Yesterday Senators took their 30-minute rounds questioning Supreme Court nominee Judge Sonia Sotomayor. Here are the Part I Transcript, Part II Transcript, Part III Transcript, Part IV Transcript & Part V Transcript from Tuesday's hearing.
Confirmation Conversion? Sen. Jefferson Sessions (R-AL) suggested that Sotomayor's turnaround on the role of race & gender in judging, at her hearing yesterday, might be a "confirmation conversion." Leave us juxtapose what Sotomayor said then versus what she said now:
SOTOMAYOR THEN:
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.
Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage. (Emphases added.)
SOTOMAYOR NOW:
"I want to state upfront, unequivocally and without doubt: I do not believe that any racial, ethnic or gender group has an advantage in sound judging," Sotomayor said. "I do believe that every person has an equal opportunity to be a good and wise judge, regardless of their background or life experiences."
As Fox news anchors like to say: "We report, you decide." Or as in that old Intellivision commercial: "You make the call."
Abigail Thernstrom, author of books on civil rights progress, fears Sotomayor will become an ethnic activist on the Supreme bench. Democratic strategist & Fox news analyst Kirsten Powers calls "silly" the idea that life experiences have no influence on judging, but adds this re Baby Boomer liberals' obsession with race & gender:
But she did say "better." Why would she make the "wise Latina" assertion multiple times?
Simple: This kind of thinking is commonplace among baby-boomer liberals, who've conferred special status on women and minorities that goes beyond mere equality.
There is surely a psychological explanation for it, and it goes something like this: Women and Latinos (along with other minorities) were long discriminated against in this country, in sometimes humiliating ways. As these groups worked toward equality, a certain mythology sprung up that they weren't just equal to the people who were keeping them down, they were "better."
Perhaps it was a way of coping, or just a way of rallying the troops. Sotomayor herself has said she was trying to inspire young people with these speeches.
When I was growing up, the common refrain I heard among my mother's feminist friends and later in college in women's studies classes was, "If women ran the world, there would be no war." Or: "If women were in charge, the world would be a better place."
I don't know what Sotomayor heard about Latinos in her childhood (though I'm sure, like any ethnicity, there was a healthy pride). But the sense that she would reach a "better result" than a white man probably flows more from a feminist influence than a racial one.
In Sotomayor's favor, James Taranto of Best of the Web posted "The Diabetic Jailbird" Tuesday, in which he recounts a case where Sotomayor recused herself out of an abundance of caution, to avoid the appearance of bias:
The New York Times reports on a case that ought to offer some reassurance. In 1997, while she was still a trial judge, Sotomayor recused herself from hearing a case called John Doe v. City of New York, on the ground that she had "personal knowledge regarding the claims." She told senators in a written questionnaire that she didn't remember the details, but the Times dug them up:
The file, pulled from the archives, suggests that the "personal knowledge" that the judge cited stemmed from her history of Type 1 diabetes, which the judge has said was diagnosed when she was a child.
The plaintiff in the case, who used the pseudonym John Doe, was also a diabetic, and had been an inmate in the New York City jails system. He claimed in a lawsuit that after his arrest, the police and the Department of Correction withheld his medications in a way that caused extreme pain and discomfort, and led to his hospitalization.
The judge withdrew from the case soon after it was assigned to her, court records show; she was not required to list any details on her reasoning.
But one legal scholar said that if it was based, as it seemed to be, on her own standing as a diabetic, her decision was exceptionally cautious.
"Under no circumstances, by any stretch of the imagination, would that alone require disqualification," said Steven Lubet, a legal ethics professor at Northwestern University. Professor Lubet said judges were generally required to step aside from a case whenever there is a reasonable question concerning impartiality.
It's only one case, and it doesn't implicate "our differences as women or men of color." But it does suggest that in practice Sotomayor takes her obligation to be impartial seriously, notwithstanding her musings to the contrary.
Politics: Can GOP Senators Risk Alienating Hispanics? One wonders if any GOP Senator saw Pat Buchanan's blunt advice for GOP questioners in his Tuesday Human Events piece: ignore fear of Hispanic defections and expose Sotomayor as a quota queen--among other things, PB notes that Sotomayor (I had missed this) took the position that depriving felons in new York of the vote franchise violated their civil rights, apparently because doing so has a disparate impact upon minorities, who comprise a disproportionate share of the prison population.
PB notes that Hispanics were 7.7 percent of the 2008 election vote, versus 74 percent for whites, and that had John McCain gotten 58 percent of the white vote--Bush's 2004 total--instead of 55 percent he would have gained as much as by winning Hispanics with 62 percent of the vote, instead of getting only 32 percent of the Hispanic vote.
WSJ pundit Collin Levy writes on Sotomayor's views regarding international law. She notes political risk for Democrats:
Like several of the judges on the left branch of the court, Judge Sotomayor has said she favors a broader consideration of foreign and international law in U.S. judicial opinions. While she rarely had occasion to dip into foreign sources during her time on the Second Circuit, she recently went out of her way to embrace the concept and its applications by the high court.
In a speech to the American Civil Liberties Union of Puerto Rico in April, Judge Sotomayor explained that "ideas have no boundaries," and that "international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system." To discourage the use of foreign or international law, she added, would "be asking American judges to close their minds to good ideas."
That's political quicksand for a judge Democrats are eager to portray as a moderate inclined to narrow reading of text and precedent.
