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Sotomayor Hearings (VIDEO, UPDATES): Day 2

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Judge Sonia Sotomayor appeared Tuesday before the Senate Judiciary Committee, the second day of her Supreme Court confirmation hearings. Our full liveblog of the day's events is below.

Read updates and watch video from yesterday's hearing here. The full schedule of the hearings is here.

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Graham asks if Sotomayor has a "temperament problem": "When you look at the evaluation of the judges on the second circuit you stand out like a sore thumb in terms of your temperament," said the South Carolina Republican, who went on to call Sotomayor a "bully."

Kyl accuses Sotomayor of "relativism run amok":

Sen. Jon Kyl gave a lengthy speech during his question and answer session with Sonia Sotomayor that was undoubtedly the type of red-meat inquiry for which conservatives pined.

The Arizona Republican accused the Obama Court nominee of "embracing" the different jurisprudence that women and Hispanics could bring to the court, of championing the idea of judges having personal interpretation of law, and of "relativism run amok."

In what was far more a lecture than a back-and-forth (Kyl went on for nearly ten minutes before allowing Sotomayor to answer) the senator did not reference a single case decided during the judge's career. Rather, he honed in on the infamous "wise Latina" remarks delivered on several occasions during her public speeches.

"You seem to be celebrating [the superiority of being a minority judge]," Kyl said at one point. "You understand it will make a difference," he added at another point. "And not only are you not saying anything negative about that. But you are embracing [it]."

Finally, after waiting her turn, a somewhat exasperated Sotomayor chimed in, noting that there was little of substance in Kyl's critique.

"I have a record for 17 years, decision after decision," she replied. "It is very clear that I don't base my judgments on my personal experiences or my feelings or my biases. All of my decisions show my respect for the rule of law." -- Sam Stein

Watch:

Sotomayor says "We're not robots": Some more from Sotomayor's exchange with Sen. Sessions (R-Ala.) on her "wise Latina" remarks. Sotomayor defended her comment by saying she was merely describing the way individual experiences influence a judge, noting that they are not "robots."

"I was talking about the very important goal of the justice system, to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case. What I was talking about was the obligation of judges to examine what they're feeling as they're adjudicating a case and to ensure that it's not influencing the outcome. Life experiences have to influence you. We're not robots to listen to evidence and not have feelings. We have to recognize those feelings and put them aside. ... But there are situations in which some experiences are important in the process of judging, because the law asks us to use those experiences ...

At no point or time, have I ever permitted my personal views or sympathies to influence the outcome of a case. In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result. I do not permit my sympathies, personal views, or prejudices, to influence the outcome of my cases."

Watch:

Sotomayor: "Judges can't rely on what's in their heart"

RNC web ad hits Sotomayor on comments she already clarified:

The Republican National Committee, not surprisingly, has not been won over by Judge Sonia Sotomayor's nomination to the Supreme Court.

About twenty minutes into the post-lunch session of Tuesday's hearings, the GOP's campaign arm blasted out a web video to reporters, accusing the Obama nominee of being a judicial activist.

"President Obama's nominee for the Supreme Court, she may have a different view about how the courts should work," goes the ad. "She apparently thinks the judicial branch should look a lot more like the legislative branch. Rather than interpreting the law, activist judges have used their appointments to make policy, time and time again." (Watch the video here.)

The ad is proof, in some regards, of how much these hearings are truly theater. Sotomayor, as Senator Lindsey Graham, (R-S.C.), noted on Monday, will be confirmed to the court absent some complete meltdown. And even as she clarifies portions of her record -- including comments about how the Court of Appeals has a role in formulating judicial precedent -- her partisan opponents likely won't be assuaged, just as her backers will likely claim vindication.
-- Sam Stein

Grassley: "People Always Say I Have The Ability To Turn People On":

Following an interruption by a protester, Sen. Grassley got the whole room laughing by joking about his ability to inspire passion.

Another protester interrupts hearing:

The first protest of day came just after 2 p.m EST, when a man started yelling insults such as "baby killer" from the back of the room before being removed from the hearing.

Republicans deride Sotomayor testimony as 'confirmation conversion':

From CQ:

Senate Republicans were quick to label as a "confirmation conversion" Sotomayor's repeated pledge to follow the law and not allow personal biases to influence her unduly.

