Tag: supreme court hearings

Sotomayor Playing Out the Clock

As she began to do more and more yesterday, the nominee has started today’s hearings with a series of painfully drawn-out non-answers to Senator Kyl’s questions.

Kyl is pointing out the conflict between Sotomayor’s claim that in Ricci she was simply following precedent and the Supreme Court’s finding that there was no precedent on point—and so Sotomayor’s panel summary disposition was improper.

Sotomayor’s responses have ranged from explaining again the procedural posture of the case, to references to irrelevant background cases (not binding precedent), to recounting en banc voting procedures in the Second Circuit. It is clear that, even as the Republicans reload and regroup at every break and recess, Sotomayor has been counseled to talk and talk—again, in an excruciatingly slow rate—without really saying anything.

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Sotomayor Waffles on Property Rights

The hearing began after lunch with Senator Grassley probing Sotomayor’s views on Kelo v. New London and the Fifth Amendment’s protection of property right—one of the questions I would ask her. The nominee apparently thought the senator (who’s not a lawyer) needed a lesson in what went on in Kelo and how the Court ruled. Grassley, having been briefed by counsel, didn’t seem to care for that, pushing Sotomayor on whether she thought Kelo was correctly decided and how she views constitutional property rights generally.

Sotomayor said Kelo was a judgment of the Court that she accepts, but that any future case she would have to judge on its own merits. Well, of course, but that wasn’t the question on the table. Exasperated, Grassley asked Sotomayor whether a taking with no compensation would be constitutional. The “wise Latina” couldn’t formulate a proper response, smiling and explaining that what constitutes a “taking” is subject to legal analysis. Well, yes, but that still doesn’t answer the question. Finally, Sotomayor concluded that if a taking violated the Constitution, she would have to strike it down.

In short, according to Sotomayor, if something is unconstitutional, a judge can’t allow it. The technical term we lawyers use for this kind of sophisticated reasoning is “circular”—with the judge here getting to decide based on no discernible criteria whether something is constitutional. For more on the outrageous takings Judge Sotomayor has allowed, see George Mason law professor Ilya Somin’s analysis of the Didden v. Port Chester case. (Somin, also a Cato adjunct scholar, will be testifying at the hearings later this week.)

Update: Sotomayor and “Secret Law”

Sotomayor didn’t have much to say in response to Senator Feingold’s inquiries regarding national security law and civil liberties post-9/11, but the Wisconsin lawmaker’s questions about “secret law”—on which he didn’t press the nominee’s non-answers—made me think of the following: Both Ricci (the infamous firefighters race discrimination case) and Didden were “unpublished” summary dispositions.

If Sotomayor had not been nominated to the Supreme Court, causing hundreds if not thousands of lawyers to comb through her judicial opinions, would anyone have uncovered these blatant attempts to sweep controversial legal issues under the rug?  Are Ricci and Didden Sotomayor’s secret law?

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Update on the Sotomayor Hearings

After yesterday’s bloviating—much reduced by Joe Biden’s departure from the committee—today we’ve gotten into some good stuff. Sotomayor is obviously well-prepared. She speaks in measured, dulcet tones, showing little emotion.

Judiciary Committee Chairman Leahy gave her the opportunity to explain herself on Ricci and on the “wise Latina” comment—which she has repeated in public speeches at least six times going back 15 years—and then built up the nominee’s background as a prosecutor and trial judge. Ranking Member Sessions and Senator Hatch (himself a former chairman of the committee) pounded Sotomayor on Ricci, asking her how she reconciles a race-based decision with clear Supreme Court precedent—and how her panel decided the case in two paragraphs despite the weighty statutory and constitutional questions.

Sessions in particular pointed out the inconsistency between her statement yesterday that she was guided by “fidelity to the law” and her history of calling the appellate courts as being the place where “policy is made” and profession of inability to find an objective approach of the law divorced from a judge’s ethnicity or gender. Sotomayor’s responses were not convincing; rather than agreeing with Justice O’Connor’s statement that a wise old man and a wise old woman would come out the same way on the law, the “wise Latina” comment plainly means the exact opposite.

And so the back-and-forth continues. One refreshing thing I will note is that only twice has the nominee said she can’t answer a question or elaborate on a response: on abortion, saying Griswold, Roe, and Casey are settled law; and on guns, declining to discuss whether the constitutional right to bear arms can be used to strike down state (as opposed to federal) laws. The former is a clear—but not unexpected—cop-out because, unlike a lower court judge, the Supreme Court justice revisits the nature and scope of rights all the time. The latter is actually the correct response in light of the three cert petitions pending before the Court in the latest round of Second Amendment litigation. Still, her discussion of the Second Amendment left much to be desired given her ruling in Maloney; as Jillian Bandes pointed out recently, you can’t discuss incorporation without a solid understanding of Presser.

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