was city discriminating on basis of race or was it discriminating with test.  (CHS notes:  paraphrasing here)

Kyl asks wasn’t the result of your decision to grant summary judgment against the parties and what was the SCOTUS precedent and the 2nd cir. precedent?  Sotomayor says they talked about this yesterday — the Bushie (sp?) line of cases.  And the district court had lined out the rationale on this in their 78-page opinion.

What precedent would have bound the en banc review?  Sotomayor said the panel acted in accordance with what they felt was appropriate.  Said they incorporated the district court’s decision.

Kyl still disagreeing, and baffled.  Sotomayor explains that when the cir. court incorporates the district court decision, that becomes a part of the circuit’s precedent as well where they agree.  She says the argument on adopting a different test was not raised before the 2nd circuit — it was clearly raised before SCOTUS.

Kyl going on about the summary per curium.  Sotomayor says it’s happened within the circuit even with her cases as a district judge, incorporating her decision as the holding of the circuit.  So, yes.  Kyl now quoting from Judge Cabranes’ dissent.  Kyl now says legal analysts will have to debate this.  (CHS notes:  Or not.)

Kyl now reading from SCOTUS opinion on Ricci.  Sotomayor now explaining — again — about the SCOTUS opinion hving set out a wholly new test, saying "good faith" is not enough, substantial evidence is what the new standard is.  And again having to explain that the case they had before the 2nd circuit was a much narrower question than what the SCOTUS granted cert on — so it’s legal apples and oranges, in effect.  (paraphrasing here)  Kyl now nudging at a Helms "Hands" ad argument about racial hiring.

Kyl now going with a modified "all 9 of the judges" agreed the 2nd cir. should have re-heard the facts.  Sotomayor explaining that’s not correct — Kyl interrupts her and doesn’t allow her to explain.  (CHS notes:  Kyl needs to read Ginsburg’s dissent again.  He’s incorrect.)  Kyl relies on Stuart Taylor?  Well, that explains it.

Kyl asks about a quote wherein she said "district court provides justice for the parties, circuit court makes justice for society."  Says it hearkens back to other comments you made, "perhaps flippantly," about making policy.  Going on a rant about how he sees the law — apply precedent and decide cases.  Sotomayor says that they are actually in agreement — when I’m using the term "policy" it’s clear that she’s talking about that in a legal context — you make precedent and it has policy ramifications, but not in the context of legislative making law.

LEAHY says Reeves (SCOTUS) and Hayden (2d Cir.) plus incorporating the district court opinion in the per curium.

FEINSTEIN SECOND ROUND QUESTIONS:  Says Kyl misread Ricci.  Dissent said they would have agreed with 2nd cir.  Yes.

What is per curium?  Essentially the court is saying they agree without adding to what the court said below.  In some cases it’s simply used to denote that the case is so clear and unambiguous that you don’t need to elaborate.  Or it can be used where the district court has done a very thorough job in lining out the law, so that work gets incorporated into the circuit opinion.

Feinstein says there is precedent in other courts on this issue as well.  Refers to Oakley v. City of Memphis — its an unpublished opinion that upholds a lower court and did a similar thing to what Ricci did in 2d cir.  Feinstein talks about this as something she dealt with when she was mayor — that this has been an issue that cities have struggled with for a while.

Feinstein now talking about the "wise latina" comments — put them in context in termsof women, and the struggle for getting the right to vote.  When you graduated law school in 1979, there had never been a woman on SCOTUS.  Talks about how many women lawyers there are and how little representation there is on SCOTUS — and women still make 78 cents on the male dollar.  When you have seen how widely broadcast this is, how do you look at your appointment to the court affecting empowerment for women?  Sotomayor says she chose the law because its more suited to that part of me that isn’t interested in the public limelight — the thinking, the process of the rule of law.  Her career as a judge has shown her that regardless of what her desires were, that my life and what she has accomplished does serve as an inspiration for others.  It’s an awesome sense of responsibility.  Its one of the reasons that she does so much work within her community — not just with latinos, but women, immigrants, all walks of life.   Life throws challenges and hurdles at you every day — and one of the great things about America is that we overcome them.  And I understand my responsibility since I have done well to give back and reach out.

Feinstein says she thinks Sotomayor is a walking, talking example of what is best in America.  And it is my belief that you will be a great supreme court justice.

GRAHAM SECOND ROUND QUESTIONS:  Something I would like to say publicly, the wrongs you talked about some have changed, some are yet to come.  Do you understand the difference between changes occurring from elected officials subject to public recall periodically and 9 unelected judges?  Sotomayor says yes, I understand the constitution.

