(The following is the third in a multi-part series on the upcoming Supreme Court Term)

The Roberts Court has been particularly aggressive in imposing its vision on the criminal law, cutting back on longstanding precedents intended to hold police accountable for constitutional violations, while simultaneously denying potentially innocent inmates the opportunity to prove their innocence.  This Term, the Court will consider issues ranging from the rights of juvenile defendants to the power of prosecutors to fabricate evidence.

• Prosecutors Fabricating Evidence, Pottawattamie County v. McGhee

In 1977, a retired police captain was murdered, and, despite substantial evidence linking another suspect to the murder, investigators eventually turned their eyes towards Terry Harrington and Curtis McGhee.  Unable to prove their case, police and prosecutors not only hid evidence linking the other suspect to the murder from Harrington and McGhee, they threatened to prosecute a witness against these two men unless he gave perjured testimony linking them to the murder.  Harrington and McGhee spent more than twenty years in prison before the Iowa Supreme Court finally tossed out their convictions.

It’s difficult to imagine a clearer violation of due process than the fabricated case against these two men, but the prosecutors believe that they have an ace in the hole:  a longstanding rule giving prosecutors sweeping immunity from lawsuits.

At its heart, this case turns upon a hypertechnical issue of whether the defendants were acting “within the scope of their prosecutorial duties” or simply as “investigators” when they fabricated evidence, but it is ultimately a case about whether government officials endowed with the awesome power to initiate prosecutions should be able to do so without legal checks on their authority.  As the Court explained over thirty years ago, the purpose of prosecutorial immunity is to shield against the possibility that “harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.”  If prosecutors can be sued by anyone for any reason, the Court believed, they may act differently to avoid harassment suits.

This is undoubtedly correct, but are the costs of such suits so great that they exceed the costs of permitting prosecutors to fabricate evidence without consequence?

• Juveniles and Life Without Parole, Graham v. Florida and Sullivan v. Florida

In its last Term, the Rehnquist Court held that it is unconstitutional cruel and unusual punishment to execute juvenile offenders, with conservative Justice Kennedy casting the key fifth vote.  As the Court explained, the classic justification for execution–deterring other individuals from committing the same crime–does not apply to juveniles because they lack the maturity to be deterred by the possibility of death.  The Court also noted that juvenile personalities are still in flux, so a juvenile offender is far more likely to be rehabilitated than a more hardened adult.

With this in mind, the Court will turn its attention this Term to whether a juvenile can be sentenced to life without parole.  At it’s heart, life sentences are society’s way of giving up on an individual.  If you believe that someone will be rehabilitated, you don’t lock them up and throw away the key.  Similarly, deterrence is as much a factor in setting prison times as it is in killing offenders–we hope that other potential offenders will see their peers in prison and shy away from future criminal acts.  Yet juveniles, as the Court already acknowledged in rejecting the juvenile death penalty, are not easily motivated by the threat of harsh punishment.

In other words, the same rationale for not killing juvenile offenders also applies to life sentences without parole.  So the justices will be forced to determine whether or not there is some countervailing reason to lock juveniles up for life.  Traditionally, lengthy incarcerations have been justified by a need to “incapacitate” offenders–locking them away in a place where they cannot offend again, but Graham and Sullivan both involve non-homicide offenders, and the Court has long held that a sentence’s constitutionality is related to whether or not it is disproportionate to the crime committed.  In the end there is only one more classic justification for lengthy sentences, “retribution” against an offender.  One can only hope that the justices will not base their decision in these cases on a desire for vengeance.

• Animal Torture and the First Amendment, United States v. Stevens

Yesterday, the justices also convened to hear a case questioning whether videos depicting animal torture are excepted from the First Amendment’s protection.  The case analogized such videos to child pornography, which is not shielded by the First Amendment because it is impossible to create child porn without committing a criminal act of assault on a child.  Early reports of yesterday’s oral argument, however, suggest that the federal law at issue in this case will be struck down, on the grounds that it is written too broadly–punishing some speech that is not as harmful as child porn.

(The following is the second in a multi-part series on the upcoming Supreme Court Term)

Few names are more associated with the worst abuses of the Bush Administration — its callous disregard for human rights, its treatment of the Constitution as opinion, its belief that presidents, or at least conservative presidents, are really kings — than former Bush OLC deputy John Yoo.  Yet while Yoo is most famous for his at-best professionally incompetent claims that it’s legal for the United States to torture, Yoo’s first love was always limitless Presidential power.  Two cases this Term will reveal just how many of the justices share Yoo’s passion.

