THE BLOG
07/16/2009 09:39 am ET | Updated May 25, 2011

Liveblogging the Sotomayor Confirmation Hearing (Day 4)

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Updated 1:30: The questioning of the nominee is now concluded. The Committee will take 10-minute recess, and reconvene to begin hearing the testimony of outside witnesses.

This concludes our liveblogging for the hearing. Thanks so much to everyone who's been following!!

Updated 1:19: In what appears to be the final question to Judge Sotomayor, Chairman Leahy returns to an issue he asked of both Chief Justice Roberts and Justice Alito, about what he calls the "Rule of Five," whereby the justices will routinely grant a stay of execution wherever there are four votes to hear a case challenging the implementation of the death penalty. Leahy asserts that both Alito and Roberts agreed that this rule was sensible but appear not to have complied with it since joining the Court. Judge Sotomayor agrees that she would comply with the "Rule of Five" practice.

Updated 1:14: Sen. Coburn pulls out his Constitution and opines that he'd rather be on the Supreme Court than in the Senate, though he recognizes that he'd have problems getting to this stage of the confirmation progress.

Updated 1:12: Sen. Coburn asks a question which chastises the Supreme Court for not being more aggressive about imposing limits on congressional powers. Judge Sotomayor turns this around and suggests controlling the size of government is more the responsibility of Sen. Coburn and his colleagues.

Updated 1:07 Sen. Coburn (R-Oklahoma) just issued a sober warning to Sotomayor: "In ten years we might not be able to pay your salary." Apparently the new Republican strategy is to convince Sotomayor the job of being a justice pays too little for her to accept it.

Updated 1:01: Sen. Cornyn asked Judge Sotomayor about statements she made saying judging can never be neutral. Her good explanation is that the role of a judge is to pick between two forcefully argued opinions about the law in litigation, thus judges must choose -- not be neutral.

Updated 1:00: Sen. Cornyn (R-Texas) has returned, yet again, to gun rights. Clearly we should have made this our drinking game.

How about, every time a Republican says "Second Amendment" take a shot and try not to shoot yourself.

Updated 12:54: We are left speechless by Sen. Graham's speechifying. There's not even a pretense of a question in this lecture, which is apparently about how hard it is for Graham to do his job to establish a fair system of justice for detainees and the War on Terror.

Updated 12:47: Dumb Comment Alert! Sen. Lindsay Graham (R-South Carolina): "America, unlike other countries, has a unique relationship with the Second Amendment."

Updated 12:42: Sen. Kyl (R-Arizona) is leading Judge Sotomayor through a mind-numbing line of questioning about the level of scrutiny that will apply to Second Amendment cases in the unlikely event that the Supreme Court decides not to incorporate the Second Amendment against state action.

Updated 12:32: Sen. Grassley (R-Iowa) is returning to the homework assignment he gave Judge Sotomayor on Tuesday, when he asked her to review the Supreme Court's ruling in Baker v. Nelson, involving a challenge to a same-sex marriage law. Judge Sotomayor indicates that the application of Baker to new challenges involving modern same-sex marriage laws is being litigated right now, and therefore she declines to give her views on this question.

Updated 12:28: Sen. Hatch just asked an interesting question from a constituent: "Which is more important? The Constitution as it was originally written, or the Court's more recent precedent." Judge Sotomayor's response was equally good: "The Constitution, as it was written, is the most important consideration judges must follow."

Updated 12:25: Now Sen. Hatch is turning to questions his constituents wanted to ask Judge Sotomayor. Did we really need a Round Three for this??

Updated 12:23: Judge Sotomayor draws a sharp distinction between her role as a board member of PRLDEF with the role Ruth Bader Ginsburg and Thurgood Marshall played as a lawyer for the ACLU and the NAACP LDF, respectively. She also indicated she didn't review or approve the more controversial briefs that the Fund filed relating to reproductive choice during her tenure.

Updated 12:21: Sen. Hatch (R-Utah) is going through press reports that indicate that Judge Sotomayor took an active role in PRLDEF's litigation activities during her tenure on its board. It's a little surprising that it's taken so long for the Republicans to get into this level of detail on this issue.

Updated 12:19: Sen. Leahy remarks for the fourth or fifth time that Judge Sotomayor was first nominated by George H.W. Bush to the district court. Judge Sotomayor writes something down on her notepad. (what is she writing?: "Bush I nominated me??")

