Sotomayor Confirmation Hearings, Day 2, Part III

Picking up from Christy’s earlier posts (Part I and Part II).

Leahy: If I have to work for a living I want to be a photographer. Phone rings, mom, don’t you ever say that they’ll think you don’t work.

Grassley up.

Grassley: Questions about individual property rights and how they’re protected by Constitution. Big difference between developed and developing countries and it’s because of respect for private prooperty. Important for Ag interests. I’m sure ordinary Americans besides economic interests concerned about where you stand. Kelo. Your understanding of state of 5th Amendment Takings clause?

SS: Share you view of importance of property rights.  Corporate lawyer. Not difference between developed and underdeveloped countries, invest in US bc of respect for property rights. WRT Kelo, issue is whether or not state who had determined there was a public purpose to takings. Can you contract with private developer to effect the public purpose. 

Grassley: Public use. Kelo, public purpose. Is public use and public purpose the same thing?

SS: Courts precedents over time. Two informed each other. 

Grassley: Everyone believes it was an expansion.

SS: Many litigants expressed that view. Question of whether SCOTUS overstepped Constitution, the Court believed and explained why it thought not. 

Grassley: I was going to ask whether Kelo undermines property rights.

SS: Only say in context to that case, it is the Court’s holding, entitled to stare decisis. 

Grassley: Does the Constitution allow takings with no compensation.

SS: Well, takings is complex.

Grassley: Would you strike down taking that provided no compensation at all?

SS: If taking violates Constitution, I’d be required to strike it down.

Grassley Didden. Chain drug store. 

SS: Right to day in court important one, right to require that you come to court in timely fashion.

[SS trying really hard to explain to Grassley what a statute of limitation is.]

Grassley: Regardless of statute of limitations why not publish opinion.

SS: Kelo didn’t govern. Statute of limitations did.

Grassley: EPA could not use cost/benefit. Clean Water Act, EPA had to use best technology even when upgrades were cost prohibitive. Agency interpretation entitled to deference. Do you find EPA shouldn’t be able to use cost-benefit analysis.

Feingold: Enjoying listening to you. So when you consider cameras in the court room.

SS: You were a very good lawyer.

Feingold: Executive power. 2003 Law school, issues since 9/11. How people found common threads as Americans, hard to imagine something positive could come out of it, coming together as community, we’d all help each other get through this. In weeks and months that followed, gravely disappointed, events were sometimes used, Judge, to justify policies that departed so far from what we stand for. Change view of indivdual rights and civil liberaties?

SS: Horrible tragedy. I was in NY. My home is very close. I spent days not being able to drive a car into my neighborhood. Issue of country’s safety. Continuing discussion, not just Senators, whole nation. In the end, Constitution, by its terms, protects certain individual rights. Often fact-specific. What’s an unreasonable search and seizure. In answer to specific question? Did it change view? No sir. Constitution is timeless document.

[Feingold looks like he’s not going to like what he hears. I think SS just basically decided the al-Haramain case against the plaintiffs.]

Feingold: Any elements that you think we as a nation will look back on with regret? 

SS: Historian by undergrad training. How difficult it is to make judgments about one’s current positions. History permits us to look back. Leg branch makes laws, it’s up to President to take his actions. Up to Court to examine situation as it arises. 

Feingold: Courts already dealing. You sat on panel, struck down natinal security act statute. Common themes or lessons. Rasul, Hamdan, Hamdi, Boumedienne?

SS: Look at individual set of facts. 

Feingold: SCOTUS believes mistakes were made?

SS: We don’t decide whether mistakes were made. 

Feingold: In each problem with Constitution or constitutional act. Many of us discussed at length. Deeply concerned about broad invocation of exec power. You discussed with DiFi the lowest ebb category. Congress could pass law that would violate Constitution. Never relied on Youngstown to rule that President can ignore law? Your understanding?

SS: Not enough cases to say I can remember every precedent. Youngstown, President had not acted within his powers. Framework doesn’t change.