Leahy's Low Lie on Miguel Estrada's Nomination. Ed Whelan of NRO Bench Memos sent out this 7/13 Leahy/Estrada blog post on how Sen. Patrick Leahy, the Vermont Democrat who chairs the Senate Judiciary Committee, presented a grossly misleading picture of how the nomination of Miguel Estrada was handled by the GOP. Judge for yourself:
When Senator Lindsey Graham used the example of Republican support for President Bush’s D.C. Circuit nominee Miguel Estrada to make the elementary point that Republican concerns about Judge Sotomayor are based on her judicial philosophy, not on her Hispanic ethnicity, Judiciary Committee Chairman Pat Leahy saw fit to respond in this way:
I'd just note, just so we make sure we're all dealing with the same facts, Mr. Estrada was nominated when the Republicans were in charge of the Senate, was not given a hearing by the Republicans. He was given a hearing when the Democrats took back the majority in the Senate ….
Well, let’s “make sure we’re all dealing with the same facts,” Senator Leahy:
1. President Bush announced his nomination of Estrada to the D.C. Circuit on May 9, 2001. Fifteen days later, Senator Jeffords left the Republican Party and flipped control of the Senate from the Republicans to the Democrats. Leahy surely remembers that well, both because Jeffords was his fellow Vermonter and because the flip made him chairman of the Judiciary Committee.
2. When Leahy says that Estrada “was not given a hearing when the Republicans were in charge of the Senate,” he is technically accurate in that Senate Republicans did not try to hold a confirmation hearing on Estrada’s nomination within its first 15 days. Had they tried to do so (even before the ABA completed its evaluation of Estrada), Democrats never would have permitted it.
To put this timing in context: During the Bush 43 administration, the average time from nomination to hearing for federal appellate nominees was 166 days overall, and 197 days while Leahy was chairman. No federal appellate nominee other than Clinton nominee Helene White (the beneficiary of a special deal received a hearing in less than 30 days. And of President Bush’s first batch of nominees, the first to receive a hearing waited 62 days.
3. Leahy finally gave Estrada a hearing on September 26, 2002—more than 16 months after his nomination—but it was clear that Democrats would not vote Estrada out of committee. Once the Republicans regained control of the Senate in 2003, the Judiciary Committee promptly voted Estrada out of committee on a party-line vote (Republicans in favor, Democrats opposed). Democrats then filibustered his nomination on the Senate floor, defeating a record seven cloture votes.
4. It is outrageous of Leahy to give his grossly misleading account of the Estrada nomination in a context that vilely insinuates that Republican opposition to Sotomayor is based on her Hispanic ethnicity.
More of Whelan's ably documented account: Patrick Leahy is one slick and nasty piece of work.
How Much Deference is a President Owed On Supreme Court Picks? Washington Post Ruth Marcus neatly sums up in her column the political price paid by Barack Obama's votes against Bush 43's two Supreme nominees:
You don't have to be cynical to think politics was at play, too; in fact, you just have to read The Post, which reported that Obama's Senate chief of staff, Pete Rouse, warned him that a vote for Roberts could cripple his presidential ambitions.
And it's possible to look at Roberts's performance on the court and say that Obama's worst fears were realized: Roberts is no humble umpire.
But it's also true that Obama's reported remarks to Rouse -- that if he were president, he wouldn't want his nominees turned down on purely ideological grounds -- were prescient.
A Wall Street Journal editorial addresses Democratic senators who used the hearing to accuse conservative Justices of judicial activism. The editors offer a riposte to Russ Feingold's comment Monday, that an judicial activist is a judge whose decision you disagree with, and to a top liberal law scholar who defines activism as overturning any statute:
The activists in Mr. Leahy's rhetorical show are, presto, the conservatives of the Roberts Court, which has very, very cautiously chipped away at some precedent in cases on issues like the Second Amendment and campaign finance reform.
Under this brave new meaning of judicial activism advanced several years ago by now-White House aide Cass Sunstein, a judicial activist is any judge invalidating a federal law, however shoddily made. Ergo, conservative judges are obliged to uphold liberal precedents no matter how narrow the vote and how recent the case, while liberals can overturn long-time principles in the name of the evolving Constitution.
The effect is a liberal ratchet, where precedents like Miranda v. Arizona and Roe v. Wade are cast in stone, but any rethinking by the Roberts Court of the six-year-old 5-4 campaign-finance ruling in McConnell v. FEC is a scandal. "So many of the rulings of the current conservative majority on the Supreme Court can be described as activist," Wisconsin Democrat Russ Feingold insisted. "The best definition of a judicial activist is when a judge decides a case in a way you don't like."
Actually, we have a better one. An activist judge is one who is willing to decide cases based on something other than what's in the Constitution. But that's a troublesome standard for Sonia Sotomayor, who in speeches and writings has shown she is open to a wide variety of sources, from human empathy to personal experience to foreign and international law to help her in judging cases, or to "set our creative juices flowing," as she said of the latter. (Emphasis added.)
Bottom Line. Sotomayor sailed. Barring revelations of love in Argentina or ties to bin Laden, she is in. But to win confirmation she is being, to put it mildly, less than candid about her racialist past--and present. Her performance yesterday was living proof of what a law professor of mine told me about prevaricators on the witness stand: "A skillful, determined liar rarely breaks down under courtroom cross-examination." That stuff happens on TV and at the movies. A federal judge with experience in thousands of trials and hundreds of appellate cases is not about to be taken down one step short of the ultimate professional prize she has long sought so ardently.