Updated 12:11: Sen. Sessions seems to have just lectured Judge Sotomayor on an issue that has been a source of real tension between Congress and federal judges over the years: judicial pay. Sessions asks Judge Sotomayor whether she's prepared to "tighten her belt," seemingly unaware of the fact that she's been living on a judge's salary for 17 years in Manhattan. (The lack of judicial pay raises is certainly not an issue unique to liberal or conservative judges. Perhaps the biggest advocate for judicial pay raises in recent years has been Chief Justice Roberts.)

Updated 12:05: Sen. Franken is pretty funny -- in addition to carrying his pocket Constitution. It's nice to have him on this Committee.

Now on to Round Three of questions.

Updated 12:02 Sen. Franken (D-Minnesota) is now asking questions. His questions will mark the end of Round Two.

12:00: Oh no. Sen. Leahy just said the Republicans have requested a third round of questioning, and the request has been granted. The Senators will have the option of 10 minutes more of questions after this round.

Updated 11:59: Despite calling Judge Sotomayor an "admirable" judge, and despite claiming he has "yet to decide" how to vote, Sen. Coburn seems to be previewing a decision not to vote for her confirmation.

Updated 11:56: The Republicans are trying to outdo each other for who can ask the most ridiculous question. Sen. Coburn just asked, "Do you think the Court can decide some divisive issues in this country?"

Updated 11:54: Sen. Coburn is delivering a lengthy rant on the Court's abortion cases. We're not really hearing a question here.

Updated 11:46: Now we're back to the question of incorporation of the Second Amendment against state action. This is the second time today, and at least the sixth time this hearing she's been asked about this topic. Sen. Coburn is pushing Judge Sotomayor to explain how the Court should analyze whether the individual right to bear arms, recognized by the Court in Heller, is a "fundamental" right that states must respect. He's trying to get Judge Sotomayor to take a position on this issue, but she's wisely declining to speak on it given the pending petition before the Supreme Court. However, Sen. Coburn is doing a nice job discussing some of the text and history that will be relevant should the case be heard by the Court, though these arguments aren't really appropriate for this hearing.

Updated 11:37: Okay we're back. Sen. Coburn (R-Oklahoma) is now questioning Judge Sotomayor. He's returning to foreign law. We're betting he'll return to abortion any moment now.

Updated 11:21: Leahy has just called a 15-minute break. We'll resume liveblogging shortly.

Updated 11:18: Sen. Specter is once again expressing frustration that the Court has turned down cases involving conflicts between the executive branch and the Congress. Judge Sotomayor is declining to comment on whether the Court should have taken up some of the cases that Specter's frustrated about. (Predictably, she says that's hard to answer "in the abstract.") He's now going back to one of those cases, involving the Bush Administration's secret spying program.

Updated 11:12: Sen. Specter is once again asking Sotomayor whether she would support having Supreme Court oral arguments televised. Once again, she agrees to relay her past "positive experiences" with televised arguments to her potential future colleagues. This is getting redundant.

Updated 11:09: We've moved on to Sen. Specter (D-Pennsylvania). After briefly returning to her ruling in Entergy v. Riverkeeper, which the Supreme Court reversed this term, he's now asking her about how she would approach taking cases on the Court. He's pushing her to take more cases, and asking her about whether she would participate in the so-called "cert pool" that most of the justices use to review petitions to the Supreme Court. She avoids giving Specter a definitive answer, saying she wants first to experience the workload on the Court.

Updated 10:55: Sen. Cornyn has now moved on to Judge Sotomayor's 1999 speech at Suffolk University, in which she spoke approvingly of campaign finance regulations. He's pushing her to define the difference between a political contribution and a bribe.

Updated 10:50: Sen. Cornyn is asking about the law and same-sex marriage. She responds by explaining how hotly that issue is being debated at all levels of government, and thus declines to say much more.

Updated 10:48: Sen. Cornyn just asked Judge Sotomayor a pointed question about what he calls a disparity between what she has said in speeches and how she has characterized those speeches. Judge Sotomayor responds by emphasizing how her 17-year judicial record supports the characterization of the speeches she's given in these hearings. Cornyn agrees that her judicial record is strong. This exchange is a nutshell version of the conversation Judge Sotomayor has been having with Republican Senators over the past few days.

Updated 10:43: Now Sen. Cornyn seems to be previewing the reasons he will vote against her, depsite "liking her" personally.

Updated 10:42: Sen. Cornyn (R-Texas) has just asked Judge Sotomayor whether she believes she's been treated fairly. She says "yes," blunting any efforts by progressives to question the fairness of the hearings from the Republican side.

