“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.

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.

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.

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.

No one fared worse before the Supreme Court this Term than the Earth.  The justices heard five environmental cases, and they sided against defenders of the environment in every single one.  Among these cases, the Court upheld a Bush-era regulation that placed costs to power plants above destruction of aquatic life; it absolved from liability a chemical company that allowed pesticides to spill into the environment for years; it erected new obstacles to environmental organizations challenging federal environmental policy; and it upheld a mining company’s plans to dump literally millions of tons of mining waste into a pristine lake.

Two of these cases in particular highlight the Court’s disregard for laws intended to protect the environment:

• A New Loophole For Polluters (Coeur Alaska v. Southeast Alaska Conservation Council)

Using a technique known as “froth-floatation,” a mining company in Alaska plans to extract new gold from a mine that has been closed for decades, but this technique would produce approximately 4.5 million tons of “slurry,” thick waste-product laced with toxic elements such as lead and mercury. Even worse, the mining company’s intends to dispose of this waste by dumping it into a nearby lake, a plan which would eventually kill all the lake’s fish and nearly all of its other aquatic life, decrease the depth of the lake by fifty feet, and flood the surrounding 40 acres of land with contaminated water.

Although federal law forbids “[t]he use of any river, lake, stream or ocean as a waste treatment system,” the Supreme Court created a massive new exception to this law. Under Justice Kennedy’s decision in Coeur Alaska, pollutants are exempt from this law so long as they have “the effect of . . . changing the bottom elevation of water.” In other words, polluters now have a free hand to dump whatever they want into pristine waters, so long as their waste products are solid and significant enough to reduce the depth of the lake, river or stream. As Justice Ginsburg wrote in dissent, such a reading of federal law “strains credulity” because it allows “[w]hole categories of regulated industries” to “gain immunity from a variety of pollution-control standards.”

• Placing Profits Before The Law (Entergy v. Riverkeeper)
  

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.

Notably, Riverkeeper reversed a Second Circuit decision by Judge Sonia Sotomayor, a hopeful sign that President Obama’s nominee for the high Court does not share her future colleagues’ willingness to rewrite environmental legislation to benefit big industry.

The basis of this claim is the fact that both Justice Kennedy’s majority opinion and Justice Ginsburg’s dissent created new legal standards which are different than the twenty-five year old rule Sotomayor was required to follow in Ricci.  Under the Second Circuit’s 1984 decision in Bushey v. New York State Civil Service Commission employers have almost carte blanche authority to reconsider a hiring or promotion test if minorities underperform white applicants who take that test.  The newly-announced rule created by today’s majority opinion says that employers must have a “strong basis in evidence” showing that the test was in fact illegal before they can throw out a promotion test.  Justice Ginsburg’s dissent would have carved a middle ground, allowing employers to reconsider a test when they have “good cause to believe” that the test was illegal.

So Cornyn and his co-ideologues are right that Sotomayor failed to predict that both Kennedy and Ginsburg would create never-before-imagined legal standards in their dueling opinions in Ricci, but this is hardly a legitimate attack on Sotomayor.  As legendary Supreme Court reporter Linda Greenhouse explains, Sotomayor’s crime was that she simply followed the rules that were in place when Ricci was before her court:

This is a substantial weakening of the disparate-impact prong of Title VII. [T]he 2^nd Circuit (and the 6^th Circuit, which had handled a similar case in a nearly identical way) was playing by the old rules, and the Supreme Court changed those rules. Don’t we want our appellate judges to play by the rules they are given and to refrain from the activism that would be involved in crafting new ones? Does it seem to you, as it does to me, that Judge Sotomayor’s critics are now kind of stuck?

The lovely thing about being the nation’s highest court is that you aren’t bound by lower-court decisions, and can create new rules on the fly.  Judge Sotomayor did not have this luxury, and she shouldn’t be attacked for doing nothing more than following a binding precedent.

