On August 4, patients from across the country who have been harmed by defective medical devices will travel to attend a hearing in front of the Senate Committee on Health, Education, Labor, and Pensions. The 2:30 PM hearing, entitled “Protecting Patients from Defective Medical Devices” will be preceded by a press conference from 12:00 - 1:00 PM in the Russell Senate building room 485.
Alliance for Justice President Nan Aron will open the press conference, with Senator Harkin (D-IA) and several medical device patients speaking about why Congress must quickly take action to pass the Medical Device Safety Act of 2009. The event will also feature a screening of AFJ's film “Hit and Run”. If you are interested in attending the press conference please contact Lisa Hayes at LHayes@afj.org or 202-822-6070.
Wednesday, July 29, 2009
Tuesday, July 28, 2009
Judiciary Committee Votes on Sotomayor
Today, the Senate Judiciary Committee voted 13-6 to recommend Sonia Sotomayor's nomination to the full Senate. Her historic nomination is one step closer to confirmation.
The mark-up was essentially just another act of the hearing: the same senators relying on the same talking points, including the continued willful misrepresentation of certain aspects of Judge Sotomayor's record by Republicans. Despite the politically-charged speeches offered by Republicans, the Committee voted overwehelmingly in favor of Judge Sotomayor; Senator Lindsey Graham (R-SC) rejected partisanship and joined Democrats in supporting the nomination.
We won't bore you with the items raised during the Judiciary Committee vote--if you watched the hearings, we guarantee you've heard it all before. Multiple times. (Hint: Think "speeches" and "guns.")
And, with the Committee vote over, Judge Sotomayor's nomination now moves to the full Senate where floor debate on her nomination is likely to begin soon; a vote is expected to occur next week before the Senate leaves for its August recess.
The mark-up was essentially just another act of the hearing: the same senators relying on the same talking points, including the continued willful misrepresentation of certain aspects of Judge Sotomayor's record by Republicans. Despite the politically-charged speeches offered by Republicans, the Committee voted overwehelmingly in favor of Judge Sotomayor; Senator Lindsey Graham (R-SC) rejected partisanship and joined Democrats in supporting the nomination.
We won't bore you with the items raised during the Judiciary Committee vote--if you watched the hearings, we guarantee you've heard it all before. Multiple times. (Hint: Think "speeches" and "guns.")
And, with the Committee vote over, Judge Sotomayor's nomination now moves to the full Senate where floor debate on her nomination is likely to begin soon; a vote is expected to occur next week before the Senate leaves for its August recess.
Thursday, July 23, 2009
Support for Sotomayor Grows on Both Sides of the Aisle
Yesterday, Judiciary Committee member Senator Lindsey Graham (R-SC) took to the floor to express his support for Judge Sonia Sotomayor's nomination to the Supreme Court. He has joined other fair-minded Republican colleagues, including Senators Lugar, Snowe, Collins and Martinez, in setting aside politically-motivated opposition in favor of integrity and bipartisanship. Though Senator Graham was one of Judge Sotomayor's most aggressive questioners, he has risen above partisanship to recognize that this highly qualified and historic nominee deserves swift confirmation.
Wednesday, July 22, 2009
An Odd Definition of Candor
While a Judiciary Committee vote on the nomination of Judge Sonia Sotomayor to the Supreme Court was scheduled for yesterday, Republicans held that vote for a week, as expected. The delay has not prevented a number of senators from making announcements about how they will vote. In addition to enormous Democratic support for Judge Sotomayor, a number of fair-minded Republicans, including Senators Lugar (R-IN), Snowe (R-ME), Collins (R-ME) and Martinez (R-FL), have already declared their support for Judge Sotomayor. Of course, a handful of less fair-minded Republicans have announced their opposition to the nomination.
Among their ranks is Judiciary Committee member Jon Kyl (R-AZ), who said he was voting against Sotomayor because her answers were “evasive, lacking in substance…” and “[i]t was quite apparent to me she didn’t want to answer my questions. She knew she could dissemble and delay and run out the clock, and she did.” Setting aside the fact that Judge Sotomayor repeatedly answered questions e.g., Ricci and its lengthy district court record and reliance on Justice Scalia's language in the Heller opinion, Senator Kyl seems to have different standards for different nominees.
You see, it wasn’t so long ago that Senator Kyl was praising John Roberts for being forthcoming. During the hearings, Senator Kyl said to Chief Justice Roberts,“I appreciate, frankly, your candor and the clarity of what you have said. And you've said a great deal here.” Here’s a sampling of what Senator Kyl thought qualified as candor, clarity and saying a great deal:
Of course, this isn't the first time Senator Kyl has changed his tune.
Among their ranks is Judiciary Committee member Jon Kyl (R-AZ), who said he was voting against Sotomayor because her answers were “evasive, lacking in substance…” and “[i]t was quite apparent to me she didn’t want to answer my questions. She knew she could dissemble and delay and run out the clock, and she did.” Setting aside the fact that Judge Sotomayor repeatedly answered questions e.g., Ricci and its lengthy district court record and reliance on Justice Scalia's language in the Heller opinion, Senator Kyl seems to have different standards for different nominees.
You see, it wasn’t so long ago that Senator Kyl was praising John Roberts for being forthcoming. During the hearings, Senator Kyl said to Chief Justice Roberts,“I appreciate, frankly, your candor and the clarity of what you have said. And you've said a great deal here.” Here’s a sampling of what Senator Kyl thought qualified as candor, clarity and saying a great deal:
Of course, this isn't the first time Senator Kyl has changed his tune.
Friday, July 17, 2009
In a League of Her Own
After four grueling days of testimony before the Senate Judiciary Committee, Judge Sonia Sotomayor has proven that she has the intellect, the discipline, and the temperament, not to mention the grit and the stamina, to merit her place on the U.S. Supreme Court. She graciously and patiently responded to repetitive questioning on the same issues from Republican senators through three rounds of questioning. Throughout, she validated the comments of one of her earliest champions, New York Prosecuting Attorney Robert Morgenthau, who described her as always “a step ahead.” Judge Sotomayor proved herself to be a thoughtful, engaged witness who will be a welcome addition to the Supreme Court and should be confirmed without delay.
By contrast, Republican senators showed themselves to be far less interested in Judge Sotomayor’s qualification for the bench than her willingness to adopt a far-right agenda – perhaps believing the two are one and the same. Instead of questioning Judge Sotomayor on her seventeen year record on the bench, Republican senators virtually ignored the thousands of decisions in which she joined to focus narrowly on issues representative of their political agenda.
Throughout the questioning, Republicans questioned Judge Sotomayor aggressively on the Ricci v DeStefano decision, the challenge by white firefighters to the City of New Haven’s voluntary attempt to avoid discriminating against minority firefighters, suggesting that Judge Sotomayor’s own history as a Latina affected her ruling. They even trotted out Mr. Ricci himself as a witness at the end of the fourth day, who could not opine on the legal basis for the court’s decision. Judge Sotomayor, however, stood by the decision, and her panel’s belief that it followed well established Supreme Court and Second Circuit precedent. Judge Sotomayor also noted that not only was her panel unanimous, but that a majority of her colleagues on the Second Circuit agreed with the panel. Even the Supreme Court was divided on the case as a bare 5-4 majority voted to overturn. Far from denting the good faith of the Second Circuit panel, Republicans only managed to highlight to the degree to which the current Supreme Court under Chief Justice Roberts has veered to the right, and jettisoned long-held understandings of the law. Even Senator Lindsey Graham (R-SC) appeared to concede the good faith of the lower courts, including Judge Sotomayor, urging Mr. Ricci to remember that “not so very long ago, the test was rigged a different way.”
