Although the Supreme Court eventually halted lethal injections nationwide while its case on the matter was pending, Richard was executed after Texas’ highest criminal judge allegedly blocked his attorneys from seeking relief in her court.  Now, Judge Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, could lose her job for intentionally denying a death row inmate access to the court system.

In a judicial misconduct proceeding similar to the one which removed Alabama Chief Justice Roy Moore from office, Keller is accused of intentionally deceiving Richard’s attorneys to prevent them from seeking a stay of execution.  At 4:45pm on the day of Richard’s execution, his attorneys asked the court if they could file the documents after the clerk’s office closed at 5pm.  Judge Keller told court staff to relay a message that the clerk’s office would close at 5.  Although literally true, Keller’s message concealed the fact that a member of the court was on duty to hear emergency after-hours motions–had the attorneys known this, they would have filed the as yet incomplete motion.

Although it is unlikely that Keller’s court would have granted a stay of execution her actions also prevented the U.S. Supreme Court from granting such a stay.  As a general rule, the Supremes will not hear a case unless the person seeking relief first appeals to the appropriate lower courts.  Moreover, the Richard incident is only the latest black-eye for the state with the nation’s most frequently used death chambers.  Although the Supreme Court hears less than seventy cases in a given Term, it recently blocked four Texas executions in a single Term.

Although much of the blame for Texas’ frequent and often-unjustified death sentences rests with state lawmakers, the Texas courts deserve a fair chunk as well.  Judge Keller’s Court of Criminal Appeals has been labeled the “worst court in Texas” for disregarding DNA evidence, tolerating confessions extracted by the threat of torture and ignoring outright malpractice by criminal defense attorneys.  In one instance, the court disregarded such an overwhelming weight of evidence proving a man to be innocent that its decision inspired a pardon by then-Governor George W. Bush.

Nor is Keller the only person of questionable fitness to have sat on the state’s highest criminal court.  In 1994, Texans elected a unknown lawyer of little distinction named Stephen Mansfield to the Court of Criminal Appeals.  Judge Mansfield lied about his qualifications on the campaign trial, claiming, falsely that he was an experienced criminal attorney and hiding the fact that he was once cited for practicing law without a license; and he campaigned on an explicit promise to execute more prisoners if elected.  He was not reelected in 2000, but only after he was convicted of illegally scalping tickets during his tenure as a sitting judge.

Normally when justice breaks down at the state level, federal courts are trusted to fill the gap by granting habeas relief to the wrongfully convicted and excessively sentenced.  Texans, however, must seek justice from the ultra-conservative Fifth Circuit, a court which once upheld the conviction and death sentence of a man whose attorney slept through his trial (to it’s credit, the Fifth Circuit eventually reversed this decision after months of criticism).

So Texas’ criminal judiciary has, for years, been dominated by a bench of kneejerk conservatives with little if any adult supervision.  Hopefully, Judge Keller’s trial will remind them that they can’t ignore the law forever.

Last week, consumers scored another victory as Bank of America announced that it “will no longer require credit card, bank account and auto loan customers to sign away their right to sue.”  Bank of America is the nation’s third-largest credit card company, and the first major credit card provider to quit using forced arbitration to immunize itself from accountability under the law.

Hopefully, Bank of America’s decision will lead the remainder of the industry to stop using forced arbitration in order to compete.  Certainly, informed consumers should prefer a credit card company that doesn’t think that it is immune from the law.  But even if the entire banking industry abandons forced arbitration, this toxic practice remains pervasive. Many employers refuse to hire workers unless they sign away their right to sue the employer for anything from wage discrimination to creating an unsafe workplace; cell phone companies sneak forced arbitration clauses into their contracts as a matter of practice; some nursing homes have even been caught tricking their residents into signing them immediately after they suffer a stroke. After KBR employee Jamie Lee Jones was gang raped by her co-workers in Iraq, KBR tried to shut down Jones’ suit against the company by invoking an arbitration clause in her contract.

Worse, the imposition of forced arbitration on consumers should never have even happened. In the 1920s, Congress unanimously passed a law called the Federal Arbitration Act to allow sophisticated merchants to arbitrate their disputes in fair and neutral forums. Sixty years later, the Supreme Court twisted this law to allow companies to force consumers and workers into biased arbitration. Bank of America’s step away from forced arbitration is a good step; but it ultimately will rest with Congress pass legislation protecting consumers from widespread and pervasive forced arbitration clauses.

One of the sharpest arrows in the corporate immunity campaign’s quiver has been a doctrine known as “preemption.”  Because the Constitution says that federal law is the “supreme Law of the Land,” Congress has the power to enact laws which “preempt” state laws that conflict with its intended goals.  A law preempted by Congress essentially ceases to function.

Although Congress’ power to preempt state laws is uncontroversial, corporate interests increasingly call on courts to misread federal laws to preempt progressive state statutes and tort law which they do not want to be bound by.  In the 1970s, for example, a contraceptive device known as the Dalkon Shield caused numerous infections and deaths, and Congress responded by requiring the FDA to approve new medical devices.  Even though Congress enacted this law to protect consumers from dangerous devices, the Supreme Court turned this intent on its head, providing almost-total lawsuit immunity to the medical device industry.

A decision handed down this Wednesday by the United States Court of Appeals for the Third Circuit, however, is a welcome sign that the judiciary’s willingness to immunize corporations from the law is not boundless.  In that case, Snapple was sued for labeling their beverages as “all natural,” despite the fact that the beverages contain high fructose corn syrup (Snapple, to its credit, discontinued its use of HFCS in late 2008).  Rather than defend its case on the merits–such as by arguing that HFCS is actually a “natural” ingredient–however, Snapple decided first to claim that it was completely immune from the suit because of preemption.

Essentially, Snapple claimed that, because federal law regulates food labels, it can’t possibly be the case that states also get to enact laws.  Like the medical device manufacturers who convinced the Supreme Court that the existence of the FDA precludes state laws governing similar matters, Snapple claimed that the FDA sets both a floor and a ceiling for regulation, and states lack authority to impose additional requirements on the beverage industry.

In rejecting this claim, the Third Circuit stood up for the important principle that federal law should presumptively be viewed only as a floor, and not as a ceiling to more progressive state regulation.  As Justice Louis Brandeis explained many decades ago, the purpose of the states is to function as a “laboratory” for new ideas which can be experimented with by one of fifty state governments and then applied more broadly if they turn out well for that state’s citizens.  Many of the laws progressives cherish, including the minimum wage and much of our federal environmental standards, were first conceived of by state legislatures.  If you take away the states’ power to enact new progressive reforms, you kill this process of experimentation in the cradle.

Corporate interests get this, which is why they have worked to hard to keep the states from enacting progressive reforms that can blossom and grow throughout the United States.  Hopefully, this week’s Snapple decision is an early sign that the courts are no longer interested in  preventing state innovation.

“Later in her hearing, Judge Sotomayor gave the following testimony: ‘I will not use foreign law to interpret the Constitution or American statues. I will use American law, constitutional law to interpret those laws except in the situations where American law directs the court.’ While this kind of declarative statement would normally provide some measure of comfort, it is belied by words Judge Sotomayor uttered less than three months ago, that judges were ‘commanded’ to look to ‘persuasive’ sources, including foreign law, in interpreting our own law. And it is even inconsistent with an exchange Judge Sotomayor had with Senator Schumer earlier in the hearing, in which she agreed that foreign law could be used for the same purposes as traditional interpretive tools, such as dictionaries.

“It gives me great pause that Judge Sotomayor could say one thing at a public speech earlier this year and say the opposite while under oath before the Judiciary Committee, especially since she never repudiated her speech.

No one, including Judge Sotomayor, actually believes that an American judge is bound by foreign decisions, and Kyl is simply lying when he claims that she does believe this.  One of the first things that any lawyer learns in law school is that not all citations are created equal, and so when a judge cites to one source or another they are not necessarily saying that this source is controlling law.  Conservative Justice Antonin Scalia recently cited to the Talmud in a judicial opinion, and a Seventh Circuit judge once cited hip hop artist Ludacris, but no one thinks that Scalia believes we should be ruled by unelected Rabbis, or that Seventh Circuit Judge Terence Evans believes that U.S. law is governed by unelected rappers.

As a general rule, citations to binding case law, statutes, regulations and the like are generally referred to as cites to “mandatory” authority, because they rely on legally binding materials that judges have no choice but to follow.  Other citations, to law review articles or holy texts or non-binding caselaw, are known as “persuasive” authority.  So when Sotomayor referred to foreign law as “persuasive” she was saying the exact opposite of what Kyl accuses her of.  “Persuasive” is the legal word for a citation to something that is not controlling law, and when Judge Sotomayor states that she relies on persuasive authority, she is endorsing a practice used by literally every member of the United States Supreme Court and taught to every single lawyer in the country.

Indeed, the difference between mandatory and persuasive authority is so basic, most law students are taught this distinction in their first few weeks of law school.  In light of the fact that Senator Kyl spent many years as a litigator before entering politics, it simply defies belief that he would not be aware of this distinction.  If Kyl actually believed that a judge’s citation to a persuasive source like foreign law indicates that they believe foreign law is binding, mandatory authority, it is unlikely he would have made it this far in his career without being disbarred.

Sadly, however, there is a narrow band of Kyl’s conservative base that gets charged up by false claims that liberals can’t wait to transform America into France.  In Kyl’s world, keeping these nuts fired up is apparently much more important than the truth.

Stoneridge involved an elaborate scheme which a cable company called Charter Communications allegedly set up to trick investors into believing that its cash flow was much higher than it actually was.  As the Supreme Court explained the scheme:

Respondents [Scientific-Atlanta and Motorola] supplied Charter with the digital cable converter (set top) boxes that Charter furnished to its customers. Charter arranged to overpay respondents $20 for each set top box it purchased until the end of the year, with the understanding that respondents would return the overpayment by purchasing advertising from Charter. The transactions, it is alleged, had no economic substance; but, because Charter would then record the advertising purchases as revenue and capitalize its purchase of the set top boxes, in violation of generally accepted accounting principles, the transactions would enable Charter to fool its auditor into approving a financial statement showing it met projected revenue and operating cash flow numbers.Respondents agreed to the arrangement.

So Scientific-Atlanta and Motorola, agreed to overcharge Charter for an asset that Charter’s books would value at the inflated price, and also to overpay for advertising with revenues that Charter could account for as sales.  The result was a ledger which inflated Charter’s paper value without actually requiring Charter to earn any more money.

This kind of deception is illegal under federal securities law because it fools investors into investing in a company which is far less sound than its books suggest.  Stoneridge, however, held that companies which assist other companies in defrauding their investors are immune from private suits.  Considering that many companies who engage in Enron-style tricks do so because they are trying to hide their impending collapse, if more solvent companies who enable fraud are not accountable under the law investors are left with no one to seek compensation from when their stock becomes worthless.

Specter’s bill would fix this problem by allowing suits against anyone who provides “substantial assistance” to a company which defrauds its investors.  Hopefully, bills like this one will not only become law, but they will send a clear message to the Supreme Court to stop holding that corporate interests are immune from the law.

The reality, of course, couldn’t be further from the truth.  Even a Seventh Circuit panel, which was dominated by ultra-conservative Judges Richard Posner and Frank Easterbrook, sided with Sotomayor–agreeing that only the Supreme Court has the power to overrule its longstanding precedent holding that the Second Amendment does not apply to the states.

