Judge Sonia Sotomayor was approved as the next Associate Justice of the Supreme Court of the United States. The final Senate vote tally was 68 votes for her nomination, 31 votes against. 

The one Senator not voting was Sen. Kennedy, who expressed support for her nomination but was not present today in DC for the vote due to his illness.

In what may be a perfect distillation of Senate behavior, rules constrictions and impotence, Democratic Majority Leader Harry Reid finished his support speech a couple of minutes early, around 2:58 pm ET.   But the Senate couldn’t begin the vote on the Sotomayor nomination until exactly 3 pm ET because there was no one from the GOP leadership who would agree with Reid  to a time change for the vote.

In the end, the NRA push wasn’t nearly enough to shove GOP opposition. Frankly, I think having to resort to them as a last-ditch effort made McConnell look awfully weak. And I have to wonder if there will be a leadership challenge in the GOP Senate caucus in the next election cycle if this weakness continues.

The Senate finally got to some debate on the Sotomayor SCOTUS nomination late yesterday, after an interminable wrangle on the agriculture bill. The Senate is expected to gavel back into session at 9:30 am ET this morning.

After morning business concludes, the SCOTUS debate should resume with a vote likely sometime later today or early tomorrow.

C-Span has been keeping a handy, alphabetized tally of Senator’s public statements on voting intentions which shows, as of this morning, 57 votes for confirmation and 15 votes still pending some public statement.

CQ has an article this morning on the glories of bi-partisanship according to Lindsey Graham, and the loss of those halcyon days of yore with the increasingly partisan judicial battles now and to come. The article makes it sound as though we are governed by immature 7-year-olds who don’t care about the good of the country, only positioning for the next election cycle and settling grudges:

The Sotomayor nomination is the latest in the increasingly partisan battle over judicial nominations, including lower-court nominations. And the way Republicans have largely united against Sotomayor signals trouble for President Obama’s future Supreme Court nominations should Democrats lose seats in the midterm elections….

The opposition from Hatch and another senior Judiciary Committee Republican, Charles E. Grassley of Iowa, is particularly notable. Neither Hatch nor Grassley has ever voted against a Supreme Court nominee before. They both supported Clinton’s two nominees, Ginsburg and Stephen G. Breyer .

Hatch, like other members of his party, indicated that he is still bitter about the way Democrats treated GOP nominees to the lower federal courts when they were in the minority.

Of course, Hatch was responsible for bottling up the Clinton judicial appointments during a stretch of GOP Senate control, so his peevish tantrum on that score always makes me laugh.

What isn’t a laughing matter? The Beltway press is pushing the GOP framing of "this signals trouble" for future judicial nominations. How about, instead, a "grow up, you people are Senators, so stop gaming the rule of law for your electoral needs?"

But that would be too much to ask, wouldn’t it?

Like I said yesterday, instead of signaling a problem, this ought to be a freeing moment for Democrats — since the petty political peevishness will outweigh the decent in far too many cases, why bother trying to make them happy? If it isn’t going to happen, why not select judges passionate about the rule of law and let the petty crowd pout in the corner.

This from Sen. Leahy’s speech covers the Democratic perspective for the most part:

In her 17 years on the bench there is not one example, let alone a pattern, of her ruling based on bias or prejudice or sympathy. She has been true to her oath and faithfully and impartially performed her duties as set forth by the Constitution. As a prosecutor and as a judge, she has administered justice without favoring one group of persons over any other. She testified directly to this point, saying, "I have now served as an appellate judge for over a decade, deciding a wide range of constitutional, statutory and other legal questions. Throughout my 17 years on the bench, I have witnessed the human consequences of my decisions. Those decisions have not been made to serve the interests of any one litigant, but always to serve the larger interests of impartial justice."

And this sums up the GOP perspective:

Last week, the NRA said it would consider senators’ votes on Sotomayor when it grades political candidates for its voter guides. That move, Democratic aides said, was likely to deter some Republican senators who were considered possible Sotomayor votes.

Coverage of the various vote speeches from committee senators can be found here.