Republicans also used the hearings to promote gun ownership – and their close relationship with gun advocates. Not only did they question Judge Sotomayor at length and over all four days about a single case in which she heard a challenge to a New York weapons’ restriction, they invited gun advocates, including a representative of the NRA, to testify after Judge Sotomayor. Judge Sotomayor resisted efforts to force her to opine on the legality of certain state restrictions on gun ownership that were the subject of challenges likely to come before the Supreme Court in the near future, but consistently pointed out that the case she decided fell squarely within both Second Circuit and Supreme Court precedent, and that as a Second Circuit judge, it was not her place to reverse the Supreme Court. In so doing, she exhibited the sort of judicial deference and restraint that Republicans so often say they look for in judicial nominees.
Although the hearings focused little attention on Judge Sotomayor’s legal record, Republicans turned again and again to speeches she gave at law schools around the country, and her Board work on behalf of the Puerto Rican Legal Defense Fund (PRLDEF), a nonprofit based in New York which is dedicated to protecting and advancing civil rights. One Republican witness, Linda Chavez, a Reagan appointee, even turned to Judge Sotomayor’s college thesis to support her personal challenge to Judge Sotomayor’s qualifications for the Supreme Court. In the end, however, Judge Sotomayor firmly and unwaveringly affirmed her commitment both to her own heritage as a source of inspiration, and the rule of law as a guiding principle in her jurisprudence. In a statement during her first day of testimony, Judge Sotomayor was unequivocal: “I do not believe that any ethnic, racial, or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences.” She never wavered from this principle in her testimony, nor is there any evidence in her lengthy jurisprudence that Judge Sotomayor has ever allowed her personal beliefs or her heritage to guide her legal decision-making.
Robert Morgenthau, a founding board member of PRLDEF, offered perhaps the most resounding defense of Judge Sotomayor’s statements, history and legal record when he noted: “it is to her credit that she remembers where she came from.”
Judge Sonia Sotomayor has the legal acumen, intellect and judgment needed for a seat on the nation’s highest court. As a woman who has dedicated long hours to reaching back and inspiring students, women and people of color to pursue their dreams and take pride in the legal profession, and who “remembers where she came from,” she will bring a much needed perspective. We look forward to seeing her take her well-deserved place on the Supreme Court.
By contrast, Republican senators showed themselves to be far less interested in Judge Sotomayor’s qualification for the bench than her willingness to adopt a far-right agenda – perhaps believing the two are one and the same. Instead of questioning Judge Sotomayor on her seventeen year record on the bench, Republican senators virtually ignored the thousands of decisions in which she joined to focus narrowly on issues representative of their political agenda.
Throughout the questioning, Republicans questioned Judge Sotomayor aggressively on the Ricci v DeStefano decision, the challenge by white firefighters to the City of New Haven’s voluntary attempt to avoid discriminating against minority firefighters, suggesting that Judge Sotomayor’s own history as a Latina affected her ruling. They even trotted out Mr. Ricci himself as a witness at the end of the fourth day, who could not opine on the legal basis for the court’s decision. Judge Sotomayor, however, stood by the decision, and her panel’s belief that it followed well established Supreme Court and Second Circuit precedent. Judge Sotomayor also noted that not only was her panel unanimous, but that a majority of her colleagues on the Second Circuit agreed with the panel. Even the Supreme Court was divided on the case as a bare 5-4 majority voted to overturn. Far from denting the good faith of the Second Circuit panel, Republicans only managed to highlight to the degree to which the current Supreme Court under Chief Justice Roberts has veered to the right, and jettisoned long-held understandings of the law. Even Senator Lindsey Graham (R-SC) appeared to concede the good faith of the lower courts, including Judge Sotomayor, urging Mr. Ricci to remember that “not so very long ago, the test was rigged a different way.”
Republicans also used the hearings to promote gun ownership – and their close relationship with gun advocates. Not only did they question Judge Sotomayor at length and over all four days about a single case in which she heard a challenge to a New York weapons’ restriction, they invited gun advocates, including a representative of the NRA, to testify after Judge Sotomayor. Judge Sotomayor resisted efforts to force her to opine on the legality of certain state restrictions on gun ownership that were the subject of challenges likely to come before the Supreme Court in the near future, but consistently pointed out that the case she decided fell squarely within both Second Circuit and Supreme Court precedent, and that as a Second Circuit judge, it was not her place to reverse the Supreme Court. In so doing, she exhibited the sort of judicial deference and restraint that Republicans so often say they look for in judicial nominees.
Although the hearings focused little attention on Judge Sotomayor’s legal record, Republicans turned again and again to speeches she gave at law schools around the country, and her Board work on behalf of the Puerto Rican Legal Defense Fund (PRLDEF), a nonprofit based in New York which is dedicated to protecting and advancing civil rights. One Republican witness, Linda Chavez, a Reagan appointee, even turned to Judge Sotomayor’s college thesis to support her personal challenge to Judge Sotomayor’s qualifications for the Supreme Court. In the end, however, Judge Sotomayor firmly and unwaveringly affirmed her commitment both to her own heritage as a source of inspiration, and the rule of law as a guiding principle in her jurisprudence. In a statement during her first day of testimony, Judge Sotomayor was unequivocal: “I do not believe that any ethnic, racial, or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences.” She never wavered from this principle in her testimony, nor is there any evidence in her lengthy jurisprudence that Judge Sotomayor has ever allowed her personal beliefs or her heritage to guide her legal decision-making.
Robert Morgenthau, a founding board member of PRLDEF, offered perhaps the most resounding defense of Judge Sotomayor’s statements, history and legal record when he noted: “it is to her credit that she remembers where she came from.”
Judge Sonia Sotomayor has the legal acumen, intellect and judgment needed for a seat on the nation’s highest court. As a woman who has dedicated long hours to reaching back and inspiring students, women and people of color to pursue their dreams and take pride in the legal profession, and who “remembers where she came from,” she will bring a much needed perspective. We look forward to seeing her take her well-deserved place on the Supreme Court.
Thursday, July 16, 2009
Sotomayor Completes Testimony with Grace
Today was the fourth and final day of Judge Sonia Sotomayor’s confirmation hearing to the Supreme Court. The day began with only four Senate Republicans and approximately eight Senate Democrats remaining in the second round of questioning. However, at the request of committee Republicans, Senator Leahy graciously allowed each member another ten minutes during a third round of questioning. By the end, Judge Sotomayor had sat before the committee for over twenty four hours.
The themes of the previous days’ questioning continued, with Republicans aggressively questioning Sotomayor about her views on the Second Amendment, international law, her involvement in the Puerto Rican Legal Defense and Education Fund, and her decision in Ricci v DeStefano. Senate Democrats emphasized her impeccable qualifications, inspiring life story, and solid judicial record.
Senator Kyl was particularly tough in his approach. He grilled her on her decision in Ricci, but Sotomayor held her ground, contending that precedent dictated the result of the three judge panel, and that the Supreme Court had created a new legal standard in its decision to overrule the Second Circuit. Senator Kyl mistakenly concluded that all nine Supreme Court justices disagreed with the Second Circuit’s decision, a point that both Sotomayor and other commentators have noted is incorrect. In fact, four justices of the Supreme Court made very clear that they would have affirmed the Second Circuit’s decision.
Senator Graham’s questioning of Sotomayor was also striking, as it seemed to lay the groundwork for a vote in favor of the nominee. He remarked that she was “broadminded” and agreed that her “wise Latina” comment was not meant to encourage race or gender discrimination or preferences. Graham also stated that he did not think Judge Sotomayor was a “judicial activist,” a worn-out buzz word used by the right to waylay nominees. Ironically, while Senator Coburn decried the use of foreign law to interpret the Constitution or laws of the United States, he encouraged judges to look to the rest of the world when it came to a woman’s right to choose, claiming that 80% of the rest of the world doesn’t allow abortions after twelve weeks.