Nevertheless, there was one outlier court, the Ninth Circuit, which had disagreed with Sotomayor’s decision and claimed that it possessed the unilateral authority to act contrary to the Supreme Court’s longstanding rule.  That case, Nordyke v. King, was the centerpiece of the NRA’s claim that Sotomayor somehow misread the law.  There’s only one problem for the NRA, as of today Nordyke no longer exists.

This is because the Ninth Circuit announced that they will hear Nordyke “en banc,” meaning that the case will be reheared by a larger panel of judges than the original three-judge panel which initally decided that case.  En banc rehearings also have the automatic effect of vacating the original panel’s decision–casting that panel opinion aside as if it no longer existed.

Of course, it’s impossible to know for certain what the en banc panel will do after it hears the case, especially because the Ninth Circuit’s own rules add a bit of a chaos factor to the analysis.  Typically, when a court of appeals agrees to hear a case en banc, every active judge on the court participates in the decsision.  Because the Ninth Circuit has more than two dozen active judges, however, en banc panels in that circuit normally only include eleven randomly selected judges.  Accordingly, even if only six of the Court’s twenty-seven judges agree with the NRA, it is mathematically possible for an en banc panel to take the NRA’s view of Nordyke.

Nevertheless, because an en banc panel is only called when a majority of the court’s active judges agree to reconsider a case, the overwhelming majority of en banc decisions disagree with those of the three judge panel.  In other words, it is more likely than not that the Ninth Circuit will reach the exact same result Judge Sotomayor did; and the NRA’s case against Sotomayor will lose it’s only half-decent argument forever.

[F]our nominees for top Justice Department jobs, the nominee to chair the U.S. Sentencing Commission, and nominees for the U.S. Courts of Appeal for the 2nd, 4th, and 7th Circuits. . . .  Some of the nominees, such as Dawn Johnsen to head the Justice Department’s Office of Legal Counsel, have drawn threats of filibusters from Republicans. But others, including Thomas Perez to lead the Justice Department’s Civil Rights Division, are largely non-controversial. In all cases, senators haven’t come to agreement to bring them to a vote.

Much of the right’s motivation for obstructing these nominees can be summed up in two words:  floor time.  Absent unanimous consent from all senators, no issue may be considered by the full Senate unless it is given time on the Senate floor for debate. Although such a debate can be cut off by a cloture motion — a vote receiving the support of 60 senators — such a motion itself consumes floor time. Thus, by indiscriminately objecting to President Obama’s nominees, a single senator can effectively force the Majority to choose between confirming essential government personnel or advancing health care reform, cap and trade, the federal budget or anything else on the Senate’s agenda.

But right-wing hopes that Obama will fail only partially explain conservatives’ strategy to keep the President’s nominees off the federal bench.  In truth, the far right has rallied behind seizing the judiciary to accomplish right-wing ends ever since they began dotting the South with “Impeach Earl Warren” billboards to protest desegregation.  More recently, the Republican-controlled Judiciary Committee gave a single senator authority to obstruct any one of President Clinton’s nominees–a power segregationist Senator Jesse Helms (R-NC) used to block every single nominee from North Carolina.

During George W. Bush’s Presidency, however, the right hummed a different tune.  Suddenly, senators lost their power to veto nominees, and battering-ram tactics like the “Ginsburg Rule” and the “Nuclear Option” entered the political lexicon.  With a rubber-stamp Senate in his corner, President Bush confirmed some of the worst federal judges since the Hoover Administration; judges like Janice Rogers Brown, who believes that the New Deal is unconstitutional and the Social Security is “cannibalism;” Jeffery Sutton, who devoted much of his career to attacking Medicaid and immunizing state employers from civil rights law; and J. Leon Holmes, who once wrote that a “wife is to subordinate herself to her husband” and “place herself under the authority of the man.”

Moreover, conservatives have long understood the need to appoint young, up-and-coming attorneys to the courts in order to create a deep bench of future Supreme Court nominees.  So far, the average age of President Obama’s nominees is 55, five years older, on average, than the men and women given lifetime appointments by George W. Bush, and most of the names on Bush II’s “short list” of potential SCOTUS nominees were nominated by Reagan or Bush I when the nominees were in their 30s or early 40s.

In other words, the right has long followed a strategy of easing their own judges through the Senate, bottling up progressive nominees, and making sure that their team simply outlives ours.  The result is a judiciary that is both dominated by conservatives and free to impose a radical vision on the law.  If this trend is ever going to be reversed, the Senate needs to take up Leahy’s call to confirm Obama’s nominees right away.

The judiciary has long been the go-to branch for corporations who don’t think they should have to follow the same laws as everyone else.  How else could health insurers achieve near total immunity from the law?  How else could employers strip women of their abilty to fight back against pay discrimination, and how else could the corporate sector create a biased system of corporate-owned courts that are virtually guarenteed to rule against consumers and employees?  No lawmaker could expect to remain in office if they endorsed such policies, but the Supreme Court, apparently, is shameless.

One big reason that the Court can give corporations such massive giveaways is because their work is buried in complex doctrines and legalese.  Voters would rebel against a bill which gave medical device makers total immunity from the law when their defective products kill someone, but when Justice Scalia writes that “the pre-emption clause enacted in the Medical Device Amendments of 1976, bars common-law claims challenging the safety and effectiveness of a medical device given premarket approval by the Food and Drug Administration (FDA),” most Americans don’t realize that he’s given the medical device immunity exactly the same immunity.

The mother of all the Supreme Court’s corporate-immunity-through-obfuscation cases may be this year’s decision in Ashcroft v. Iqbal.  Traditionally, the justices were very reluctant to kick people out of Court before they have the opportunity to at least gather evidence. Thanks to Iqbal, however, plaintiffs now must jump through a new, potentially insurmountable hoop before they can even seek evidence from their opponent.  As the New York Times explains:

For more than half a century, it has been clear that all a plaintiff had to do to start a lawsuit was to file what the rules call “a short and plain statement of the claim” in a document called a complaint. Having filed such a bare-bones complaint, plaintiffs were entitled to force defendants to open their files and submit to questioning under oath. . . .

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

Note those words: Plausible. Common sense.

Our readers who spent the Sotomayor hearings listening to progressives and conservatives alike claim that a judge’s duty is simply to follow the law will immediately see the problem with Kennedy’s standard; what on earth is “the law” when judges are told simply to obey their “common sense?”

The practical impact of Iqbal is that judges now have sweeping discretion to get rid of lawsuits simply because they don’t like them.  Moreover, because the federal bench dominated by conservatives–including George W. Bush’s judges, “the most conservative on record“–the rule in Iqbal grants conservatives even more authority than they already possess to substitute their personnal views for the merits of a plaintiff’s case.

To his credit, Senator Arlen Specter (D-PA) has introduced a bill which would overturn Iqbal and restore the old rule.  Until such a bill passes, however, powerful interest groups won’t have to argue the law to keep plaintiffs out of court; they’ll simply need to appeal to our right-wing judiciary’s sense of “common sense.”

Moreover, as the Supreme Court recognized more than 75 years ago, “[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law,” so such laymen cannot stand up for their own rights without a lawyer in their corner.  According to a report by the Center for Law and Social Policy (CLASP), however, “less than 20 percent of the legal needs of low-income Americans” are currently being met.  A void which effectively creates a law-free zone around millions of Americans.

As the report explains, the United States invests far less in legal services for the poor than other Western industrialized nations.  At the low end, Germany and Finland spent three times as much of their gross domestic product as we do on civil legal services for the poor.  At the high end, England outspends the United States twelve times.

Federal lawmakers deserve much of the blame for this state of affairs.  When President Reagan was elected in 1980, legal services achieved the modest goal of providing two attorneys for every 10,000 poor people in a given area.  Since then, the budget for legal services was slashed twice–first by President Reagan in 1982 and again by the right-wing Congress in 1996–and the federal government now spends, in inflation adjusted dollars, less than half what it spent on legal services for the poor in 1980.  To his credit, President Obama proposed a $45 million–or 15%–increase to federal funding for legal services in 2010, but this is merely a fraction of what is necessary to close the gap.

States and other sources provide significant funding for legal services as well, but one of the most important sources of funding for low-income legal services could be in jeopardy from the Roberts Court.

Presently, state-run programs known as “IOLTA” provide hundreds of millions of dollars a year to legal services programs nationwide.  In the 1990s, however, a right-wing legal organization known as the Washington Legal Foundation brought the audacious claim that this funding mechnism violates the Constitution.  Although the Supreme Court eventually upheld the IOLTA programs, the decision was 5-4, with Justice Sandra Day O’Connor casting the key fifth vote.  Ever since O’Connor was replaced by right-wing Justice Samuel Alito, the Roberts Court has made it its mission to seek out and destroy progressive 5-4 decisions where she was in the majority–so the IOLTA case could shortly be in their crosshairs.

Even with the IOLTA funds, however, the CLASP report makes clear that the poor have woefully inadequate access to counsel; and without such access many will be denied the rights and benefits the law entitles them to.  If Congress truly intends the laws it enacted to protect the poor to mean something, it will address this problem post haste.

Yet, even as the American people warmed to Sotomayor last week, the fact remains that her court’s decision in Ricci is unpopular.  Conservatives failed to convince the country that Sotomayor should have ignored a binding precedent in Ricci simply because they don’t like that precedent, but the tale of a dyslexic firefighter studying hard to earn a promotion resonated with many Americans.  So while Ricci’s story won’t hurt Sotomayor, many on the right–including the Judiciary Committee’s Ranking Member and much of the Supreme Court–are taking the long view, convinced that they can use this story to fulfill their decades-long quest to dismantle civil rights law.

This is why the recent, unjustified arrest of Professor Henry Louis Gates is such a huge blow to the right-wing agenda.  The right’s narative on Ricci fails if people simply believe that Frank Ricci was mistreated.  To succeed, the right must convince the country that Ricci’s tale is part of a pattern, that white men are routinely left with the short end of the stick, and that federal civil rights law is responsible for such perceived injustices.  The centerpiece of their narative is a belief that racism no longer exists, so laws designed to correct racism do nothing more than take potshots at white folks.

Professor Gates’ story gives this narative the lie.  White Americans–especially affulent white Americans–hear Gates’ story and they can’t imagine being arrested for breaking into their own home after giving police an ID card proving that they live there.  Such an arrest is so beyond the experience of American white men that we are forced to wonder whether a well-to-do, internationally-respected scholar could possibly have been treated the same way if he happened to be white.

Once one accepts that racism still plagues this country, the right-wing attack on civil rights law breaks down.  Contrary to the right’s claims, nothing in federal law requires employers to prefer mediocre minorities over qualified whites–indeed, such a law would unquestionably violate a long line of Supreme Court precedents interpreting the Constitution’s guarentee of Equal Protection.

What federal law does forbid is racism which pretends to be something else, such as a hiring test designed to disadvantage minority applicants or a screening process that “coincidentally” preferences applicants from predominantly white schools or communities.  Under existing law, employers may use hiring practices that have an adverse impact on minorities so long as minority applicants are screened because of their fitness for the job.  Only employers who base their hiring decisions on arbitrary or irrelevant traits can be liable for discrimination.