• Can You Figure Out If You’re A Terrorist?  Humanitarian Law Project v. Holder

One of the bedrock principles of American criminal law is that a criminal statute cannot be written in such a vague manner that a “person of ordinary intelligence” can’t figure out what it prohibits.  Individuals shouldn’t have to guess whether or not they are breaking a law; and the Executive shouldn’t be empowered by ambiguously-worded statutes that allow them to claim that virtually anyone’s actions are worthy of prosecution.

Federal law, however, prohibits anyone from knowingly providing any “service,” “training” or “expert advice or assistance” to a group designated as a terrorist organization by the State Department. A law whose language raises serious vagueness concerns.  If a terrorist leader announces that he reads the New York Times website to keep track of US politics, must the Grey Lady find a way to deny him the “service” of its reporting?  Are attorneys who defend suspected terrorists in court providing illegal “expert advice or assistance?”  One government attorney even claimed that an attorney who files an amicus brief–a brief filed by a non-party to a lawsuit to help advise the judges in their decision-making–raising a legal argument that benefits a terrorist organization is a felon.

If the Court allows this statute to stand, it will not only give its approval to a law that appears to ban Constitutionally-protected activity, it will give the Executive a virtual blank check to bring prosecutions against individuals with tenuous connections to terrorism.  Worse, should the Court do so, it could take a giant bite out of the principle that people need to be able to figure out what the law is.

• The “Unitary Executive,”Free Enterprise Fund v. Public Company Accounting Oversight Board

Most political appointees in the Executive Branch serve at the pleasure of the President–they can be fired for any reason by the President and at the drop of a hat.  In the 1930s, however, the Court recognized that there is value to having certain agencies insulated from the momentary whims and political machinations of the President, so they permitted the creation of so-called “independent agencies.” The members of most of these agencies, which include the FEC, the FCC and the SEC, are still appointed by the President, but often with conditions such as requirements that only a certain percentage of the appointments be selected from the same party, or rules preventing the President from firing agency members except for good (and non-politically motivated) cause.

As anyone who followed Alberto Gonzales’ tenure as Attorney General might expect, the right hates these independent agencies because they restrict their total control of government when they are in the White House.  Because the President cannot fire FCC Commissioners for political reasons, he can’t pressure them to fine the Rachel Maddow Show while ignoring the antics of Glenn Beck.  Similarly, because FEC Commissioners do not serve at the will of the President, they are not pressured to manipulate elections to benefit the President’s party.  Had the rule been different during the Bush Administration, does anyone doubt that Karl Rove would have strong-armed the FEC in exactly the same way the Bush White House strongarmed U.S. Attorneys?

Because Free Enterprise Fund involves a somewhat unusual animal–an independent regulatory board whose members are appointed by another independent agency–it’s possible that the Court will strike down this strange beast but leave the FCC and FEC intact.  Nevertheless, in a Term where the Court is already prepared to turn campaign finance over to corporate America, they now also have an opportunity to give control over the entire federal elections system to the next Karl Rove.

(The following is the first in a multi-part series on the upcoming Supreme Court Term)

On Monday, the justices return from their summer recess to begin what could be the most momentous Supreme Court Term in recent memory.  This Term’s docket is jammed with hot button issues topics from terrorism to guns to football, as well as a number of pending cases which are likely to reveal many of the as-yet hidden views of the Court’s three newest justices:

• Federal Power: United States v. Comstock

With “tentherism” — the belief that everything from Medicare to Social Security to the federal minimum wage exceeds Congress’ constitutional power — experiencing a renaissance on the far right, the three newest justices are preparing to hear their first case concerning Congress’ authority to regulate.  Of the Court’s three longest-serving conservative justices, only Justice Thomas has tenther sympathies.  Both Justices Scalia and Kennedy recognize that the Constitution gives Congress sweeping authority to enact economic regulation — including the power to ban a substance such as cocaine or child porn from the marketplace.

Comstock, however, may tempt the court’s conservatives to take a bite out of Congress’ power.  Federal law permits the continued detention of “sexually dangerous” federal prisoners, even after those inmates have served the original sentence which placed them in federal prison.  Graydon Comstock, who is now challenging this law, was convicted of possessing child porn.  The only question is whether his time in federal custody can now be extended because the original law authorizing his imprisonment is constitutional, or whether the law authorizing his continued detention is an impermissible noneconomic regulation similar to a federal ban on violence against women that the Court’s conservatives struck down in 2000.