The nomination now heads to the full Senate for debate and a vote. 

Senators are giving a little colloquy on the reasons for their vote along with their actual vote.

I initially tried to watch this via the committee’s webcast, but I couldn’t get the sound to work, so I’m coming in mid-speech from Sen. Sessions.  I’ll try to summarize a bit as we go forward.

Sen. Leahy’s statement is posted already on the SJC website.  Votes yes.

Sen. Sessions statement can be summed up by reading his USAToday op-ed from earlier. And then reading some NRA fundraising literature. That pretty much covers it.  Votes no.

Sen. Kohl sure does like her.  And he’d like tougher hearings in the future.  Votes yes.

Sen. Hatch sure does think having an Hispanic nominee is nifty, but he can’t vote for her even though he sure does like her as a person.  Votes no.

Sen. Feinstein:  word of the day for DiFi is impressive.  Votes yes.

Sen. Grassley cannot support the nomination. Andrew Cohen’s commentary on Grassley gives some background on the utter inconsistency of this vote from him.

And this pretty much sums up what I’m thinking: this is all future nomination kabuki and positioning to throw up markers for future Obama nominations to the federal bench.  I’d say more, but Grassley’s monotone delivery is making me comatose.  And I think he may be repeating some of his speech.  Or maybe it just all sounds the same.  He’s voting no.

Sen. Feingold says that the process was scrupulously fair and that everyone had plenty of time for the questions they wanted to ask.  Commends Leahy and staff for making so much of this information available online for the public — standard for transparency and public access is excellent.  Goes through his reasons for voting on Sotomayor — refers to her answer on Korematsu.   Votes yes.

Sen. Kyl having statement placed in the record.  Sessions has his proxy — Kyl has GOP duties that require him to be elsewhere.  Proxy will be cast at time of vote.

Sen. Graham voting for Sotomayor.  Says he really enjoys politics, and has enjoyed representing SC, and enjoyed trying tohelp McCain get elected…but we lost.  With his vote, he’s trying to recognize that we came perilously close to trying to damage the courts  — but more times than not the courts have been ahead of where the public has gone, and feels that the filibusters drive good men and women away from wanting to become judges.  Says judges are a different standard from the political arena — don’t make the law an extension of politics in another form.  Says her speeches did bug the hell out of him — because she was a judge at the time she gave the speeches.  "But, you know what?  How many of my speeches would bug the hell out of the other side…probably all of them."  Says that we are over 200 years old as a nation, and this is the first Latino woman to be nominated for the SCOTUS — and that is a big deal.  Says she meets the qualification test applied to Scalia and Ginsburg, and she’s an inspiration.  Votes yes.

Sen. Schumer starts thanks to Leahy and Sessions, and a kudo to Graham.  This is an historic day for America…blah blah blah.  Essentially his "great American story" speech from her introduction to the committee.   Says her lengthy record on the bench shows that she comes to her cases without arrogance and without an agenda — she’s adheres to the rule of law, and judges each case individually.  If GOP colleagues cannot support a moderate pick like Sotomayor, then that suggests that they can’t vote for anyone who is not an extreme conservative.  Votes yes.

Sen. Cornyn starts with a gosh, thanks for this pleasant hearing. Cornyn now making the Federalist Society argument against Sotomayor — with a little NRA fundraising and and Ricci blahbity blah. Word of the day for him: radical. (CHS notes:  His staffer on the left must have helped write this speech, because he is sitting behind him looking awfully self-satisfied and smug. Ick.)  Wants us all to be good little Federalist Society footsoldiers.  Votes no. 

Sen. Durbin talking about the importance of a SCOTUS appointment vote.    Says we’ve had two women justices and two African-Americans — that’s why this is so significant.  What a great story for America, what she has achieved.  After pouring over more than 3,000 cases from 17 years of judicial experience and hundreds of pages of letters, speeches and other materials, the GOP focused their opposition primarily on one case and one speech.  Durbin says that standard is ridiculous — especially for Senators who get to revise and extend their remarks.  Then talks about importance of diversity for differing points of view and perspectives — but also so that Americans see governmental processes as fair.  Talks about the fact that the NRA, for the first time, is putting this SCOTUS vote on its scorecard.  Votes yes.