So civil rights law stands for the bizarre idea that people should actually be hired because of their fitness for a job, a principle which is so eminently sensible that it can only be attacked by selling America on the lie that racism no longer exists.  Professor Gates’ arrest reveals that lie for what it is, the latest interation of the right’s discomfort with civil rights.

In addition to reiterating the Obama Administration’s support for five recently announced procedural rules–such as a ban on the use of statements obtained through “cruel, inhuman, and degrading treatment”–the meat of the report is a call for Congress to enshrine eight safeguards in the United States Code:

(1) codifying in law a prohibition on use of statements obtained through cruel, inhuman and degrading treatment; (2) further regulating the use of hearsay, to bring the rule more in line with the rules in federal court or courts-martial . . . (3) adopting a “voluntariness” standard for the admission of statements of the accused, while taking into account the challenges and realities of the battlefield; (4) incorporating classified information procedures that are more similar to those applicable in federal court . . . (5) reforming the appellate process to give reviewing courts more authority . . . (6) adopting clear rules requiring the government to disclose exculpatory evidence to the accused; (7) ensuring that the offenses charged in military commissions are law of war offenses; and (8) including a sunset provision requiring Congress to reevaluate the legislation after a term of years.”

The common thread flowing throughout these eight safeguards is the need to ensure that military commissions reach reliable results.  Hearsay evidence isn’t restricted in court proceedings because of some need to coddle criminals, but because second-hand accounts of what a witness might have said aren’t particularly reliable.  Similarly, coerced confessions are excluded from criminal trials precisely because there is no way to know where a coerced defendant is actually telling the truth.  In other words, these rules reflect the Obama Administration’s commitment to actually figuring out who the terrorists are at Guantanamo, rather than simply locking up innocent and guilty alike.

Of course, the promise of legal safeguards is one thing; actual justice for the wrongfully detained is another.  Moreover,a full report on the future of detainee prosecutions was originally supposed to be released today, but that report has been delayed for six months.  Nevertheless, the procedures laid out in yesterday’s preliminary report will go a long way towards eliminating the Kafkaesque detention and sham tribunals of the prior Administration if they are actually implemented.  Hopefully, they will allow the present Administration to finally sort the actual terrorists at Guantanamo away from the many innocents still detained there.

6:37: Apparently, while your humble blogger was prepping for a radio interview, John McGinnis, a right-wing law professor railed against citing foreign law because it is just as unacceptable as citing the Bible or the Koran in an opinion.  Do we really need to make the same joke about Scalia, the Talmud and unelected Rabbis again?

4:07: Your humble blogger needs to step away for a moment.  Let him know what he misses.

4:01: Interesting exchange between Specter and the firefighters.  Specter asks the firefighters if they doubt Sotomayor’s good faith, both say that they are not lawyers and have no insight into that question, they simply testified because they were invited to tell their stories and they wanted to tell them.

3:58: Hatch is dwelling on the dead horse claim that all nine justices disagreed with Sotomayor in Ricci.

3:43: Klobuchar and Specter get in a politeness war over

3:40: Graham to Ricci: we are one generation removed from a time when the color of your skin and your last name were the only thing that mattered when you tried to get a job.  Now we are trying to find balance.

3:37: Lindsay Graham (!) pushes back against Chavez’s claim that Sotomayor has a record of racial politics, noting that the ABA reached a different conclusion.  Also notes that Republicans frequently pick people for political jobs because they are minorities, adding that doing so is just “good politics.”

3:32: Morgenthau (who is white) notes that he was a founding board member of PRLDEF.

3:24: CBS: “Sotomayor Confirmation a Done Deal“

3:22: Sessions: “It’s not like anyone is opposed to the Voting Rights Act, I voted for it.”  Sessions hasn’t always felt that way.  He once called the VRA a “piece of intrusive legislation.”

3:21: Sessions: “We’re going to do that crack cocaine thing we talked about.”  After laughter breaks out, he corrects himself, saying that he meant that he will support reducing the crack/powder disparity.

3:09: Peter Kirsanow, who just testified as a Republican witness, has some interesting views about internment camps for Arab-Americans.

3:06: Linda Chavez, a leading opponent of civil rights laws and Fox News commentator, opens her testimony with “I testify today not as a wise Latina woman.”  Keep it classy, Ms. Chavez.

2:58: Ben Vargas, the other firefighter, is now testifying.  Like Ricci, he emphasizes the essential role that firefighters play in protecting people’s lives, and his belief that he was judged on the basis of his race.  Like Ricci, we agree that Vargas is an heroic man who was caught up in circumstances he could not control.  He lost his case because of a binding precedent, not because of any verdict on his character.

2:50: Ricci’s remarks focus on the great deal of specialized knowledge that firefighters must have, his belief that the test that he took did a fine job of testing this knowledge, and how hard he worked to pass the test.  To be clear, no one doubts that Ricci, a man who spent his entire career running into burning buildings to save people’s lives, is a dedicated and heroic firefighter.  As a judge, Sotomayor’s job was not to decide whether Frank Ricci is sympathetic–he would have won that case in a walk–the issue is what the law requires.  In this case, Second Circuit precedent simply wasn’t on Ricci’s side.

2:48: Ricci’s up.

2:41: NY District Attorney Robert Morgenthau notes that Sotomayor will be the only justice with experience as a state prosecutor.

2:35: Bloomberg reiterates his support for PRLDEF: “Only in Washington could someones many years of volunteer service to a highly regarded nonprofit organization that has done so much good for so many be twisted into a negative.”

2:32: Bloomberg cites Brennan Center study finding that “Sotomayor voted with the majority in 98.2 percent of the 217 constitutional cases in which she participated, dissenting only four times. Moreover, 94 percent of those rulings were unanimous decisions.”

2:31: Mayor Bloomberg: Sotomayor should be supported by Democrats, Republican and Independents, “and I should know because I’ve been all three.”

2:26: Now he’s wasting time reading a letter from the NRA.  Dead horse.  Sessions claims that, because Heller, the Supreme Court’s big Second Amendment decision, was 5-4, Sotomayor could cast the key vote to overrule Heller.  Of course Sotomoyor will replace Justice Souter, who dissented in Heller.

2:22: Sessions is still ranting about the summary order in Ricci.  His broken record is now a dead horse.

2:17: Arkansas’ AG joined a brief supporting Sotomayor’s panel decision in Ricci which was also joined by Alaska’s AG.  You betcha!

2:13: And we’re back, with the first panel witnesses.  Arkansas’ Attorney General is speaking, in support of Sotomayor’s panel decision in Ricci, noting that Sotomayor followed precedent and the Supreme Court created “new precedent.”

2:07: ABA panel breaks up.  Committee takes a 5 minute recess.  Your humble blogger is hungry.

2:00: Broken Record Watch:  now Sessions wants the ABA to discuss Ricci.  ABA witness points out that, of the 1482 cases the Second Circuit decided in a given year, 1081 of them were decided by unpublished order.

1:59: Contra claims from a few anonymous lawyers that Sotomayor is a “bully,” the ABA witnesses explain that they spoke to about 500 lawyers and found nearly universal belief that Sotomayor’s temperament is just fine.

1:56: Apparently, CJ Rehnquist and Justices Scalia and Thomas, all staunch conservatives, all joined an opinion citing foreign law.

1:40: And we’re back, for three panels of witnesses.  Panel #1 is the ABA, Panel #2 is Majority witnesses, Panel #3 is Minority witnesses. Here is the witness schedule.  One of the ABA witnesses is testifying that Sotomayor is “well qualified” for the Supreme Court, their highest possible rating.

1:25: Sotomayor is out of the hotseat.  Leahy calls a ten minute recess.  Your humble blogger wonders when he’ll get lunch.

1:16: Leahy asks a very good question about death penalty procedure.  It takes four justices to agree to hear a case but five to stay an execution, so in the 1980s a lot of death row inmates were executed while their case was still pending before the Supreme Court for want of a fifth vote to stay the execution.  Leahy wants to know if Sotomayor would cast the fifth vote if it were required to stay an execution.  Sotomayor agrees that there is “sensible basis” to cast that fifth vote.

1:13: Sotomayor has a very good answer: “I’m glad that you are doing your job and that I am doing mine.”

1:09: The American People’s line of questioning is actually quite shocking.  He appears to be arguing that the Supreme Court should declare many types of spending by Congress unconstitutional.  This is a shockingly radical theory–one that not even Clarence Thomas is likely to support.  After three days of listening to GOPers whine that judges have too much power, Coburn now apparently wants to transfer the power to write the federal budget from Congress to the Supreme Court.

1:07: Tom “The American People” Coburn wants to know about the national debt, thereby becoming the first senator to quiz Sotomayor on a topic that the Supreme Court has absolutely nothing whatsoever to do with.

1:02: Cornyn’s a broken record on foreign law.  Sotomayor explains that foreign law is treated exactly the same way as scholarly articles (and unelected Rabbis).

12:55: Graham has used his third round to speechify about why we should be able to detain terrorists indefinitely.  He’s beating a strawman.  It is settled law that known terrorists can be detained, the Bush Administration’s problem was its failure to even make an attempt to determine which detainees actually are terrorists and which ones are innocent.

12:43: In Maloney, Sotomayor’s Second Amendment case, the court included both a Second Amendment claim and an equal protection claim.  The court rejected both of them in two entirely different parts of the opinion.  Kyl is now apparently trying to claim that Sotomayor didn’t show enough respect for the Second Amendment because she rejected the equal protection claim.  But the fact that a judge should analyse each claim in a case independently is basic, first-year-of-law-school stuff.  Kyl is an attorney who spent several years in private practice; one can only assume that he is willfully pretending not to get the distinction between these two claims in order to score points against Sotomayor.

12:38: Broken Record Watch, Part II: Now he’s dwelling on the Second Amendment again.

12:37: Broken Record Watch: Kyl goes to Ricci again.

12:29: Grassley returns to his fringe theory that Baker v. Nelson prevents marriage equality.  Once again, here is the entire text of Baker:

Appeal from Sup. Ct. Minn. dismissed for want of substantial federal question.

12:27: Strange exchange between Sotomayor and Hatch in which he claims whether the original understanding of the Constitution or precedents should control.  Only Justice Thomas, who also thinks that the New Deal is unconstitutional, thinks that precedents don’t matter.  Sotomayor answers with a safe response indicating that she believes that the Constitution has primacy.

12:20: Hatch appears to be using his third round to speechify about some briefs that PRLDEF filed that he doesn’t like.  Sotomayor explains that she was “not a lawyer on the fund . . . and it was not my practice” to review briefs.

12:15: Broken Record Watch: Sessions claims that Sotomayor should have written a lengthy published opinion in Ricci, even though such opinions are only used for opinions that are not controlled by a prior binding precedent.

12:13: Sessions: “I will not support a filibuster.”

12:08: Leahy schedules the committee vote on Sotomayor for July 21.  Because the minority can obstruct a vote for one week as a matter of right, the actual vote will likely take place on July 28.

12:07: Sotomayor grows emotional explaining her desire to serve her country by serving on the Supreme Court.

12:03: The Al Franken Decade begins again!

12:02: Nice zinger from Leahy after Sessions whines that states may pass restrictive gun laws.  “Vermont has decided not to pass the restrictive laws that you have in Alabama.”

11:59: Republicans want a third round of questions (10 minutes each), apparently they would like to repeat themselves a little bit longer.  Leahy gives it to them.