To be clear, the Court is not considering whether Comstock’s own rights are violated by a law that detains him even after his sentence is complete, the only issue here is whether the Court will recognize a new limit on Congress’ power to regulate.  If they do, especially if the new limit is far-reaching, tenthers will gain a new weapon in their war against the federal government.

• Guns and the States: McDonald v. City of Chicago

Over a century ago, the Supreme Court held that the Second Amendment applies only to federal laws.  Since then, state governments have been free to regulate firearms and other weapons in the way they deem most appropriate to protect their citizens — a piece of legal trivia that became a centerpiece of Justice Sotomayor’s confirmation hearings after her opponents disingenuously attacked her for following this longstanding precedent.  In truth, we don’t know for sure how any of the current justices feel about this issue.

The case for changing this rule is hardly a slam-dunk under existing legal framework. The framers of the Bill of Rights intended it only to constrain federal power.  While the Fourteenth Amendment changed this dynamic, several provisions of the Bill of Rights have do not presently apply to the states, including the Seventh Amendment right to civil jury trials and the Eighth Amendment’s ban on excessive bails and fines.  Under current Supreme Court precedent, the states are limited only by constitutional rights which are “necessary to an Anglo-American regime of ordered liberty,” and it is difficult to claim that a ban on firearm regulation is “necessary to . . . ordered liberty” in light of the fact that American liberty somehow did not collapse in the 219 years before the Supreme Court expansively interpreted the Second Amendment in DC v. Heller.

That said, it seems very likely that, having unexpectedly reconsidered the Second Amendment in Heller, that the Court’s conservative majority will take the additional step of applying it to the states.

• Separation of Church and State: Salazar v. Buono

The final mystery likely to be revealed this Term is just how deeply the Court’s conservatives plan to undermine the wall of separation between church and state.  For years, Justice Sandra Day O’Connor was the key fifth vote upholding the Constitution’s ban on government endorsements of religion, and Justice Alito is widely expected to provide the final vote to allow this ban to be whittled away into non-existence.

Buono, will consider whether a cross erected in the middle of a federal land preserve can be challenged under the First Amendment’s Establishment Clause, and while there is some uncertainty about how the justices will explain their decision to allow the cross to remain, their minds are probably already made up.  All that remains to be seen is whether the Court’s new majority will give free reign to the Roy Moores of the world, or whether they will save a complete gutting of the Establishment Clause for another day.

Early reports suggest that, true to form, the Court’s five conservatives are now poised to open the floodgates to unlimited corporate money in U.S. politics.  Justices Scalia, Kennedy and Thomas are already on record claiming that campaign finance reform violates the Constitution; and while Chief Justice Roberts and Justice Alito have not previously weighed in on this specific question, both of the Court’s newest conservatives towed predictably pro-corporate lines at today’s argument.  Although it’s likely that the Court will not completely eliminate all campaign regulation, the system that they leave in place will probably do little to keep United Health and AETNA, for example, from spending billions to defeat supporters of health reform in 2010 and 2012.

Presently, campaign finance law draws a distinction between “independent” campaign expenditures — such as money which funds attack ads that aren’t authorized by or coordinated with a campaign — and direct donations to a candidate.  Significantly, in its order asking the parties to rebrief Citizens United, the Court asked whether Austin v. Michigan Chamber of Commerce, a case upholding bans on “independent” corporate expenditures, should be overruled, but it did not mention the century-old ban on direct campaign donations by corporations.  Accordingly, it is most likely that the Court will overrule Austin but leave the longstanding ban on direct contributions in place.

The intellectual framework  for this distinction rests on a frankly naive understanding of independent contributions as incapable of influencing politicians’ actions.  Historically, campaign finance regulation has been justified under the First Amendment because of the government’s compelling need to prevent either the reality or the appearance that politicians’ votes are driven solely by which interests are willing to write them the biggest check.  Conservatives have long maintained that independent contributions do not raise the specter of bribery, however, because the donor never actually interacts with the candidate or the campaign.  Apparently, in Justice Kennedy’s America, George W. Bush was incapable of figuring out who funded Swift Boat Veterans for Truth.

Moreover, preventing bribery is only one small part of an effective campaign finance scheme.  In 2005, for example, a Bush DOJ political appointee saved the tobacco industry $120 billion by secretly altering a court document to reduce the award the federal government was seeking in a lawsuit, but there is no indication that the industry bribed anyone to get the document altered.  Rather, Bush Administration officials sincerely believed that corporations should not be accountable for their actions, and their governed with these values in mind.  In 2010, and 2012, it should be easy for the tobacco industry to find similarly-minded candidates to throw their massive treasuries behind.