Graham says one of the problems the court has now, and Mr. Ricci has a story to tell too, the Court has fallen into the business of legislating social change — something that ought to be taking place through the ballot box.  Brown v. Bd. of Education is instructive because it shows how the court can do something that politicians were not brave enough to do — but it came from a decision that was based in constitutional analysis.  But it was divisive at the time, and people died.  I want to talk about some divisive issues that are percolating today — who should get married, full faith and credit clause, deference on public policy.  The reason these speeches matter and why elections matter, is that people now understand the role of the court in social change.  That’s why we fight so hard to put people on the court who see the world like us — true on the left and the right.  We’ve talked a lot about the 2nd amendment — individual right — groundbreaking precedent because it is the law of the land through recent SCOTUS precedent via Heller.  But when you get on the court, you’ll have to sit down and decide whether its a fundamental right.  You’ll listen to your colleagues, you’ll look at case law — and you’ll also look at what you think America is all about?  Sotomayor says no.  The rule of law has to guide.

Sotomayor says that whether something is fundamental in terms of law has a different meaning than common terms.  Some back and forth  from the 1890 decision and moving forward on a line of incorporation cases.  You hire/appoint judges for whether they respect law, whether they respect precedent and apply it.  Graham wants to know if there is anything subjective about whether 2nd amendment is a fundamental right.  Sotomayor says you have to look at older precedent, the way it did in Heller, whether it controls the issue or not, and will decide whether it should be revisted under stare decisis — if revisted, will look at a variety of different factors will be whether there have been changes in the law surrounding the issue.  Graham points to a 9th circuit opinion on 2nd amendment being a fundamental right, and an opposing opinion in the 7th circuit.   (CHS notes:  Graham doing an NRA commercial looking directly into the camera.  Can you say re-election commercial footage?)    Graham says he thinks that she’s able to embrace a right that she isn’t comfortable doing for herself — and that makes her more acceptable to him.  (CHS notes:  He’s also trying to lay a case out on the next round of federal bench nominees.  Graham’s laying down his marker for the Obama folks.) 

Graham asks do you understand identity politics?  Sotomayor says that would be politics based on ethnicity, gender, etc.   Says she doesn’t embrace it as a judge, but personally you should be able to look at things that impact your particular life and interests, but shouldn’t be embraced in a way that denegrates or separates what is best for America.  Graham asks whether her speeches properly read embrace identity politics?  Sotomayor says her speeches were designed to encourage participation in the process, to change the conditions in which you live — not advocating that you should do anything illegal.  Graham says her speeches are disturbing to conservatives.  Those speeches to him suggested gender and racial affiliations — a lot of us wonder will you take that line of thinking to SCOTUS?  (CHS notes:  well, she is both female and latina, it’s just too bad she wan’t talking like a middle-aged white guy to reassure Lindsey, isn’t it?)

When you were on the board of the PRLDEF?  To promote equal rights in America.  Now we move on to abortion and PRLDEF.  Arguments from PRLDEF which challenged women’s right to choose.  Are you against restrictions for states on abortion?  Sotomayor says she didn’t review individual briefs, because she wasn’t doing their legal work — she was on their board.  Graham says whether or not you advocate those positions, I haven’t seen you do this as a judge — but you did as an advocate for PRLDEF in 1981 on a death penalty memo to the state of NY.    Puts memo into the record.

Have you ever known a low income Latina woman who was pro-life?  yes.  Have you ever known a low income latina family that was pro-death penalty?  yes.  There are different opinions within similar groups.

You have earned the respect of Ken Starr, puts his statement into the record.

On the wise latina comment, what do you have to say to those offended?  I regret being offended, and I believe my life demonstrates that interpretation is not who I am.  Graham says he agrees, and good luck to her.

KLOBUCHAR SECOND ROUND:  Asks her about a death penalty case.  Sotomayor says she did reject a claim on death penalty bein race-based for a particular case.

Klobuchar now goes to quote from Roberts on advocacy versus judging.  Sotomayor agrees with it.

Klobuchar puts letters of support into the record from National Fraternal Order of Police, and several other law enforcement groups.  National District Attorneys and National Prosecutors, etc., etc.  Plus a letter from 40 of her past colleagues in the Manhattan DA’s office.  Reads from a couple of the letters.

