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!

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. Neil says:

    Fitz! …oh damn you TexBetsy… “Remember the Alamo” (I liked Coburn’s Ricki Ricardo comment so much I thought I try it out myself.)

  2. Hugh says:

    Re the previous discussion about rights, the Constitution does not create rights. It recognizes them. Sotomayor gave a really weak answer on the right to privacy. Certainly, as she pointed out yesterday there are elements in the 4th (searches and seizures) and 14th Amendment (due process) that support such a right. But like most other judges, Sotomayor ignores completely the 9th Amendment:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    The right to privacy is an unenumerated right. So what? As the 9th Amendment clearly states the Constitution and Bill of Rights is not an exhaustive list. The individual’s right to privacy has been an integral part of the American experience. It does not need Court sanction or mention in the Constitution to make this so.

  3. Hugh says:

    Re marriage, remember the Court ruled in 1967 in Loving v. Virgina on miscegenation. So the Court has ruled on state marriage laws.

  4. Hugh says:

    I should point out in Baker v. Nelson that SCOTUS kicked the question of same-sex marriage back to the states (to decide how they would) for lack of a substantial federal question. But as more states legalize same-sex marriage, I would think that a federal question would arise. Of course, with a SCOTUS with a near majority of radical conservatives, whether this argument would carry any weight is unclear.

  5. Helga says:

    “Grassley is a complete ass. Or has that already been covered?”
    Yes it has been covered but it can never be repeated too many times.
    Pat Buchanan just called Sotomayor a militant. One more person to put in the complete ass column.

    • Neil says:

      Pat Buchanan just called Sotomayor a militant.

      Maybe Rachel Maddow will have him on …and de-pants him.

      • Neil says:

        Tweety and Eugene Robinson did a pretty good job of making Pat Buchanan “principled” contempt for SS qualifications look as ridiculous as they are. Rachel calls him Uncle Pat.

        • Helga says:

          It just drives Pat nuts that aother woman will be on the supreme court and one that is smart. Heaven forbid that, two women on the court, the world is coming to an end. He and those other white male wing nut senators are driving themselves into a hole. Pat should move over to Fox, that is where he belongs.

  6. Hugh says:

    Just thought I would throw this in:

    Article IV – The States
    Section 1 – Each State to Honor all others
    Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

    So the question is if one state recognizes same-sex marriage and the other explicitly doesn’t, the state that doesn’t isn’t giving full faith and credit to the state that does. DOMA said it didn’t have to. But the question is whether the Congress can essentially amend the Constitution without recourse to the process for such amending. Grassley is trying to prejudge the issue. But as I said above, with more states moving to legalize same-sex marriage, the argument that a state’s refusal to recognize other states’ marriage laws violates the full faith and credit clause is strengthened. That is, if one state comes up with an oddball law, the courts might not think that it reaches the level of full faith and credit but if several states enact a statute, then that is a different matter.

  7. bobschacht says:

    Conversation with Feingold at beginning about Roberts and Alito is important. The GOP camel’s nose under the Constitutional Tent is about the Freedom to Buy Votes. The GOP has made this into a sacred part of the Constitution, but it isn’t, really. What it really amounts to is an assault on the one man, one vote principle.

    This isn’t just Republican holy ground. It is also holy ground for the DLC “Third Way” and Terry McAuliffe bunch whereby the Clintonistas fell in love with Wall Street. Of this unHoly Union there sprang Goldman Sachs, Larry Summers, and Timothy Geithner. This is one arm of the Axis of Evil that currently has a strangle-hold on the U.S. (shades of Orwell’s 1984).

    Is there Constitutional legislation that could put the rule of money in its proper place and cut the connection between the Freedom of Speech and the Freedom to Buy Votes?

    Bob in HI

    • fatster says:

      Good points, Bob! But the root of all that evil, I thought (and IANAL, fer sure), ultimately goes back to this mind-boggler:


      Or, since IANAL, are we approaching the same subject but from different directions? Whatever–it stinks!

  8. bobschacht says:

    Yes, the corporate personhood issue is part of the problem, for sure.
    I guess some people were born more equal than others, eh?