Sen. Coburn starts with a passive aggressive whine at Durbin.  And he’s wearing an incredibly green tie that is really bad on the teevee.   Continues with the whiny, aggreived tone and peevishly gripes about her speeches and foreign law, rambling around a bit complaining that Sotomayor wasn’t more of a Bork.  Good time for a fresh cuppa coffee.   Voting no.

Sen. Cardin says he’ll support Sotomayor.  Says that Sotomayor folows precedent to advance individual rights.  Believes Sotomayor is not only well qualified, but that her record shows her to be thoughtful and adhering to the constitution and the rule of law.  Voting yes.

Sen. Whitehouse says he’ll be voting for her as well.  Her 17-year-record is noncontroversial and shows that she’s dedicated to the rule of law and gives people before her a fair hearing.  That she will decide cases based on the law and the facts before her.   Whitehouse says that this is an attempt to define justice in America by a particular point of view — says that it cannot be defined as a norm by which all other points of view are defined as an abberation.  Paraphrasing recent article characterizing current segment of SCOTUS as for corporations and against individuals. 

Sen. Klobuchar starts with the encyclopedia story again.  And then moves on to discussing the prosecutorial work that Sotomayor did right out of law school.  Quotes the old Moynihan bit:  you are entitled to your own opinion, but you are not entitled to your own facts — and says that Sotomayor’s record belies attempts to cast her as a radical out of the mainstream.  Hits back at the "temperament" BS.  Voting yes.

Sen. Kaufman concentrates on her business and regulatory experience as being helpful for SCOTUS especialy at this time.   Enters floor statement from the Senate into the record.  Will vote yes.

Sen. Specter says he will vote to confirm Sotomayor, comes with an extraodinary record.   Goes on a ramble about women standing up for women, and how much better the Senate is with more women in it.  Goes on a ramble about Plessy and other shifting values cases.  Dabs at his eyes due to some chemo side effects — and says he’s fit as a fiddle and ready for the election.  Then some blah-bity-blah about Bork’s original intent absolutism and why he was rejected. 

Sen. Franken says this nomination comes at a critical moment for SCOTUS at a time when the current court has struck down long-standing precedents for individual liberties and protections.  Will be voting for Sotomayor.

Roll call vote upcoming.  Vote total is 13 to 6.

Kohl — Aye

Feinstein — Aye

Feingold — Aye

Schumer — Aye

Durbin — Aye

Whitehouse — Aye

Klobuchar — Aye

Kaufman — Aye

Specter — Aye

Franken — Aye

Sessions — No

Hatch — No

Grassley — No

Kyl — No, by proxy vote from Sessions  (C-Span showing empty chair)

Graham — Aye

Cornyn — No, by proxy vote from Sessions  (C-Span showing empty chair)

Coburn — No, by proxy vote from Sessions  (C-Span showing empty chair)

Leahy — Aye

The IG’s office delivered its initial report yesterday (PDF).  As Sen. Byron Dorgan says:

U.S. Senator Byron Dorgan (D-ND) said Monday a new Defense Department Inspector General investigation confirms findings of a hearing he chaired a year ago: the electrocution death of Staff Sgt. Ryan Maseth was the result of poor-quality electrical work by contractor KBR and that the Army failed to adequately oversee KBR or hold the company accountable.

“This is a damning report,” Dorgan said Monday. “The conduct of both KBR and the Army is unacceptable.”

In the report, the Inspector General concluded that KBR failed to ground equipment which contributed to the electrocution death of Staff Sgt. Maseth. . . .

“KBR has repeatedly denied any responsibility for what happened to Sgt. Maseth and other soldiers who were shocked and electrocuted in Iraq. This report makes it impossible for them to do that any longer,” Dorgan added. “Instead of cutting corners and issuing denials, KBR needs to get very serious, very quickly about doing quality work that protects soldiers rather than endangering them.”

