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Doug Kendall

Doug Kendall

Posted: July 13, 2009 10:22 AM

Liveblogging the Sotomayor Confirmation Hearings

What's Your Reaction:

Updated 3:02: The Committee is in recess until tomorrow morning, following Judge Sotomayor's opening statement. I will resume liveblogging at 10am tomorrow morning as the main event of the confirmation hearings, Senators' questions, gets going. Thanks so much for reading everyone.

Updated 3:00: Here's the key passage of Judge Sotomayor's opening statement. It's a nice description of how "understanding" the perspectives of different litigants and "applying the law" can go hand-in-hand in "the larger interest of impartial justice." This is her frame for the nomination. Her task now is to make this frame stick in answering questions over the next several days.

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. The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged. That is why I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position, sympathetic or not, is accepted or rejected. That is how I seek to strengthen both the rule of law and faith in the impartiality of our justice system. My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.

Updated 2:55: We just saw the testiest exchange in the entire hearing - between Sens. Leahy and Gillibrand over the length of Sen. Gillibrand's opening statement. Now on to the judge herself, (who's finally getting to actually take an oath after being disparaged all morning for not following her oath.)

Updated 2:51: We've now gotten to that point where everything has been said about the nominee, but not said by everyone. Sen. Gillbrand is getting her chance to go through Judge Sotomayor's impressive qualifications.

Updated 2:42: If Sen. Franken's goal was to seem sober, serious, and unfunny, he succeeded.

Updated 2:41: Two chairs have just been put next to Judge Sotomayor, for New York Sens. Schummer and Gillibrand. After sitting alone all morning it must feel nice to have the company.

Updated 2:35 : Following a third outburst from the back of the room, Sen. Franken just pointed out that this the first hearing for a Supreme Court nominee,since 1965 where Sen. Kennedy wasn't present in the Senate Judiciary Committee room. Quick Supreme Court trivia question: Who was the nominee in 1965? Answer: Abe Fortas.

Updated 2:29: Sen. Specter has just raised an incredibly important issue: the Supreme Court's threat to congressional powers granted under the amemdments passed after the Civil War. This is, as we've discussed here and here, a clear example of an area of the law where conservatives are departing from text and history in limiting Congress's power. Hopefully we'll hear a lot more about this as the week goes on.

Updated 2:25: For law nerds like us, Sen. Specter is raising some very important issues that are getting no attention, including a dramatic reduction in the Court's caseload over the past 100 years.

Updated 2:23: Sen. Kaufman focuses on one aspect of the Roberts Court's rulings that hasn't received a lot of attention so far: its rulings in corporate cases. I wrote about this issue here. This term in particular, the Court ruled against environmental plaintiffs and for corporations in all five environmental cases heard this term.

Updated 2:12: A number of Democratic Senators today, including just now Sen. Klobuchar, have referenced the Redding case from this term, a case involving the strip search of a 13 year old girl, as a good example of why perspective matters. Alone among the justices, Ruth Bader Ginsburg understood right away how traumatizing such a search could be to a girl that age. Ultimately, I think she convinced almost all of her colleagues that this search was unreasonable and the vote in the case was 8-1. This case shows how "empathy" can inform the rule of law, rather than operating in tension with it.

Updated 2:02: The hearing has resumed, with Sen. Klobuchar giving her opening statement.

Midday Update -- As we wait for the lunch break to come to an end here we'll preview what will surely be the most interesting part of today's hearing: the first public appearance of Sen. Al Franken, followed more momentously by Judge Sotomayor's opening statement. Clearly the Republican battle lines against Sotomayor have been drawn, with Senator after Senator weaving together President Obama's remarks about empathy and certain snippets of Judge Sotomayor's speeches, to assert that Judge Sotomayor will be biased, will not obey her judicial oath, or will let feelings dictate her judicial decisionmaking.

Democratic Senators have pushed back on this by noting that the best proof of Judge Sotomayor's approach to judging is her judicial record, which is long, distinguished, and reveals a fair and careful judge. Ultimately, however, the Republicans' charge is one she has to answer herself.

As I've noted here, a great model for doing this is a speech that Judge Sotomayor has given already, in 1999, to students at Columbia Law School. In that inspiring and so far unnoticed speech, Judge Sotomayor assesses what doing justice means in our court system where "the law commands a result, a result that leads to a winner and therefore a loser." To think about justice, she tells a group of young and aspiring lawyers:

...you must constantly step out of the role you are in and not just listen to your adversaries but learn to appreciate their perspectives... To be fair, to seek truth is not easy. It is the hardest task you face. Justice asks you not only for a fair result but for a commitment that you will pursue justice fairly in every step you take as a lawyer.

Notice two critical moves by Judge Sotomayor in this speech. First, she talks about what President Obama calls empathy -- the ability to appreciate the perspectives of all those who come into the legal system -- but explains that this is not a stand-alone criterion but rather a central ingredient of what all Americans see as the goal of our court system: Justice. Second, she makes clear that empathy and the rule of law are not at all in tension, but rather two indispensable components of our system of justice.

