Sotomayor Confirmation Hearings, Day 3, Part V

Feingold: Capertown v. Massey. Most states have rules to protect judicial impartiality. In your opinion what additional steps to ensure judiciary held to highest standards.

SS: Inappropriate to make suggestions to Congress. Judicial code has a code of conduct. Many states doing what I spoke about–passing regulations. Capertown.Taken under supervisory issues over courts. At issue is that judges and lawyers must abide by highest standards of conduct. Law is minimum one must do. 

Feingold: Roberts and Alito hate campaign finance, and believe corporations ought to be able to donate. Legal advantages that allow them to amass great wealth. If court overrules Austin. Unlimited corporate spending not seen since 19th century. What precedents provide about state of elections.

SS: Attempted to answer every question. You have noted that Citizens United for September. If confirmed it would be first case I would participate in. Given that case, I think it would be inappropriate to speak about that area of the law. Suggest I’m going into that process with some prejudgment about precedent. I appreciate what you have said, special circumstance.

Feingold: I probably would say the same thing.

Grassley: I assume I can have Feingold’s time?

Leahy: Given that you turn people on, no. Up to 20 minutes.

Grassley: Never asked before in this hearing. Want to say there’s SCOTUS decision Baker v Nelson, 1972. Federal Courts lack jurisdiction to hear state marriage laws. Do you believe Court can speak about marriage?

SS: Pending in many courts. 

Grassley: Yesterday you said these are precedents. Are you saying Baker v. Nelson is not a precedent.

SS: I don’t know what status is. I will apply precedent to facts of new situation that implicates it. 

Grassley: Tell me process you’d go through over whether Baker is precedent or not.

SS: Two sides will come in. One side will say Baker applies, another will say another precedent applies. They’ll argue about what applies. And then court will look at what state has done and decide which precedent controls this outcome. It’s not that I’m attempting not to answer. Process that would be used. 

Grassley: Following what you said yesterday that certain things are precedent. You didn’t seem to compromise or hedge. Why are you hedging on this. 

SS: Its holding is a holding. It’s been a while since I looked at that case. 

Grassley: I would like to have you answer me further after you’ve studied Baker. 1996 Congress passed DOMA. Both provisions have been challenged, courts have upheld. Do you agree with federal courts which have held that DOMA does not violate Full Faith and Credit.

SS: ABA rules would not permit me to comment on case in pending before SCOTUS. SCOTUS has not addressed constitutionality of that statute. It is an impending case.

Grassley: Have you made any ruling on Full Faith and Credit Clause.

Grassley: You believe judges should take into account gender, race and ethnicity. How is being impartial a disservice to law and society.

SS: I do not believe that judges should use personal beliefs and value system. 

Grassley: Further accept that our experiences as women and people of color, personal experiences affect the facts that judges choose to see. 

[blah blah blah blah Didden Didden Didden]

Cardin: Kohl’s question on cert.

9:30 tomorrow. Starts with Kyl or Graham or someone–so drink plenty of coffee or come late!

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emptywheel @phillipanderson I've just been eating pumpkin pie for breakfast. But it has whole wheat crust so practically oatmeal @pefrase @sarahljaffe
emptywheel Most international phone calls were being collected twice: once domestically, once under EO 12333. The latter will still continue.
emptywheel NSA will stop collecting USP phone data UNDER FISA in bulk today. But it still collects it under EO 12333.
JimWhiteGNV A safe zone large enough for precisely one person.
emptywheel @phillipanderson I was embarrassed to discover I ate more pie for breakfast thas Mr. EW yesterday. Then I served up more pie for breakfast
emptywheel Once again, contrary to what you read in most "news" outlets, NSA will NOT stop collecting USP phone data in bulk.
JimWhiteGNV Spent yesterday unplugged and missed another attack by a jihadist in the US. A Christian jihadist, as most US attacks are.
emptywheel @thegrugq You can't ask NSA to use a third party app when they should be able to ask directly like they do for all the PRISM providers.
emptywheel @Dymaxion Imma write a REALLY good book and bring it out while everyone is eating Christmas dinner.
emptywheel @Dymaxion Yes, but let's pretend you don't, as most book buyers don't. Shouldn't you be skeptical of year end lists in November?
emptywheel @Dymaxion Right, but what these lists really mean are "here's the books that publishers have nudged us to review that we like."