The IG report is blunt: KBR failed to ground a water pump that provided water to showers where Sgt. Maseth was stationed, and Army supervisors failed to set baseline standards, inspect negligent work, or hold anyone accountable for shoddy work product — and even for deaths of its own servicepeople — until forced to do so by a public shaming.

Huge kudos to Sen. Dorgan and the other members of the DPC for continuing to force this issue.

Because otherwise, it would have simply disappeared, with family members having been told on multiple occasions that their loved ones either died of natural causes or died of self-inflicted electrocutions.  Beyond shameful conduct from multiple actors in this.

Thus far, the ongoing IG review has found that at least 9 electrocution deaths of US troops in Iraq can be attributed to shoddy electrical work and failure to follow proper safety procedures, and failures on multiple layers of supposedly required military inspections which should have caught the errors.

Worse, I’m told there is still a lot to inspect and review, which means that this ongoing investigation may not have caught all the shoddy work as yet.  I am currently trying to verify this with DOD sources.

American troops are risking their lives in uniform. Who knew they’d also be risking their lives in the shower because of faulty contracting work?

They deserve a hell of a lot better than that. 

And so do we all, since we’ve paid "$83.4 million in bonuses that the Pentagon paid KBR under LOGCAP III Task Order 139 for its shoddy electrical work," per Sen. Dorgan’s press release on the IG report.  That’s your taxpayer dollars, folks.

For more on the IG report, see the Pittsburgh Tribune-Review, CNN and the WaPo.  For more on prior DPC policy hearings regarding contractor abuses, see here, here, here, here and here.  Just for starters.

(YouTube — Sen. Byron Dorgan demanding accountability from the DOD IG’s office on these electrocution deaths.)

My favorite touch on this is that Reid and Baucus will be meeting in the Oval Office.  Talk about your home court advantage.

And I also note that this little confab is sandwiched between other meetings, including a sit-down with Vice President Joe Biden and one with Secretary of State Hillary Clinton.

I have to wonder, will either Biden or Clinton be part of any Obama arm-twisting on Reid and Baucus on health care?

Frankly, if I had two old hands at Senate camaraderie at my disposal, I’d put them to work.  However they could best be deployed. 

But then, I think health care legislation by industry lobbyist proxy isn’t a good idea, either:

The rancor comes in large part because of what’s happening, or isn’t happening, in Room 511 of the Hart Building. Some say Baucus and his negotiating group are moving too quickly, while others say they are moving too slowly, and still others say too secretly and too cozily with lobbyists; as the lawmakers negotiated in Baucus’s office, the lobbyists who had gathered in the hall met with Senate staffers in another part of the chairman’s suite.

How polite to give the lobbyists part of your Senatorial digs, paid for by the American public, natch. Wouldn’t want them out in the hallway where prying eyes might be able to see which staffers are cozying up to whom, now would we? 

Will we hear later today that the Senate will stay in session a little later instead of breaking for vacation?  Guess we’ll see.

In the meantime, consider a letter to the editor to your local papers on health care.  Or several.

You know your elected representatives need something to read over coffee during their lengthy vacations.  And so do their staffers.  Let’s keep them busy with a bit of homework, shall we?

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. 

Pitiful.  Just pitiful.

(via Senate Democrats)

Spicy! via Eric in SF.

Since media coverage insists on riffs on "spicy Latina," I decided to go with hot sauce pix today. Couldn’t help myself.

LEAHY about to gavel proceedings into session.  Liveblogging will begin as he does.

LEAHY:  Good morning everyone.  Judge, it’s good to see you back and your family.  Judge Sotomayor, yesterday you answered questions from 11 Senators.  I think you demonstrated your comittment to the rule of law, and you definitely demonstrated your patience.

For the schedule, we have 8 remaining Senators in that first round.  Then we’ll go into closed session, which we always do, and then will come back for a second round of questions for 15 minutes or less each.

CORNYN QUESTIONS:  Good morning.  Appreciate the good humor you’ve brought to this and your enjoyment of the back and forth as you do in the courtroom.  Talking about how nastiness in hearing sometimes dissuades people from serving — thinks that is not a good thing.