An opening statement along these lines this afternoon would both speak powerfully to American values and defang a central claim Judge Sotomayor's opponents will surely make: that she will rule based on feelings rather than the rule of law.

Updated 12:39: Leahy has called a recess. The Commitee is adjourning until 2pm. We will resume liveblogging when the Committee gets started again.

Updated 12:38: Al Franken has said he wants to be "the People's representative," but Sen. Dick Durbin has already long played that role on the Judiciary Committee, effectively pointing out the role the Court has on the lives of workers, seniors, women, and other Americans. Wondering if Al can find new material.

Updated 12:34: Okay, new Democratic Senator drinking game: Every time a Democrat says "umpire," take a drink and swing your imaginary bat.

Updated 12:33: Ouburst No. 2 occurs in the back of the room. How did these people get in?

Updated 12:30: What's most remarkable about the Republican attack on Judge Sotomayor this morning is that it's based almost entirely on a few a quotes taken out of context, when you have a nominee who has a long and impressive 16-year judicial record of following her oath, which Republicans seem intent on ignoring entirely. Her supporters need to do more to point that out.

Updated 12:26 Sen. Coburn is reading the judical oath. At least the third time a Republican Senator has done that. Maybe we need a new drinking game?

Updated 12:24: Sen. Coburn just responded to the focus of Democrats on Chief Justice Roberts and the umpire metaphor, saying "I thought this hearing was about confirming Judge Sotomayor, not John Roberts." He's going to have to get used to the fact that the Democrats are going to speak a great deal about the Court's rulings under CJ Roberts as supporting the case for the need for more justices like Sonia Sotomayor, who view their job as (as she once said) "to follow the law, not to question it's plain terms."

Updated 12:22: Sen. Whitehouse is giving a powerful explanation of how the Constitution itself requires judges to exercise "courage bordering on heroism" against the inflamed passions of the day. He explains that empathy, defined as understanding the perspectives of all litigants, goes hand in hand with the rule of law, rather than running in tension with it. Whitehouse, a relatively new member of the Committee, shows he's up the task.

Updated 12:15: Sen. Whitehouse is making one of the more effective Democratic attacks on the Roberts Court, but his comments are also an illustration of how powerfully Chief Justice Roberts defined his confirmation hearings with his "umpire" metaphor. Four years later, Democrats are still obsessed with knocking that straw man down.

Updated 12:13: Sen. Whitehouse: "Judicial modesty and restraint are often code words for judges who rule in a particular way."

Updated 12:12: Sen. Cornyn is just about the fifth Republican Senator to suggest that Judge Sotomayor will improperly rely on rulings from courts of other countries. For a guide to understanding this otherwise improhensible attack, click here.

Updated 12:10: Bad sports analogy watch: Sen. Cornyn must presented a fairly incomprehensible analogy, comparing a lower court judge to a quarterback and a Supreme Court justice to a coach. I think if I was trying to move the law in a particular direction, I'd rather be a quarterback.

Updated 12:05: Sen. Cornyn has just made the point, which I discussed here, that this hearing is as much a debate about the future of the Supreme Court as it is about the confirmation of Judge Sotomayor. The question is which side more effectively gets their message out. The Democrats have the numbers here, which helps: after Sen. Coburn, there will be five Democrats speaking in a row, and then Sotomayor herself will speak. We'll see how they utilize this time.

Update 11:57: Everyone's filing back in, we're getting started again.

Update 11:44: Sen. Leahy has called a ten minute break.

Updated 11:41: Sen. Cardin has just given a resounding defense of the idea of the "living Constitution," explaining how the 1787 Framers endorsed slavery, didn't allow women to vote, and allowed other forms of inequality. The problem with his story is that he leaves out completely the amendments that have been passed over the past 200 years, making the judicial role in this story more prominent than it needs to be.

Updated 11:31 Sen. Graham (R-SC) just gave what appears to be a big hint that he will ultimately vote for Sotomayor, saying that though he doesn't yet know how he'll vote, but he believes "elections matter."

Updated 10:27: Judge Sotomayor has virtually no record on reproductive choice, and in her one case involving abortion, she upheld a Bush-Era antibortion rule ( the so-called "Mexico City policy"). This is why we're hearing so much about Judge Sotomayor's long ago affiliation with the Puerto Rican Legal Defense Fund, and a brief that they filed during her tenure regarding abortion. It's a pretty thin reed.

Updated 11:24: Chuck Schummer just ended by saying if you're looking for a modest or conservative judge, you should vote for Sotomayor. Lindsay Graham picked up by thanking the Senator for the "new conservative standard."

Update 11:20: View from the Skybox, inside the Sotomayor confirmation hearing. (This was taken earlier when Sens. Leahy and Sessions walked Judge Sotomayor to her seat.)