    Bob in HI

    • fatster says:

      In the case of corporations, you’re stretching the meaning of the term ‘born’. I hope someone here someday has the time to write a nice historical summary of that Santa Clara County v Southern Pacific Railroad and how in heck it is the “birth” of corporation as Person. Did no one ever challenge it?

    • earlofhuntingdon says:

      That’s why one of them sneaks up the barn ladder at night to whitewash the old rules and paint in the new ones.

  9. esseff44 says:

    This just hit the wires on the telecom cases before Judge Vaughn Walker who heard 90 minutes of oral arguments today. He asked if anything had changed since the last ruling. He brings up the IG report and takes it to say that the programs were much broader than had been represented earlier.…..#038;tsp=1

    • Petrocelli says:

      “Walker, however, cited a recent inspector general’s report on U.S. intelligence that said the surveillance was far broader than Bush had described and was on legally shaky grounds.”

      Wow … that don’t sound good !

  10. LabDancer says:

    As long as we’re headed OT, I see where Softheaded Fred Willard Hardballing Tweetybird had an older dude with a grey toupe on one of the segments tonight, claiming to be a U.S. Senator named Kit Bond [ directly following some sane, responsible, reasonable sounding fellow from Rhode Island with an unlikely name], claiming that while he “wasn’t on the committee in two thousand one and two thousand two”, he had “looked up some (sic) of the records” and had “spoken with some (sic) who were there at the time” and “we (sic) didn’t have to look up someone else’s records” — from all of which I gather he either looked at or was read or was told something possibly written down by some other Republican who was on the “intelligence committee”, and the upshot was this latest stuff was all about throwing a liferaft to Speaker Pelosi as “I don’t believe this was the case for any of the House (sic) Democrats

    It’s probably nothing because the old dude acted pretty shifty, with a crocodile smile, not answering the actual questions being directed of him, and had been gumming himself or mouthing talking points or something all through the posing of the first question, and the actual words he was using were all slippery slithery. But it appears possible that whoever he was referring to as having made the notes that he read or were read to him or that he was told about might have been like a Republican House member of the intel committee, given the timing I ’spose Porter Goss. Plus he looked a little crazy to me.

    • Hmmm says:

      It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States.

      Translation: PUNY LAW. WE SMASH!!!!

    • Hmmm says:

      He winds up with a take on Youngstown that I would very much like to hear our resident Constitutional scholars analyze.

  11. Hmmm says:

    (Oopsie, this is getting discussed downstairs on the “Other Intelligence Activities” thread.)

  12. freepatriot says:

    do the repuglitarded senators understand that those funny looking boxes with the pointy things on the front of them are TELEVISION CAMERAS ???

    I can’t believe these dicks think they are helping themselves by continually explaining how they can’t understand the “wose latina” comment

    how fucking stupid are these people

    if we added the IQ of all of these repuglitards, the “over-under” line would be 100

    and that’s the cumulative total, not average total

    I hope the repuglitarded have fun losing texas, florida, california, new york, and a lot of other states where wise latinas are a growing voter group

    • Nola Sue says:

      Ha! Not much.

      Except I’m a tad piqued she didn’t include Franken, and I’m still celebrating my new Senator.

      • skdadl says:

        I was only able to catch the tag end of Franken’s questions yesterday, so I was wondering how people here thought he did.

        • Nola Sue says:

          There wasn’t a lot of commentary, but some seemed pleased that he introduced new topics, including net neutrality, and he pushed harder on abortion (privacy, women’s rights) than others.

          He also introduced some levity and she loosened up a bit. The local Twin Cities media played some of those clips, too, which was good, imo. Although I’m sure there will be plenty of whining about the comic-as-Senator. Shock!

          • Nola Sue says:

            PS. Just remembered seeing Dahlia Lithwick on Rachel last night. She was bemoaning that the Ds didn’t better use this opportunity to demonstrate the vision of a better (my word) version of the court, that instead they seemed to try to out-Roberts Roberts. She specifically referenced Franken’s questioning as the best that happened in that regard.

            Worth a watch. I’ll try to find the link and post it, but my browser gets cranky with the MSNBC site.

  13. Nola Sue says:

    Argh. Sorry for the mis-click.

    HERE is the link for Rachel’s coverage of Day 3.

    Dahlia starts at about 3:10. She begins with the veiled racism discussion, and the “lost opportunity” part starts at about 5:30. Worth the watch.