Wants her to help reconcile two pictures that have emerged about her — one from her court work, and one from her speeches and writings.  (CHS notes:  Cornyn pointedly doesn’t discuss where the misinterpretations of Sotomayor might have come, justuses a sorrowful tone about whatever need to reconcile them there may be.  And, good lord, we’re back to the "wise Latina" thing again.)  Sotomayor says that the comments were taken out of context, that you have to read the whole of the speech not cherry-pick her words — that she noted in the broader speech that white men decided Brown v. Board of Education, and there were other instances.

Cornyn trying to get her to either stand by her words or disavow them.  Sotomayor says it was clear that because there has been so much misunderstanding that her words failed, but she wasn’t saying her life experiences would make her decisions — she bases her courtroom decisions on the law.  (CHS notes: Cornyn still going on about this.  It’s going to be a long morning.)  Sotomayor says that the work she does with students and lawyers of all backgrounds and community groups of all types, and what she tries to do is encourage students, new immigrants, and others to participate in all levels of society.  This is one of the good things about America — we can participate fully in all of the opportunities, saying "I’ve made it, so can you.  Participate and work hard."

Cornyn now moving on to a particular set of quotes from a law review article that Sotomayor wrote.  It was a speech entitled "Returning Majesty To The Law."  She hopes she conveyed that she’s passionate about the rule of law, and was trying to say not to participate in the cynicism of the broader public in the law — but to engage in explaining the law in the broader public in all of its contexts rather than falling back on labels like "activism," or otherwise.  Talked about the law evolving as Congress writes new laws, or as technology changes.  About different approaches, there are some cases seen as radical – such as Brown v. Bd. of Ed. — but that can be a teaching point about the law as well — that those new directions rarely ever come at the initiation of the court, but because lawyers are pushing the court to see the law in a different way in their advocacy and as society changes.  Also spoke to them about what judges can do.  Judges have a responsibility to monitor the conduct of the lawyers before them — conduct which could bring repute to the system.

Cornyn asks her whether she believes judges ever change the law?  Sotomayor says they can’t change law — judges aren’t lawmakers.  But they can change how to interpret the law — there are changes by judges in the popular perception that this is a change in the law, but the law itself doesn’t change.  Only the arguments on what it means do. 

Cornyn asks her about a speech in which she celebrated some of the ambiguity in the law.  Sotomayor explains that the reason people bring cases is because the law is uncertain — this is the entire process of law.  If the law was always clear, we wouldn’t need judges.  Where there is unclear drafting of law, or where there is a unique setof facts to which the law has never been applied — that is where judging is done.  (CHS notes:  Jeebus, this is a first year law school tutorial today.)

Cornyn now moving back to the Cederbaum back and forth from yesterday.  Talking about the life experiences informing how you listen and judge.  Your work as a prosecutor may help with a criminal case, but it does nothing for you in a commercial context.  She says the physiological quote that Cornyn was asking about was part of a hypothetical she was asking in the speech — consider these sorts of things and think about them, not trying to suggest that it was a given.  (CHS notes:  Cornyn, not grasping the essential point of hypotheticals in a legal context.  Sad.)

Cornyn moving on to abortion.  Asks whether Obama asked her about abortion.  Sotomayor say no one at the WH ever asked her about abortion.  Sotomayor says in her cases, she follows the law, and you just have to look at her record.  Asks her about Pavia quote on abortion — Sotomayor says that she never spoke with George Pavia about any social political issue, he was the managing partner of her firm.  Cornyn asks if she agrees with Pavia’s comment that she has generally liberal instincts — Sotomayor says that he might be referring to her work on equality with PRLDEF, but that he hasn’t likely kept up with all her cases, since corporate litigators only tend to look at cases which deal with their clients’ business.

