Into the woods via Philipp Klinger.

11:36 am ET: LEAHY gavelling back into session after the break. Yields to Coburn.

COBURN SECOND ROUND:  Read your speech on foreign law and want to ask you the same question I asked Alito and Roberts.  Asks her to agree not to use foreign law.  Sotomayor says that she will use American law, except in situation where American law directs courts to look at foreign law.

Would you agree that Congress could be more careful when they write statutes in terms of what their intent and background on intent is?  Sotomayor laughs.  Coburn goes on to talk about the HELP bill.  Sotomayor says it would be presumptuous of her to tell you how to do your job, but within all of her 89 conversations with Senators, there was reference on making Congressional intent clearer in their work.  When Congressional intent is clear, the courts apply that intent.

Go back to some questions asked by Sen. Hatch on SCOTUS determination on whether a right is fundamental, and I asked you about this, too — and your answer was that you hadn’t examined that line of cases recently to be able to speak to it precisely.  But you gave Sen. Kaufman a specific answer on stare decisis.  Why didn’t you give me a precise answer?  Sotomayor says she doesn’t think that was exactly the question being asked of her by either Hatch or Coburn — one of the questions the Court will have to address on 2nd Amendmentis whether it will use prior arguments on incorporation will or will not apply in their decision.  Trying not to prejudge the case.  This disturbs Coburn.  Sotomayor tries to patiently explain as if talking to a five year old — because you are asking me about the heart of the case that I’d have to examine, and stare decisis is a doctrine that’s just generally applied.  Coburn going on and on about whether she would gut the holding of Heller, and he’s got serious concerns because she grew up in the Bronx and he grew up in Wyoming and Oklahoma, and gosh darn it, they are so different.

Sotomayor says that Maloney was decided on the basis of precedent.  It was decided on precedent that Heller also recognized, as well as 2d Cir. precedent that still stands.  It may well be that Hatch is right that it should be distinguished in a later case.  But the 7th Cir. also found the same way, and also said that this has to be a review by SCOTUS if changed.  (CHS notes:  essentially what Coburn is asking is why wasn’t the 2d cir. an activist court to make new law rather than following established precedent to get an outcome he wanted on the 2nd amendment.  And he is so convinced he’s right, that he’s not bothering to listen to her reasoning with him on this.)

Coburn goes off on the fact that the 14th amendment law and English law and on freed slaves being able to get guns, and why doesn’t she agree with him?  Sotomayor says she will not prejudge the issue because it would be wrong for her to do so.  She recognizes the importance of the right, and she keeps an open mind on the incorporation doctrine.

Coburn now going back to an issue that not everyone wants to ehar about, but I think it’s important.  (CHS notes:  Could he be more passive-aggressively whiny?)  Where do we stand on Roe and Doe?  Sotomayor says women have the right to terminate pregnancies under certain circumstances, and that there are some permissible regulations from the state.  We’re now going to walk through every minute detail on abortion as Coburn sees it.  Sotomayor says that her work/experience in this has been limited to the "undue burden" under Casey, because that’s what’s applicable now.

Since 1972, you can have an abortion for any reason you want in this country.  Even after Carhart II.  The rest of the world only allows abortion only before 12 weeks.  We allow it for any inconvenience only for the health of the woman aspect.  And that’s why I raised technology, because the state interest gets raised at viability.   Is Casey a policy choice?  Sotomayor says that she understood that was the court’s framework for addressing the woman’s right to terminate a pregnancy under the constitution and the state’s right to legislate and regulate under certain circumstances where the state has an interest.  Coburn says that Ginsburg and other members of the court aren’t real happy with that standard.

Do you believe the court’s abortion rulings have ended the national controversy over this issue?  No.   Are there other similarly divisive issues that the Court might decide in the future?  Sotomayor says she can’t really answer that.  Coburn throws out several questions dealing with social conservative agenda — assisted suicide, euthanasia.  Sotomayor says there are any number of divisive issues that people argue about — people are passionate about what they believe in.  In the first instance, it’s always Congress or the state passing a regulation, and then the Court reviews constitutional issues on a challenge.  It’s not either/or.

Coburn believes her speeches reflect her passions.  Says he’s more measured in his congressional duties versus what he says in a more passionate public speech.  Sees a dissonance between her speeches and her judicial practice.  You are an admireable judge and woman, have very high esteem in my eyes for your accomplishments and intellect.  Have yet to decide where I’m going on this because of your answers and non-answers, and your writings and speeches which run in conflict with what the Constitution has to say.  But I’m mightily impressed.