Ultimately, these massive treasuries are the problem with the Roberts Court’s likely decision in Citizens United.  Unlike actual human beings, corporations can exist forever and amass hundreds of billions of dollars in the process.  With such awesome resources at their hands, the record-breaking $745 million President Obama raised in his election campaign becomes quaint.  Indeed, if the Court opens the flood-gates on independent corporate campaign expenditures, actual spending by campaigns (and small donations by ordinary Americans) could become irrelevant, drowned out by a sea of corporate cash.

The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it. [...]

Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

For starters, the Post showed exceptionally poor judgment by choosing to publish the authors of this op-ed, right-wing attorneys David Rivkin and Lee Casey. The same duo labeled Amnesty International “un-American” after it criticized widespread human rights abuses at Guantanamo Bay, and they recently claimed that Bush-era DOJ memos authorizing the use of torture “prove we didn’t torture.”  Rivkin once claimed that President Bush had unilateral authority to use weapons of mass destruction on Russia. 

Saturday’s op-ed, however, is weak even even by Rivkin and Casey’s low standards.

In essence, the duo argue that Congress does not have the power to enact an individual mandate because such a mandate is “noneconomic” in nature.  Yet while they are correct that the Supreme Court has held Congress’ power to be more limited when it regulates outside of the economic sphere, their claim that insurance regulation is not “economic” is frankly absurd.

The provision Rivkin and Casey take aim at would require most uninsured Americans to buy a product — health insurance coverage — which pools thousands of people’s premiums together and pays those people’s medical costs as they become ill.  As Rivkin and Casey admit, the individual mandate would lower premiums nationwide by requiring more healthy individuals to buy into the system; while reducing the risk of catestrophic financial loss should a person who was previously uninsured experience catestrophic illness.  It is difficult to imagine a law which has a more obvious economic impact than a requirement that all Americans be insured.

Neither the Lopez nor the Morrison case, which Rivkin and Casey point to in their op-ed, support their claim that insurance reform is not economic in nature.  Lopez struck down a federal ban on guns in school zones; Morrison struck down a law providing federal remedies to the victims of violence against women.  Thus,  both cases involved activity that is far less economic in nature than the purchase of health insurance.  Neither carrying a gun nor committing an act of violence involve a sale, a market, or an exchange of something of value.  No employer hires workers simply to carry a gun into a schoolhouse; and there is little marketplace for cowardly acts of violence.

Simply put, Rivkin and Casey’s attack on health care reform has no basis in reality–and no grounding in the Constitution.  Even right-wing legal academics have dismissed it as entirely without merit.  Hopefully, next time these discredited attorneys submit a piece to the Washington Post, its editors will have the good sense to point them to a more appropriate publication.

It is not within our power as members of Congress, it’s not within the enumerated powers of the Constitution, for us to design and create a national takeover of health care. Nor is it within our ability to be able to delegate that responsibility to the executive.

Watch it:

Bachmann, however, is wrong about both the contents of the health care plan and the requirements of the Constitution. There is nothing in any of the health care bills under consideration which resembles a “national takeover of health care.” Conservatives like to use this language when referring to the public health option. Like other insurers, the public option would collect premiums from people who choose to buy into it, and then spend those premiums to insure these participants.

Had Bachmann bothered to read Article I of the Constitution before going on Fox, she would have learned that Congress has the power to “lay and collect taxes, duties, imposts and excises” and to “provide for….the general welfare of the United States.” Rather than itemizing specific subject matters, such as health care, which Congress is allowed to spend money on, the framers chose instead to give Congress a broad mandate to spend money in ways that promote the “general welfare.”

It’s unclear what the basis is for Bachmann’s claim that the public option is an unconstitutional delegation of power to the Executive. There is a 74 year-old decision — decided by the same right-wing Supreme Court which believed most of the New Deal to be unconstitutional — which holds that Congress could not simply grant President Roosevelt nearly limitless authority to do whatever he wanted in order to prevent “unfair competition.” But no one has proposed giving President Obama similarly unchecked authority over health care. Rather, pages 116-128 of the House bill that Bachmann will vote on provide extremely detailed instructions explaining how the Executive Branch must manage a public health plan.