Now talking about a child pornography case and an investigator in NYC, and that you were willing to take on the case.  Sotomayor says the NY Court of Appeals had invalidated the NY statute on child pornography on a federal constitutional violation grounds.  SCOTUS took that case directly from the court of appeals and reversed them, reinstating the statute.  There were still so many open questions about the statute legality and the question of the difficulty of the crime at issue.  The evidence was mostly circumstantial — was a tough case to prove.  But it was clear that it was a serious case — distribution of films that show children from 8 to 12 being explicitly sexually abused.  And it seemed to me whether I won or not, the issues raised needed to be presented in court because of the importance of the crime.  Had co-counsel, ended up winning the case and its held up on appeal.  The effort resulted in the conviction of two men who were distributing films that had the vilest sexual acts portrayed against children.  (CHS notes:  having prosecuted these cases, I can’t begin to tell you how difficult they are — and how personally difficult the work is.  Good on Sotomayor.)

Klobuchar talking about a district court case she oversaw of a CT mayor who exploited children (Giordano).  Sotomayor says you have to take existing precedents and apply them to new sets of facts.  Says the acts were taking place in his office — secured through a woman who secured underage girls, threats using power of office to keep them silent.  Question was whether he was using his office under color of state law.  These were cases which relied upon an understanding of what the words say and how its interpreted.

Klobuchar asks what would you like history to say about you when all is said and done?  Sotomayor says she can’t live her life to write history’s story — that’s for historians if anyone.  In the end, hope it will say I’m a fair judge, a caring person, and that I lived my life serving my country.

CORNYN SECOND ROUND:  Start with pleasantries.  When we met the first time, I made a pledge to try and have you treated fairly and to make the process a fair one.  Sotomayor says she feels like she’s been treated fairly.  The test isn’t whether we think you are intelligent — you are.  It’s not whether we like you — I do.  Or whether we admire or respect what you’ve accomplished and overcome — I do.  It’s whether we think you’ll respect the laws and enforce them, or whether you’ll be the sort of judge who pursues an agenda.

The purpose of these hearings is to allow us to clear up your record about your judicial philosophy.  And Cornyn is confused.  Goes back to a 1997 cherry-picked sentence.  And a 1996 one.  (CHS notes:  we are going through every single cherry-picked statement Cornyn went through the last time.  Guess his staff didn’t find anything new for him today.  I need more coffee.)  What should I tell my constituents about your speeches versus your testimony?  Sotomayor says look at my record — I don’t permit personal prejudices to impact my rulings — I rule based on the law.  Look at the whole speech, and read their context and understand the background of the issues being discussed.  Talking about the value of experience and the fact that it gives you equal capacity — same as what she thought O’Connor was talking about in one of her past speeches.  Rule of law is the foundation of our system.  Cornyn bloviates a bit more about the differences between words and deeds and what he thinks of them.

And moving on to courts making law versus courts following the law.  And then same sex marriage.  If court rules there is a right to it, would that be making law or interpreting the law?  Sotomayor says that question is so imbedded with its answer — either way I answer, there is a potential for my reasoning being characterized as having been pre-judged.  Its a serious question, and one that is hotly debated — but even the characterizing of what the court may do either way suggests that I’ve prejudged the issue and that I come to it with my own personal views suggesting an outcome.  Neither is true — I’d look at the facts and the questions brought to the court.

Difference between making the law and interpreting the law?  Sotomayor says there is a big difference.  Congress makes the law.  The courts interpret — what does the constitution say?  How has precedent interpreted it — how has it been applied?

Cornyn asks her to reconcile it with her policy statement.  Sotomayor says the context of both times she’s mentioned it in speeches, she was talking about differences between how district and circuit/appellate courts function.  And what the impact of their decisions is within the legal context.  (CHS notes:  jeebus, asked an answered.  Again and again.)

Goes on to campaign finance questions Sotomayor raised in a law review article in Suffolk Law Journal.  What is the difference between a political contribution and a bribe?  Sotomayor says that question has been percolating through the legal system since Buckley v. Vellaijo (sp?) – says that the question is whether there is a quid pro quo on money for particular legislation or vote, that violates federal law.  Differences between what the law permits and what individuals should use to guide their conduct.  The fact that the law says you can do something — but that doesn’t always mean that as an individual that you should actually do it — you should act in a way that is right for you.  Recent SCOTUS case on a contribution to fund judicial campaign — said judge should have considered not hearing a case with the related contributor.

Cornyn moves on to try and get Sotomayor to criticize Obama for taking political contributions.  Sotomayor says participation through  contributions isn’t bribery, and wasn’t the conduct questions she was talking about.

Cornyn now goes back, again, to Ricci.  (CHS says:  I may have to start an IV drip of coffee if they keep this up.)  Cornyn now going on to talk about Vargus who was also a plaintiff.  Do you agree with Roberts that the best way to stop discriminating based on race is to stop discriminating based on race?  Sotomayor says that the best way it to apply what the constitution says which is equal opportunity for all under the law – says she accepts the Court’s ruling in that case.  Cornyn is going on ad nauseum on this, and now quoting from Dr. King — that people should be judged on the content of their character, not the color of their skin.  They agree that Americans agree on that.

