...guess which one?
OK, it's not as though we didn't see this one coming, but it is fun to point out:
Justice Sonia Sotomayor is getting into the swing of being a member of the Supreme Court.
Sotomayor made what appears to be her first public decision as a justice on Monday, voting unsuccessfully to delay the execution of an Ohio death row inmate.
She voted along with the court's liberal bloc _ Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer _ to stop the execution of Jason Getsy, whose execution is Tuesday.
And the sun came up in the east this morning...
With a newly minted sixty-vote Democrat majority in the US Senate, the approval of the nomination of Sonia Sotomayor to the Supreme Court is all but assured.
But what isn’t assured is that it won’t cost the Democrats something before all the dust settles. And that’s up to the Republicans.
Do they have what it takes to make her positions on hot-button issues so toxic that the Democrats from “purple” or “red” states who support her will find themselves in political hot water back home?
Her record represents just such an opportunity.
Before becoming a judge, Sotomayor was a leader of the Puerto Rican Legal Defense and Education Fund (PRLDEF), even serving as the Chairman of its Litigation Committee. And there we get a glimpse of some of the issues she was willing to lend her support to.
On abortion: On two separate occasions, the PRLDEF filed briefs arguing that taxpayer dollars must be used to fund abortions and further argued that restrictions on abortion were analogous to slavery. They also argued against such modest abortion restrictions as parental notification or waiting periods on abortion. read more »
...anything you say may be used to keep you off the court
Round and round they went yesterday, asking questions she either said she wouldn't answer, or "answering" in such a way that the person who asked the question (and everyone else) had no idea what she said or meant.
From the coverage:
Judge Sotomayor Is “Increasingly Avoiding” Questions. “She joked openly with members of the Judiciary Committee while increasingly avoiding their questions.” (Washington Post)
“By Midafternoon, Even Two Democrats On The Panel Sounded Frustrated By Her Long, Elusive Replies.” (Washington Post)
“Yesterday, It Was Striking To See Sotomayor Dance Around Issues, Decline To Defend Liberal Philosophy and go on to specifically reject the so-called legal approach of the man who nominated her, Barack Obama. It prompted Lindsey Graham to complain that she was sounding a lot like John Roberts -- and she did on some answers -- and ask, ‘Who are we getting here?’” (ABC)
Sotomayor Left “Both Conservative And Liberal Activists Troubled.” “Supreme Court nominee Sonia Sotomayor sidestepped questions on abortion, gun rights and gay rights Wednesday -- including whether a state could forbid aborting a 38-week-old fetus -- leaving both conservative and liberal activists troubled.” (LA Times)
“Sotomayor ‘Said Little About Her Own Understanding Of The Issues Underlying Roe.” “The Center for Reproductive Rights, a leading abortion rights group, this morning is calling for more questions on abortion, with President Nancy Northup complaining that Sotomayor ‘said little about her own understanding of the issues underlying Roe and the Court’s subsequent decisions on abortion rights.’” (ABC) read more »
...the rhetorical flourish that fell flat, multiple times
You've heard all about it, but maybe not ALL about it. That being you've surely heard about Sotomayor's comment several years ago that ...‘A Wise Latina Woman’ Or ‘Wise Woman’ Judge Might ‘Reach A Better Conclusion’ Than A Male Judge.” (“Sotomayor Repeatedly Referenced 'Wise Woman' In Speeches,” CQ’s “Legal Beat” Blog, 6/4/09)
And you've probably heard her defense (and/or apology) for that remark in the last few days, telling senators in her confirmation hearings that it was a "rhetorical flourish that fell flat".Well, it turns out that she was so enamored of that "flourish", that she repeated it numerous times, just desperately hoping that it would "work" at least once I suppose. But alas...In any event, for the record, here's a list of her other attempts to really "knock 'em dead" with that great flourish:
In 1994: "I Would Hope That A Wise Woman With The Richness Of Her Experience Would, More Often Than Not, Reach A Better Conclusion. What Is Better? I … Hope That Better Will Mean A More Compassionate And Caring Conclusion.” “Last Friday the White House argued that Judge Sonia Sotomayor's ‘word choice in 2001 was poor’ when she said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.’ Today, it undermined its case. An administration aide pointed out that in addition to the 2001 speech, in a 1994 speech Sotomayor used nearly identical language: ‘I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion. What is better? I … hope that better will mean a more compassionate and caring conclusion.’” (“More Better Judging,” Slate, 6/4/09) read more »
Sotomayor then and now
More flip-floppery by Sotomayor...
The "Realism" school of law:
When questioned about whether or not she subscribes to the "realism" school of legal reasoning, she replied: “I Don’t Apply That Label To Myself At All.” "That’s not quite words that I would use because there are many academics and judges who have talked about being legal realists, but I don’t apply that label to myself at all…”
Lindsey Graham then followed up:“So you would not be a disciple of the legal realism school?” She replied: “No.”
So let's go to the tape!