Republicans leveled the charge in one of several emails sent to reporters during the hearing, saying Sotomayor's testimony is at odds with her record.

The committee's Republicans also branded Sotomayor's testimony related to gun ownership rights as a "confirmation conversion."

Sessions becomes the subject of Sotomayor hearings:

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.

Jeff Sessions, the Alabama Republican who took over the post from Pennsylvania Republican-turned-Democrat Arlen Specter, is under intense pressure to land blows on Sotomayor without offending Hispanic voters. It's a tough task, made all the more difficult by Sessions' history of racially insensitive positions and statements.

Read the rest of Sam Stein's piece here.

Sotomayor on executive power: no president is above the law:

Judge Sonia Sotomayor said on Tuesday that a president does not have the legal authority to act in violation of the constitution though she would not go much further in detailing her opinion on executive power.

Asked by Senator Diane Feinstein, (D-Calif.), to respond to some of the power grabs of the Bush administration, Sotomayor insisted that as a judge she would have to consider each action on a case by case basis.

"The best expression of how to address this always in a particular situation was made by Justice Jackson in his concurrence in the Youngstown Steel seizure cases," the Obama Court nominee said. "He says that you always have to look at an assertion by the president that he or she is acting within executive power in the context of what Congress has done or not done. First you look at whether Congress has expressly or explicitly addressed or authorized the president to act in a certain way. And if the president has then he is acting at his highest stature of power. If he is acting in prohibition of an expressed or implied act of Congress then he is working at his lowest end. If he is acting where Congress hasn't spoken then we are in, what justice Jackson called, the zone of twilight."

Sotomayor would go on to firmly declare that "no one is above the law," including presidents operating in times of national security crisis. "The president can't act in violation of the constitution," she said.

It was a seemingly innocent and obvious declaration. But, given the current political climate, it provides a small window into how Sotomayor could rule on issues of executive power, indefinite detention, wiretapping and the like. -- Sam Stein

Sotomayor describes how nunchucks work: Responding to a question about a recent ruling in which Sotomayor voted to uphold a New York State ban on nunchucks, or nunchaku, Sotomayor goes into an extended description of how the weapons function:

HATCH: As a result of this very permissive legal standard -- and it is permissive -- doesn't your decision in Maloney mean that virtually any state or local weapons ban would be permissible?

SOTOMAYOR: Sir, in Maloney, we were talking about nunchuk sticks.

HATCH: I understand.

SOTOMAYOR: Those are martial arts sticks.
HATCH: Two sticks bound together by rawhide or some sort of a...

SOTOMAYOR: Exactly. And -- and when the sticks are swung, which is what you do with them, if there's anybody near you, you're going to be seriously injured, because that swinging mechanism can break arms, it can bust someone's skull.

HATCH: Sure.

This ruling had previously been raised as an issue by vote-suppression guru Ken Blackwell, among others, who attempted to cite the ruling to show that Sotomayor's nomination was "a declaration of war against America's gun owners."

Dems happy with Sotomayor hearings so far:

Democrats working on the Sotomayor confirmation tell the Huffington Post they are more than pleased with the way the early session has gone. Senate Judiciary Committee Chairman Patrick Leahy, (D-Vt.), talked with reporters outside the hearing room during the first break, and he mocked Republicans for focusing on trivial political issues rather than the Supreme Court nominee's lengthy records.

As he spoke, a Democratic operative passed on some observations and talking points that are being pushed around in Sotomayor's defense.

1. She answered "wise Latina" effectively -- will be difficult for Republicans to come back at that.

2. Sessions didn't lay a glove on her -- the only case he would talk about out of thousands is Ricci, and she answered it.

3. She's at ease and in control up there -- very comfortable and forthcoming.

Sotomayor evades question on Bush v. Gore:

Like many Supreme Court nominees before her, Judge Sonia Sotomayor is spending much of her second day of confirmation hearings tiptoeing away from making affirmative declarations on previous Supreme Court decisions.

Two of the more explosive cases were brought up by Sen. Herb Kohl, who, despite pointed questions, was unable to nail down the Obama nominee.

On Bush v. Gore, Sotomayor completely brushed aside the legal underpinnings (or lack thereof) of the case, choosing instead to trumpet the changes in electoral law that resulted from it.