Cornyn now harping on the per curium opinion on Ricci.  Says he was shocked! by it being per curium.  Sotomayor says with regard to your broader question on per curium — about 75% of circuit court decisions are decided by summary order.  Partly because the volume of work means that every case can’t get a huge written decision.  But, more importantly, where there is a substantial record in the district court opinion, then often the circuit court will rely on that work.  In Ricci, we had a 78-page opinion that covered the precedents and the facts and evidence of the case.  Cornyn now arguing the Helms "Hands" ad line — and the SCOTUS decision, but fails to note the SCOTUS came up with a whole new standard that didn’t exist at the time of the 2nd circuit panel.  Sotomayor says that the court’s opinion en banc addressed the hardships of the plaintiffs — saying that this wasn’t dismissed by anyone.  But that the law required them to look at what was required, whether or not there was sympathy for either side.  The substantial evidence test was not discussed with the panel — it was a decision by SCOTUS after the fact.

LEAHY says he will put in the record a letter of support from the US Hispanic Chamber of Commerce for Sotomayor’s nomination, and for several in TX and AZ.

SESSIONS asks that a letter from the NRA be placed in the record where they express serious reservations, and adds Wayne LaPierre’s editorial to the record as well.  And a letter from Richard Land the head of the Southern Baptist Convention expressing reservations as well.  (CHS notes:  Hello, fundraising opportunities!)

CARDIN QUESTIONS:  Begins with a thank you for Orioles fans for getting Ripkin back in uniform during the strike.  Gosh you sure are smart and are answering questions really well, and gosh darn it, Americans like you.

Let’s go on to the complimentary comments in the Federal Almanac about you that Sen. Graham didn’t read yesterday.  Reading from many talking about how sharp and well prepared she is.  Sotomayor thanks those who commented — most lawyers who participate in arguments before her know how engaged she becomes in their arguments in trying to understand them.  My style is to engage as much as I can to assure myself that I understand what a party is trying to tell me.  As I noted yesterday, I have colleagues who ask no questions, I have others who ask a lot of questions.  Every judge has their own style.

Cardin talking now about constitution and bill of rights protections.  Discussing civil rights laws and struggles — talking about voting rights.  Says in his own election in 2006, there were longer lines int he African American precincts than in other areas — not as many machines, longer lines, fradulent sample ballots given out in certain neighborhoods — I mention this because it didn’t happen 60 years ago, this was 2006.  Tell me about your passion for protecting the right to vote — and making certain the laws are enforced as Congress intended.  Sotomayor says that when Cardin talks about her passion on this, it isn’t unique to her — voting is a fundamental right in this country and one which most Americans hold sacred.  Congress has passed a number of laws through the years to protect that right.  The question a judge would face is whether some Congressional law conflicts with a state requirement on voting mechanisms.  She references a dissent on an en banc hearing on voting rights — the majority upheld a state regulation barring a group of people from voting.  I dissented, referring to the words of Congress regarding not discriminating on voting based on race — need to give the plaintiff an opportunity to prove his allegation that occurred.   Cardin quotes from her "I trust that Congress would prefer to make needed changes, rather than have the Court do so for it."

Cardin says he’s concerned about judicial activism dismissing the clear intent of Congress.  Moves on to environmental laws.  Talking about more recent decisions rejecting Clean Water Act intent, particularly concerned with that impact on Chesapeake Bay for Maryland.  Understands that these decisions are now precedent, but I’d like you to comment on how you reach decisions that come to the bench and thatyou will follow intent of Congress and not supplant that with judicial action.  Sotomayor says thatshe believes her record shows that deference must be given to the rights of each branch in each situation in the exercise of its powers.  To the extent that the Court has a role in ensuring that the Constitution is folowed, that it attempts that with some deference to the elected branches in setting policy and making law.