Of course we now know that, with John Roberts as the umpire, the strike zone has moved awful far to the right, but it is not surprising that Roberts pretended to be non-ideological and restrained when he was trying to sell himself as a future Chief Justice.  The American people like their judges to follow the law; and they no doubt would have viewed him harshly if he had confessed to being an ideological crusader.

In just over two weeks, Judge Sotomayor will have her own confirmation hearings. While it remains to be seen how she will present herself in those hearings, a report by the non-partisan Congressional Research Service confirms something that should be obvious to anyone who has examined her record.   She actually is the kind of modest, non-ideological judge that Roberts claimed to be:

Overall, Judge Sotomayor’s opinions defy easy categorization along ideological lines. . . . General characteristics of her approach to the judicial role are more easily identified. Perhaps the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge could be described as an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents. This characteristic would be in line with the judicial philosophy of Justice Souter, who often displayed special respect for upholding past precedent. Another characteristic of Judge Sotomayor’s opinions could be described as a meticulous evaluation of the particular facts at issue in a case, which may inform whether past judicial precedents from the circuit are applicable. Her approach to statutory interpretation seems similarly nuanced. She tends to adhere to the plain meaning of the text but, in the face of ambiguous language, appears willing to consider the intent and purpose of a statute. Judge Sotomayor’s opinions also display her apparent dislike for situations in which the court oversteps the role called for by the procedural posture of a case.

Amusingly, Senator Sam Brownback (R-KS) recently announced that he would oppose Sotomayor’s nomination because “I am afraid Judge Sotomayor wants to be more of a player than an umpire.”  Maybe he’s confusing her with John Roberts.

Sessions, of course, is uniquely qualified to levy unwarranted attacks on a civil rights organization.  In 1986, President Reagan nominated Sessions to the federal bench, but his nomination was rejected by the Senate after a Justice Department attorney revealed that Sessions called the NAACP and the ACLU “un-American” and “Communist-inspired.” Although Sessions attempted to minimize his remarks by explaining that he really meant that the NAACP and the ACLU  could be called “un-American” when “they involve themselves in promoting un-American positions,” he eventually admitted that referring to them as “commie organizations . . . probably was wrong.”  Watch:

Twenty-three years have passed since Sessions’ comments denied him a lifetime appointment to the federal bench, but his attitudes haven’t changed a bit.  Rather than questioning the patriotism of one of the nation’s leading African-American civil rights organizations, he now thinks he can scuttle Sotomoyor’s nomination by attacking a leading Puerto Rican civil rights organization.  But Sessions has a tough row to hoe, as even the most comprehensive attacks on PRLDEF are baseless.

Last week, a right-wing organization called Judicial Watch released a report laying out the conservative case against Sotomayor and PRLDEF.  The centerpiece of this report is eleven bullet points which, Judicial Watch claims, show that PRLDEF supports a “radical legal agenda.”  But the report, and the agenda behind it, are far more damaging to conservatives than they are to PRLDEF or Sotomayor:

• Obsession With English Language Purity: Three of the report’s bullet points reveal a strange obsession with keeping America free of any languages other than the Queen’s English.  One bullet attacks PRLDEF for advocating on behalf of bilingual education for students who speak a dialect that combines English and Spanish.  Another bullet claims that PRLDEF advanced a “radical legal agenda” by complaining about an Elizabeth, N.J. policy that forbade city hall employees from conducting private conversations in Spanish; and a third slams PRLDEF for opposing proposed legislation that would have forced foreign language speaking business owners to display English language signs at their storefronts.  It is not clear why conservatives are so terrified that somewhere in America, someone might speak Spanish.

• Strident Opposition to Civil Rights Laws:  Two of the report’s bullet points slam PRLDEF for successful efforts to press employers to redesign promotion tests that adversely impacted minority applicants.  A federal law intended to “smoke[] out hidden bigotry” by employers prohibits the use of racially discriminatory tests that rely on irrelevant or arbitrary criteria to sort applicants.  Another bullet point claims that PRLDEF supports a “radical legal agenda” because it supported an affirmative action program which was upheld by the Supreme Court.