11:57: The American People want to rewrite the Constitution to give Congress final jurisdiction over Constitutional matters.

11:52: The Weekly Standard picks up right-wing attack dog Ed Whelan’s claim that Sotomayor has poor English skills because she is a Latina.

11:49: The American People think that the primary purpose of the Fourteenth Amendment was to provide guns to slaves.  Your humble blogger can’t figure out if he is race-baiting or not.

11:40: And we’re back.  The American People want to know about the Second Amendment and “fundamental rights” first.

11:22: 10 minute break.  Senator Tom “The American People” Coburn is up next.

11:20: Clever zinger by Specter: even though the Constitution made Congress Article I and the Judiciary Article III, the Supreme Court has tried to reverse the order.

11:10: An exchange with Lindsay Graham that we missed the first time, but which seems awful significant:

Finally, he returns to the “wise Latina” comment, asking “to those who may be bothered, what do you say”? She responds: “I believe that my life demonstrates it was not my intent to leave the impression that some have taken from my words.”

“You know what judge,” Senator Graham says, “I agree.”

11:05: Broken Record Watch, Newly-Minted Democrat Edition: Specter asks Sotomayor about whether the Court should take more cases, again.

10:59: Cornyn asks Sotomayor to endorse CJ’s Roberts’ statement that ““The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  Sotomayor’s response: best way to be a judge is to follow the Constitution and uphold it’s promise of “equal opportunity.”

10:57: Broken Record Watch: Cornyn still thinks he has something new to say about Ricci.

10:53: Cornyn is outraged about a Sotomayor speech which says that campaign contributions can be bribes; asks what the difference is between a “political contribution and a bribe.”  Sotomayor responds that it depends on whether the person making the contribution expects something in return.

10:49: Cornyn tries to trick Sotomayor with a question about whether a pro-marriage equality SCOTUS decision would be “making the law” or “interpreting the law.”  Sotomayor doesn’t take the bait, noting that her answer would reveal how she feels about the constitutionality of marriage discrimination.

10:47: Cornyn: “Your judicial record is very much in the mainstream.”  Maybe there’s hope.

10:44: Broken Record Watch: Cornyn is reciting all of her speeches that he disagrees with.  Was he not in the room during Lindsay Graham’s statement that Sotomayor’s record does not match Cornyn’s view of those speeches?

10:40: Conan O’Brien: Sonia Sotomayor “said that she felt out of place attending Princeton. … Sotomayor says there were so many white males in Princeton, she felt like she was testifying in front of the Senate Judiciary Committee.”  Cornyn is next.

10:30: Klobuchar is reading Sotomayor’s long list of law enforcement endorsements.  Tom Goldstein: “I believe that SS was just made a police officer on the basis of all the law enforcement endorsements.”

10:26: Graham puts Ken Starr’s endorsement of Sotomayor into the record.  He looks like a virtually certain “yes” vote.

10:23: Graham hits Sotomayor for PRLDEF’s record, then admits that he “has not seen in her judging” any evidence of advocacy.

10:20: More honesty from Graham: “Your record as a judge has not been radical . . . but your speeches are disturbing” to conservatives.  Also says that Sotomayor’s testimony has been “very reassuring.”

10:17: Wow: Graham on Sotomayor & the Second Amendment:  “I don’t know how you will come down on this case because you are able to embrace a right that you would not want for yourself.”  He also says that he does not believe that Sotomayor is an “activist.”  Graham looks a whole lot like a “yes” vote.

10:08: An interesting admission from Graham: “I would be amazed if I would have had the courage” to decide Brown v. Board of Education the way it came down had he been alive back then.  Graham then launches into some revisionist history, claiming that Brown was right, in part, because it was accepted by the country.  Apparently, he’s never heard of massive resistance.

10:06: Yup.  “I hope you understand the difference between petitioning your government” and laws being made by “nine elected judges.”

10:06: Graham is up.  Will he lecture Sotomayor again?

10:00: Feinstein brings up Oakley v. Memphis, the decision (joined by Judge Griffin) which agreed with Sotomayor in Ricci.  Feinstein also notes that Oakley was an unpublished decision.  Why was Judge Griffin trying to bury his hatred of white men where no one would see it?

9:53: Kyl hits Sotomayor with the right-wing claim that all nine justices disagreed with her in Sotomayor.  Sotomayor’s correct response: the four justice dissent said that “no matter how you look at the case, it should be affirmed.”  Kyl hits back by noting that right-wing columnist Stuart Taylor disagrees with Sotomayor.  No doubt Rush Limbaugh disagrees with her too.  Will Kyl cite Limbaugh as a legal authority next?

9:48: Kyl and Sotomayor just completed a long exchange about whether Sotomayor could have voted to reconsider Ricci en banc, an extraordinary procedure that allows a circuit court to toss out one of its own precedents.  Kyl is technically correct that the Second Circuit could have en banced Ricci, but he is ignoring the fact that this court has a decades-old tradition of avoiding en banc review at all costs.  (Your humble blogger is unable to find a hyperlink explaining this, but our readers with access to Lexis or Westlaw can read a former chief judge of the Second Circuit’s explanation of this tradition at 14 Hofstra l. Rev. 297 or 53 Fordham L. Rev. 369.)

9:44: It’s also worth noting that Richard Allen Griffin, a right-wing George W. Bush appointee, agreed with Sotomayor’s decision in Ricci.  Kyl’s grasping at straws.

9:40: Kyl has apparently decided that if he keeps interupting Sotomayor, he can somehow make her look bad.  He also keeps making the claim that Sotomayor didn’t have to follow precedent in Ricci because there are “few” Second Circuit precedents on point.  Memo to Kyl: you only need one.

9:33: And we’re back!  Kyl is up first.

9:25: From SCOTUSBlog: “Yesterday , we got through Round 2 of questioning by 10 senators in about 2.5 hours. There are four Republican senators left and five Democrats left with 20 minutes each, so it stands to reason that we may get through all of Round 2 by lunch.”

8:39: To be fair to Senate Republicans, a few of them did make some novel claims yesterday, including Coburn’s claim that the state’s authority to issue death certificates also enables them to ban abortions, and Grassley’s claim that a one-sentence SCOTUS decision, which refused to consider the question of marriage equality, somehow prevents marriage equality.  It will be interesting to see if senators imagine any more fringe theories of constitutional law today.

5:49: And that’s a wrap . . . for today.

5:45: Cardin highlights one of Sotomayor’s major religious liberty cases, Ford v. McGinnis, in which she held that a prison could not deny Muslim inmates their First Amendment right to participate in the traditional meal celebrating the conclusion of Ramadan merely because prison officials determine that this traditional celebration was not sufficiently important to Muslims.

5:38: Cardin’s up, then recess for the day.

5:36: Broken Record Watch: Grassley still thinks that land developers are immune from statutes of limitations.  And, for the record, Mr. Didden made an enormous profit on this land because it was seized by eminent domain.  The only question in Didden’s lawsuit was whether he would get a massive windfall, or an awesomely massive windfall.

5:27: Sotomayor says that she has “no quarrel” regarding certain principles governing judicial neutrality, then cuts herself off, says “no quarrel sounds equivocal,” and fully endorses the principles.  This may be a subtle dig at Roberts and Thomas, who routinely said that they have “no quarrel” with decisions that they stridently opposed once they were confirmed to the Court.

5:22: Ok, Grassley is making the utterly insane argument that a case called Baker v. Nelson is a Supreme Court precedent that forbids the Court from mandating marriage equality.  Here is the entire text of Baker v. Nelson:

Appeal from Sup. Ct. Minn. dismissed for want of substantial federal question.

5:20: Your humble blogger is back.  Just in time to get hit with a fistful of crazy by Chuck Grassley, it seems.

4:28: Your humble blogger has to duck into a meeting.  No one say anything crazy while he’s gone.

4:24: Sessions doesn’t remember the Roberts and Alito hearings very well:

4:18: SCOTUSBlog makes a funny.  Sotomayor references a British study on the use of precedent.  SCOTUSBlog: Sessions “probably not happy with the reference to international law.”

4:11: Sessions doesn’t know what a board of directors does.  He again claims that Sotomayor authorized an organization she sat on the board of to take positions that he disapproves of, but the New York Times reports that she had virtually no role in shaping the organization’s litigation, and ABA rules forbid the board members of legal organizations from supervising an attorney/client relationship.

4:09: Shorter Broken Record Watch: Foreign Law.  Talmud.  Scalia.  Unelected Rabbis.

4:04: Irony Watch: Sessions complains about people who try to “promote agendas through the law.”

4:01: Broken Record Watch, Part II: Now Sessions is attacking Sotomayor for following a binding Supreme Court precedent regarding the Second Amendment.  Federalist Society darling Judge Frank Easterbrook disagrees with with Sessions.

3:55: Broken Record Watch: Sessions goes right to “wise Latina.”

3:52: Leahy makes an important point, a right means nothing if it cannot be enforced.  Sotomayor agrees.  Sadly, many of her future colleagues do not.

3:44: Leahy begins by highlighting a Sotomayor dissent where she opposed strip searches of young girl’s without individual suspicion of wrongdoing, noting the similarity between Sotomayor’s dissent and another strip search case that was recently in front of the Supreme Court.  Leahy notes that this case highlights the importance of diversity on the Supreme Court.  Many of the male justices were initially ready to hold that school officials may strip search a 13 year-old girl simply because they think she may have Advil.

3:36: And we’re back!  Round two, fight!

3:07: Hearing in recess.  May resume this afternoon after a closed session.

3:02: Franken’s response to the right-wing claim that Roe is wrong because the word “abortion” does not appear in the Constitution.  “Do the words ‘birth control’ appear in the Constitution?”  Sotomayor responds by explaining that modern fundamental rights doctrine began with a case saying that parents have a right to decide how to educate their children.  The word “education” also doesn’t appear in the Constitution, a fact that segregationists have long cited to undermine Brown v. Board of Education.

2:56: Franken slams the Court’s recent Gross case, which stripped many older workers’ ability to be free from age discrimination.  Good job Al!  Gross is particularly egregious because it refused to follow a 1989 precedent, and Justice Thomas explained his decision to ignore this precedent simply by saying “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.”  Translation:  the right-wing controls the Court now, so we’ll do whatever we want.

2:50: Franken: there’s been too much “judicial activism” from the right.  Starts out with the conservative assault on the Voting Rights Act.

2:42: Franken’s first question is Net Neutrality.  Franken’s concern is that Justice Thomas’ decision in Brand X may undermine Net Neutrality.

2:36: The Al Franken Decade resumes!

2:26: Specter zings Roberts for promising to be one kind of justice and then turning into something very different.  His question to Sotomayor: “Do you agree with what Chief Justice Roberts said when he was just Judge Roberts?”  His follow up after Sotomayor answers, “is there anything Congress can do if a Justice says one thing and then turns into something else?”

2:23: Specter is not happy with a series of Court decisions that have cut back Congress’ ability to remedy civil rights violations–effectively extending state’s sovereign immunity to civil rights laws.  The Court’s most conservative members are trying to kill an essential provision of the Voting Rights Act using the reasoning in these cases.

2:16: Oddly, Specter quotes Judge J. Michael Luttig’s description of the Court’s abortion cases as “super stare decisis.”  Luttig was one of the most right-wing members of the federal bench until he resigned in a huff after President Bush passed him over for Justice Alito’s seat on the Supreme Court.