Cardin turns to personal backgrounds.  Progress for women has not always come easily — we all agree that in rendering an individual decision, a gender and ethnic background will not affect your decision.  But you can’t just divorce who you are and what your life has taught you.  You were actively involved in promoting diversity at Princeton.  Talks about his own experience at UMaryland Law, which denied admission to Thurgood Marshall earlier.  Talks about Justice Ginsburg speaking to the impact of women on the bench and sexual harassment cases falling under Title VII through their influence.  Thoughts on improving diversity?  Sotomayor says his comment about his family reminds her of a letter she got when she was nominated to the 2nd cir from a woman who had 19 daughters and greandchildren — how proud this woman was that a woman could serve in that capacity, and how important that diversity can be as an example to others of the great opportunities we can have in America.  Policy decisions about equal opportunity come from Congress — how to do that in the first instance — the Court looks at what has been done to determine whether that passes constitutional muster.  Talks about more recent educational standards cases in Michigan — the law school and undergrad cases — and the differences in how the Court saw race application narrowly drawn in the law school case versus as a broader impermissible violation in the undergrad case.  Have to balance the need versus the remedy sought, and the facts.

Cardin refers to the Gant case that Sotomayor ruled on previously.  Can you ignore race completely?  Sotomayor says that it depends on the context of the case that the Court is asked to examine.  In Gant, she joined the majority in dismissing some of the claims — but there was a disperate treatment element in terms of the services he was provided and the remedies tried.  Says you have to look at all the facts and circumstances in any individual case under the law.

Cardin says privacy is the right to be left alone.  SCOTUS had advanced that in Myers, Loving, Lawrence, Griswold, and Roe v. Wade.  Wants her assessment of the where this stands today — with extensions of technology and others — how do you see privacy in the 21st century courts?  Sotomayor says privacy has been recognized in a number of circumstances for more than 90 years now — it’s partof the Court’s precedents, with the liberty provision of the due process clause that provides a right of privacy in a number of different settings in awhole line of cases.  In the coming century, it’s guided by that line of cases and other cases — by that precedent — for any new law or new situation.  The constitution remains the same, society changes, the cases brought before the courts change — but the principles and precendents remain more constant.  And you apply those principles to the cases brought before you.

Wants to talk about pro bono work.  Legal access is important — but the numbers of attorneys to defendants is a huge disparity.  Hopes Congress will reauthorize Legal Servies Act.    Wants to know how she sees the role of the courts in promoting pro bono work?  Sotomayor says if you look at the body of her speeches, public service and pro bono work is a huge part of what she speaks to in the bulk of her speeches.  The importance of participation in bettering the conditions of our society — active involvement in their communities, and not just in politics.  Work in your community to improve it.  The ABA requires community involvement and public service, in virtually every state bar as well.  Public service for lawyers is critically important — its a core responsibility of lawyering.  Our Founders became that because of their fundamental belief in public service — for lawyers, we are supposed to help people receive justice under the law, and it’s a critical duty.

COBURN QUESTIONS:  Places Washington Times article in record.  Apologizes for missing yesterday because of health care legislation work.  Apologizes for abortion protestors from yesterday — "you don’t change minds by yelling at people, you love them."  Let’s talk in regular parlance, so regular folks can understand it.

What is the settled law in America about abortion?  Sotomayor says she can walk him through SCOTUS precedent.  And proceeds to do so.  Coburn now throws out a hypothetical on a pregnancy with spina bifida.  Sotomayor says she can’t answer that in the abstract, because she’d have to look at the specific state’s law to know where her analysis would fall — but Casey does comment about undue burden issues.  But this is certainly an issue which may come before the Court.

Coburn now talking about technology on premature birth saves being advanced.  Sotomayor says the law has answered a different question, on the fundamental right of women, and not in that type of specifics.  Says she couldn’t answer because it is very likely a case that would come before the courts.  Coburn asks whether viability and technology should be considered?  Sotomayor says that isn’t a question that the Court reaches out to answer.  That’s a question that gets created by state legislation — we don’t make policy questions in the court — we would look at this as a challenge to a state law by a litigant who would claim an undue burden.

Coburn moves on.  Does a state have a right to determine what is death?  Sotomayor says it depends on what they are applying that definition to — some cases would be appropriate, some would not have applicability to courts.   And now we’re back to viability, technology, etc.  I don’t expect you to answer this, but I do expect you to pay attention to it.  And he goes on to the standard pro-life speech on life, the womb, and not one word about the mother whatsoever. 