From her article in the Suffolk University Law Review: “Returning Majesty To the Law and Politics: A Modern Approach,” 30 Suffolk U. L. Rev. 35 (1996) - "Judge Frank, A Founder Of The School Of Legal Realism’s] Thesis, Set Forth In 1930, Should Continue To Attract Examination Today. It Supports A Pride That Lawyers Can Take In What They Do And How They Do It. The Law Can Change Its Direction Entirely…”
On the use of international law in American courts:
On this issue, she tries to pretend she's with Scalia and Thomas. In the hearings she stated that “I Have Actually Agreed With Justice Scalia And Thomas On The Point That One Has To Be Very Cautious Even In Using Foreign Law With Respect To The Things American Law Permits You To.”
“And That Misunderstanding Is Unfortunately Endorsed By Some Of Our Supreme Court Justices read more »
...what a difference a nomination makes
Who says people can't change (or flip-flop)? Sotomayor has proven that you certainly can...especially when you get nominated to the Supreme Court and you've got some otherwise inconvenient statements or actions in your past that you need to have people overlook.
On impartiality, Sotomayor had previously suggested that "there is no objective stance"...
In the hearings she stated: "The process of judging is a process of keeping an open mind. It's the process of not coming to a decision with a prejudgement ever of an outcome. (7/14/09)
"There is no objective stance but only a series of perspectives...aspiration to impartiality...is just that, an aspiration..." (Women in the Judiciary, Women's Bar Association of the State of New York, 4/30/99)
On whether "predjudices" are appropriate, she said "predjudices are appropriate"...
In the hearings, she stated, “[I] Would Not Prejudge Any Question That Came Before Me If I Was A Justice On The Supreme Court.” And, “I Don't Pre-Judge Issues.”
“I willingly accept that we who judge must not deny the differences resulting from experience and gender but attempt…continuously to judge when those opinions, sympathies and prejudices are appropriate.” (Women in the Judiciary, 40th National Conference of Law Reviews. 3/17/94) read more »
In light of Justice Sonia Sotomayor’s Supreme Court confirmation hearings this week, in which the controversial nominee must face tough scrutiny from senators of both parties on her judicial philosophy, temperament, and fidelity to the rule of law, political commentators on the left are naturally busy suggesting harsh, delegitimizing questions for… Frank Ricci! The lead New Haven firefighter in the Ricci v. Destefano racial discrimination lawsuit, who will testify in the hearings, has been attacked by Slate magazine, among others, for having previously brought lawsuits against former employers for discriminating against him due to his dyslexia and for firing him for being a whistleblower against his department.
Ignoring the fact that Ricci’s earlier lawsuits have zero legal bearing on the arguments in the Ricci v. Destefano case and that the Supreme Court recently overturned Sotomayor’s ruling against Ricci, why should the other 17 firefighters in the lawsuit suffer if it so happens that Ricci was lawsuit-happy with his previous employers?
Speaking of those firefighters, Lieutenant Ben Vargas, who will also testify at Sotomayor’s hearings, is the Hispanic firefighter who joined 17 white firefighters in filing the lawsuit against the New Haven fire department. Vargas shares some superficial similarities to Sotomayor: both are Hispanic; both were born and raised in the U.S.; both have Puerto Rican parents who came here because they were poor. Both grew up in troubled, high-crime, urban neighborhoods in the Northeast; both found a way out of their circumstances through hard work in their chosen career paths. read more »
Here's a roundup of some of the media coverage from "Day Two" of the Sotomayor hearings...
(I think the bottom line so far is that the GOP still hasn't taken this one as far as they should, despite the fact that she is likely to be confirmed.)
The Politico: PULLING BACK THE CURTAIN: The Communications Center of Senate Minority Leader Mitch McConnell (R-Ky.) has set up a rapid-response operation that fired off seven documents yesterday in real time as the hearing. Amanda Henneberg has booked 25 TV interviews with GOP senators in the first couple of days of hearings. (Playbook, Politico 7/14/09)
The Politico: PLAN OF ATTACK: A Republican Senate source lays out the GOP game plan for Day 2 of Sotomayor, saying they’ve set up a rapid response plan with multiple releases, GOP senator interviews and questions about Sotomayor’s “incomplete or unsatisfactory answers” Today’s focus will be pushback on her “fidelity to the law” remark from her opening statement, GOP sources say. Regardless, it’s going to be hard to bloody Sotomayor unless there’s a smoking gun. (The Huddle, Politico, 7/14/09) read more »
...vows "fidelity" to the law
In her bid to pooh pooh conservative fears (brought on by her judicial record) that she can't be relied upon to apply the law, instead of being a judicial activist, Sotomayor vowed "fidelity to the law" and told the Senate that she had not advocated for policy since she became a judge.
Of course, "advocating" for policy isn't necessary when you can "set policy", as she herself admitted that the Court of Appeals does. And presumably she would know, since she's on the Second Circuit for the Court of Appeals.
In her statement to the Senate, she said:
"In the past month, many senators have asked me about my judicial philosophy. It is simple: fidelity to the law," Judge Sotomayor told the Senate Judiciary Committee.
"The task of a judge is not to make the law - it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court."
Now go back and reread that statement and you'll notice something very important. "...my rigorous commitment to interpreting the Constitution according to its terms; interpreting statues according to their terms and Congress' intent..." read more »