• Grasping At Straws: One bullet point repeats the debunked claim that Sotomayor tried to hide her opposition to reinstating the death penalty in New York State in 1981.  A second bullet claims that PRLDEF is “radical” because it supported the creation of more low income housing; and two more criticize PRLDEF because they filed two race discrimination claims in 1983 which were ultimately rejected by the courts.  It is especially unclear what conservatives hope to accomplish with this last attack, since Judge Sotomayor herself has rejected 78 claims of race discrimination since she became a federal appeals judge.  What is absolutely clear, however, is that every single one of the report’s bullet points are grasping at straws.

The PRLDEF is nothing more than a mainstream civil rights organization, and no sensible person could possibly believe that Sotomayor was wrong to associate with them.  Unfortunately for Senate Republicans, however, their #1 guy on the Judiciary Committee is still living in the past.

Under today’s decision, Section 5 will remain in effect, but voting districts are allowed to “bail out” of its requirements if they can show that they have not recently engaged in race discrimination and are not likely to do so in the future:

[The district] must show that for the previous 10 years it has not used any forbidden voting test, has not been subject to any valid objection under § 5, and has not been found liable for other voting rights violations; it must also show that it has “engaged in constructive efforts to eliminate intimidation and harassment” of voters, and similar measures.

It’s not entirely clear what today’s decision means for the Act’s future.  Tom Goldstein predicts that the Court is simply giving Congress a brief window to amend Section 5 themselves before the Court takes the hatchet to it; “[i]f the statute remains the same by the time the next case arrives,” Goldstein warns, “the Court will invalidate the statute.”

Goldstein may be right–he’s been right before–but the Roberts Court has hardly shown the kind of judicial restraint that Goldstein suggests it engaged in today.  Just last week, for example, the Supreme Court ignored both precedent and its own internal rules to eliminiate a particular kind of suit brought by victims of age discrimination.  Justice Thomas’ opinion in that case, made no bones about the fact that the Court’s conservatives were at peace with ignoring precedent because “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.  In other words, when the conservative bloc has five votes, they feel no compunctions about doing whatever they please–so today’s modest opinion may be a sign that Chief Justice Roberts and his co-ideologues lack the fifth vote necessary to toss out Section 5.

One thing that is absolutely clear, however, is that the Section 5 remains absolutely necessary to American democracy, no matter what Chief Justice Roberts may think.  The Department of Justice has blocked literally hundreds of new voting procedures since the Voting Rights Act was last reauthorized in the 1980s, each time determining that the new procedure discriminated on the basis of race.  Moreover, some of the states’ attempts to discriminate against their own voters have been quite audacious.  As voting rights attorney Nina Perales explained at a recent American Constitution Society panel, for example, Texas’ governor recently tried to sway a Congressional race away from Mexican-American voters’ preferred candidate by scheduling the election during a Mexican religious festival:

America dodged a bullet today.  Hopefully, the Court’s conservatives will keep their guns holstered in the future.

Any particular issues or cases come to mind?

No. I’ve read them, but I no longer worry about those things, because I don’t teach it anymore. In fact I refuse to teach constitutional law, because it’s so obviously politics and not law. The incoherence of some of those opinions is astounding. If you want to know what the constitution means, you will not learn it from the court.

Although many conservatives continue to hold up Bork as someone who was unfairly denied confirmation, Bork has made a number of statements confirming that the Senate made the right choice in doing so. In a 1997 book, Bork warned that a decline in America’s sexual “morality” would transform the country into “‘a degenerate society,’ ‘enfeebled, hedonistic,’ ’subpagan,’ and headed for ‘ultimate degradation’ in ‘the coming of a new Dark Ages.’” In 1999, Bork called President Clinton a “sociopath.”