2009-07-13-viewfromskyboxsotomayorhearing.jpg


Update 11:13: And again, from Sen. Kyl. Drink!

Updated 11:12: All the Republicans so far have focused as much on President Obama, and his remarks on the Constitution and the law, as on Judge Sotomayor. They seem committed to making this confirmation as much about Obama as it is about Sotomayor, recognizing her overwhelming qualifications for the slot. It remains to be seen whether Sotomayor can respond in a way that makes clear she is her own judge with her own approach to the Supreme Court.

Updated 11:09: Sen. Kyl just said "wise Latina." Everyone, drink!

Updated 11:08 Sen. Feingold just did a nice job of responding to Sotmayor's critics for picking a few quotes out of context in her speeches, and a handful of rulings that are fairly described as simply following the law. Feingold is the first of many Democrats, I'm sure, to argue that the best evidence of what kind of a justice she'll be is the totality of her record involving 4,000 cases. Everyone who has looked carefully at that record has come to the same conclusion: that she is a fair and careful judge who applies the law to the facts of the case and renders her decisions in a neutral manner.

Updated 11:06: Sen. Feingold is now attacking the activism of the Roberts Court, while noting that there appears to be no fixed definition of the term "judicial activism" other than "having opinions one does not like."

Updated 11:02 : As expected, Sen. Feingold is spending a good portion of his introductory remarks praising the divided Supreme Court for checking executive power under the Bush Administration, using this as an explanation for why every new appointment to the Court matters so much.

Updated 10:58: Sen. Grassley said "wise Latina." Drink!

Updated 10:53: Chuck Grassley (R-Iowa) just gave a extended recitation of Judge Sotomayor's qualifications, showing just how impressive those qualifications are -- and making Sotomayor supporters smile.

Updated 10:51: Sen. Feinstein is the first Democrat to go aggressively after the activism of the Roberts Court, chronicling a long list of rulings where the Roberts Court has overruled longstanding precedent, and in some cases departed from constitutional text and history.

Updated 10:47: First bit of drama. Protestor from the back of the room started screaming in the middle of Sen. Feinstein's opening statement. There were protestors outside the Senate building when we came in. Some for Sotomayor (apparently the National Latino Peace Officers' Association, holding banners reading "Stand with Sotomayor") and those against her (Randall Terry's anti-abortion group, screaming "Kill them early kill them young!")

Updated 10:45: Senator Hatch was just the first Republican to invoke the "Obama standard," suggesting that because Senator Obama voted against Bush nominees including Chief Justice Roberts, Republicans are justified in voting against Sonia Sotomayor. They seem committed to reducing the Senate's constitutional advice and consent authority to a 5-year old game of "he did it first."

Updated 10:40: Update One thing that brings home the dramatic recent changes in the Committee is the fact that Sen. Herb Kohl, rather than Ted Kennedy or Joe Biden, serve as the second-most senior Democrat on the Committee. Sen. Kohl's remarks were fine if a little predictable. None of the thundering liberalism of Ted Kennedy or the verbosity of Joe Biden.

Updated 10:35: One of the things we're going to do here to get the morning going is to play a little drinking game, starting with espresso, maybe moving into harder stuff later on. The game requires you to drink each time a conservative uses the phrase 'wise Latina." (We notice Sen. Sessions featured the phrase prominently in his opening remarks. We're waiting for the phrase from Sen. Hatch.)

Updated 10:26: Sen. Leahy opened up the hearings this morning with a terrific little recitation of how our Constitution has been improved over the past 200 years, illustrating the central difference between progressives and conservatives about the meaning of the Constitution. Conservatives tend to slight the amendments in their interpretation of the Constitution. Here's what he said:

Each generation of Americans has sought to bend that arc a little further toward justice. We have improved upon the foundation of our Constitution through the Bill of Rights, the Civil War amendments, the 19th Amendment's expansion of the right to vote to women, the Civil Rights Act of 1964 and Voting Rights Act of 1965, and the 26th Amendment's extension of the right to vote to young people. These actions have marked progress toward our more perfect union. This nomination can be another step along that path.

Update 10:26: Ok, we're live here in a skybox at the Senate Judiciary Committee hearing room. Just got a slow internet connection. Senator Kohl is speaking. More soon.


Good morning, everyone. My name is Doug Kendall, President of Constitutional Accountability Center, and I'm here in person at the Senate's Hart Building where I'll be liveblogging the confirmation hearing of Supreme Court nominee Sonia Sotomayor. We expect the hearings to begin around 10am, with opening statements from each of the Senate Judiciary Committee's 19 members, expected to be limited to 10 minutes per Senator. We'll be updating this liveblog throughout the hearings this week with commentary and analysis, and I encourage you all to post your own questions or feedback in the form of comments. Whenever possible, I will respond to readers' inquiries.

First, if you'd like to gain a sense of what to expect these upcoming days, check out my two-part preview of the hearings, here and here.

We are having technical difficulties here in the confirmation room, but we will begin the live blog shortly.