Feingold: August 2002, TSP memo, did not cite Youngstown. Strike you as odd that complex analysis did not mention Youngstown?

SS: Never been advisor to President. Don’t want to comment on what was done or not done. Likely that some question–I can’t comment on whether that’s surprising or not. I’d be surprised if Court didn’t consider Youngstown.

Feingold: 2nd Amendment, individual right to bear arms. Question of whether incorporated into 14th Amendment. Maloney–you’d have to recuse.

SS: Judicial code that govern recusals command that would be inapprorpiate.

Feingold: What about other decision that took same position as you did in Maloney. 

[I love that Feingold is so perfectly consistent as a civil libertarian. And all I can think of is seeing a bunch of deer carcasses hung up to be cleaned. Those ‘Sconsan’s love them their guns.]

Feingold: Secret law. FISA secret law. OLC issues legal opinions binding but kept from public and Congress. These docs may contain classified operational law. Flies in face of open transparent system. Importance of law being public.

SS: Judge would look at it. Policy choices Congress makes in legislation. Some issues were part of Congressional legislation as to how FISA would operate. As you’ve mentioned, that has been amended. 

Feingold: Korematsu. Seems inconceivable that USG would have put huge numbers of people away bc of race. Was it wrongly decided.

SS: It was.

Feingold. Responsibility in war time. 

SS: Judge should never rule from fear. Should rule from law. 

Feingold: How does a judge resist those kind of fears. 

SS: Wisdom of Harlan and Plessy, wisdom to understand always that Constitution has held us in good stead for over 200 years, survival depends on upholding it. 

Kyl: Maloney.

SS: Good afternoon, by the way.

[Schools him on manners.]

Kyl: Two other decisions based on incorporation. 7th similarly, 9th, differently. 

Kyl: Recuse recuse recuse.

Kyl: Recuse recuse recuse. I’m going to try to trick you into getting off gun cases.

Kyl: Last 5% legal process will not lead to decision, supplied by heart. First 25 miles of marathon. Do you agree?

SS: Wouldn’t approach issues of judging the way President does. Judges can’t rely on what’s in their heart. Congress makes the laws. 

SS: We apply law to facts, we don’t apply feelings to facts. 

Kyl: Obama will clearly seek nominees that he’s comfortable with. I disagree with. 

Kyl: Just subjective, relativism run amuck.

Shorter Kyl: Why can’t girls judge like men?

Shorter Kyl: Why aren’t you more grateful for old white male judges?

I really think these arrogant male fucks believe they need to worry about being mean to SS. She’s kicking their ass, so far as I’ve seen.

Shorter Kyl:  I’m not saying women don’t rule differently, but I think they should set that aside.

Kyl: Any decision where you being a wise Latina meant you made a better decision?

SS: I never understood SDOC meant to say those disagreeing with her were not wise judges. I think that’s what Alito referring to when he said, when I decide a case I think about my Italian ancestors. 

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  1. Hugh says:

    Starting in with a quick EPU

    Thanks for the liveblogging. I was surprised that Feinstein brought up the Commerce Clause. I suppose you could say it was pre-emptive but Sotomayor wasn’t going to respond to her any differently than to one of the Republicans on this so why not let them bring it up? The Commerce Clause and states’ rights were a big deal back back in the Clinton years but with Bush and the construction of the unilateral imperial Presidency not so much. Lopez was decided in 1995 and Morrison in 2000. Raich (the marijuana case) which rolled back this doctrine somewhat was in 2005. Currently states need the federal government to help them with their mountains of debt so conservative attacks on the Commerce Clauseae nothing but empty posturing at this point.

    As for Heller (guns in DC) and Carhart II (late term abortion ban), Scalia wrote the first and Kennedy the second. They are two of the worst written opinions I have ever come across. Carhart II is simply offensive. In it, Kennedy plays doctor and it is a really bad performance. In Heller, Scalia says the 2nd Amendment gives an absolute right to bear arms, but since this would allow your psychotic neighbor to have nukes he immediately runs away from this position but never gets around to saying what position he’s running to. It is a dreadful mess.