LEAHY says the GOP has asked for a third round.  (CHS notes:  oh lord, I’ll need to make more coffee.)   Leahy mentions that both Wyoming and Oklahoma have more restrictive gun laws than they do in Vermont and that he’s been a gun owner since his early teens.  So it’s not a regional issue.  Has not read anything in Sotomayor’s writings or speeches that worries him on behalf of Vermont gun owners.

SESSIONS says this is a pivotal time, where any city or state could ban all gun ownership. 

LEAHY says that Vermont has decided not to have the restrictive laws that you have in Alabama.  States make up their own minds.

FRANKEN SECOND ROUND:  Introduces a letter from former USAttys in support of Sotomayor.  Introduces into record.

Why do you want to be a SCOTUS justice?  When Sen. Moynahan first told her that he would consider sending her name to Sen. D’Amato as a potential candidate for district court judge.  Got permission to tell her mom and her stepfather.  Mom excited and asked how much more money?  No, mom, take a big pay cut.  Do as much travel?  Probably not, will be in the courthouse in Manhattan primarily.  Mom then said, all the fascinating clients, you can go travelling with them and the new people you meet with people in the new job, too, right?  No, mom, can’t really become friends with the people in front of me — have to stay separate.  Mom asked why would you want this job?  Stepfather said, you know your daughter and her commitment to public service.  And that’s why — it truly was a commitment, and I can’t think of any greater service that I could give to my country than to be a SCOTUS justice.

Franken says very impressed and fully intends to support her nomination.  Guess there is another round, and I thought I’d be the only thing between you and the door.  But I’m not — but I’ll yield my time back to the chair anyway.

LEAHY reserving his time.

SESSIONS THIRD ROUND:  Gosh, we’ve tried to be fair and nice.  But we’re raising issues we think are really awesome, and we’re going ot take more teevee time to ask them.  (paraphrasing here)   Can you live on the SCOTUS salary?  Sotomayor says she’s been living on that salary for 17 years, so she’ll live on it.  But the pay question is a significant one for a lot of judges — not a raise over cost of living increases for judges for about 20 years.  Sessions says if you can’t live on it, then you shouldn’t take the job.  (CHS notes:  Condescending, much?)

Now on to how much flexibility she might have to pursue a "predeliction in some areas of the law" rather than following the law.  Talking about the need to get race discussion and issues right — references Holder’s speech about how dishonest the conversation can be.  SCOTUS rulings on where you can show a history of discrimination, justice must have remedy to move forward for folks who have been held back.  SCOTUS has also said this is a dangerous philosophy where you damage someone else in order to do that — still needs for remedial remedies, but best way to end discrimination is to quite doing it.  Benefits one race over another solely because of race — when you do that, must have highest scrutiny without meeting that "strict scrutiny" standard. 

Will not support a filibuster, and doesn’t think and GOP member of Judiciary will support a filibuster of her in the full Senate.

Now back to Ricci.  (CHS notes:  Seriously?  Really?  Hasn’t this dead horse been beaten to death by this point?)  Ricci blah blah blah per curium is short blah blah blah don’t agree blah blah blah now we’re haggling whether it was a summary order or a per curium, because as we all know, the American public really gives a shit about legal tedium.  I’m going to start mainlining coffee.  Sotomayor says that the per curium opinion wasn’t a lack of courage — the district court’s opinion was clear, and detailed, and that’s why they adopted it.  Sessions disagrees.  Sessions says Leahy has been fair and thorough in leading the committee.

LEAHY says it is a lifetime appointment, andhe’s tried to be very fair in giving everyone whatever time they need to ask questions.  Leahy enters letter addressed to committee from former President Clinton about Sotomayor into the record. 

HATCH THIRD ROUND:  Judge, you sure have been great.  I have some questions I want to ask that I hope you can answer just yes or no.  (CHS notes:  here we go with the flash round cross-examination characterizations.  Every time he starts out friendly, it gets ugly quickly.)

PRLDEF question — lawyers with the fund said you were an active and involved member with the cases there.  Tried to keep cases done as being consistent with the Fund’s mission.  Let me ask you about a few abortion cases on which the Fund filed briefs.  Not asking for your present views, neither personal nor legal nor how you might rule in the future on this.  These are important issues.

Fund filed an amicus brief asking to overturn restrictions on funds from government being used?  PRLDEF filed brief that compared restriction of abortion funds to Dres Scott.  Did you know about this brief being filed?  No.  Sotomayor says she was a board member, not involved in individual filings — no board member was, unless maybe it was a board member with specific civil rights experience.  Hatch asks about another brief?  No, again was board member, didn’t review idividual filings.  Another one, this one dealing with Casey?  For the same reason, no.