At the conclusion of committee questioning, a number of witness panels appeared before the members. The American Bar Association testified on behalf of Judge Sotomayor, giving her their highest rating of “well qualified.” New York City Mayor Michael Bloomburg, New York County District Attorney Robert Morgenthau, Arkansas Attorney General Dustin McDaniel, and Wade Henderson President of the Leadership Conference on Civil Rights also testified and spoke to her character, competence, and suitability for the Court. Additionally, witnesses for the minority testified, including Frank Ricci and Benjamin Vargas of the New Haven Fire Department (Ricci plaintiffs), Peter Kirsanow of the U.S. Commission on Civil Rights, and conservative commentator Linda Chavez. It was clear that the Ricci plaintiffs elicited empathy from Republican Senators for the burden the suit had placed on their families and the unsatisfying result they received in both the district court and the Second Circuit. Indeed, it appears the Republicans believe there is a place for empathy in our judicial system after all, as long as the result is one with which they agree.
The themes of the previous days’ questioning continued, with Republicans aggressively questioning Sotomayor about her views on the Second Amendment, international law, her involvement in the Puerto Rican Legal Defense and Education Fund, and her decision in Ricci v DeStefano. Senate Democrats emphasized her impeccable qualifications, inspiring life story, and solid judicial record.
Senator Kyl was particularly tough in his approach. He grilled her on her decision in Ricci, but Sotomayor held her ground, contending that precedent dictated the result of the three judge panel, and that the Supreme Court had created a new legal standard in its decision to overrule the Second Circuit. Senator Kyl mistakenly concluded that all nine Supreme Court justices disagreed with the Second Circuit’s decision, a point that both Sotomayor and other commentators have noted is incorrect. In fact, four justices of the Supreme Court made very clear that they would have affirmed the Second Circuit’s decision.
Senator Graham’s questioning of Sotomayor was also striking, as it seemed to lay the groundwork for a vote in favor of the nominee. He remarked that she was “broadminded” and agreed that her “wise Latina” comment was not meant to encourage race or gender discrimination or preferences. Graham also stated that he did not think Judge Sotomayor was a “judicial activist,” a worn-out buzz word used by the right to waylay nominees. Ironically, while Senator Coburn decried the use of foreign law to interpret the Constitution or laws of the United States, he encouraged judges to look to the rest of the world when it came to a woman’s right to choose, claiming that 80% of the rest of the world doesn’t allow abortions after twelve weeks.
At the conclusion of committee questioning, a number of witness panels appeared before the members. The American Bar Association testified on behalf of Judge Sotomayor, giving her their highest rating of “well qualified.” New York City Mayor Michael Bloomburg, New York County District Attorney Robert Morgenthau, Arkansas Attorney General Dustin McDaniel, and Wade Henderson President of the Leadership Conference on Civil Rights also testified and spoke to her character, competence, and suitability for the Court. Additionally, witnesses for the minority testified, including Frank Ricci and Benjamin Vargas of the New Haven Fire Department (Ricci plaintiffs), Peter Kirsanow of the U.S. Commission on Civil Rights, and conservative commentator Linda Chavez. It was clear that the Ricci plaintiffs elicited empathy from Republican Senators for the burden the suit had placed on their families and the unsatisfying result they received in both the district court and the Second Circuit. Indeed, it appears the Republicans believe there is a place for empathy in our judicial system after all, as long as the result is one with which they agree.
Day Four of the Sotomayor Confirmation Hearing
And so Day Four of the Sonia Sotomayor hearings begin. Once again, the judge faces the Senate Judiciary Committee starting at 9:30. The second round of questions began yesterday, ending with Senator Cardin (D-MD). The round continues this morning; six more senators still have their 20 minutes of follow-up, though Chairman Leahy (D-VT) has not been shy about urging everyone not to feel obliged to take the full 20. Barring any surprises, Judge Sotomayor will be done with testifying and then the witnesses will begin. All eyes are on Frank Ricci, of Ricci v. DeStefano fame. He is not the only witness appearing, however. Members of the American Bar Association, New York Mayor Michael Bloomberg, even former professional baseball player David Cone are slated to appear. (A full list can be found here.) There are seven panels, with up to eight people on a panel, so if you want to put your money on the hearings not officially wrapping until tomorrow, it wouldn't be a bad bet.
Wednesday, July 15, 2009
Theme of Day Three of Sotomayor Hearings is "Asked and Answered"
Day three of the Judiciary Committee hearings saw more of the same from the Senate Republicans. In stark contrast to the kid gloves they used with Justices Alito and Roberts during their confirmation hearings, Republicans aggressively questioned Judge Sotomayor. Nonetheless, she handled herself with the poise and patience she has exhibited throughout the hearings. Although she was careful not to prejudge issues that might come before the Supreme Court, Judge Sotomayor continued to answer the senators’ questions with candor and insight.
The Committee finished the first round of questioning with Senators Coburn (R-OK) , Cardin (D-MD) , Klobuchar (D-MN) , Kaufman (D-DE) , Specter (D-PA) and Franken (D-MN) taking their turns to question Judge Sotomayor. Senator Coburn was particularly hostile in questioning Judge Sotomayor about gun rights and whether there is a constitutional right to self-defense. Judge Sotomayor asserted that to her knowledge, the Supreme Court had never recognized a constitutional self-defense right, but that most states do allow people to defend themselves when necessary. Late in the session, Judge Sotomayor’s love of the Perry Mason television program was a topic of questioning and we learned that Senator Franken is also a Perry Mason fan, though both Judge Sotomayor and Senator Franken were stumped on the name of the episode in which Perry lost a case. (It was "The Case of the Deadly Verdict," by the way.)
After a break for a closed door session the hearing resumed with the beginning of the second round of questioning. So far, the second round has been more of the same from the Republicans on the Committee. Senators Sessions (R-AL) and Hatch (R-UT) continued to question Judge Sotomayor on her “wise Latina” comment. Judge Sotomayor patiently reiterated that it was a remark that “fell flat” and was intended to inspire a group of students. She continued to recognize that it might be misunderstood and sought to correct the impression of those who took her comment the wrong way.
Day four will continue with the second round of questioning of Judge Sotomayor before the Committee moves on to testimony from witnesses including members of the American Bar Association's judicial rating panel and Frank Ricci, one of the litigants in this term's "New Haven firefighter" case. Perhaps we'll hear something new from Senate Republicans tomorrow.
The Committee finished the first round of questioning with Senators Coburn (R-OK) , Cardin (D-MD) , Klobuchar (D-MN) , Kaufman (D-DE) , Specter (D-PA) and Franken (D-MN) taking their turns to question Judge Sotomayor. Senator Coburn was particularly hostile in questioning Judge Sotomayor about gun rights and whether there is a constitutional right to self-defense. Judge Sotomayor asserted that to her knowledge, the Supreme Court had never recognized a constitutional self-defense right, but that most states do allow people to defend themselves when necessary. Late in the session, Judge Sotomayor’s love of the Perry Mason television program was a topic of questioning and we learned that Senator Franken is also a Perry Mason fan, though both Judge Sotomayor and Senator Franken were stumped on the name of the episode in which Perry lost a case. (It was "The Case of the Deadly Verdict," by the way.)
After a break for a closed door session the hearing resumed with the beginning of the second round of questioning. So far, the second round has been more of the same from the Republicans on the Committee. Senators Sessions (R-AL) and Hatch (R-UT) continued to question Judge Sotomayor on her “wise Latina” comment. Judge Sotomayor patiently reiterated that it was a remark that “fell flat” and was intended to inspire a group of students. She continued to recognize that it might be misunderstood and sought to correct the impression of those who took her comment the wrong way.