    • Petrocelli says:

      Yes, but he’ll have to try really hard to take the crown away from Sessions or Hatch …

  2. Hugh says:

    Kelo was a case from Connecticut. It is hard to believe that Kelo eminent domain cases (involving a private developer) are a big deal in Iowa, in the middle of a depression.

    • eCAHNomics says:

      Good point. So why do you think he’s pursuing it? Is it a particular hobby horse of his?

    • tejanarusa says:

      Yeah, but Grassley showing the FRW (far right wing) that he hearts one of their pet issues. This is a biggie among the R’s and crazies in Texas. That’s why he’s going for it, and using the hostile tone.

      (Not saying I agree w/ Kelo, but it really set off the righties and anti-govt types, and they haven’t quieted down about it)

      • Hugh says:

        I wouldn’t disagree such seizures should be rare and for very specific and important reasons. At the same time, the idea that property ownership is an absolute is a myth. Every level of government can set limits on what you can and can’t do with your property and in many cases take the property away (eventually) if the property owner does not comply.

        • tejanarusa says:

          Oh, I hope you didn’t think I disagree with your point. My post was just to say that the crazies for whom Kelo is such a hot button are why Grassley is pushing the issue.
          Oh, and many of the crazies (it’s one reason I define them as crazy) DO think property rights are absolute.

        • foothillsmike says:

          What the reasons for a taking are is debateable though. The desire to construct a road or other facility is one thing. To take property so that it can be put to a different use that would generate more taxes is another.

  3. eCAHNomics says:

    As much as I’m enjoying being schooled on the law by Sotomayor, my bee guy’s coming in about a half hour to check out the girls, so I want to put together some questions for him.

  4. Hugh says:

    eCahn, who knows? Sotomayor’s response was probably tortured sounding because the law favors such seizures. Now if a state doesn’t like this, it has only to change its eminent domain statutes, and that is what several have done.

    http://en.wikipedia.org/wiki/K…..New_London

  5. Hugh says:

    The EPA question is another stupid one. If Grassley wants the EPA to have cost-benefit analysis rather than best technology be the criterion, he should lobby his Senator for a change in the law, oh wait.

    • tejanarusa says:

      If Grassley wants the EPA to have cost-benefit analysis rather than best technology be the criterion, he should lobby his Senator for a change in the law, oh wait.

      LOL. Really.

      Cheer – Grassley says “this’ll have to be my last question.”
      Is he a lawyer? He should know better than to ask about a pending case!

  6. Waccamaw says:

    Been off-line since early morning & jumping in without post/thread read but……..

    Those of you with the fortitude to listen today were apparently well-rewarded. *GG* Was just reading over at Washington Monthly about sessions’ little “problem” (shall we call it?) with citing Judge Cedarbaum to Sotomayor. Daymn!!! Would that Keef or Rachel rolls that clip tonight….any descriptions of the look on sessions’ face?

  7. Petrocelli says:

    Shorter Grassley: You are an activist minority with a vagina … and Lindsay Graham envies you !

    Despite that fact, I do not think you should be on the SCOTUS unless you bow before Roberts’ wisdom …

  8. tejanarusa says:

    I do like that Feingold is bringing up Hamdi and Patriot Act, executive power.

    But, then, he’s one of the few really on “our” side.

  9. tejanarusa says:

    OMG. MSNBC putting Andrea and Tweety on over Feingold and Sotomayor. Unbelievable.

    More unbelievable – C-span, which covered yesterday’s pretty worthless intro, is on worthless House speeches. OK, on to CNN.

    Worse, awhile ago had to go to FOX!!! while all others were on commercial.

    TO Petro: I would LOL, but as a woman, it’s not that funny.