It’s important to note just how radical Bachmann’s theory of the Constitution is. If Congress does not have the power to create a modest public option which competes with private health plans in the marketplace, then it certainly does not have the authority to create Medicare. Similarly, Congress’ power to spend money to benefit the general welfare is the basis for Social Security, federal education funding, Medicaid, and veterans benefits such as the VA health system and the GI Bill. All of these programs would cease to exist in Michele Bachmann’s America.

Cross-posted on ThinkProgress.

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

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

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

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

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

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

Do corporate special interests really have too little power in America? Does it seem like the electoral playing field is slanted against them?

Unbelievably, that’s the question the U.S. Supreme Court will take up this fall. In fact, the justices considered it so important that they cut their vacations short by a month to deliberate.

According to the most recent data from the nonpartisan Center for Responsive Politics, oil and gas related PACs and individuals gave $35 million to 2008 congressional candidates, insurance interests gave $46 million, and securities firms gave a whopping $156 million. Tom Donahue of the U.S. Chamber of Commerce recently pledged to spend $100 million in order to fight lawmakers’ efforts to rein in Wall Street excesses, curb global warming pollution and reform health care.

However, in spite of this type of big spending, this September, the Supreme Court will rehear Citizens United V. FEC to determine if corporate money should have still further influence on our political system. In fact, determining whether the Court’s past rulings on campaign finance reform should be thrown aside will be one of Justice Sonia Sotomayor’s first tasks – “a potentially monumental decision that could reverse a century of congressional restrictions on election spending.”

The case concerns a documentary targeting Hillary Clinton’s presidential campaign, produced by a non-profit group called Citizens United. The group used corporate treasury funds to make the film and wished to air it right before the primary elections on cable TV, in violation of the longstanding ban on corporate contributions to federal campaigns.

By coming back early to rehear this case, it is clear that activist judges on the Court are considering rolling back decades of established law limiting corporate spending in elections. At stake is whether corporations will be able to spend unlimited funds to impact elections, and whether this ability will allow them to influence candidates for office with millions of dollars in advertisements opposing or supporting their races.

An additional influx of spending by wealthy corporations could raise the volume of corporate voices while decreasing the importance of new and small donors to candidates, and as a result, their enthusiasm to participate.

Elections are opportunities for citizens to be heard – to decide who should be elected and which policy choices should be made. In the 2008 election cycle, small dollar donors played a crucial role in funding candidates. Unlimited corporate giving in elections could easily overwhelm individual giving.

Advocates and politicians in Washington have been moving forward building momentum for the Fair Elections Now Act (FENA). This bill would create a system of small donor public financing of Congressional campaigns, and offer a realistic alternative to our current corrosive system for those who seek a Congressional seat. The act would be a step forward for campaign financing, designed to bolster the participation of regular citizens and limit the power of special interests.

In the battle between small donors and big spenders, a decision in the Citizens United case to turn back the clock and increase the power of corporations would be the wrong one. Million of voters were encouraged by the small donor revolution in the 2008 election cycle—let’s do all we can to keep their voices loud in the years to come.

By Thursday afternoon, Fox News even invented a made-up case saying that the President’s actions are unconstitutional:

It’s absolutely unconstitutional, I mean, the Supreme Court has ruled directly on point. When Richard Nixon was worried about anti-war protestors during the Vietnam era, he sent FBI agents undercover—CIA agents undercover—which was against the law for them to be operating in the US. And military in civilian garb to take photographs and to use tape recorders to record the voice, and they sued; it’s a very famous case. And the Supreme Court said . . . . the government is prohibited from intimidating people from exercising free speech, and recording their names or their voices, or asking people to spy on them would be exactly the intimidation the Supreme Court condemned.

Watch it:

We are unable to find a single Supreme Court case fitting this description, and several legal scholars whom the Wonk Room contacted were unable to identify such a case.  Although there is one Nixon-era precedent dealing with soldiers spying on left-leaning organizations, that case did not say what Fox says that it said.

In Laird v. Tatum, the plaintiff challenged the Army’s practice of sending undercover intelligence agents to attend meetings that were open to the public, and gather information such as the names of the speakers and the number of attendees.  The justices, however, never even reached the merits of the case because the plaintiff never showed that “he has sustained or is immediately in danger of sustaining a direct injury as the result of” the Army’s program.

So President Obama’s fight-the-smears campaign is all kinds of illegal, just so long as you live in the Neighborhood of Make Believe.  Maybe next week, Fox and Senator Cornyn will claim that health care reform will drive up costs for unicorns and goblins.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Note those words: Plausible. Common sense.

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

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

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

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.