Day four will continue with the second round of questioning of Judge Sotomayor before the Committee moves on to testimony from witnesses including members of the American Bar Association's judicial rating panel and Frank Ricci, one of the litigants in this term's "New Haven firefighter" case. Perhaps we'll hear something new from Senate Republicans tomorrow.
Letter of endorsement signed by 1,200 Law Professors
Last Wednesday we wrote about a letter in support of Judge Sonia Sotomayor’s nomination to the Supreme Court that had been signed by “almost 1,200” law professors from across the country. Today, during the Sotomayor confirmation hearing, Senate Judiciary Committee Chairman Leahy introduced the letter into the record with 1,200 signatures. An impressive number that shows clear support of Judge Sotomayor’s confirmation.
Demolition Specialists The Supreme Court's 2008/2009 Term
From Huffington Post:
As Judge Sotomayor answers questions from Senators at her hearing, AFJ takes a look at the Supreme Court term that ended in June. A newly-available Alliance for Justice analysis reveals that "the most ominous theme of the term was the repeated planting of bombs by the Roberts wing of the Court designed to detonate in future terms, including preparations to throw out the Voting Rights Act, eliminate disparate impact violations, dismantle campaign finance law or further erode the rights of criminal defendants." Read the full report.
Read the full blog post on Huffington.
As Judge Sotomayor answers questions from Senators at her hearing, AFJ takes a look at the Supreme Court term that ended in June. A newly-available Alliance for Justice analysis reveals that "the most ominous theme of the term was the repeated planting of bombs by the Roberts wing of the Court designed to detonate in future terms, including preparations to throw out the Voting Rights Act, eliminate disparate impact violations, dismantle campaign finance law or further erode the rights of criminal defendants." Read the full report.
Read the full blog post on Huffington.
Day 3 of the Sotomayor Confirmation Hearing
Today, day three of the hearing starts at 9:30 a.m. Senators Cornyn, Cardin, Coburn, Whitehouse, Klobuchar, Kaufman, Specter and Franken still need to question Judge Sotomayor to finish round one of the questioning. Once the first round of questions is complete, the Committee will break and hold a closed session with Judge Sotomayor. The closed session is routine procedure for Supreme Court nominees and will involve questions about her FBI background check. The hearing will reconvene following the closed session and lunch break in the afternoon to start the second round of questions when senators are permitted up to 20 minutes of questioning. At the end of the day yesterday, however, Chairman Leahy politely asked senators who do not need their full 20 minutes for questions to be brief so that the hearing does not drag on.
Tuesday, July 14, 2009
Sotomayor Hearing Wrap-Up: Day 2
Today was the first day that Judge Sotomayor answered questions from the Senate. The questions, ranging from the relevant to the wildly inane, covered many topics including Judge Sotomayor’s judicial record, speeches, and her background with PRLDEF. The main focus of today’s hearing was the Ricci case, the Judge’s remarks that she hoped a wise Latina would come to a better legal conclusion than a wise old man, and the Maloney 2nd Amendment case.
Much of the day focused on her per curiam opinion in Ricci and the now infamous “wise Latina” comment she made in a few speeches. While most Republican Senators tried to paint Judge Sotomayor as a judge with an agenda, the back-and-forth volleys showed something entirely different. Judge Sotomayor clearly showed that the Second Circuit’s decision in Ricci followed established Supreme Court and Second Circuit precedent, and that the comment in her speeches have been taken out of context. In discussing Ricci, Judge Sotomayor confirmed that the Second Circuit panel had carefully reviewed and adopted a “very thorough 78 page decision from the district court” that thoroughly discussed both Second Circuit and Supreme Court precedent the panel was required to follow. She emphasized that Ricci was “not a quota case,…not an affirmative action case, this was a challenge to a test that everybody agreed had a very wide difference between the pass rate of a variety of different groups.” It was the Supreme Court that announced a completely new standard by which to judge Title VII cases. With respect to her speeches, Judge Sotomayor clarified that each was made to students and that her comments reflected her desire to inspire and encourage them to recognize that “their life experiences would enrich the legal system.”
Senators Kyl and Hatch among others questioned Judge Sotomayor at length about her understanding of the Second Amendment, the foundations for the right to privacy in the Constitution, and her views of stare decisis. In response to each question, Judge Sotomayor was reasonable, authoritative, and extremely forthcoming. In short, she demonstrated precisely the intelligence and temperament that will serve her well as a Justice on the Supreme Court.
Stay tuned for more updates tomorrow as the senators finish their first round of questioning.
Much of the day focused on her per curiam opinion in Ricci and the now infamous “wise Latina” comment she made in a few speeches. While most Republican Senators tried to paint Judge Sotomayor as a judge with an agenda, the back-and-forth volleys showed something entirely different. Judge Sotomayor clearly showed that the Second Circuit’s decision in Ricci followed established Supreme Court and Second Circuit precedent, and that the comment in her speeches have been taken out of context. In discussing Ricci, Judge Sotomayor confirmed that the Second Circuit panel had carefully reviewed and adopted a “very thorough 78 page decision from the district court” that thoroughly discussed both Second Circuit and Supreme Court precedent the panel was required to follow. She emphasized that Ricci was “not a quota case,…not an affirmative action case, this was a challenge to a test that everybody agreed had a very wide difference between the pass rate of a variety of different groups.” It was the Supreme Court that announced a completely new standard by which to judge Title VII cases. With respect to her speeches, Judge Sotomayor clarified that each was made to students and that her comments reflected her desire to inspire and encourage them to recognize that “their life experiences would enrich the legal system.”
Senators Kyl and Hatch among others questioned Judge Sotomayor at length about her understanding of the Second Amendment, the foundations for the right to privacy in the Constitution, and her views of stare decisis. In response to each question, Judge Sotomayor was reasonable, authoritative, and extremely forthcoming. In short, she demonstrated precisely the intelligence and temperament that will serve her well as a Justice on the Supreme Court.
Stay tuned for more updates tomorrow as the senators finish their first round of questioning.
Senator Kyl Singing a Different Tune
Today, Senator Kyl (R-AZ) sharply questioned Judge Sotomayor about how her background may impact her decisions. He took a slightly different tack in his opening statement during the Alito hearing:
"With your intellect and education, you could have become a wealthy attorney, but instead you devoted virtually all of your legal career to the public service. In doing so, you meet, and even exceed, the stellar examples set by Justices Thomas and Souter, each of whom devoted most of their pre-judicial careers to public service. Perhaps this is because, like Justices Ginsburg and Scalia, you had a father who was an immigrant to this Nation. It seems that immigrants often have a special understanding of the incredible opportunities that this Nation affords its citizens."
"With your intellect and education, you could have become a wealthy attorney, but instead you devoted virtually all of your legal career to the public service. In doing so, you meet, and even exceed, the stellar examples set by Justices Thomas and Souter, each of whom devoted most of their pre-judicial careers to public service. Perhaps this is because, like Justices Ginsburg and Scalia, you had a father who was an immigrant to this Nation. It seems that immigrants often have a special understanding of the incredible opportunities that this Nation affords its citizens."
Can Baseball Survive the Supreme Court Confirmation Process?
From AFJ Legal Director Bill Yeomans on Huffington Post:
Judge Sonia Sotomayor may be hailed as the woman who saved baseball, but her hearings, along with those of John Roberts and Samuel Alito are threatening real damage to the sport. Supreme Court nominee Judge Sotomayor's hearings will explore many hot-button issues, including abortion, the taking of property, guns, and Jeff Sessions' view that our civil rights laws were enacted to redress this nation's long history of oppression of the white race. But, so far no topic has received more mention than baseball - our Great National Past Time, the perfect game that is deeply embedded in our national DNA. Before it is too late, we need to declare a moratorium on baseball analogies applied to the courts.