His interview with Stuart Taylor is no exception. Indeed, Bork admits to asking God to exact an violent form of vengeance against his critics:

[My confirmation hearing] was really quite harrowing. It got to the point where I could not read the paper because every reference to the proceedings was really adverse to me. So I quit reading everything but the sports section. And then one of the sportswriters took a crack at me. [Laughs.] This kind of stuff was new to my wife, and so she wanted us to read a psalm every morning. I finally came to one about praying to God to break the teeth of my enemies. That seemed to be an adequate sentiment.

Bork can’t seem to let his anger go.

So we have suspected enemy combatants detained in secret and given different process than criminals. One can certainly justify that type of detention under precedents and current law.

Nothing in Sotomayor’s speech suggests that she accepted the Bush Administration’s position on detainee treatment–that persons designated enemy-combatants could be detained forever on the President’s word.  Indeed, if anything, Sotomayor’s views appear to closely track those of Justice Sandra Day O’Connor’s controlling opinion in Hamdi, which held that “although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.”  O’Connor believed that, while a suspected enemy combatant may be entitled to less procedural protections than a criminal defendant, their detention could not be immune from any meaningful process whatsoever.

Justice Souter, however, took a significantly more protective view of detainee rights than Justice O’Connor.  In response to the mass-detentions of Japanese-Americans during World War II, Congress enacted the Non-Detention Act, which prohibits the detention of U.S. citizens “except pursuant to an Act of Congress.”  O’Connor felt that the post-9/11 Authorization for Use of Military Force was such an “Act of Congress,” but Souter believed that the AUMF was too “vague” to permit detention of a citizen.  Had Souter’s view prevailed, it is likely that Hamdi would have simply been released.

To be fair, the unprecedented nature of President Bush’s detention policies make it difficult to predict how Sotomayor would have voted if she had sat on the Supreme Court as it was considering Hamdi.  The Non-Detention Act is, to say the least, not the kind of commonly-invoked statute that a judge or justice would normally be familar with.  It is entirely possible that, had Sotomayor read the same briefs that Souter did while considering Hamdi, she would have applied the Non-Detention Act in the same way.  Moreover, the Court in Hamdi didn’t exactly break down on traditional ideological lines.  In a somewhat surprising opinion, ultra-conservative Justice Antonin Scalia argued that U.S. citizens cannot be simply classified as enemy combatants and detained; they must either be prosecuted for treason or set free.  Only Justice Clarence Thomas took the Bush Administration’s view of the case, and there is no evidence linking Sotomayor to Thomas’ extreme views.

It is also worth note that Sotomayor has a number of decisions recognizing the basic humanity of people detained in run-of-the-mill criminal prisons, including a decision holding 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 believe that this celebration was not sufficiently important to Muslims.  Nevertheless, one of the few datapoints informing how Sotomayor views detainee cases, her 2003 speech, suggests her views are to the right of the justice she will replace.

Land Developer Bart Didden

This morning’s New York Times piece on one of Judge Sotomayor’s eminent domain decisions quotes three sources:  Bart Didden, the land developer who Sotomayor ruled against, Ilya Somin, a libertarian law professor who filed a brief supporting Didden, and Richard Epstein, a radical libertarian who thinks that the minimum wage and child labor laws are unconstitutional.  Not one progressive, or even an interested party on the other side of the case is used as a source.  So guess what kind of picture the NYT paints of Sotomayor’s decision?

“This is the worst federal court takings decision since Kelo,” said Ilya Somin, who teaches property law at George Mason University and helped write the brief. “It’s very extreme, and it is significant as a window into Judge Sotomayor’s attitudes toward private property.” . . .

The case arose from a meeting in 2003 between Mr. Didden, who owned property in Port Chester, N.Y., and an executive of a company that had been designated by the village to develop a 27-acre urban renewal area that included part of the property. What happened at that meeting, Mr. Didden said, amounted to extortion.

Mr. Didden had made arrangements to put a CVS drug store on his lot. At the meeting, the executive, Gregg Wasser, demanded $800,000 as the price for permission to proceed with that project, Mr. Didden said in court papers. The alternative, Mr. Wasser said, according to the papers, was to have the village condemn Mr. Didden’s property so that Mr. Wasser’s company could put a Walgreen’s in the same place.

