Thursday, July 16, 2009

Sotomayor Hearings, Day Three

Here's a quick round-up of yesterday's Sotomayor questioning. The best overall summary is here:

Perhaps the most significant nomination-related news didn’t come from the hearings but from the pages of the Washington Times. In an op-ed this morning, Wayne LaPierre of the NRA let loose on Judge Sotomayor’s anti-gun bias. She and colleagues on the Second Circuit ruled against Second Amendment rights in two cases, one of which, Maloney, is now being appealed to the Supreme Court, where Sotomayor may soon sit.

Or not—LaPierre says those decisions “raise serious questions about her fitness to serve on the highest court in the land,” and when the NRA speaks, legislators listen. The big question now is whether the group will include the Sotomayor vote on its legislative scorecard. If so, even some Democrats would face a tough choice: rejecting the President’s nominee versus making themselves targets for challenges by pro-gun candidates.

So far, the group’s kept mum on its decision, and may still be mulling the matter. But after today, there’s not much left for mulling. Judge Sotomayor gave a tortured reading of the High Court’s incorporation analysis—which determines when a constitutional right applies to the states—claiming that when the Court decides there is incorporation, the right becomes fundamental. But in reality, that’s perfectly backwards: the 14th Amendment incorporates already-fundamental rights. And as Senator Tom Coburn pointed out, lots of historical evidence shows that the Second Amendment was foremost among the fundamentals at the time of Reconstruction, when the 14th Amendment was ratified.

And while the judge implied that she would probably step aside if the Maloney reaches the Supreme Court, she refused to state that she would do the same in a case raising the same exact issue. Souter might have found for incorporation; in the context of his jurisprudence on rights, it wouldn’t have been unlikely. But Sotomayor? The possibility is fading with every question on the Second Amendment that she ducks or dodges.

The NRA has given the judge a fair shake by waiting this long—no doubt about it. But it’s getting awfully close now to the time for choosing. If the NRA does nothing more than publish an op-ed, it will have made its choice.

A Wise Latina: After yesterday’s half-dozen or so interpretations and glosses on her most infamous statement, Judge Sotomayor added a couple more to the mix. First, she took down Justice O’Connor, on whose words Judge Sotomayor said yesterday she was riffing: “Hers literally and mine literally made no sense in the context of what judges do.” O’Connor’s quote, as paraphrased by the Judge: “a wise old man and wise old woman will reach the same conclusion in deciding cases.” You be the judge—does that “literally make no sense?” Said Sotomayor, O’Connor, read literally, meant that “when two judges disagree, one of them has to be unwise,” except that’s “clearly not what she meant.” So what did O’Connor mean? How about, simply, that a wise judge, whether male or female, would reach the same result, because wisdom has nothing to do with whether a judge is male or female? Of course, we’re often accused of being literalists…

Physiological Differences: Many Senators didn’t want to touch the statement that Sotomayor made before her “wise Latina” remark: that differences in judging may be “born from…inherent physiological or cultural differences.” But not the brave Senator Cornyn, who asked the Judge what she meant by that. Her response: “There are, in the law, there have been upheld, in certain situations, that certain job positions have a requirement for a certain amount of strength or other characteristics that may be the — a person who fits that characteristic can have that job.” She continued, “There are differences that may affect a particular type of work.” So Cornyn asked again: “So you stand by the comment or the statement that inherent physiological differences will make a difference in judging?” The Judge: “I’m not sure. I’m not sure exactly where that would play out.” The answer we were looking for: No, “physiological differences” between judges of different “gender and national origin” do not affect their decisions. Let’s hope for more on this tomorrow.

Ricci: “When parties are dissatisfied [with a panel decision], they file for rehearing en banc. That’s what happened in Ricci.” Except it didn’t. Karen Lee Torre, counsel for the New Haven firefighters only learned that the case had been considered for rehearing when the court informed her that the request, which had been raised by Judge Cabranes after he read about the case in the newspaper, had been denied. It came as a real surprise. Why didn’t they petition for rehearing en banc? The way Sotomayor buried the case, with an unpublished summary order, meant there was zero chance the court would have granted their request.

That's on the issues, but what about the presentation? Were there any bombshells? Doesn't look like it, but there were plenty of Clintonian re-definitions, mischaracterizations, near misses, and lies whose very nature ironically indicated that she was most certainly lying. She continues to lack credibility through her answers, dismaying conservatives and liberals alike, the former through the lies and misrepresentations themselves and the latter through her sheer dishonesty (they want her to vocally come out for liberal talking points).

Here are a few of the notable happenings:

Dick Durbin calls all white people racist, right down to their DNA:
“When we asked questions of the white male nominees of a Republican president, we were basically trying to … make sure that they would go far enough in understanding the plight of minorities, because clearly that was not in their DNA,” Sen. Dick Durbin, D-Ill., said.
Yes, indeedy...the vast majority of the racism left in America today resides on the Left, not the right. Here we have a racist old white guy accusing all white people of being racist while defending a Latina who is also clearly a racist. Such ideological convolutions could only happen on one side of the aisle (it rhymes with shmemocrat).

We also got a first-hand look at the hard-nosed, intellectual prowess of the Dems' newest Senator, Stewart Smalley Al Franken. Behold his sheer Senatorialness:

Yes, he did actually ask a hotly contested Supreme Court nominee about a TV show. The country is in good hands, is it not?

Finally, we have yet another reason to oppose Sotomayor's nomination to the highest court in the land: she's apparently an idiot. Seriously, she seems to have trouble mixing up words and putting together coherent sentences. Patterico nails this one to the wall:

We are in eminent danger of confirming a Supreme Court justice who no speak so good da language:

But, under New York law, if you’re being threatened with eminent death or very serious injury, you can use force to repel that, and that would be legal. The question that would come up, and does come up before juries and judges, is how eminent is the threat. If the threat was in this room, “I’m going to come get you,” and you go home and get — or I go home. I don’t want to suggest I am, by the way. Please, I’m not — I don’t want anybody to misunderstand what I’m trying to say. (LAUGHTER)

In case you thought it was a transcription error, think again:

Yikes. She very much bad talker.

If I must suffer death, may it be an eminent death.

Oh — Ed Whelan adds that Sotomayor says “providence” instead of “province” — and “story of knowledge” instead of “store of knowledge. Here’s the transcript on “providence”:

SOTOMAYOR: All questions of policy are within the providence of Congress first.

And here’s the transcript on “story of knowledge”:

Judges — and I — I’m not using my words. I’m using Justice Ginsberg’s words. You build up your story of knowledge as a person, as a judge, as a human being with everything you read.


(Thanks to Allahpundit at Hot Air, who is already denouncing himself as racist for having noticed this. Hey, Allahpundit? You’re sexist too. Deal with it.)

UPDATE: I guess she was just caught up in the vagrancies of the moment.

Oh, yes, the country's in good hands. Now might be a good time to call your Senators and ask them if they are going to support this nominee, and if so what kind of crack they're smoking.

There's my two cents.

Related Reading:
Polling the Constitution
NRA alarmed over Sonia Sotomayor's disrespect for the second amendment

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