The mess started with John Roberts' inaccurate and disingenuous description during his confirmation hearing of a good judge as a baseball umpire, whose job is simply to call balls and strikes as he or she sees them. As others have pointed out, the comparison was simplistic and flawed in many ways, but we have now entered a new danger zone. Republicans seem to be wedded to the analogy, particularly as used by John Roberts.
But, even a cursory look at the chief justice's record shows that every pitch thrown on behalf of business and against consumers is a strike. Every pitch thrown by a prosecutor splits the strike zone, but every pitch thrown by a criminal defendant bounces off the backstop. Every pitch thrown by a minority civil rights claimant bounces in the dirt, but pitches thrown by white civil rights plaintiffs all go right down the middle. Gun owners have unerring aim when targeting John Roberts' strike zone, but environmentalists, despite wearing out their arms, have yet to get one over the plate. And the amazing thing is that observers know how John Roberts will call pitches before they are even thrown. So, the logical conclusion to draw from Republicans' repeated invocation of the John Roberts-as-umpire analogy is that baseball umpires no longer need to look at pitches; they merely need to know who is pitching.
Indeed, Roberts and his cronies on the right have decided to revise the rules of baseball to fix the game even more. The Court's last act of the past term was to schedule reargument in Citizens United v. FEC, a case presenting the question whether a 90-minute film slamming Hillary Clinton was subject to federal campaign finance disclosure and disclaimer requirements. The conservatives on the Court ordered the parties to brief a much broader issue, designed to give the Court a vehicle to strike down federal restrictions on commercial corporate money flowing to candidates - an outcome that will prove particularly beneficial to Republicans who, for the first time in memory, find themselves trailing Democrats in campaign money.
The Court's action strips away any suggestion that the so-called conservatives on the Court are anything other than overt judicial activists who are trying to reshape the Court's docket to allow them to decide the issues they want to reach, whether they are presented by the parties or not. They have abandoned the traditional conservative view of the Court as a passive institution that takes the cases as they come and decides the case before it. In other words, the conservative members of the Court now appear to think that an umpire can tell the pitcher what pitch to throw if he wants it called a strike. It's time to stop the baseball analogies now. If we don't quickly divorce baseball from this Court, it will ruin baseball.
Judge Sonia Sotomayor may be hailed as the woman who saved baseball, but her hearings, along with those of John Roberts and Samuel Alito are threatening real damage to the sport. Supreme Court nominee Judge Sotomayor's hearings will explore many hot-button issues, including abortion, the taking of property, guns, and Jeff Sessions' view that our civil rights laws were enacted to redress this nation's long history of oppression of the white race. But, so far no topic has received more mention than baseball - our Great National Past Time, the perfect game that is deeply embedded in our national DNA. Before it is too late, we need to declare a moratorium on baseball analogies applied to the courts.
The mess started with John Roberts' inaccurate and disingenuous description during his confirmation hearing of a good judge as a baseball umpire, whose job is simply to call balls and strikes as he or she sees them. As others have pointed out, the comparison was simplistic and flawed in many ways, but we have now entered a new danger zone. Republicans seem to be wedded to the analogy, particularly as used by John Roberts.
But, even a cursory look at the chief justice's record shows that every pitch thrown on behalf of business and against consumers is a strike. Every pitch thrown by a prosecutor splits the strike zone, but every pitch thrown by a criminal defendant bounces off the backstop. Every pitch thrown by a minority civil rights claimant bounces in the dirt, but pitches thrown by white civil rights plaintiffs all go right down the middle. Gun owners have unerring aim when targeting John Roberts' strike zone, but environmentalists, despite wearing out their arms, have yet to get one over the plate. And the amazing thing is that observers know how John Roberts will call pitches before they are even thrown. So, the logical conclusion to draw from Republicans' repeated invocation of the John Roberts-as-umpire analogy is that baseball umpires no longer need to look at pitches; they merely need to know who is pitching.
Indeed, Roberts and his cronies on the right have decided to revise the rules of baseball to fix the game even more. The Court's last act of the past term was to schedule reargument in Citizens United v. FEC, a case presenting the question whether a 90-minute film slamming Hillary Clinton was subject to federal campaign finance disclosure and disclaimer requirements. The conservatives on the Court ordered the parties to brief a much broader issue, designed to give the Court a vehicle to strike down federal restrictions on commercial corporate money flowing to candidates - an outcome that will prove particularly beneficial to Republicans who, for the first time in memory, find themselves trailing Democrats in campaign money.
The Court's action strips away any suggestion that the so-called conservatives on the Court are anything other than overt judicial activists who are trying to reshape the Court's docket to allow them to decide the issues they want to reach, whether they are presented by the parties or not. They have abandoned the traditional conservative view of the Court as a passive institution that takes the cases as they come and decides the case before it. In other words, the conservative members of the Court now appear to think that an umpire can tell the pitcher what pitch to throw if he wants it called a strike. It's time to stop the baseball analogies now. If we don't quickly divorce baseball from this Court, it will ruin baseball.
Sotomayor Hearing Day 2
Today we start day two of the Sotomayor confirmation hearing, and it promises to be a more energetic day with the back and forth of questioning. Each senator will get 30 minutes of questioning ; like yesterday, order is determined by committee seniority. We expect Judge Sotomayor to field questions from Republican senators about her ability to be an unbiased judge, a question she touched on yesterday in her opening statement when she pledged “fidelity to the law.” In our recently released fact sheet on Race and the Law regarding this very issue, we observe :
“There is no evidence of any racial bias in any of the hundreds of decisions Judge Sotomayor has written. To the contrary, her jurisprudence in cases involving claims of racial discrimination is very much like her jurisprudence in other areas of the law. She is deliberate, measured, and adheres closely to precedent.”
Stay tuned as we will be releasing more fact sheets on our website as issues arise throughout the hearing.
“There is no evidence of any racial bias in any of the hundreds of decisions Judge Sotomayor has written. To the contrary, her jurisprudence in cases involving claims of racial discrimination is very much like her jurisprudence in other areas of the law. She is deliberate, measured, and adheres closely to precedent.”
Stay tuned as we will be releasing more fact sheets on our website as issues arise throughout the hearing.
Monday, July 13, 2009
Sotomayor Hearing Day 1 Wrap-up
Judge Sotomayor’s moving and thoughtful opening statement promises more insight to come from the judge as the questioning gets under way. Like her record, Judge Sotomayor’s statement reflects a commitment to the rule of law and core constitutional values.
After giving her own personal history Judge Sotomayor summarized her transition to working as a judge:
The Senate Judiciary Committee is in recess until tomorrow morning at 9:30 am when senators will get their chance to ask Sotomayor questions directly. Tomorrow may bring more surprises than today, which was limited to opening statements. There were a few short outbursts, however, which goes to show that the hearing for the first Latina Supreme Court nominee is not immune to protest.
After giving her own personal history Judge Sotomayor summarized her transition to working as a judge:
My career as an advocate ended—and my career as a judge began—when I was
appointed by President George H.W. Bush to the United States District Court for
the Southern District of New York. As a trial judge, I decided over four
hundred and fifty cases, and presided over dozens of trials, with perhaps my
best known case involving the Major League Baseball strike in 1995.
The Senate Judiciary Committee is in recess until tomorrow morning at 9:30 am when senators will get their chance to ask Sotomayor questions directly. Tomorrow may bring more surprises than today, which was limited to opening statements. There were a few short outbursts, however, which goes to show that the hearing for the first Latina Supreme Court nominee is not immune to protest.