Asks her about Maloney — and her position on the 2nd amendment.  Sotomayor talks about Heller — SCOTUS recognized an individual right to bear arms guaranteed by the 2nd amendment and one that limited the actions the federal government could take with regard to possession of firearms.  Maloney presented a different question, and that was whether the individual right limited the state’s ability to limit possession of weapons.  Talking about the difference of common meaning of fundamental versus the legal definition — is that amendment of the constitution incorporated to the states through the 14th amendment?  In Maloney, the issue for us was a very narrow one, was the Heller right incorporated against the states — in accordance with SCOTUS precedent, it was not.  In Heller, the SCOTUS failed to rule on the state applicability issue (CHS notes:  which leaves prior precedent on that incorporation intact until such time as SCOTUS rules on it.  Duh.)  Sotomayor goes on to say that there was also substantial 2nd Cir. precedent saying that it was not incorporated against the states.

What the Court will look at is the state regulation of the right, and then whether what the state is doing to limit or expand that right — whether that’s appropriate.  Coburn talking about the 2nd amendment being the reason that the 14th amendment was applied to states to restore right ot bear arms to freedmen.

Wants to know how we got to the point that something is guaranteed in the constitution isn’t, but something that isn’t set out in the constitution is?  Sotomayor says that one of the frustrations with judges by citizens is that what we do is different than the conversation the public has on what they want the law to do.  Judges don’t make law.  We get a particular setof facts presented to us.  We look at what states are deciding to do or not do, what laws have been enacted by them and by Congress — look at the principles in the Constitution, the bill of rights and the laws, and then apply that to the set of facts and evidence before you.  Says Scalia wasn’t suggesting all regulation was illegal, just that the particular DC regulation was unconstitutional.  Judges don’t make a broad policy choice — we look at what other actors in the system are doing, what their interest in doing that is, and what they are trying to fix — that’s the court’s function.  Can’t explain it philosophically, just explain it by the function of judging.

Do you believe I-nate-ly in a right of personal self-defense?  Sotomayor trying to remember if SCOTUS has addressed that — can’t think of one off the top of her head.  As she understands, most criminal law statutes are passed by states.  Can’t think of a federal law statute which addresses that.  Sotomayor says she doesn’t know if that legal question has ever been presented.  It’s an abstract question with no particular meaning outside how I would have to look at it under the law.  Coburn goes off on whether people can defend themselves in their own homes.  Sotomayor says it’s tough to deal with someone whose answers are so cornered by the law — let me answer in the context of NY law, which is my personal experience.  Under NY law, if you are being threatened by force, you can use force to repel that — the question which comes up with the jury is how imminent is that threat?  It’s a question of self-defense under NY law — but the answer can differ radically under the set of facts.

You’ve been critical of Justice Scalia’s crits of foreign law.  I’d like you to quote from your oath, outside of treaties, where that’s allowed?  Sotomayor says she has actually agreed with Thomas and Scalia that you have to be careful outside treaty and other obligations where you use that.  She says her speech and her record on this issue is that she’s never used foreign law to interpret the constitution or statute — unless the statute directs you to look at foreign law, and some do btw — it cannot be used as a precedent or to bind on an interpretation.  Coburn going to a cherry-picked quote:  "nothing in the American legal system prevents us from considering those ideas" from foreign law.  Sotomayor says if you look at my speech, you’ll see that repeatedly I underscored that foreign law could not be used for precedent — but what judges do, and I cited Justice Ginsburg, is that you build up a store of knowledge in an academic discussion way in thinking about ideas from other courts — not using foreign law as a controlling precedent to drive a conclusion.  You use it as a comparison point, not in compelling a result.  Coburn says he doesn’t agree with that on certain 8th and 14th amendment cases.

Should we worry about what other people think about us in interpreting our own law?  Not saying this very well.  Should we worry about achieving a politically correct around the world?  Sotomayor says that we don’t render decisions to please the home crowd nor anyone else.  Have heard discussions about SCOTUS needing to take more treaty cases because we aren’t particpating in the broader discussion on this.  But we shouldn’t make decisions based on what someone else thinks.

Am starting a fresh thread…