2:10: Specter: “A woman might want to assert her competency in a country where women were denied the right to vote for decades”

2:06: Broken Record Watch: Grassley slams his GOP colleagues for “beating a dead horse to death” on Sotomayor’s “wise Latina” comment.  Specter opens up his remarks by saying people who have attack this speech are “making a mountain out of a molehill,” citing Alito, Thomas and other conservative justices who have made similar remarks.

2:03: And we’re back.  Your humble blogger, who is terribly lacking in creativity, had a lovely Greek pita again today for lunch.

1:01: Will Orrin Hatch, who headlined a $10,000-a-head fundraiser for the organization running ads claiming Sotomayor led a terrorist group, distance himself from that organization?

1:00: Recess!  Your humble blogger gets to eat!

12:54: Kaufman moves on to antitrust.  In Leegin Creative Leather Products v. PSKS the five conservative justices overruled a 95 year-old precedent which prevented price fixing.

12:50: Kaufman continues to ask very lawyerly questions, this time asking about Sotomayor’s views on private suits against people who commit securities fraud.  In Stoneridge Investment Partners v. Scientific-Atlanta, the five conservative justices held that business which enable Enron-style securities fraud are immune from accountability in private suits.

12:41: Kaufman express concern that the Supreme Court will immunize corporations from new financial regulation in the same way that they have given sweeping immunity to corporations in the past.

12:35: Kaufman’s questions have focused largely on Sotomayor’s experience representing businesses.  She says that this experience shaped her understanding that judges must be loyal to established law.  “In business, the predictability of law may be the most necessary.”

12:21: Klobuchar notes that Sotomayor was particularly tough on white collar criminals when she was a district judge.  Of course Sotomayor’s nomination has been enthusiastically supported by law enforcement.

12:16: Klobuchar and Sotomayor discuss a case where the judge reached the same result as the the supreme Court in Herring v. United States, a 5-4 decision which stripped away the traditional remedy for criminal defendants who are arrested because of errors in court databases.  We have criticized Herring in the past, but it is a good example of how Sotomayor is not easily pigeonholed ideologically.  Justice Souter, who she will replace, joined the dissent in Herring.

12:13: Lights flicker in Sotomayor’s room.  Leahy: “That was not a comment from above . . . I have certain powers as chairman, but not that one.”

12:03: Sotomayor says that she was inspired to become a prosecutor after hearing a statement made by a prosecutor on Perry Mason: “My job as a prosecutor is to do justice.  Justice is served when a guilty man is convicted or when an innocent man is not.”

11:58: Contra right-wing claims that Sotomayor directed PRLDEF’s litigation, Klobuchar notes that ABA rules forbid a legal organization’s board members from supervising attorney/client relationships.

11:55: And we’re back.  Klobuchar, Kaufman, then lunch.  Your humble blogger is trying to decide between Indian food or a quick sandwich.

11:52: Sessions attacked Sotomayor, claiming that she believes that the Constitution changes over time.  When Roberts was in the hotseat, however, Sessions loved the living constitution:

SESSIONS: Well, I’m of the view that the Constitution is a contract with the American people, that developments will occur that clearly fit within the ambit of a fair reading of that Constitution that were never contemplated by the founders.

Things do change and we have to apply new circumstances. But wouldn’t you agree a judge should never make an opinion that is beyond what a fair interpretation of the Constitution would call for?

11:42: Committee GOPers are holding a press conference.  Cornyn plays the race-baiting card by giving a shout-out to the firefighters in the audience.

11:37: 15 minute break.  Your humble blogger is excited to catch up on his e-mail.

11:36: Ed Whelan channels Jeff Sessions: “Does the fact that she is a Latina immunize her from attention” to the fact that she sometimes trips over her words.

11:07: Broken Record Watch, John Roberts Edition:  When Roberts was in the hotseat, Cornyn thought it was very, very, bad for senators to ask him the same question over and over again:

CORNYN: If we keep asking the same question over and over and over again, but try to approach it from a slightly different way, to get you to answer a question that you don’t feel you can ethically answer, are you going to give us a different answer? Or are you going to give us the same answer?

ROBERTS: I hope my answer would be the same, Senator.

CORNYN: Well, I’m sure that’s the case.

11:02: “The American people” now think that it is dangerous for judges to cite foreign law, because foreign law is not U.S. law.  The Talmud also isn’t U.S. law either, but Justice Scalia cited the Talmud in his dissent in the judge-for-sale case.  How do “the American people” feels about judges citing unelected Rabbis?

11:00: “The American people” want to know if they have a constitutional right to self-defense.  Sotomayor explains that it depends on the circumstances.  If someone punches you, you probably can’t pull out a gun.  If someone draws a gun and walks away, you can’t go home, get your gun, hunt them down, and shoot them.

10:58: Coburn prefaces his questions by saying that they come from “the American people.”  Glad to know that he speaks for all of us.  He’s also dropped the fact that he is a doctor at least three times.

10:55: My colleague Jess points out that if states have limitless authority to define “death” because of their power to issue death certificates, doesn’t that also mean that DOMA is unconstitutional?

10:48: Broken Record Watch: Coburn brings up the Second Amendment.  Apparently, he didn’t understand her the three or four times she has already explained that she followed a binding Supreme Court precedent in interpreting this Amendment.  Kyl and Hatch have already attacked Sotomayor for following the law in this way.

10:45: Now Coburn seems to be arguing that, because states can create a legal definition of “death” for the purposes of death certificates and the like, they should also be able to regulate abortion.  Huh?

10:43: Coburn keeps trying to get Sotomayor to reveal her views on abortion.  Sotomayor refuses to prejudge the question.

10:37: Coburn takes the mic.  Immediately distances himself from the “abortion is murder” protestors who have disrupted the hearing at least four times.

10:34: Cardin brings up the serious problem on inadequate legal services for the poor.  Laws protecting the disadvantaged and courts presided over by impartial judges are wonderful things, but they mean nothing if only one side of the case has adequate representation.  Blame Ronald Reagan for the embarrassing state of legal representation for the poor.

10:27: Cardin highlights Sotomayor’s Gant dissent.  One of her best, where she stood up for the same basic principle announced in Brown v. Board of Education: “Ray [Gant] was entitled to an equal opportunity to learn.”

10:26: SCOTUSBlog notes that there has not been a single question on marriage equality.  More evidence that the culture wars are dying?

10:12: Cardin asks whether Sotomayor will join the right-wing justices’ crusade against the Voting Rights Act.  Sotomayor says that the right to vote is a “fundamental right,” which is actually pretty significant.  In Crawford v. Marion County Election Board, the Court held that laws which disenfranchise low-income and elderly voters is a-ok.

10:03: Looking back at Cornyn’s questions, it’s interesting just how much he plagiarized them from Sessions’ questions yesterday.  To his credit, Cornyn did not claim that all Puerto Ricans should be exactly alike.

9:58: Cornyn, a former state supreme court justice, pretends not to know that courts routinely use brief, unpublished orders to dispose of cases that are controlled by a binding precedent, such as Ricci.  Also claims that Sotomayor tried to “bury” the case, because Cornyn apparently believes that Supreme Court justices are too lazy to review cases that aren’t handled in a published opinion.

9:57: Cornyn gives a shout-out to the firefighters in the room.  Jesse Helms would be so proud.

9:52: Cornyn claims, falsely, that Sotomayor endorsed the view that judges’ decision making is determined by their “physiology.”  In truth, Sotomayor said that “[w]hether born from experience or inherent physiological or cultural differences . . . our gender and national origins may and will make a difference in our judging,” in a speech about how judges have to be self-aware so that they check their “assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.”  Apparently, Cornyn shares Sessions’ disdain for self-awareness.

9:42: Now Cornyn is attacking Sotomayor for endorsing the view that judges can bring about “radical change” in society.  Why does Cornyn oppose Brown v. Board of Education?

9:35: Looks like race-baiting will be the item du jour.  Cornyn leads with the “wise Latina” speech.  Sotomayor responds (for the second time) that Justice Alito has endorsed the exact same view.

9:33: Cornyn: “You will get that upperdown vote on the Senate floor.”  Good news!  Now how about President Obama’s other nominees?

9:31: And we’re off!

9:27: After conservatives spent much of yesterday engaging in race baiting, they are apparently doubling down today.  Tom Goldstein reports that a row of firefighters will be sitting in the audience today.

5:30: CAPAF’s statement on day two is up.  Here is a taste:

Today, at Judge Sonia Sotomayor’s confirmation hearing, Sessions wondered aloud how Sotomayor could have voted differently than another judge of “Puerto Rican ancestry.”

So it is very odd that conservatives would choose Sessions as their point person on the Sotomayor nomination. At best this choice is laughably tone deaf. At worst it shows that Senate conservatives wholeheartedly embrace Sessions’ views on race.

It is crystal clear, however, that Sessions is the architect of the conservative strategy against Sotomayor. In a campaign that echoes Lee Atwater’s infamous Willie Horton ad and Jesse Helms’ “white hands” ad, today’s attacks on Sotomayor have focused almost exclusively on race. Nevermind that conservatives have only uncovered one case in Sotomayor’s record, Ricci v. DeStefano, which supposedly supports their claim that Sotomayor is biased against white men. And nevermind that Sotomayor simply followed a 1984 precedent which is nearly identical to Ricci when she decided that case. Apparently conservatives believe the facts must take a backseat to race-baiting.

5:27: Hearing now in recess until tomorrow @ 9:30.

5:24: Leahy announces that questions will resume in the morning.  After every Senator has gone, the committee will go into a closed session to discuss Sotomayor’s FBI background check and similar information, and your humble blogger will take a much needed break.

5:11: Durbin quotes an unnamed SCOTUS justice who told him that “our system of correction and incarceration . . . has to be the worst” (Senator Webb has made similar statements about the need to fix America’s overincarceration problem).  Also takes aim at the crack/powder disparity, which one federal judge said “makes the war on drugs look like a ‘war on minorities.’ “  As originally enacted, the crack/powder disparity causes 5 grams of crack to be punished exactly the same as 500 grams of powder cocaine.

5:03: Durbin highlights case where Sotomayor upheld the death penalty against a constitutional challenge.  Apparently, even if she does disagree with the death penalty personally, as Graham claims, she also understands how to follow the law.

4:52: Graham hitting Sotomayor on a letter she signed in 1981.  Does he want to ask her about her sixth grade book reports as well?

4:50: Shhhhhh . . . Senator Grassley is sleeping.

4:47: Graham is now playing guilt by association, asking her about briefs written by attorneys at an organization she was on the board of.  Sotomayor responds, “I never read those briefs.”  Her primary duty as a board member was fundraising; she did not supervise their attorneys.

4:41: Graham: America discriminates against the poor white man by not letting him claim that they are better than minorities.

4:33: Graham calls Sotomayor a “bully” on the bench, claiming that lawyers “find you difficult and challenging.”  If Graham doesn’t like judges who bully, he must have voted against CJ Roberts, and he must hate Justice Scalia, right?

4:30: Graham: the existence of the Due Process Clause proves that your speeches are bad.  Huh?  Also claims that the Constitution contains “no written prohibition that you can’t pray in school.”  Of course the Supreme Court has never said that children can’t pray in school.  The Supreme Court has said that the government can’t tell them how to pray, and the “written prohibition” on official government prayer is the First Amendment, which bans laws “respecting an establishment of religion.”