LEAHY says Specter next, then short break.

SPECTER SECOND ROUND:  You have been characterized as runing a hot courtroom, asking some tough questions.  We see occasionally some hot debates among justices in the conference room — quotes from some Scalia comments on that.  Asks whether she will be a litigator in the conference room, take on the ideological battles which pop out from time to time? Sotomayor says she doesn’t judge based on ideology, she judges based on the law and reasoning.  When she’s disagreed with colleagues, they discuss and exchange perspectives and try to persuade each other to reach a majority.

In the Riverkeeper case, which is important on climate and global warming, you ruled in the 2d Cir. that it should be best technology and not cost/benefit — SCOTUS reversed and said it should be cost/benefit.  Sotomayor says thatshe is bound by precedent to the extent that stare decisis applies, and it would depend on the facts and framework of that case applying to particulars — she’d apply precedent where proper.

Return to SCOTUS taking on more cases.  Goes through the numbers from yesterday again.  SCOTUS has not undertaken circuit split cases as frequently recently.  Do you agree with what Justice Scalia said about how difficult this can make things — should SCOTUS take up more circuit splits?  Sotomayor says it does appear that the docket has lessened over time, and because of that it appears they have the capacity to take up more cases.  Cir. splits are one of the local rules set out by justices that should be used as a consideration to consider for cert, so yes it does seem they have the capacity.

Specter goes on to the cert. pool discussion.  Would you join the cert. pool or maintain the independent status as Stevens and Alito do?  Sotomayor says she’d probably do what Justice Alito did, if she were to be given the honor, but she hasn’t decided fully.  Experience the process and consider for a time looking at costs andbenefits of both and then figure out what works best for the functioning of her chambers and the court.  Tries to keep an open mind until she experiences something and then tries to speak with knowledge on what she knows from experience.

The pilot program on electronic media coverage — you’ve participated.  Quotes from report of camera presence in courtrooms.  (CHS notes:  and we’re riding the cameras in the courtroom hobbyhorse again.  I’d note that Rhenquist hated the idea, and that this has been a big push from Specter for ages.  Maybe he thinks Roberts is more malleable on this?)  Sotomayor says her experience with this was more limited, but she had a positive experience with the two cases where proceedings were recorded by media.  And on circuit court, they do provide tapes upon request and with oral argument.  She’d be able to recount her positive experiences in that way.  More blah-bity-blah from Specter on this, basically repeating what he said yesterday.

Now talking about Maloney — 7th cir, reached your same decision, written by Judge Easterbrook, who is highly respected conservative judge.  Reads from that opinion.  Sotomayor says Easterbrook agreed with Maloney on that point.

Separation of powers discussion now.  SCOTUS denied cert. on claims for damages from survivors of 9/11 against Saudis.  It was a classic conflict between executive and legislative responsibilities.  Tort claims liabilities were legislated as being exempted from sovereign immunity claims.  Circuit split on that — don’t you think SCOTUS should have heard this case based on Art. I and Art. II disputes?  Sotomayor says obviously 9/11 issues have a huge impact in this country.  But you ask me to pass judgment on an act that SCOTUS has already taken — since I didn’t review the cert. petitions, and the arguments or otherwise — it would be tough for me to make a comment about that without having done all of that.

Specter asks wouldn’t you agree that branch conflicts should be given priority?  Sotomayor says all cases of constitutional question need to be given consideration.  Specter says he’d suggest that on separation of powers questions, SCOTUS ought to seriously consider.  Goes on to talk again about the FISA violations cases and the conflict between branches there, and the question on the previously mentioned 9/11 case, isn’t that a conflict of the highest magnitude?  Sotomayor says its tough to answer int he abstract.  You’re asking me to say if a case presents this question, then I’ll always take it.  I’d have to look at the facts and the questions asked for cert.

Specter asks her to rethink that and rethink the questions she didn’t want to answer about the conflicts between the Court and the Congress, and separation of powers cases.  You have said repeatedly that the job of the court is to apply the law, not make the law — take a look again at the question of proportional and congruent.  And what Roberts said about the need for deference and respect for Congressional fact-finding that has not been done with Garrett and other cases.  Specter says that since the CW is strong for her confirmation, you’ll use some of your litigation skills to argue these issues if you are confirmed.  Don’t allow separation of powers issues to slip by — ought to be decided by the Court.

Short break.  Coburn next.

Fresh thread forthcoming…