AFJ Releases Fact Sheets on Issues Raised During Sotomayor Hearing
Today, we at AFJ are releasing fact sheets on our website discussing various issues that have been raised during senators’ opening statements at today’s confirmation hearing. If you want to learn more about the issues at hand check out the recently released fact sheets on international law, the takings clause, and original intent. We will add more fact sheets as the hearing progresses, so if there is anything in particular you want to know more about, let us know and we’ll be sure to address it. In case you missed it, last week we posted our analysis of the Ricci case on Huffington Post.
The hearing will resume at 2pm today and we'll get to hear from Senator Franken as he makes his debut on the Senate Judiciary Committee.
The hearing will resume at 2pm today and we'll get to hear from Senator Franken as he makes his debut on the Senate Judiciary Committee.
Sotomayor Hearing Lunch Recess Update
During the lunch break we’d love to hear your thoughts and comments about the hearing thus far. If you’re not already, you can follow AFJ President Nan Aron on Twitter for live updates; her commentary has been complimented thus far by numerous tweeters including
@ cbhutton: RT @NanAron: has great coverage of the confirmation hearing! Best use of twitter I've seen.
You can read the full transcripts of the senators' opening statements on the Senate Judiciary Committee Website. So far eleven senators have given their statements, so eight more statements remain before we get to hear Judge Sotomayor’s opening statement. She will have an opportunity to respond more directly to some of the mischaracterizations of her record tomorrow, when the actual questioning begins.
@ cbhutton: RT @NanAron: has great coverage of the confirmation hearing! Best use of twitter I've seen.
You can read the full transcripts of the senators' opening statements on the Senate Judiciary Committee Website. So far eleven senators have given their statements, so eight more statements remain before we get to hear Judge Sotomayor’s opening statement. She will have an opportunity to respond more directly to some of the mischaracterizations of her record tomorrow, when the actual questioning begins.
No Surprises Thus Far
Three statements in, the hearing has gone as expected. Committee Chairman, Senator Leahy (D-VT) gave his ten-minute opening statement, followed by ranking member Senator Sessions (R-AL) who went just over the 10 minutes allowed to each member of the committee. As expected, Senator Sessions brought up the Ricci case, promoted guns, raised questions about abortion, fulminated against imparting international law, and attacked Sotomayor’s involvement with PRLDEF. Yet, the positive messages of Senator Leahy and Sentor Kohl (D-WI) who have called Sotomayor an inspiration to the American people are ringing loud and clear.
UPDATE: Just after we posted this, there was an outburst by an audience member during Sentaor Feinstein's (D-CA) statement. Maybe things will heat up...
UPDATE: Just after we posted this, there was an outburst by an audience member during Sentaor Feinstein's (D-CA) statement. Maybe things will heat up...
Historic Hearing Begins Today
Today, the Senate Judiciary Committee begins its hearings on the nomination of Judge Sonia Sotomayor, President Obama’s choice to replace Associate Justice David Souter. Things kick off at 10 am this morning, and all eyes will be on the historic confirmation hearing of this exceptionally qualified woman.
On Friday, we wrote about some of the larger themes that will emerge from the hearings, and you’ll see the groundwork for that laid today. There will be very little questioning of Judge Sotomayor on the first day of the hearing. The bulk of the day will be devoted to opening statements from each and every senator on the committee. All 19 of them. Each will have 10 minutes to speak (or grandstand, in some cases), in order of seniority alternating between Democrats and Republicans.
After the senators have their chance in the spotlight, we expect Judge Sotomayor to enter the limelight at around 2pm this afternoon. Be ready when she raises her hand when she’s sworn in: every camera in the hearing room will be going off, creating a blinding array of flashes and a cacophony of shutters closing.
Judge Sotomayor is no stranger to the Senate Judiciary Committee; she has been confirmed twice already, first to her district court seat, and then for her seat on the Second Circuit Court of Appeals, though a Supreme Court hearing brings with a much greater level of attention and scrutiny. So, there will likely still be drama at the hearing--. and we’ll be bringing you commentary every step of the way. Follow AFJ President Nan Aron on Twitter and check back here regularly for updates. For more about Judge Sonia Sotomayor, please see our Supreme Court Watch page.
On Friday, we wrote about some of the larger themes that will emerge from the hearings, and you’ll see the groundwork for that laid today. There will be very little questioning of Judge Sotomayor on the first day of the hearing. The bulk of the day will be devoted to opening statements from each and every senator on the committee. All 19 of them. Each will have 10 minutes to speak (or grandstand, in some cases), in order of seniority alternating between Democrats and Republicans.
After the senators have their chance in the spotlight, we expect Judge Sotomayor to enter the limelight at around 2pm this afternoon. Be ready when she raises her hand when she’s sworn in: every camera in the hearing room will be going off, creating a blinding array of flashes and a cacophony of shutters closing.
Judge Sotomayor is no stranger to the Senate Judiciary Committee; she has been confirmed twice already, first to her district court seat, and then for her seat on the Second Circuit Court of Appeals, though a Supreme Court hearing brings with a much greater level of attention and scrutiny. So, there will likely still be drama at the hearing--. and we’ll be bringing you commentary every step of the way. Follow AFJ President Nan Aron on Twitter and check back here regularly for updates. For more about Judge Sonia Sotomayor, please see our Supreme Court Watch page.
Friday, July 10, 2009
From Huffington Post: Let the Hearing Begin
The Senate Judiciary Committee will convene Monday morning at 10:00 a.m. to begin the hearing on Sonia Sotomayor’s nomination to become an associate justice of the Supreme Court. The hearing will be a consequential moment in our history, but not so much because the confirmation of Judge Sotomayor is on the line. Barring some unforeseen and very unlikely event, Republicans will quickly back off attacks on Judge Sotomayor herself. They recognize that it is politically dangerous to criticize her given her appealing personal story of rising from a housing project in the Bronx to the pinnacle of our judiciary through enormous talent and hard work, her record as a moderate who feels bound to follow the law strictly on the bench, and her ethnicity and gender.
Instead, they will use the occasion to promote their distorted view of the law – not what it is but what they would like it to be in a republic ruled by hard-right judicial activists such as Chief John Roberts and Justice Samuel Alito. For that reason, the week will offer an enormously important contrast between the nominee and her supporters and this ominous Republican vision.
So, what are the themes that Republicans will raise in response to Judge Sotomayor’s nomination?
First, they will highlight the Ricci case, the challenge by white firefighters to New Haven’s voluntary effort to avoid discrimination against minority firefighters. Judge Sotomayor, of course, sat on a panel of the Second Circuit that summarily affirmed the lower court’s decision that New Haven’s decision to scrap a test for promotion of firefighters to avoid disproportionately excluding black and Hispanic applicants was consistent with Title VII of the Civil Rights Act of 1964. Repudiating decades of settled civil rights law, the Supreme Court reversed that decision in a 5-4 opinion. The five conservatives on the Court, who have traditionally been hostile to claims of discrimination by minorities, created a new rule and broke with standard practice by directing judgment for the white firefighters, rather than sending the case back to the lower court so that New Haven could prove that it met the new standard. While Republicans will criticize Sotomayor’s participation in the panel decision and will bring in the lead plaintiff, Frank Ricci, to testify (surely they would not suggest that empathy for Ricci should influence the result), the fact remains that 11 of 21 judges who reviewed Mr. Ricci’s claim ruled against him. Judge Sotomayor can hardly be considered out of the mainstream or at fault for failing to apply the law that the conservatives made up when the case reached the Supreme Court.