Updated 10:36: Sen. Klobuchar is again returning to Judge Sotomayor's early eighties experience as a NY prosecutor. While it's unquestionably true that prosecutorial experience is useful in a nominee's background, it's hard to see why Sen. Klobuchar thinks this long-ago experience should be such a focus of these hearings.

Updated 10:31: Sen. Klobuchar (D-Minnesota) is spending a good portion of her second round of questioning discussing and reading from letters from organizations supporting Sotomayor. Having spent a lot of time writing letters to the Senate in support and opposition to judicial nominees, I wonder if these letters ultimately have any real impact on these debates.

Updated 10:28: For at least the 10th time this hearing Judge Sotomayor has been asked to explain her "wise Latina" remark. Asked and answered. It still seems as if Judge Sotomayor will end up getting Sen. Graham's vote. If so, the question will be whether that's worth tolerating his condescending lectures over the past few days.

Updated 10:22: Several times during the hearing Sen. Graham has complemented Judge Sotomayor, but each time in such a backhanded and smug fashion that it's hard to see why he even bothers.

Updated 10:20: Ridiculous Question Alert: Sen. Graham just asked Judge Sotomayor whether she "embraces identity politics." (She says, "no.")

Updated 10:18: Sen. Graham's back on the "Is the Second Amendment fundamental?" question, trying to push Judge Sotomayor to say that the Supreme Court's ruling in whether the Second Amendment is incorporated against state action depends on a justice's subjective view about whether the Second Amendment is fundamental. Judge Sotomayor does a nice job of explaining the legal process the Court will go through in the case, deflecting this claim. Sen. Graham is not buying it, making the claim forcefully that all judges rule at least in part based on their subjective views. Interesting to see Republicans arguing about legal realism.

Updated 10:10: Sen. Graham (R-South Carolina) is back again on his soapbox, lecturing Judge Sotomayor about the role of the Supreme Court and the meaning of cases like Brown v. Board of Education.

Updated 10:05: Sen. Feinstein just asserted correctly that if confirmed, Judge Sotomayor will instantly become a role model for both Latinos and young women, and asked Judge Sotomayor how she feels about that and how she will play that role. Judge Sotomayor answers effectively about how she became a judge to focus on the law, and not her public image, but that she appreciated how she can play a role model.

Updated 10:02: Sen. Feinstein (D-California) just effectively led Judge Sotomayor through a line of questioning to respond to Sen. Kyl's questions, by pointing out that a panel of the Sixth Circuit dismissed a case almost identical to the Ricci case, in an almost identical manner (i.e. using a summary order).

Updated 10:00: Fashion update. Sen. Feinstein's seersucker jacket is reflecting light in a way that is more than a little distracting.

Updated 9:54: Sen. Kyl has now invoked the ridiculous argument that Supreme Court in the Ricci case was 9-0 against Judge Sotomayor in terms of the test for evaluating race conscious actions in employment. For my response to this claim, see here.

Updated 9:49: Judge Sotomayor just gave an accurate and pretty effective description of the Second Circuit's extensive use of summary orders, even in cases of first impression when a district court issues a comprehensive and persuasive opinion. The Second Circuit uses these orders more than most appellate courts around the country, in part because of the Circuit's busy docket. But this explanation is clearly not satisfying Sen. Kyl.

Updated 9:45: Sen. Kyl (R-Arizona) has jumped right into questioning about the Ricci (New Haven firefighters) case, asking Judge Sotomayor about whether prior cases of her Circuit in fact dictated her ruling. Kyl's an effective questioner, but this seems pretty far in the weeds.

Updated 9:32: Okay, everyone, we're getting started now. In the fourth day of the hearings the story lines seem pretty well set. Judge Sotomayor has effectively portrayed her overwhelming qualifications and long and very solid judicial record, while distancing herself from any indication in her speeches that she supported the progressive position on hot button legal issues.

The big remaining question is how this approach will pan out politically. In particular, will her approach generate significant Republican support, as Sen. Chuck Schumer predicted when he said that she would likely get more votes than Chief Justice John Roberts, who got 78 votes in the Senate. To approach that number, Sotomayor will have to get a number of Republican votes on the Judiciary Committee. The plausible "yes" votes appear to be Sen. Graham and Hatch, who have suggested they may support her, and Sens. Kyl and Cornyn, who have sizeable Latino communities in their states. Three of those four Senators will ask their second round of questions right off the bat this morning, and maybe we'll have a better sense after that how things are looking on a political front.