Friday, July 17, 2009

Sotomayor Hearings, Day Four

Here's the roundup from yesterday's final day of hearings.

There were some additional questions on the 2nd Amendment, and Sotomayor came up looking pretty bad for gun lovers.

Kyl apparently did a pretty good job of holding Sotomayor to the fire, making her explain some things she probably didn't want to explain, like exactly which precedents she used on the Ricci case that was overturned. Powerline blows away her lame answers:

Roger Clegg reports that, under questioning by Senator Kyl about the Ricci case, Judge Sotomayor offered up a howler that raises serious questions about either her competence or her honesty. Specifically, Clegg reports that Sotomayor claimed it was difficult to tell whether all nine Justices rejected her position in Ricci because "there are a lot of opinions in that case."

What nonsense. First, the existence of multiple opinions doesn't make it hard to tell where the Justices stand. All you have to do is read the opinions. If the Justices are clear, it becomes easy to tell whether all of them have rejected a given position.

Second, in Ricci, there were four opinions, but two of them (Scalia's and Alito's) concur in full with the majority opinion and say so up front. The majority opinion, of course, is a clear rejection of Sotomayor's position. Sotomayor affirmed judgment in favor of the City of Haven. The majority directed that judgment be entered in favor of Ricci and the other plaintiffs. Nothing tricky about that.

This leaves one opinion, Justice Ginsburg's dissent. As I have explained, that opinion clearly rejects Sotomayor's approach, as well. Unlike both Sotomayor and the majority, Ginsburg would have remanded the case to the district court for further consideration. And she would have done so to enable the district court to apply a standard that differs from Sotomayor's.

To be sure, you have to read the footnotes to determine this (perhaps Ginsburg was trying to obscure her rejection of Sotomayor's approach). But it's not too much to expect a potential Supreme Court Justice to read the footnotes.

But, for the most part, it sounds like it was more of the same: Dems being soft, Reps being willfully blind, and Sotomayor struggling for cogent sentences.

Rush Limbaugh noted one particular oddity (emphasis mine):
SOTOMAYOR: All questions of policy are within the providence (sic) of Congress first.

RUSH: Province. It is "province" of Congress, not providence. Providence is a city in Rhode Island. Providence is also a record. Say you're a wine collector, and you have some old classics, and you want to sell 'em. You've got to be able to prove the providence. You've got to be able to prove they're real. How you got them, where they've been how they've been stored that's the providence of something. The providence... Questions of policy are the province, the right of Congress. So there she is, Judge Sonia Sotomayor. Oh, and you gotta hear this, too. Yesterday I made a point that it sure seems to me like she knows the answers to the Democrat questions on the committee. 'Cause when the Democrats start asking a question, she is right in there with the onomatopoeia. She just doesn't hesitate. There's no hesitation whatsoever. She's just in there. When the Republicans ask her questions it's a bunch of hem-hawing around like Kyl this morning. It's a bunch of hem-hawing around and writing on her notepad and trying to figure out what to do. Yesterday she got a question from Senator Al Franken on Perry Mason. Al Franken asked a judicial Supreme Court nominee about Perry Mason. Here was the exchange.
FRANKEN: We're going to have round two so I'll ask you some more questions there. What was the one case in Perry Mason, that, uhh --

SOTOMAYOR: There, I -- I wish --

FRANKEN: -- Burger won.

SOTOMAYOR: -- I remembered the name of the episode, but I don't.

RUSH: Stop the tape! She knew that was coming! Recue that. She knew this was coming. How in the world...? If I'm a Supreme Court nominee and some clown senator asks me about this, the last thing I'm going to do to prep for my hearing and confirmation to US Supreme Court is be prepared to a question about Perry Mason, a TV series back in the '50s. ... if I'm nominated for any position on any federal court -- all the way up to the Supreme Court -- the last thing I'm going to do is bone up on Perry Mason episodes. This woman sounds boned-up on Perry Mason! She had to know this question is coming. She starts answering it before Franken even finishes it.
That's actually the clip I posted earlier in the week; let's review it again so you can see exactly what Limbaugh is talking about:

Limbaugh is right; she begins answering before Franken finishes. I wonder what would have happened if Roberts or Alito would have been discovered to have been given the GOP Senators' questions before their hearings. I'm pretty sure it wouldn't have resulted in some collegial chuckling.

Anyway, how is this whole sordid affair being graded? Ed Whelan gives Sotomayor an A+ for brazen doublespeak:

She emphatically rejected the lawless “empathy” standard for judging that President Obama used to select her, but she denied the plain import of her many statements contesting the possibility and desirability of judicial impartiality. She hid behind a ridiculously simplistic caricature of judging that embarrassed and disgusted her most vociferous backers, but she never recognized any meaningful bounds on the role of a Supreme Court justice. She gave a series of confused statements about the use of foreign law that are inconsistent with each other and that contradict a speech that she gave just three months ago.

The primary question that Judge Sotomayor’s testimony raises is whether her thinking is really so muddled or whether she was being savvily deceptive—or both.

Quin Hillyer gives the GOP a collective C+ for not only failing to completely reveal her as the incompetent radical hack she is, but also for failing to adequately show the nation the flaws in her judicial philosophy. He goes on to explain why this was such a critical nomination to fight for several reasons: "moderate" Democratic senators ought to be sweating buckets, caught between their extremist net-roots and their fealty to the views of the vast majority of their constituents.

All of those senators are likely to feel serious heat if their constituents know that Judge Sotomayor has written twice the right to bear arms is not a "fundamental right." They should get knock-kneed if their constituents grow concerned about her extremist position in favor of "eminent domain" seizures of private property. Obviously they already are under a little pressure because of her "wise Latina" remarks replete with talk about "inherent physiological differences," the "facts I choose to see," and the repudiation of "objectivity," "impartiality," and "neutrality." And they should be already running for cover, any cover, as far away as possible, from Sotomayor's bizarre opinion that currently incarcerated murderers and rapists have a constitutional right to vote while behind bars.

Repeat that: Judge Sotomayor, in Hayden v. Pataki, ruled that if a disproportionate number of blacks and Latinos are behind bars in a state, they have the right to vote while still in prison.

Hillyer suggests that the GOP could have made great strides if they had been adequately prepared:

How could they actually win this fight? First, by actually fighting.

Again, if they put the pressure on the Democratic senators, they can make the Dems squirm. Break one of them -- force one to announce they will vote against her -- and the floodgates could open.

Conduct a full debate. Respectfully drag out the process. Be willing to temporarily filibuster the nomination. Again, they should make clear it is temporary. They should say they are willing to move to a final vote, but only after giving themselves enough time to see if they can change enough Democratic minds to win the final vote.

To uphold a temporary filibuster -- which ought to be a test of party loyalty just as much as any rules fight -- all the GOP Senate caucus needs to do is hold all their members and either pick off one Democrat for one cloture vote, or force a vote when Ted Kennedy or Robert Byrd or some other Democrat isn't there. This would be an unfair tactic if the goal were to permanently kill the nomination by filibuster. But if the goal is just to extend debate a little longer so that they American people can have the chance to really take it all in, then it's a perfectly legitimate way to conduct business.
This is the kind of thing that the fight caucus needs to start doing. Senator Sessions, will you step up?

It sounds like she's still on track to be confirmed, but I believe the vote will be held sometime in August, so there's still time to pressure your Senators. I'll keep posting as new information becomes available.

There's my two cents.

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