Invited questions from Utah constitutents.  Many submitted questions on 2nd amendment and other issues that have Do you see courts as a means of resolving perceived social injustices, inequities and disadvantages?  Please answer in terms of the justices intentions and the effect of their decisions.  Sotomayor says that isn’t the role of the courts.  Their role is to interpret the laws as Congress writes them — it may be that the interpretation has that effect, but the role is to make certain that the law is enforced.

Would you agree that both the majority and dissenting judges in Heller were trying to remain faithful to the intent of the law and history as they understood it?  Yes.  It is fair for Sotomayor to say that she doesn’t view what a court does is activism, she sees it as each judge interpreting things on the basis of the law and the facts.

Which is more important and deserves more weight — the constitution as it was originally intended or the newer precedent?  Sotomayor says that the words of the founder in the constitution are most important, you look at the words and apply it to the facts.

LEAHY adds letter from PRLDEF saying neither the board as a whole nor individual members of the board select litigation or controls how litigation is conducted.  Get support from United Way and others.

GRASSLEY THIRD ROUND:  Asked about Baker v. Nelson.  Will you respect Baker and, if not, why not?  Sotomayor says she went back to read it — Baker was decided at a time where jurisdiction over federal questions was mandatory in SCOTUS.  There was a dismissal of the appeal on the Minnesota statute.  The question of its meaning and the dismissal is actually an issue that’s being debated in existing litigation.  As I indicated yesterday, I will follow precedent under the doctrine of stare decisis — but I can’t prejudge until that question is before me as a judge.  Because that question is pending before a number of courts, I can’t comment ont he merits, but the extent that a holding is pertinent to the issue before the court, then it would be given the appropriate weight that precedent should be.  The holding itself is what it is, but whether its applicable to a particular case will depend on the facts and how it applies.

Grassley asks about the term "vacuums in law."  Thinks this comes from Souter.  How would you interpret the constitution and statutory law — and Souter replied that the Court sometimes is required to fill vacuums in statutory law.  How do you see it?  Sotomayor says one of the things that she says to her students when she’s teaching students in brief writing is that its dangerous to use analogies because they are imperfect.  Wouldn’t use Souter’s words because they aren’t her own.  What she does isn’t something she’d describe that way — judges apply the law, the holdings of precedent and they look at how that fits in to the new facts before them.  Judges do what I just describe, which isn’t in her mind, acting for Congress.  Interpreting Congressional intent as expressed in a statute, and applying it to new factual situations.

KYL THIRD ROUND:  Starts by making a marathon analogy that falls flat.  And back we go to Ricci.  Sotomayor says thanks for the opportunity to respond, but at this point doesn’t remember exactly what she said that he wants her to respond to here. 

And back to the 2nd amendment.  Maloney case again.  If SCOTUS doesn’t review this issue, is it at least the case in the 2nd and 7th circuits that states could pass laws which prohibit people from owning firearms?  Sotomayor says that you can’t talk about this in absolutes — there has to be a reason the state acts, and a reason that the regulation does a prohibition that overrides other considerations.  And we go through the nunchuck discussion…AGAIN.  Absolute regulation is not what she would answer.  Kyl asks what would be the test applied by the Court if they restricted firearms ownership to law enforcement and there was a regular citizen challenge?  Sotomayor says that is very similar to the facts in Heller — that question in a different state would depend on the circumstances on why the restriction was applied.  Kyl jumps in to ask about strict scrutiny.  Sotomayor says in Maloney they looked at equal protection — applied rational basis review.  Kyl says rational basis is least difficult for states to meet — Sotomayor says its the one that gives states more deference in terms of legislative findings. 

And now we’re debating strict scrutiny versus rational basis standards and the narrowness versus more latitude to act thereof for legislatures.  Scintillating.  Sotomayor says that within the abstract you can’t really answer — you’d have to look at the fit between the findings versus the actual legislation and a number of other factors.  Kyl says he appreciates that she can’t answer specifically, and then proceeds to ask her to answer specifically.  She says that Heller didn’t actually even answer the questions Kyl is posing, so there isn’t controlling precedent from them on that.

Kyl now trying to scare gun owners.  (CHS notes:  can you tell the NRA is one of the GOP witnesses later?) 