"The court took and made the decision it did," she said. "The question for me as I look at that generous situation -- it only happened once in the lifetime of our country -- is that some good came from that discussion. There's been and was enormous electoral process changes in many states as a result of the flaws that were reflected in the process that went on. That is a tribute to the greatness of our American system which is whether you agree or disagree with the Supreme Court decision that all of the branches become involved in the conversation of how to improve things and as I indicated, both Congress, who devoted a very significant amount of money to electoral reform in certain legislation, and states have looked to address what happened there."

Sotomayor was equally non-committal on Kelo v. City of New London, which allowed the government to use eminent domain to transfer private property from one owner to another. She described the ruling as "now a precedent of the court."

"I must follow it," she added. -- Sam Stein

Sotomayor says Roe v. Wade is established law:

Judge Sonia Sotomayor declared unequivocally on Tuesday that the right to choose an abortion, as determined by Roe v. Wade, was established as law by the Supreme Court. In the process, the Obama nominee left the clear impression that she would vote to uphold abortion rights should the she be confirmed to the bench.

"The court's decision in Planned Parenthood vs. Casey reaffirmed the court holding of Roe," Sotomayor told the Senate Judiciary Committee. "That is the precedent of the court and settled in terms of the holding of the court."

Earlier in the question and answer session, Sotomayor was pressed to explain her view on the right to privacy, which provides the constitutional basis for the Supreme Court's ruling on abortion rights.

"There is a right of privacy," she replied. " The court has found it in various places in the Constitution.... It is found in the Fourth Amendment's prohibition against unreasonable search and seizures ... It's also found in the 14th Amendment of the Constitution when it is considered in the context of the liberty interests protected by the due process clause of the Constitution." -- Sam Stein

Watch:

Sessions suggests Sotomayor should have been influenced by her ancestry:

Sort of a weird moment transpired towards the end of Sen. Jeff Sessions questioning of Judge Sonia Sotomayor on Tuesday. Arguing that the Obama Supreme Court nominee was not, in fact, upholding precedent in the controversial Ricci decision, the Alabama Republican made a suggestion vague enough to leave the impression that Sotomayor should have ruled a specific way because of her Puerto Rican ancestry.

Sotomayor had been part of a three-judge panel that voted to uphold the city of New Haven's right to throw out a test it gave to its firefighters because no African Americans had passed. The entire Second District Appellate Court would subsequently vote on whether to reconsider the case out of concern that the initial decision was too "perfunctory." That effort led by a fellow Hispanic judge, Jose Cabranes, would be defeated by a seven-to-six vote.

Sessions used that latter vote to make the case that Sotomayor was not arguing in favor of precedent in her initial ruling. But he also added a somewhat curious line about Cabranes' heritage in the context of asking why the Obama Court nominee didn't support a rehearing of the case.

"It appears, according to a respected legal writer, that one judge was concerned about the outcome of the case and was not aware of it because it was a per curiam unpublished opinion. But it began to raise the question of whether a rehearing should be granted. You say you are bound by the superior authority but the fact is when the question of rehearing that second circuit authority that you say covered the case - some say it didn't cover so clearly -- but that was up for debate. And the circuit voted and you voted not to reconsider the prior case. You voted to stay with the decision of the circuit. And, in fact, your vote was the key vote. Had you voted with Judge Cabranas, himself of Puerto Rican ancestry, had you voted with him, you could have changed that case. So in truth, you weren't bound by that case... You must have agreed with it, and agreed with the opinion, and stayed with it until it was reversed by the Court."

Sessions is already getting hit hard for a history of provocative comments in regards to race. And at another point during Tuesday's hearings he treaded lightly when he discussed Sotomayor's work for the Puerto Rican Legal Defense Fund, calling it "a fine organization."-- Sam Stein

Watch:

Sotomayor refuses to rate judges: Given a chance to say Tuesday which current Supreme Court justice or justices she most admires, Sonia Sotomayor took a pass.

Answering a question from Wisconsin Democrat Herb Kohl, the 55-year-old Sotomayor declared: "To suggest that I admire one of the sitting Supreme Court justices would suggest that I think of myself as a clone of one of the judges. I don't."

But Sotomayor also volunteered a justice from the path whom she reveres. She praised Justice Benjamin Cardozo, saying that she admired how he carried himself on the bench. She said he respected precedents and the powers of Congress. Sotomayor said if she cited any current member of the bench as a mentor figure, it could be construed that she disagreed with someone else.