Republicans will also use the hearing to promote guns. In their continuing quest to ensure that every American is armed, they will criticize a decision in which Judge Sotomayor, sitting on a unanimous panel of the Second Circuit, held that the Second Amendment to the Constitution, which ensures against federal limitations on an individual right to bear arms, does not prohibit state limitations on guns. Unfortunately for Republicans, the Supreme Court has held the very same thing three times. To find fault with Judge Sotomayor’s decision, her critics have to argue that she should have thrown the rule of law to the winds and ignored Supreme Court precedent. Even conservative icons of the bench, Judges Frank Easterbrook and Richard Posner, have agreed with Judge Sotomayor on this issue. That, however, is unlikely to stop conservatives from using the occasion to lecture about the sanctity of the Second Amendment as a guarantee of fundamental rights.
Republicans will also raise questions about abortion – even though Judge Sotomayor has never ruled on abortion and does not have any known public statements on the issue. In any event, support for Roe v. Wade, which is the law of the land, can hardly be a ground for disqualification from the Supreme Court. There will be no traction in criticizing Judge Sotomayor on this issue, but Republicans are likely to use the opportunity to burnish their anti-choice credentials, as if anyone had any doubt.
Republicans will criticize Judge Sotomayor for two decisions involving takings of private property by local governments. Again, both decisions are based directly on Supreme Court precedent – namely the Court’s controversial but binding decision in Kelo v. City of New London. Because Kelo has proven unpopular, however, Republicans will try to tie Judge Sotomayor to it in a critical manner, even though it remains the law of the land, which she, as a judge, is required to apply.
Republicans will also use Judge Sotomayor as a foil to fulminate against importing international law as the basis for deciding domestic legal issues. Judge Sotomayor has been very clear that she does not believe that the law of other nations or international law offer a basis for decision in the courts of the United States. Indeed, there is nothing in any of her opinions that suggests otherwise. Republicans, therefore, will attempt to misconstrue a speech she gave in which she allowed that good ideas may arise outside the United States and we should be receptive to them. That is a far cry from endorsing international sources of law as binding in the United States.
Finally, Republicans will attack the activities of the Puerto Rican Legal Defense Fund (PRLDEF), which Judge Sotomayor served as a member of its Board of Directors prior to going on the bench. PRLDEF is an outstanding organization that has done exceptional work in promoting civil and constitutional rights. It operates in the great tradition of the NAACP Legal Defense Fund and other public interest legal organizations that have helped America to fulfill its promise as the cradle of liberty and opportunity. Republicans should be ashamed of trying to score political points off of Judge Sotomayor’s commitment to the proud tradition of public interest law.
In sum, next week will do more than allow Americans to learn more about Judge Sonia Sotomayor, it will also present an opportunity to examine the legal agenda of the hard-right. In contrast to the sterling nominee who will sit in front of the Senate Judiciary Committee as the embodiment of the opportunities that America, because of its values and laws, provides to those who work hard, the ultraconservative legal agenda will appear small, ungenerous, mean-spirited, and exclusive.
Let the hearing begin.
Instead, they will use the occasion to promote their distorted view of the law – not what it is but what they would like it to be in a republic ruled by hard-right judicial activists such as Chief John Roberts and Justice Samuel Alito. For that reason, the week will offer an enormously important contrast between the nominee and her supporters and this ominous Republican vision.
So, what are the themes that Republicans will raise in response to Judge Sotomayor’s nomination?
First, they will highlight the Ricci case, the challenge by white firefighters to New Haven’s voluntary effort to avoid discrimination against minority firefighters. Judge Sotomayor, of course, sat on a panel of the Second Circuit that summarily affirmed the lower court’s decision that New Haven’s decision to scrap a test for promotion of firefighters to avoid disproportionately excluding black and Hispanic applicants was consistent with Title VII of the Civil Rights Act of 1964. Repudiating decades of settled civil rights law, the Supreme Court reversed that decision in a 5-4 opinion. The five conservatives on the Court, who have traditionally been hostile to claims of discrimination by minorities, created a new rule and broke with standard practice by directing judgment for the white firefighters, rather than sending the case back to the lower court so that New Haven could prove that it met the new standard. While Republicans will criticize Sotomayor’s participation in the panel decision and will bring in the lead plaintiff, Frank Ricci, to testify (surely they would not suggest that empathy for Ricci should influence the result), the fact remains that 11 of 21 judges who reviewed Mr. Ricci’s claim ruled against him. Judge Sotomayor can hardly be considered out of the mainstream or at fault for failing to apply the law that the conservatives made up when the case reached the Supreme Court.
Republicans will also use the hearing to promote guns. In their continuing quest to ensure that every American is armed, they will criticize a decision in which Judge Sotomayor, sitting on a unanimous panel of the Second Circuit, held that the Second Amendment to the Constitution, which ensures against federal limitations on an individual right to bear arms, does not prohibit state limitations on guns. Unfortunately for Republicans, the Supreme Court has held the very same thing three times. To find fault with Judge Sotomayor’s decision, her critics have to argue that she should have thrown the rule of law to the winds and ignored Supreme Court precedent. Even conservative icons of the bench, Judges Frank Easterbrook and Richard Posner, have agreed with Judge Sotomayor on this issue. That, however, is unlikely to stop conservatives from using the occasion to lecture about the sanctity of the Second Amendment as a guarantee of fundamental rights.
Republicans will also raise questions about abortion – even though Judge Sotomayor has never ruled on abortion and does not have any known public statements on the issue. In any event, support for Roe v. Wade, which is the law of the land, can hardly be a ground for disqualification from the Supreme Court. There will be no traction in criticizing Judge Sotomayor on this issue, but Republicans are likely to use the opportunity to burnish their anti-choice credentials, as if anyone had any doubt.
Republicans will criticize Judge Sotomayor for two decisions involving takings of private property by local governments. Again, both decisions are based directly on Supreme Court precedent – namely the Court’s controversial but binding decision in Kelo v. City of New London. Because Kelo has proven unpopular, however, Republicans will try to tie Judge Sotomayor to it in a critical manner, even though it remains the law of the land, which she, as a judge, is required to apply.
Republicans will also use Judge Sotomayor as a foil to fulminate against importing international law as the basis for deciding domestic legal issues. Judge Sotomayor has been very clear that she does not believe that the law of other nations or international law offer a basis for decision in the courts of the United States. Indeed, there is nothing in any of her opinions that suggests otherwise. Republicans, therefore, will attempt to misconstrue a speech she gave in which she allowed that good ideas may arise outside the United States and we should be receptive to them. That is a far cry from endorsing international sources of law as binding in the United States.
Finally, Republicans will attack the activities of the Puerto Rican Legal Defense Fund (PRLDEF), which Judge Sotomayor served as a member of its Board of Directors prior to going on the bench. PRLDEF is an outstanding organization that has done exceptional work in promoting civil and constitutional rights. It operates in the great tradition of the NAACP Legal Defense Fund and other public interest legal organizations that have helped America to fulfill its promise as the cradle of liberty and opportunity. Republicans should be ashamed of trying to score political points off of Judge Sotomayor’s commitment to the proud tradition of public interest law.
In sum, next week will do more than allow Americans to learn more about Judge Sonia Sotomayor, it will also present an opportunity to examine the legal agenda of the hard-right. In contrast to the sterling nominee who will sit in front of the Senate Judiciary Committee as the embodiment of the opportunities that America, because of its values and laws, provides to those who work hard, the ultraconservative legal agenda will appear small, ungenerous, mean-spirited, and exclusive.
Let the hearing begin.
Wednesday, July 8, 2009
Almost 1200 professors from across the country endorse Sotomayor
Today, law professors from across the country released a letter in support of Judge Sonia Sotomayor’s nomination to the Supreme Court.