  10. Hugh says:

    In the end, Constitution, by its terms, protects certain individual rights. Often fact-specific. What’s an unreasonable search and seizure. In answer to specific question? Did it change view? No sir. Constitution is timeless document.

    That is just an awful answer. The Constitution is timeless but its rights are fact specific? That is a little like saying in theory you have rights but in practice you don’t.

    Also the Hamdi, Rasul, etc. cases are really about executive encroachment on judicial turf, so a Marbury issue. Some of the issues in Hamdan touched on infringement on Congressional powers as well but these were largely ceded back by the Military Commissions Act. Boumediene was different because it dealt with the habeas corpus right in the Constitution as opposed to its application by statute as in Hamdan.

  11. Hugh says:

    Judicial code that govern recusals command that would be inapprorpiate.

    As Scalia in the Cheney energy task force showed, at the SCOTUS level, the Justices decide for themselves if recusal is appropriate. This is different from the district or appellate levels where there are others over you to tell you what is or is not appropriate. Even so sitting on a case at a lower level is recognized by everyone as grounds for recusal if one is put on SCOTUS.

  12. tejanarusa says:

    Is this the first time any elected official has mentioned “secret law” in public?

    Can’t believe Kyl is next. Not sure I can bear to listen to him.

  13. Petrocelli says:

    Shorter Kyl: I’m smarter than you, therefore ‘Dopey’ Sessions should wear the Silk Robes of SCOTUS

  14. Hugh says:

    Kyl wants Sotomayor to promise to recuse herself on gun cases because this would assure a conservative majority. Sotomayor saying that each case would have to be evaluated separately.

  15. Rayne says:

    OMG, the blogger said “fucks”!

    Heh.

    Nice work with the live blogging, as always. Glad to hear SS is kicking ass and taking names, haven’t been able to watch the hearing.

  16. tejanarusa says:

    I would never make it through one of these things (not that I’m likely to get such an opportunity, ha).

    Listening to Kyl’s repetitious “this is why we’re concerned” crap, I’d be likely to say something like, “yeah, and a bunch of old white males made some reaaaaaaly baaaad decisions, too.”

    The last straw for me, obviously, was where Kyl asked if old white men hadn’t made some fine decisions. Bleeagh.
    These guys really are viscerally afraid of women and minorities.
    For the record, I LOVE her wise Latina comment – it’s absolutely true, and it’s why, despite her not really being a liberal, I WANT her on the Court.

  17. Neil says:

    I think she’s done a great job explaining the ‘wise latina’ comment but the nuanced explanation cannot possible be covered in MSM expect maybe Rachel who would give it the time its deserves.

  18. tejanarusa says:

    Ooh – onNPR – sounds like Larry Tribe (as my con law prof, a contemporary, always called him). Making sense, no surprise.

  19. Kathryn in MA says:

    Gah. Sessions being inerviewed on C-Span 3. Saying he disagreed with what she has said and his reasoning/

  20. LabDancer says:

    Each of the Wepubwican senatows is maew, white, and deepwy devoted to the endeavew of hunting the wascewy wabbit, a creatuw pawticuwawy wenowned for qwick wefwexes and wiweness — with a pwedictabew outcome.

  21. bobschacht says:

    [Feingold looks like he’s not going to like what he hears. I think SS just basically decided the al-Haramain case against the plaintiffs.]

    Please explain! I listened to the Feingold questions, and was mostly favorably impressed. However, this part must have just sailed over my head.

    Bob in HI

  22. Neil says:

    Don’t become a speech writer if that law thing doesn’t work out.

    Huckleberry

    What an asshole.

    • Neil says:

      More demeaning than “Don’t quit your day job.”

      It’s not a pretty sight when Lindsey Graham gets into a cat fight. Thing is, Sotomayor would not engage. Lindsey must have been furious… and spiteful.

  23. Helga says:

    You would be right Petrocelli. He is just being a total ass. All I can think of is Sam Seder telling someone to close the door.