And we’re back to foreign law.  (Christy runs away screaming.)  Foreign law discussions — says it was left out of the Kennedy case because it cut against the majority decision.  Sotomayor says its impossible for her to say why a court acted in a particular way when she wasn’t participating in that decision.  Kyl takes his time to gripe about foreign law and arbitrariness of its application.  Sotomayor repeats her answer on foreign law that she’s already given several times over.

GRAHAM THIRD ROUND:  And yet more 2nd amendment blah-bity-blah.  Graham says that both he and Feingold have reached the same conclusion on this, and that doesn’t happen very often. 

Today, Khalid Sheik Mohammed is appearing in a military tribunal at Gitmo, will appear before a military judge and will have legal representation from JAG attorneys.  Lindsey is a JAG and gosh darn it, they are awesome.  He says this is an historic day.  Why do we give him a trial and why should he have his day in court?  Would like to say that it makes us better than him.  His trial won’t be based on prejudice, passion or religious bigotry, it will be a trial based on facts.

Congress is trying to reauthorize MCA because it makes us safer, Graham says.  Have you looked at Boumidiene, Hamdi and other cases in that line.  Do you know of any domestic criminal law which allows for someone to be held indefinitely without a trial?  Sotomayor says the speedy trial act and other constitutional principles require trial.  Under military law, the law of armed conflict, is there any requirement to try every enemy prisoner?  Sotomayoer says there Graham has an advantage on her, she’d have to look at that.  Graham interrupts to give a tutorial on what would happen if one of our military personnel gets captured, there is no requirement to take our airman to a civilian court.  There is no requirement to have civilian judges review our prisoner’s rights.  (CHS notes:  so much for that "we are better than you" and "no foreign law"concept Lindsey touted earlier then, if we’re holding up foreign nation’s standards of treatment as what should be argued and done.)  Sotomayor says these proceedings have been a part of the nation’s history.  Graham says he’s responding to critics on the right with this.

And he’s going on and on about current military law — it would be crazy for us to capture someone and give them adequate due process and then allow them to be released and say good luck.  They are going to try and kill us all.  It doesn’t make us a better nation to put a burden on ourselves that no other nation has ever done.   Have an independent judiciary, but we need to keep an al quaeda member to stay in jail until they die.  America is not a bad place because we will hold them in a process that is fair but we will hold them until they die.  (CHS notes:  Lindsey’s pulling an al qaeda nutter and griping at Whitehouse about this.)

My last words to you will be:  if you get on this court, and you see the MCA that we are about to pass, please remember we aren’t talking about domestic criminals who robbed a liquor store.  We’re talking about people who have signed up for a cause that is every bit as dangerous as any enemy we’ve ever faced.  And this Congress has a very difficult assignment to undertake — and we all have roles to do in a time of war, and Congress and unelected judges cannot run the war.

CORNYN THIRD ROUND: Three brief items.  Starts off with bits and pieces from yet another speech on neutrality in judging.  Sotomayor says in ever case, there are two parties arguing different perspectives on what the law means — that’s what litigation is about.  What the judge has to do is choose the perspective that rules in one’s favor and against the other.  You can’t just throw up your hands and say you aren’t going to rule, you have to choose the answer to the question presented to you.  You have to choose.

You said in your opening statement that your judicial philosophy is fidelity to the law.  Would you say that both sides were being faithful to the law?  Do you think it’s fair to say that the majority judges were engaging in right-wing activism?  (CHS notes:  Didn’t Hatch just ask these questions?  Can you say someone wrote a talking points memo for the GOP senators?) 

Goes on to the Senators who joined an amicus brief?  Do you think those Senators were engaging in right-wing activism?  Sotomayor says, yet again, she doesn’t characterize this in that way?  And yet more foreign law discussion.  (CHS notes:  this is more than three things, and not short.  I’m just sayin’.)   Sotomayor explains, yet again, that he ought to look at the whole speech because she says in her speech exactly what she’s testified to previously.  (CHS notes:  and, I’d add, ad nauseum — because Cornyn’s already asked her this same damned question over the last three days.)

Why would a judge cite foreign law unless it somehow had an impact on their decision or their decision-making process?  Sotomayor says she hasn’t done it, so she doesn’t know why other judges do it — she only knows what others have told her as to why they do it.  Foreign law "gets her juices flowing" — what does that mean?  Sotomayor says she’s also an academic, and it’s fun to think about other ideas — to think about something in new way.   

Do you agree with me if the American people want to change the constitution, that is a right reserved to them by amendment rather than having judges change the constitution through judicial fiat?  (CHS notes:  could you be more of an insulting prick?)  Sotomayor maintains her temper where I would have just laughed out loud at him.