Sotomayor defends firefighter ruling: Supreme Court nominee Sonia Sotomayor has defended her ruling against white firefighters who accused the New Haven, Conn., government of engaging in reverse discrimination against them.

At the prompting of Democratic Sen. Patrick Leahy Tuesday, Sotomayor said that the unanimous ruling she participated in on a panel of the 2nd U.S. circuit court of appeals was narrowly drawn.

She said it was about an examination for firefighter promotions, "not about quotas, not about affirmative action."

Sotomayor said the judges were basing their ruling on precedent and acknowledged that the Supreme Court now has reversed field in its 5-4 ruling in favor of the firefighters.

Sotomayor: YouTube butchered my Duke Law comments:

Early in second day of her confirmation hearings, Judge Sonia Sotomayor declared -- somewhat out of context -- that it was "important to remember that as a judge, I do not make law."

The statement seemed designed to preemptively diffuse an expected line of Republican attack -- namely that Sotomayor had previously declared that appellate judges make policy and therefore was herself an activist.

The charge, nevertheless, was brought up by Sen. Jeff Sessions (R-Ala.) during his portion of questioning. Sotomayor chose to make a fairly nuanced defense, drawing distinctions between judicial precedent and congressional legislation as well as district court and appeals court judges.

"With respect to judges making policy, I assume, Senator, that you were referring to a remark I made in a Duke Law student dialogue," she said to Sessions. "That remark in context made very clear that I was not talking about the policy reflected in the law that Congress makes. That is the job of Congress, to decide what the policy should be for society. In that conversation with the students, I was focusing on what district court judges do and what circuit court judges do. And I noted that district court judges find the facts and they apply the facts to the individual case. And when they do that, their holding, their finding, does not bind anybody else. Appellate judges, however, establish precedent. They decide what the law says in a particular situation. That precedent has policy ramifications because it binds not just the litigants in that case, it binds all litigants in similar cases and cases that will be influenced by that precedent. I think if my speech is heard outside the minute that YouTube presents, and its full context is examined, it is very clear that I was talking about the policy ramifications of precedent. I was never talking about appellate judges or courts making the policy that Congress makes."

This is, as the Huffington Post reported, an answer that sober-minded legal theorists hold as true. Whether it works in the political filter of a Supreme Court confirmation fight remains to be seen. -- Sam Stein

Watch:

Sotomayor addresses "wise Latina" comment":

Twenty minutes into the second day of Judge Sonia Sotomayor's confirmation hearings and the hot button political issues have already been addressed.

Senate Judiciary Committee Chairman Patrick Leahy, (D-Vt.), offered the Supreme Court nominee an open forum to explain the most controversial remarks in her resume: That a wise Latina judge would come to a different -- perhaps better -- judgments than their white male counterparts.

Sotomayor, obviously ready for the query, stated "up front, unequivocally and without a doubt" that she did "not believe that any ethnic, racial or gender has an advantage in sound judging."

"I do believe every person has an equal opportunity to be a good and wise judge," she added, "regardless of their background or life experience."

From there, she made a strategic political move by referencing similar remarks from retired Supreme Court Justice Sandra Day O'Connor, who likewise noted how gender affected her approach from the bench.

"The words I used, I used them agreeing with the sentiment that Justice Sandra Day O'Connor was trying to convey... that both men and women were equally capable of being wise and fair judges," said Sotomayor. "That has to be what she meant, because judges disagree about legal outcomes all of the time. I shouldn't say all of the time, at least in close cases they do. Judges on the Supreme Court come to different conclusions. It can't mean that one of them is unwise despite the fact that people think that."

For the record, Senate Republicans weren't convinced. The committee's ranking member, Sen. Jeff Sessions (R-Ala.), pushed Sotomayor to explain her comments further, and the Senate Republican Communications Center sent out an alert to reporters that Sotomayor had made the wise Latina comments on multiple occasions, dating back to 1994. -- Sam Stein

Watch:

Sotomayor answers first questions: Sotomayor told the Senate Judiciary Committee that she believes it's important that judges keep "an open mind" about cases before them.

The native of South Bronx got to answer senators' questions for the first time publicly about what style she would bring to the nation's highest court.