Had the NYT bothered to speak with someone on the other side of the case, however, they might have learned that Didden’s story doesn’t hold water.

The truth is this:  Didden lost his case because he waited too long to file his lawsuit.  He learned that his property was subject to eminent domain in 1999, but waited until 2004 to file suit–two years after the three year statute of limitations had expired.  So Sotomayor’s decision is hardly “extreme;” it simply held that land developers have to follow the same statute of limitations rules as everyone else in the country.

Moreover, the NYT’s claim that Didden was some kind of victim in this case is absurd.  As Text and History explains, “Bart Didden was a commercial developer who owned property in the blighted area that he had been trying for years, without success, to develop into a CVS pharmacy.”  Once Port Chester included his lot in the urban renewal area, however, the value of Didden’s land skyrocketed.  Suddenly, what was worth close to nothing was worth $800,000 or more; but Didden was not satified with this enormous increase in his land’s value, so he tried to hold out for more.

In other words, the only question in Didden’s lawsuit was whether he would get a massive windfall, or an awesomely massive windfall.

Given the real facts of this case, it’s easy to understand why Judges Reena Raggi and Peter Hall, both George W. Bush appointees, joined Judge Sotomayor in unanimously rejecting Didden’s claim.  Maybe next time, the New York Times will bother to check its facts before it goes to print with a story that was virtually dictated to it by the right.

This editorial, however, reveals far more about the ignorance of the Washington Times‘ editorial board than it does about Sotomayor. The overwhelming majority of federal appeals are resolved by a brief unpublished order–Tom Goldstein’s seminal study on Sotomayor’s race cases, for example, found that her court published a decision in only 5 of 55 decisions affirming a district court’s decision. Lengthy published opinions are rare, not because judges are “dismissive,” but because their use is reserved to groundbreaking decisions that resolve previously unresolved questions of law. Yet, according to research compiled by The Wonk Room, each of the four decisions cited by the Washington Times, did nothing more than follow well-established law:

• The Second Amendment: Last year, the Supreme Court held for the first time that the Second Amendment protects an individual right to bear arms. But another Supreme Court decision, which has never been overruled, held that the Second Amendment does not apply to state laws. So, in Sotomayor’s decision upholding a New York State ban on nunchaku, she did nothing more than recognize that only the Supreme Court has the “prerogative of overruling its own decisions.”

• Property Rights: In 1999, two developers learned that their land was part of a “redevelopment zone” and subject to seizure by eminent domain. Yet the developers waited until 2004 to file suit–two years after the three year statute of limitations had expired. Sotomayor’s decision held simply that land developers cannot wait forever to file a claim, just like everyone else.

• White Firefighters: In her now-famous Ricci decision, Judge Sotomayor held that an employer could decide not to certify the results of a promotion test that had an adverse impact on minorities. In 1984, eight years before Sotomayor became a judge, her court decided a virtually identical case called Bushey v. New York State Civil Service Commission, and it reached exactly the same result. So Sotomayor simply followed the binding precedent established by Bushey, which has never been overruled.

• Felony Disenfranchisement: Bizarrely, the Washington Times lumps Sotomayor’s published dissent in Hayden v. Pataki together with the other cases on this list as an example of her “dismissive approach.” Although Sotomayor’s dissent in Hayden was brief, she also joined a 32-page dissent by George W. Bush appointee Barrington Parker–judges frequently join the opinion of another judge that they agree with rather than waste effort repeating what has already been said. Moreover, Sotomayor’s dissent in Hayden rejected the majority’s claim that they could invent an exception to the Voting Rights Act which does not exist in the text of that law. Sotomayor thought that Congress gets to decide what the law says, a majority of her colleagues thought that they knew better than Congress.

In the end, we can either live in Judge Sotomayor’s world, a world where judges follow the law, or we can live in the Washington Times‘ world, where the law must take a backseat to whatever is popular.