COBURN THIRD ROUND:  Talking about judicial pay — says he’d predict that in the next few year, they may not be able to pay her salary.  National debt = scary.

Go to Madison.  He’s the father of our constitution.  Wants to talk about the Commerce Clause, the General Welfare clause and the Tenth Amendment.  Coburn finds the Federalist papers very interesting.  Talks about Fed. 51 — restrained government.  Do you believe that the federal courts allow the government to exceed its boundaries by delegating unlimited responsibilities to the federal government?  Sotomayor says the SCOTUS in at least two rulings have said there are limits to all branches — and the Courts need to make certain that they are acting within the boundaries of the constitution.

Coburn quotes again from Madison — this time on taxation and expanded governmental power, again from the Federalist Papers.  Asking Sotomayor if she has concerns about the deficit and a whole bunch of other things he thinks are important — and asks her a question so broad that she can’t really answer it.  Sotomayor says the answer to that question isn’t hers in the abstract.  It’s one that Congress will answer with laws that it passes.  Once it passes those laws, the courts will be asked to examine what the constitution says about what Congress did.  (CHS notes:  And I’d add, that the people can deal with in elections by being the check on improper legislators.)

Have we honored the plain language of the constitution and the limited power granted to the federal government?  Sotomayor says she doesn’t know how to answer it without opining on a particular view of a case in the context of other cases.  Our roles and the ones we choose to serve, your job is wonderful and so, so important — but my job as a judge is different.  And I like mine better.  Coburn says he likes her job better, too — but that he doubts he could get to the stage of a confirmation process.  Coburn and Leahy joke back and forth.

People call me simple because I really believe that the Constitution is the genesis of our success as a country.  I believe these words are plainly written, and that we ignore them at our peril.  Think the Court and Congress need to look back at the 10th amendment.  Goes on a rant about expanded government.  We find ourselves at near backruptcy because of this.

LEAHY THIRD ROUND:  Asked this question of Roberts and Alito previously.  As you know in death penalty cases, it takes 5 justices to stay an execution, but only 4 to grant cert.  Usually if there are 4 justices to grant cert., a 5th justice will step in as a matter of courtesy to step in as a 5th — both Alito and Roberts agreed this "rule of 5th" was a reasonable rule.  It appears, according to a study by the NYTimes, that it has not been adhered to since Roberts and Alito joined the court.  If you were on SCOTUS, would you adhere to the "rule of 5th"?  How would you approach that issue?  Sotomayor says she’d consider it in the way that it has been practiced by the Court — if you don’t grant the stay, an execution can happen before you reach the question of whether to grant cert.

Leahy says that it appears somewhere between the hearing room and the SCOTUS, Roberts and Alito changed their minds on this.  Goes through cases where that has occurred.  Sotomayor says there is an underlying reason for that practice, so its certainly something to be considered.

SESSIONS:  Thank you again for your testimony.  Judges come before the committee and make promises, and if they are lucky, they get a lifetime appointment.  Most likely, their judicial philosophy takes hold with their years on the bench.  I hope you felt it has been a fairly conducted hearing.  That’s been my goal.

SOTOMAYOR:  Thank you all Senators, and all Senators.  I’ve received a very fair hearing, and thanks Sessions.

SESSIONS adding in several news articles to the record.  And letter from NRA regarding Heller and Judge Sotomayor.  (CHS notes:  hello fundraising for the second day running). 

LEAHY leaves record open for matierials and hold it open until 5:00 pm ET tomorrow for additional questions from members.  Says Sotomayor says that she’s spent a lot of time talking about her own fidelity to the law, and answered many, many questions.  I thank you for answering with such intelligence, grace and patience and the members of your family for doing likewise.  Almost 2,000 people have attended this hearing in person.  And millions more have watched or followed proceedings through news reports, blogs and otherwise.

Feel like I’ve gotten to know you even better.  Refers to prior statement by President Obama about her nomination.  Knows that the "Equal Justice under the law." on the SCOTUS will guide her.

Recess for 10 minutes.

Standing Committee of the ABA going over their review of Sotomayor’s record.  She got a "well qualified" rating.  Whitehouse chairing the hearing at the moment.  This will be a little while, including a tedious description of how the rating is done, and not much news, I’d suspect.

The Peanut has hit the Momma liveblogging wall for the day.  Marcy will be picking up a loose liveblog on Emptywheel as the testimony begins to require some blogging.