4:27: Graham makes a funny: “Don’t become a speech writer if this law thing doesn’t work out.”

4:19: Dissenting in the judge-for-sale case, Justice Scalia cited the Talmud.  Why does Justice Scalia want us to be ruled by unelected Rabbis?

4:15: Sotomayor rebuffs conservative claims that she thinks that foreign law governs the U.S. Constitution.  No one believes that it does, but that hasn’t stopped Sessions from spreading his made-up claim that Sotomayor wants to turn the U.S. courts over to France.

4:04: Now Schumer is highlighting her dissent in Pappas v. Giuliani, where she held that “the First Amendment commands that we respect people’s right to engage in hateful speech.”  In Pappas, Sotomayor ruled in favor of a racist cop who distributed white supremacist literature.

4:00: There’s an unusual exchange going on between Schumer and Sotomayor where Schumer is highlighting cases where Sotomayor ruled against sympathetic plaintiffs, like air crash victims and alleged victims of race discrimination.  How bizarre that, because conservatives have so savagely attacked Sotomayor for not being callous and cold-hearted, the response is to emphasize her capacity to rule against likeable people.

3:54: Schumer is strong.  “No [senator] has pointed to a single case in which you’ve tried to change existing law.”  Strange idea, actually wanting to base this inquiry on facts.

3:52: Hearings resume.  Schumer’s up.

3:35: Sotomayor just brought up her agreement with Alito.  Leahy announces a ten minute recess after he reads Alito’s endorsement of Sotomayor’s view.

3:30: Kyl is still hitting Sotomayor for her statement that judge’s decision-making may be shaped by their experience.  Broken Record Watch: Alito said the exact same thing.

3:23: Kyl just gave a six-minute long speech claiming that Sotomayor lacks impartiality, without citing a single case from Sotomayor’s record.  Sotomayor’s response: “I have a seventeen-year record,” how about you look at that?

3:11: Kyl claims that the President wants judges who make decisions “from the heart.”  Sotomayor says that she does not believe that judges should decide cases in this way.  Either President Obama made a big mistake in nominating Sotomayor, or Kyl is misrepresenting Obama’s beliefs.

3:07: Kyl is trying to get Sotomayor to promise that she would recuse herself from any Second Amendment case that raised the same legal question as a different case that she has already decided.  But this is not the standard for recusal.  Justice Scalia, for example, has written multiple opinions calling for Roe to be overruled, but he is not required to recuse himself from all abortion cases.

3:01: Sotomayor on Korematsu: “A judge should never rule from fear.”  She unambiguously states that Korematsu was wrongly decided, adding that “our survival depends on upholding” the Constitution.

2:58: Lillian Rodriguez- Lopez, president of the Hispanic Federation, blasts Sessions for his claim that all Puerto Ricans should think alike:

“Sen. Sessions’s comment on Puerto Rican ancestry is baffling. First, he focuses on the need to uphold the law based on the Constitution and legal precedent and then he expects our judges to think exactly alike based on a shared ethnicity. Sonia Sotomayor is a brilliant jurist, as is Judge Cabranes. They share a heritage but are highly capable of varied, intelligent analysis of the law. Sen. Sessions should re focus his attention on her 17-year legal career as a judge and allow Judge Sotomayor to respond to valid issues at the hearing.”

2:54: Look up, we’ve got a new picture of Sotomayor.  Thanks to Pat Garofalo for putting it up.

2:40: Sam Stein: “The confirmation hearings for Sonia Sotomayor have become, in a small but significant way, a referendum on the ranking member of the Senate Judiciary Committee.”  To be fair, Stein also quotes some jerk named “Ian Millhiser,” so take what he has to say with a grain of salt.

2:36: Sotomayor emphasizes that 9/11 has not changed her view of the Constitution, which she says is a “timeless document.”

2:34: Feingold asks how 9/11 shapes her view of Executive power and national security.  National security is actually an area where she has taken stands to the right of Justice Souter, who she will replace.  Although Sotomayor’s views are well-within the legal mainstream and do not embrace the virtually limitless theory of executive power shared by justices like Roberts and Thomas.

2:24: Grassley attacks Sotomayor for her decision in Riverkeeper, which the Supreme Court reversed.  Here’s what actually happened in this complex environmental case:

Power plants’ cooling systems collectively remove more than 214 billion gallons of water from the nation’s waterways every day, in the process killing over 3.4 billion aquatic organisms per year. The Clean Water Act requires that EPA regulate these cooling systems based on “the best technology available for minimizing adverse environmental impact.” During the Bush administration, however, EPA ignored this direction and instead employed a skewed cost-benefit analysis in deciding how to regulate. As a result, power plants were allowed to forgo the advanced technology required by the plain language of the law in favor of cheaper but far less protective measures.

Ignoring the law’s plain language, Justice Scalia’s decision in Riverkeeper upheld the Bush administration’s action.  As Justice Stevens explained in dissent, Congress determined that the costs of requiring power plants to pay for environmentally friendly technology “are outweighed by the benefits of minimizing adverse environmental impact” when it enacted the Clean Water Act, but the Court substituted the Bush Administration’s judgment for that of the law.

2:12: Today’s first “abortion is murder” protestor just started screaming.  He was promptly removed.

2:11: Nevermind, Grassley just hit Sotomayor on Didden, a case where she held that a land developer who filed his eminent domain case two years after the statute of limitations has run (two George W. Bush appointees joined her opinion in that case).  Apparently, Grassley believes that the law does not apply to land developers.

2:07: Grassley is being surprisingly tame.  So far, his questions have focused largely on how Sotomayor feels about the Supreme Court’s Kelo eminent domain decision.  To his credit, Grassley has not, so far, brought up the right’s false claims that Sotomayor is hostile to property rights.

2:01: Senator Chuck “Empathy is fine if you’re Sam Alito” Grassley is now up.

2:00: The hearing resumes.  Your humble blogger had a lovely Greek pita with chicken and tzatziki sauce.

12:31: Leahy calls a recess.  Your humble blogger goes to find lunch.

12:30: Sessions brings up Miguel Estrada yet again, Leahy has to remind him that Estrada is not the nominee.  Finish your beers!

12:30: Feinstein and Sotomayor complete a long exchange about whether the Supreme Court should strike down acts of Congress.  The Justice who most often votes to second-guess Congress is Thomas, followed by Reagan appointees Kennedy and Scalia.  The two Justices who are the most respectful to Congress are Clinton appointees Ginsburg and Breyer.

12:22: Sessions claims that Judge Miriam Cedarbaum thinks Sotomayor is biased.  Judge Cedarbaum immediately disagrees.  Note to Sessions: before you put words in a federal judge’s mouth, make sure that she isn’t in the hearing room to hear your false claim.

12:11: Sotomayor emphasizes that the Supreme Court should be “very, very cautious” before it overrules precedent.  To be fair, CJ Roberts said similar things when he was in the hotseat, but he wasn’t telling the truth.

12:01: Sessions brings up Miguel Estrada again.  Everyone take a drink!

12:01: Sessions cites bizarre Washington Post study which claimed that Sotomayor is too meticulous.  Strangely, Sessions ignores the New York Times‘ reporting that “several studies have found, Judge Sotomayor is a mainstream jurist.”

11:54: Hatch claims that Ricci raises an “issue of first impression” for the entire nation, meaning that no court had ever considered the same issue before.  Except for Bushey, of course, and the Sixth Circuit’s decision in Oakley, which was joined by a George W. Bush appointee.  And yes, we know that we are repeating ourselves.  We will stop when conservatives stop repeating the same tired attacks.

11:52: Jason Mattera, the “surprisingly fresh face of conservatism,” doubles down on his previous statement that Sotomayor will “shank” Scalia because she is from the “ghetto”   Says Mattera: “Sotomayor will not ’shank’ Scalia on the bench. What I meant to say is that she’ll shoot him up in a drive-by.  Watch out, brother Antonin!”

11:46: Hatch repeats the smear that all nine justices disagreed with Sotomayor’s decision in Ricci.  Sotomayor reminds Hatch that she had to decided the way she did because of her court’s binding precedent in Bushey.  The conservative attacks are becoming a broken record.

11:42: The Washington Post calls right-wing extremist Randall Terry a “winner” because his supporters repeatedly disrupted his hearings yesterday.

11:38: Federalist Society darling Judge Frank Easterbrook agreed with Sotomayor that lower court judges have to follow Presser.  Easterbrook wrote an opinion agreeing with Sotomayor that the Second Amendment doesn’t not apply to the states.

11:31: Hatch admits that the Supreme Court “didn’t decide” whether the Second Amendment applies to the states.  That question, of course, was addressed by the Supreme Court’s decision in Presser v. Illinois which said that it does not.  Why do conservatives think that Sotomayor doesn’t have to follow Presser just like she’d have to follow any other precedent?

11:29: Hatch opens with abortion and the Second Amendment.  Jefferson Beauregard Sessions III must have insisted that he gets to be the point person on race.

11:23: The leader of the Republican Party calls Sotomayor “worse than Macaca.”

10:58: Sotomayor unsurprisingly refuses to promise that she would uphold or overrule Roe.  CJ Roberts and Justice Thomas took a different tack in their hearings, deceiving the Senate about their anti-choice views.

10:42: Kohl highlights Sotomayor’s very low reversal rate.  Says she has authored 230 majority opinions and only three have been reversed.  Sotomayor points out that she has also sat on thousands of other cases, but only a handful of those have been reversed by the Supreme Court.  Indeed, the justices have reversed only a fraction of 1% of her decisions.

10:38: Sessions ends by insulting the Justices of the Supreme Court and their clerks by claiming that they never would have noticed Ricci if Judge Cabranes hadn’t raised a stink about the case.  But Ricci’s lawyers would have filed a petition with the Supreme Court anyway, and the Justices and their clerks are perfectly capable of understanding the issues presented by such a petition even without Cabranes’ help.

10:33: Sessions repeats the false claim that Sotomayor handled Ricci in a “cursory manner.”  But the Second Circuit only releases opinions in cases that raise new issues which aren’t governed by binding precedent, unlike Ricci.  Apparently, Sessions not only wants Sotomayor to ignore laws that he doesn’t like, he also wants her to ignore her court’s rules if he doesn’t like them.

10:28: Sessions: Sotomayor should have decided a case in the exact same way as conservative Judge José A. Cabranes because Cabranes is also “of Puerto Rican ancestry.”  But remember, it is Sotomayor who judges people based solely on their race.

10:26: George W. Bush appointee Richard Allen Griffin ruled the same way that Sotomayor ruled in Ricci.

10:22: Sotomayor is so biased in favor of minorities claiming discrimination that she rules against them 8 out of 9 times.

10:19: It’s too bad that Jefferson Beauregard Sessions III lacks the self-awareness to consider his own prejudices before he attacks Judge Sotomayor.

10:15: Sotomayor’s response: “”We’re not robots. . . .  We have to recognize our feelings and put them aside.”

10:12: Sessions is attacking Sotomayor for saying that minority judges must not “ignor[e] our differences as women or men of color” because turning a blind eye to personal views would preven her from “checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.”  In Jeff Sessions’ world, self-awareness is the enemy.