With almost 1,200 signatories from 170 law schools in 49 states (Alaska does not currently have a law school) the letter has been signed by many renowned legal scholars from across the ideological spectrum.
On a call today, six of those professors: Charles Ogletree (Harvard), Laurence Tribe (Harvard), Arthur Miller (NYU), Daniel Richman (Columbia), Evan Caminker (Michigan), and Robert Weisberg ( Stanford) --further explained the outpouring of support for Judge Sotomayor in the legal community.
Professor Laurence Tribe of Harvard Law commented on the diverse and numerous signatories. “I don’t know of any instance where there has been anything like this diversity – geographically and ideologically it is the most diverse as well as longest list in support of a Supreme Court nominee.” He also noted that conservative attempts to cherry pick one or two cases from her record does not represent who she is as a jurist and that casting such doubts on Judge Sotomayor would essentially mean that anyone with a substantial record would be unconfirmable. Professor Tribe dismissed this notion, observing that he couldn't "think of a more solidly confirmable candidate in decades."
Professor Charles Ogletree, also of Harvard, reflected on Sotomayor’s record in regard to the current make-up of the court. “Today there are only moderate judges on the court, conservatives, and ultra-conservatives. No liberals. Thousands of Sotomayor's opinions have never indicated what I consider liberal or progressive points of view. Always very pragmatic, she will be a tremendous asset to the court.”
Professor Arthur Miller of New York University noted that Judge Sotomayor's legal background will make her a refreshing addition to the Court. "She will bring to the court rich experience at the trial and appellate level. She will bring that trial experience to a court that is 100% appellate in background with no experience in the trenches." He further explained that much of what the Supreme Court does is promulgate rules for trial judges and juries to follow, and having a justice with trial experience will help the Supreme Court better craft those decisions in a way that lower courts can more easily apply. Professor Miller ultimately described Sotomayor as a "centrist whose crowning characteristic will be her professionalism" and he is "delighted that someone who brings process, craft, caution, respect and a great deal of tolerance" has been nominated.
The letter was given to the Senate Judiciary Committee only days before the confirmation hearings will begin on July 13th. Professors also predicted that the wide range of support Sotomayor has received leading up to the hearings is a testament to just how confirmable she is.
With almost 1,200 signatories from 170 law schools in 49 states (Alaska does not currently have a law school) the letter has been signed by many renowned legal scholars from across the ideological spectrum.
On a call today, six of those professors: Charles Ogletree (Harvard), Laurence Tribe (Harvard), Arthur Miller (NYU), Daniel Richman (Columbia), Evan Caminker (Michigan), and Robert Weisberg ( Stanford) --further explained the outpouring of support for Judge Sotomayor in the legal community.
Professor Laurence Tribe of Harvard Law commented on the diverse and numerous signatories. “I don’t know of any instance where there has been anything like this diversity – geographically and ideologically it is the most diverse as well as longest list in support of a Supreme Court nominee.” He also noted that conservative attempts to cherry pick one or two cases from her record does not represent who she is as a jurist and that casting such doubts on Judge Sotomayor would essentially mean that anyone with a substantial record would be unconfirmable. Professor Tribe dismissed this notion, observing that he couldn't "think of a more solidly confirmable candidate in decades."
Professor Charles Ogletree, also of Harvard, reflected on Sotomayor’s record in regard to the current make-up of the court. “Today there are only moderate judges on the court, conservatives, and ultra-conservatives. No liberals. Thousands of Sotomayor's opinions have never indicated what I consider liberal or progressive points of view. Always very pragmatic, she will be a tremendous asset to the court.”
Professor Arthur Miller of New York University noted that Judge Sotomayor's legal background will make her a refreshing addition to the Court. "She will bring to the court rich experience at the trial and appellate level. She will bring that trial experience to a court that is 100% appellate in background with no experience in the trenches." He further explained that much of what the Supreme Court does is promulgate rules for trial judges and juries to follow, and having a justice with trial experience will help the Supreme Court better craft those decisions in a way that lower courts can more easily apply. Professor Miller ultimately described Sotomayor as a "centrist whose crowning characteristic will be her professionalism" and he is "delighted that someone who brings process, craft, caution, respect and a great deal of tolerance" has been nominated.
The letter was given to the Senate Judiciary Committee only days before the confirmation hearings will begin on July 13th. Professors also predicted that the wide range of support Sotomayor has received leading up to the hearings is a testament to just how confirmable she is.
Tuesday, July 7, 2009
Will Military Commissions Act Gain Legitimacy?
The Senate Armed Services Committee held a hearing today on the proposed amendments to the military commissions responsible for trying the detainees at Guantanamo Bay. Three major themes were evident throughout the hearings: the desirability of trying detainees in Article III federal courts versus trying them in the proposed military commissions and where such trials took place; raising the legal standards under which the military commissions operate to match or exceed those required in international law; and, whether the proposed changes would help regain legitimacy in prosecuting the detainees.
Most of the discussion centered on the debate between trying detainees in federal courts versus military commissions. Several of the Republican Senators argued against trying any detainees in Article III federal courts because, they alleged, that would lead to the recognition of constitutional rights for detainees. But David Kris, Assistant Attorney General for the National Security Division at the Department of Justice testified that regardless of the form of trial used due process rights have already been recognized by the Supreme Court.
The hearing also focused on three major proposed changes to the military commissions: (1) the shift in the burden of proof in admitting hearsay; (2) barring statements coerced through torture or other cruel, inhuman, or degrading treatment; and, (3) defendants’ rights to choose their defense counsel. And, every panelist agreed that the military commissions should hew closely to the Uniform Code of Military Justice requirements, departing only when absolutely necessary as required by law.
All changes to the commissions ultimately address whether, moving forward, the commissions will gain legitimacy. Vice Admiral Bruce E. MacDonald, Judge Advocate General of the Navy, stated that a good test of this would be whether America would be willing to try one of its own soldiers in such a system.
Most of the discussion centered on the debate between trying detainees in federal courts versus military commissions. Several of the Republican Senators argued against trying any detainees in Article III federal courts because, they alleged, that would lead to the recognition of constitutional rights for detainees. But David Kris, Assistant Attorney General for the National Security Division at the Department of Justice testified that regardless of the form of trial used due process rights have already been recognized by the Supreme Court.
The hearing also focused on three major proposed changes to the military commissions: (1) the shift in the burden of proof in admitting hearsay; (2) barring statements coerced through torture or other cruel, inhuman, or degrading treatment; and, (3) defendants’ rights to choose their defense counsel. And, every panelist agreed that the military commissions should hew closely to the Uniform Code of Military Justice requirements, departing only when absolutely necessary as required by law.
All changes to the commissions ultimately address whether, moving forward, the commissions will gain legitimacy. Vice Admiral Bruce E. MacDonald, Judge Advocate General of the Navy, stated that a good test of this would be whether America would be willing to try one of its own soldiers in such a system.
Thursday, July 2, 2009
Welcome to Washington, Mr. Franken
The Minnesota State Supreme Court declared Al Franken the winner in the Minnesota Senate race, and opponent Norm Coleman conceded. Franken will be seated in the Senate next week and will join the Judiciary Committee in time for the Sotomayor confirmation hearings on July 13.
We welcome Franken to the committee and hope that he finds our in-depth reports on Judge Sotomayor’s record helpful reading before the hearings commence. We also hope that his arrival in the Senate will move forward the long overdue vote on Dawn Johnsen’s nomination to head the Department of Justice’s Office of Legal Counsel.
We welcome Franken to the committee and hope that he finds our in-depth reports on Judge Sotomayor’s record helpful reading before the hearings commence. We also hope that his arrival in the Senate will move forward the long overdue vote on Dawn Johnsen’s nomination to head the Department of Justice’s Office of Legal Counsel.
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