Sotomayor said she believes it is important not to go into the case -- or on the bench -- with a prejudgment about the issues in play. She also said that when the time comes to make a decision, it should be "limited to what the law says on the facts before the judge."

Former AG Gonzales: Tuesday's questioning "will be quite revealing." The country's first Hispanic attorney general said Tuesday that the woman who would be its first Hispanic Supreme Court justice still has some convincing to do if she wishes to get Republican support.

"We're all affected by our experiences ... . A good judge, I believe, comes to the bench very sensitive to those biases, and when they analyze a case they try to set those biases aside," Alberto Gonzales said in a nationally broadcast television interview.

Gonzales, who resigned under pressure during the second term of George W. Bush's presidency, said he thinks that Sonia Sotomayor's answers to GOP questions starting Tuesday "will be quite revealing."

Gonzales said that Sotomayor's promise of "fidelity to the law" won't be sufficient to set aside Republican concerns that she would be a liberal activist on the high court.

Gonzales resigned amid a controversy over the firings of federal prosecutors.

Sotomayor to face senators' questions at hearings. Senate Republicans plan to confront Supreme Court nominee Sonia Sotomayor with her own words, taken from speeches dating back 15 years, as they try to raise doubts about her ability to judge fairly.

Sotomayor's confirmation hearing resumes in the Senate Judiciary Committee on Tuesday with question-and-answer rounds that are expected to stretch over two days and possibly into a third.

Democrats and Republicans alike spoke glowingly Monday about the 55-year-old appeals court judge's rise from public housing in the Bronx to her nomination to be the first Hispanic and only the third woman on the Supreme Court.

"I would hope every American is proud that a Hispanic woman has been nominated to sit on the Supreme Court," said Sen. Jon Kyl, R-Ariz.

But the GOP made clear, despite the Democrats' Senate majority that makes her confirmation likely, it will not let Sotomayor's hearings pass without raising questions about her impartiality. By extension, Republicans also are attacking President Barack Obama for what they see as a double standard in calling for her quick confirmation after voting against President George W. Bush's two high-court appointees.

The thrust of the Republican case against Sotomayor stems from a variation of a line she used on several occasions between 1994 and 2003 in which she talked about personal experience and judging.

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life," Sotomayor said in a speech at 2001 at the University of California, Berkeley, law school.

Sen. Jeff Sessions, R-Ala., the senior Republican on the committee, said he is troubled by the sentiment he finds in the remarks.

"We remain focused on some fundamental questions about the philosophy of Judge Sotomayor as expressed in her statement on more than one occasion over a period of 15 years," Sessions said Monday after the hearings ended for the day. "And they've expressed a rather serious critique of the classical ideal of blind justice."

Sotomayor offered a polite, brief but firm rebuttal in her opening statement, her first substantive remarks since Obama nominated her in May to replace Justice David Souter, who retired last month.

She explained that her own experiences helped her listen to and understand the people who appear before her. "That is how I seek to strengthen both the rule of law and faith in the impartiality of our judicial system," she said.

In every case, she said, "I applied the law to the facts at hand."

The issue seemed unlikely to provoke the "meltdown" that Sen. Lindsey Graham, R-S.C., said Sotomayor would have to suffer to stop her confirmation.

"And I don't think you will" have a meltdown, Graham added quickly as Sotomayor sat listening, her face in a half-smile.

Sen. Patrick Leahy, the committee chairman, likened Sotomayor to other judicial pioneers, citing Thurgood Marshall, the first black justice, as well as Louis Brandeis, the first Jew, and Sandra Day O'Connor, the first woman.

"Let no one demean this extraordinary woman," Leahy said in a warning to committee Republicans to tread lightly in the days ahead.

There was a lot of talk Monday about baseball and the role of umpires in calling balls and strikes. It was perhaps no coincidence that the only case Sotomayor mentioned was the one involving the Major League Baseball strike that wiped out postseason play in 1994 and shortened the 1995 season. Her ruling against club owners helped bring the strike to an end.

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Around the Web

Sotomayor vows impartiality if confirmed to court - Yahoo! News

Live Blogging the Sotomayor Hearings - The Caucus Blog - NYTimes.com

Sotomayor hearings to begin July 13 - White House- msnbc.com

Sotomayor hearings begin with support, skepticism - Los Angeles Times

Sotomayor Hearings - July 13, 2009

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