10:04: Sessions takes the mic.  Let the fun begin!  He opens by attacking Sotomayor for saying that her decisions are shaped by her own experiences.  Remind us again whether Sessions voted for Justice Alito after he said the exact same thing.

10:00: Getting another obvious line of questioning out of the way earlier, Sotomayor explains that she followed a binding Supreme Court precedent when she held that the Second Amendment does not apply to the states.

9:52: Sotomayor says the sentence we all knew she would say:  “I do not believe that any racial or ethnic group has an advantage in judging.”  Later, she says that her 17 year record as a judge proves that she has consistently followed the law regardless of whether or not she finds a party’s claim “sympathetic.”  She is telling the truth.

9:50: Leahy calls out Limbaugh as “one of the leaders of the Republican Party.”  Nice.

9:46: Sotomayor addresses the Ricci case, explaining something that is obvious to anyone who has actually read the Ricci decisions–she was following a binding precedent that she is required, as a lower court judge, to comply with.

9:38: Sotomayor’s first long answer is the story of how she won a difficult prosecution against the “Tarzan Murderer,” a serial killer who would swing from building to building on ropes in order to break into his victims apartments, where he would rob and shoot anyone he found there.   Sotomayor says that this experience taught her how crime “destroys families” even years after the perpetrator is locked up.

9:32: First soundbite of the day from Sotomayor: “The process of judging is the process of keeping an open mind.”

9:29: Leahy begins the hearing “one minute early.”  Announces that the questioning will take place in “30 minute rounds” alternating between Democratic and Republican senators.  First question: how will your experience shape your actions on the Supreme Court?

3:53: CAPAF’s statement on the first day of the hearing is available here.  It begins “Republican attacks in today’s confirmation hearings for Judge Sonia Sotomayor focused largely on their claim that Sotomayor lacks “impartiality” and is likely to decide cases based on her personal beliefs instead of the law. This line of attack is not surprising in light of their comments prior to the hearings, yet Republicans have still been unable to cite a single case where Sotomayor put her feelings before the law.”

3:02: Hearings in recess until 9:30 tomorrow morning.

3:00: Here is the meat of Judge Sotomayor’s statement:

Throughout my seventeen years on the bench, I have witnessed the human consequences of my decisions. Those decisions have been made not to serve the interests of any one litigant, but always to serve the larger interest of impartial justice.

In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.

2:54: Sotomayor sworn in; begins statement.

2:51: Gillibrand takes a nice dig at Sessions.  Sotomayor’s leadership role in a civil rights organization, just like Justices Marshall and Ginsburg’s service with similar organizations, should not be used as a “disqualifier.”

2:37: Franken: Justice Thomas votes to overturn federal laws more than Justice Stevens and Justice Breyer combined.  Indeed, Thomas votes to second-guess Congress 65.63% of the time–more than any other justice.  The only Democratic appointees on the Court, Justices Ginsburg and Breyer, are the least likely to do so.

2:32: Another “abortion is murder” protestor interrupts the hearing.  Finish your beers.

2:30: The Al Franken Decade dawns.

2:25: Specter calls out CJ Roberts for saying in his confirmation hearing that he would led Congress decide how to remedy discrimination, then deciding that he knows better than Congress once he got on the Supreme Court.

2:21: Specter: Court has time for more cases.  Worries that there is too much uncertainty in the law because the Court only decides 60-70 cases per year–as opposed to the hundreds of cases it would hear each year in the 1800s.  Calls out the Court for not considering the merits of President Bush’s warrantless wiretapping and the rights of 9/11 victims.

2:17: Kaufman calls out the Supreme Court for putting a thumb on the scale in favor of corporations, citing preemption of progressive state laws, punitive damages and other corporate immunity cases as examples.

2:10: Klobuchar attacks the Supreme Court from the right, criticizing a recent decision (by Justice Scalia) which said that criminal defendants have a constitutional right to call lab techs who prepare evidence against them to the witness stand.

2:01: Leahy gavels the hearing back into session.  Senator Klobuchar now speaking.

12:38: Committee now in recess until 2pm.

12:38: Durbin: of the 110 justices to serve on the Supreme Court, 106 have been white males.

12:32: Another “abortion is murder” protestor interrupts the hearing and is removed.

12:23: Coburn opens his statement by praising Gonzales v. Carhart, which upheld a ban on certain kinds of abortion.  Later, he says “we want the system of law to be predictable,” but Carhart overruled a Supreme Court precedent which was only seven years old.  Apparently, the law only needs to be predictably conservative.

12:22: Coburn: “I thought this was your hearing and not Chief Justice Roberts’ hearing.”  Apparently he hasn’t been paying attention, this is Miguel Estrada’s hearing.

12:12: Whitehouse: “pretense” that Republican judges are modest and Democratic judges are “activist” runs counter to recent history.  CJ Roberts’ claim that judges should behave like “umpires” is “belied” by Roberts himself.  Quotes Jeffery Toobin’s observation that “In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. . . . Roberts has served the interests, and reflected the values, of the contemporary Republican Party.”

12:06: Cornyn spends his statement ranting against judges who rule against the elected branches, then cites D.C. v. Heller, the recent Second Amendment decision, as an ideal case.  But Heller struck down a law enacted by the elected D.C. City Council.  Apparently, judicial modesty = doing whatever conservatives want.

11:39: Sotomayor: The Drinking Game!

11:36: Classic Josh Marshall: “Are the Republicans on the committee under the misimpression that this hearing is about Miguel Estrada?”

11:31: “I don’t know how I’m going to vote, but my inclination is that elections matter.”  Graham looks a lot like a “yes” vote.

11:23: Graham’s moment of honesty: “unless you have a complete meltdown, you’re going to get confirmed.”

11:21: Graham is the second GOP senator to bring up Miguel Estrada, a right-wing nominee who was rejected in the Bush-era because he repeatedly stonewalled the Senate’s attempts to evaluate his record.  The only thing Estrada has in common with Sotomayor is that they were both nominated for the federal bench and they are both Latino.  Apparently, the GOP thinks that this makes them exactly the same.

11:19: Schumer hits back, hard, on claim that Sotomayor puts her own liberal views ahead of the law.  Sotomayor ruled against immigrants 83% of the time, for the prosecution 92% of the time, and against discrimination plaintiffs 8 of 9 times.  Compares Sotomayor poorly to CJ Roberts, who has not “called balls and strikes,” but instead has “changed the rules.”

11:16: Kyl misleadingly claims that 80% of Sotomayor’s cases that have reached the Supreme Court were reversed.  But the Supreme Court has only reversed six of the approximately 380 majority opinions Sotomayor has written as a court of appeals judge.

11:08: Kyl: Sotomayor will be biased because of her “gender and Latina heritage.”  Later claims, falsely, that Sotomayor said that she will let her own personal prejudices influence decisions, even though she said the exact opposite in the speech Kyl cites.

11:04: Feingold: Phrase “judicial activist” means nothing because the conservatives who use it support right-wing justices who routinely ignore the law.  Says that “judicial activist” = a judge who decides cases “in a way we don’t like.”  Later, he calls out Republicans for their inability to find a single example of a case where Sotomayor placed her own personal views ahead of the law.

10:55: Grassley also hits the “judges must be impartial” meme.  Still hasn’t found anything in her judicial record which suggests that she is not impartial.

10:48: Feinstein listing precedents which have been overruled or ignored by the Roberts Court.  It is a very long list.  (Tom says 25 cases).

10:45: A protestor interrupts the hearing and is removed.  Tom Goldstein says he was an abortion protestor.

10:35: Hatch also says that “The Senate owes some deference to the president’s qualified nominees,” which Sotomayor unquestionably is.  Marc Ambinder notes that “Hatch could be among the friendlier Republicans on the committee for Sotomayor.”  FWIW, Republicans have set a low bar on their opposition to Sotomayor, saying that they want at least 20 votes against her.

10:34: Hatch hits Obama for voting against Judge Janice Rogers Brown’s nomination to the D.C. Circuit, but Judge Brown is a radical libertarian who thinks that the New Deal and the Civil Rights era are unconstitutional.  It’s surprising that Hatch would hold out one of the nation’s most radical jurists as a model.

10:22: Unsurprisingly, Sessions attacks Sotomayor because she used to sit on the board of a civil rights organization.  He has a long history of this kind of racial attack.

10:21: Sessions hits Sotomayor for her role in Ricci, even though she did nothing more than follow a binding precedent in that case.  Later, Sessions hits her again for a Second Amendment decision and an eminent domain decision where she also followed a law that he apparently doesn’t like.  Why does Jeff Sessions believe that judges don’t have to follow the law?

10:18: Sesssions hits Sotomayor for saying that courts of appeals are “where policy is made.”  Only one problem: ultra-conservative Justice Scalia has said the exact same thing.  Also hits Sotomayor for saying that her “experience” shapes her decisions.  Problem: George W. Bush appointee Samuel Alito said this too.

10:12: Sessions takes the mike.  Unsurprisingly, Sessions’ emphasizes need for judges to be “impartial.”  Warns of world where judges are “free to push their own agenda.”  He must not like Chief Justice Roberts very much, then.

10:06: Leahy: I hope that questions to Justices Thurgood Marshall (first black nominee) and Louis Brandeis (first Jewish nominee) which demeaned them for being minorities are a relic of the past.

• Ricci

Front and center in the list of GOP witnesses is Frank Ricci himself, the New Haven firefighter whose promotion test results were set aside by that city, along with Ben Vargas, a lieutenant in the same fire department and Ricci’s co-plaintiff in his now-famous lawsuit.  The list also includes Peter N. Kirsanow, a George W. Bush appointee to the U.S. Commission on Civil Rights (and former witness in support of nominees John Roberts and Samuel Alito), and Linda Chavez, a former Reagan and Bush I Administration official and the head of a leading anti-civil rights organization.

From this list, it couldn’t be clearer that the Ricci case will be the point of the conservative spear against Sotomayor.  While Kirsanow and Chavez can be expected to testify like the GOP political operatives that they are, expect Ricci and Vargas to offer compelling statements.  By all accounts, both men were caught in unfortunate circumstances that they did not cause, and there is no indication that they are anything other than dedicated firefighters.  In other words, Republicans hope that the American people will be moved by Ricci and Vargas’ testimony and wonder why Sotomayor did not show more empathy for their circumstance.  The reason, of course, is that Sotomayor was following a binding precedent, and judges aren’t free to ignore the law simply because they are faced with compelling plaintiffs.

• Foreign Law

Recently, Senator Jeff Sessions (R-AL) gave a floor speech claiming–falsely–that some judges believe that foreign court decisions should govern U.S. law.  No one, including Judge Sotomayor, believes this.  Nevertheless, the witness list includes Neomi Rao, Nick Rosenkranz and John McGinnis, all right-wing international law professors who are likely to share Sessions’ delusion.  David Rivkin, an advocate of limitless executive power, may also testify on the subject of foreign law.

• Second Amendment

Next up are former NRA President Sandy Froman, along with David Kopel and Stephen Halbrook, both of whom work on Second Amendment issues for the right-wing Independence Institute.  All three of them will probably make the false claim that Sotomayor was hostile to the Second Amendment when she followed a binding Supreme Court precedent holding that the Second Amendment does not apply to the states.  Apparently, the law is optional when you are a conservative.

• Eminent Domain

Ilya Somin is a radical libertarian law professor who filed an amicus brief asking the Supreme Court to reverse Sotomayor’s decision holding that land developers must file their eminent domain claims within the three year statute of limitations.  The Supreme Court did not take Professor Somin up on this offer; apparently land developers have to follow the same laws as everyone else.

• Anti-Choice

Possibly the most interesting thing about the GOP’s witness list is that it only contains one anti-choice witness, Charmaine Yoest of Americans United for Life–additional evidence that cultural issues are losing their salience in American politics.

Additionally, the witness list contains one oddball, a management consultant named Tim Jeffries.  It’s unclear exactly what Jeffries has to contribute to this discussion.

During nearly 11 years on the federal appeals court in New York, Sotomayor has made herself an expert on subjects ranging from the intricacies of automobile mechanisms to the homicide risks posed by the city’s population density. Her writings have often offered a granular analysis of every piece of evidence in criminal trials, and sometimes read as if she were retrying cases from her chambers.

Legal experts said Sotomayor’s rulings fall within the mainstream of those by Democratic-appointed judges. But some were critical of her style, saying it comes close to overstepping the traditional role of appellate judges, who give considerable deference to the judges and juries that observe testimony and are considered the primary finders of fact.

The Post’s hit on Sotomayor is ironic in light of the fact that conservatives have spent the last several weeks claiming that Sotomayor’s decisions aren’t detailed enough, but it nevertheless lacks merit.  Of course, Sotomayor should be praised, not attacked, for writing detailed and well thought out opinions; but the Post also reaches its conclusion by looking at a skewed sample of her decisions that includes the cases where a judge is most likely to be particularly detailed in drafting an opinion.

For starters, the Post only reviewed Sotomayor’s decisions in cases where at least one other judge disagreed with her and wrote a separate opinion.  But such cases are a terrible measure of how detailed a judge’s writing usually is.  When a judge is forced to defend their decision against a dissenting colleague, they virtually always flesh out their opinion considerably to rebut any claims made by the dissent.

The Post also cites a handful of cases where Sotomayor reversed a trial court because she disagreed with its findings of facts.  Although the Post is correct that appeals judges must give “considerable deference” to a trial judge’s fact finding, “considerable” does not mean “absolute.”  Rather, an appeals court is supposed to reject a trial court’s factual findings when they are “clearly erroneous.”  Moreover, it is exactly because of this high degree of deference accorded to a trial judge’s findings that appeals court decisions rejecting a trial court’s fact finding are often very long and detailed.  Because an appeals court must have a very good reason to reverse a trial court’s factfindings, a sensible appeals judge will go into great detail whenever they do so in order to explain why they are taking this unusual step.

Interestingly, the Post’s piece quotes a former law clerk to ultra-conservative Justice Clarence Thomas, who explains that Sotomayor’s opinions are “extraordinarily thorough, and a judge would ordinarily be praised for writing thorough opinions.”  Perhaps the Post should have listened to this former clerk’s advice before it published an absurd attack piece slamming Judge Sotomayor for being too good at her job.

In 2000, a right-wing pastor named Kristopher Okwedy paid to display this anti-gay billboard in a gay-friendly Staten Island neighborhood:

A few days after the billboard went up, Staten Island’s Borough President faxed a letter to the billboard company stating that “[a]s Borough President of Staten Island I want to inform you that this message conveys an atmosphere of intolerance which is not welcome in our Borough.”  The company took the billboard down almost immediately, and Okwedy promptly sued the Borough President, claiming that his First Amendment rights were violated.

Although a trial judge tossed the case out at the earliest stage of litigation, Sotomayor joined an opinion reinstating the case because she believed that the Borough President’s letter may have violated Okwedy’s free speech rights. Sotomayor recognized that even hate speech is protected by the First Amendment.

Instead of praising Sotomayor for ruling in their favor, however, anti-gay groups are now whining because she didn’t rule in their favor in exactly the way they would have liked best:

Tony Perkins, president of the conservative Family Research Council (FRC), slammed the appeals court’s opinion.

“The case raises troubling issues,” he said in a statement. “[T]he church was posting a purely religious message with no statements regarding public policy. The opinion suggests that Sotomayor may view the First Amendment through the lenses of political correctness.”

“Would a billboard proclaiming ‘gay pride month,’ which is offensive to many Christians, have been similarly treated?” Perkins said. “Sotomayor should be asked.”

Perkins is complaining that Sotomayor did not agree with Okwedy that his First Amendment rights were violated because the Borough President’s letter “demonstrates the City’s ‘official position of hostility toward the biblical viewpoint of homosexual practice and Okwedy’s religious beliefs.’”  Essentially, Okwedy claimed that the city cannot enact a policy which is contrary to his own religious beliefs.

But nothing in the Constitution says that people don’t have to comply with the law simply because they have a religious disagreement with it. Indeed, if Sotomayor’s court had adopted Okwedy’s theory of religious liberty, it would be unconstitutional to prosecute murders who kill out of a religious belief that God wants them to.

Tony Perkins should learn to take his court victories and enjoy them, rather than throwing a tantrum whenever judges refuse to write his own personal religious beliefs into the law.

Alabama Sen. Jeff Sessions told FOX News he assumes Sotomayor understood and supported the stance of a group called the Puerto Rican Legal Defense and Education Fund [PRLDEF] she advised in the 1980s that brought several race discrimination lawsuits for minorities who challenged jobs or promotions given to white employees.

“She participated in an organization or lawsuit, clearly participating actively as a supervisor of lawyers who actually litigated the cases, that is important,” said Sessions, the senior Republican on the Judiciary Committee evaluating Sotomayor’s nomination.

“There is no evidence (Sotomayor) objected the positions they were taking. The question is really — is this a philosophy that she has allowed to influence her decision making process on the bench?” he said.

It’s difficult to count how many things are wrong with Sessions’ statement.  For starters, as the New York Times reported last week, Sotomayor played little if any role in shaping on PRLDEF’s stances in litigation.  Indeed, the only example the NYT could find of a case that Sotomayor advised PRLDEF on was a single amicus brief challenging a law authorizing “preventative detention based upon a finding of undefined potential danger to the community” that was eventually struck down as unconstitutional.

Moreover, even if Sotomayor was involved in shaping PRLDEF’s litigation strategy on employment discrimination, it’s not clear why her role in enforcing a landmark civil rights law in any way undermines her fitness for the Supreme Court.  As the Wonk Room previously explained, conservatives have jumped on the sympathetic case of New Haven firefighter Frank Ricci to claim that the ban on hidden race discrimination is “a concept that invariably makes whites accountable for minority mediocrity.”  But this claim is flatly false.  No law requires employers to prefer mediocre minorities over qualified whites. To the contrary, federal law specifically permits employers to use hiring practices that have an adverse impact on minorities so long as minority applicants are screened because of their fitness for the job. Only employers who base their hiring decisions on arbitrary or irrelevant traits can be liable for discrimination.

Indeed, Sessions’ decision to embrace the right-wing attack on civil rights law says a whole lot more about Jeff Sessions than it does about Sonia Sotomayor. In 1986, Sessions’ nomination to the federal bench was rejected by the Senate because of Sessions’ deep seeded hostility to the very notion of civil rights:

• As a federal prosecutor, Sessions conducted a tenuous criminal investigation into voting rights advocates that registered African-Americans to vote–an investigation that culminated in an unsuccessful prosecution against a former aide to Dr. Martin Luther King, Jr.
• Sesssions also referred to the NAACP and the ACLU as  “un-American” and “Communist-inspired” organizations that “forced civil rights down the throats of people.”  When confronted about these statements at his confirmation hearing, Sessions reluctantly conceded that they “probably w[ere] wrong.”  Sessions, however, stood by his previous statement that the Voting Rights Act is a “piece of intrusive legislation.”
• An African-American attorney who once worked for Sessions testified that Sessions said that he “used to think [the KKK] were OK” until he found out some of them were “pot smokers.”  The same attorney also recalled being called “boy” by Sessions and being told to “be careful what you say to white folks” after Sessions overheard him chastising a white secretary.

So Sessions’ decision to embrace a new attack on civil rights law is unfortunate, but hardly surprising.  America has changed a lot since 1986, but Jefferson Beauregard Sessions III has stayed exactly the same.

Several landmark civil rights laws, including ban on age discrimination, the ban on covert employment discrimination, and two essential provisions of the Voting Rights Act were cut back this Supreme Court Term, some of them drastically.  Worse, several of these decisions suggest that the Court’s most conservative members are eager to rip out the backbone of American anti-discrimination law.

• Thumbing Their Noses At Precedent

As the Wonk Room previously reported, the Court in Gross v. FBL Financial Services dramatically cut back on the right of older workers who are victims of employment discrimination to hold their employers accountable for such mistreatment.  Moreover, as Justice Stevens explained in his dissent, Justice Thomas’ 5-4 decision in Gross showed “utter disregard for . . . precedent and Congress’ intent,” because it flat out refused to follow a 1989 decision that interpreted the exact same legal language at issue in Gross and reached the opposite result.

For his part, Thomas didn’t even try to justify his disregard for precedent, stating simply that “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.”  Apparently, precedents no longer apply whenever the Court’s five conservative members disagree with them.

• Standing At The Brink

In slight contrast to Gross, the Court also rolled several other landmark civil rights provisions, but it handed down significantly narrower opinions than the Court’s most conservative members would have liked.

The Voting Rights Act’s ban on “vote dilution” prevents states from drawing voting districts that divide minority population centers into multiple districts in order to prevent racial minorities from electing the candidate of their choice. Bartlett v. Strickland, however, drastically cuts back on this ban by holding that it only applies when a minority population center is sufficiently large that a compact voting district could be drawn in which minorities make up a majority of the voters. Where the minority population falls under this threshold, the ban now does not exist.

Similarly, Section 5 of the VRA requires voting districts who have historically engaged in discrimination to “preclear” any new voting rules with a federal court or the Department of Justice. Under the Court’s decision in NAMUDNO v. Holder, however, it is now much easier for districts to “bail out” of Section 5’s requirements if they can show that they have not recently engaged in race discrimination.

Federal law prohibits both overt discrimination in employment and hidden race discrimination such as a hiring test that screens out minority applicants based on reasons unrelated to their job qualifications. In Ricci v. DeStefano, however, the Court made the novel claim that the ban on hidden race discrimination may itself be a form of discrimination because it requires employers to think in terms of race. However one feels about the admittedly sympathetic case of Frank Ricci, the conservative justices went much further than they needed to in order to decide in his favor.  Apparently, even acknowledging the simple existence of race offends the Court’s conservatives.

Each of these three decisions cut back on progressive legislation, some of them drastically, but Bartlett rejected Justices Thomas’ urging to simply eliminate vote dilution claims altogether, and NAMUDNO and Ricci both expressly declined to consider conservative claims that Section Five and the ban on disparate impact discrimination are unconstitutional—despite pointed questions during the NAMUDNO arguments suggesting that a majority of the Court is prepared to invalidate Section Five.

Because NAMUDNO and Ricci avoided these constitutional questions, they remain unresolved. In light of Gross’ audacity, however, it is unlikely that the Court simply stayed its hand because of a principled decision to exercise judicial restraint—and far more likely that conservatives are still unable to find the fifth vote to strike down Section Five and the ban on disparate impact.