Sotomayor's First Day of Questioning

     Here are my thoughts and impressions from the first day of questioning of Judge Sotomayor before the Senate Judiciary Committee.

     While Senators were asking questions Sotomayor concentrated on taking notes, glancing up at them occasionally as a student looks to a teacher.  Several of the Republican Senators pressed her about specific cases from among the over 3000 decisions she participated in over the years, almost in the manner of a law professor leading a discussion of a very long assignment for class.  In answering the questions she would look up, make eye contact with the Senator, and barely glance at her notes.  She spoke slowly with what to me was a peculiar cadence, and batted her eyelids not in a flirtatious manner but rather conveying a look of concentration and determination.  She sounded confident.  I was particularly impressed by her mastery of the law.

     She defused the "wise Latina" remark that she had made admitting that it was a poor choice of words that conveyed the opposite of what she believes.  She defended the decisions in Ricci (the New Haven firefighter case) and Maloney (the Second Amendment nunchucks case) on expected grounds – that there was binding precedent within the Circuit and in the Supreme Court.  She pointed out that in reversing Ricci on appeal the United States Supreme Court adopted a new standard (the "substantial evidence" test) and that the Supreme Court still had not reversed its previous decisions holding that the Second Amendment has not been incorporated against the States.  

     The interaction between Sotomayor and several of her questioners was fascinating.  Senator John Kyl spoke so quickly that Sotomayor could not always process the precise question he was asking, when he deigned to ask a question (at one point he spoke for 10 minutes straight).  Senator Russ Feingold was also impatient.  Sotomayor's tendency to respond in a careful, measured way seemed to drive him bats, and during any pause of a half second or more he would interrupt with another question or comment.  One of the most striking moments was when Senator Lindsey Graham repeated a number of anonymous statements characterizing Sotomayor as "nasty," a "terror," a "pit bull" and a "bully," and stating that "I never liked appearing before a judge I thought was a bully."  Sotomayor calmly responded that on the bench she did ask the attorneys hard questions, but that she asked hard questions of both sides, and that the purpose was to give the attorneys the opportunity to make the best arguments on behalf of their clients.  Versha Sharma of Talking Points Memo concluded that Graham was acting like a bully himself, but I found Graham to be almost diffident in how he asked the question – in effect giving Sotomayor the opportunity to address this issue, just as she does when she asks hard questions of the attorneys who appear before her.  I thought that the most fascinating psychological drama was in Senator Jeff Sessions' obsession with proving that Sotomayor is prejudiced – his insistence that her remarks over the years and her decision in the Ricci case proved that she could not be an impartial judge.  Senator Sessions had been nominated for a federal judgship in 1984, and was denied approval by the Senate Judiciary Committee primarily because of racially insensitive remarks that he had made.  When Senator Sessions attempted to contrast what he understood to be Judge Sotomayor's views with those of Judge Miriam Cederbaum, whom he said "believes that judges must transcend their personal sympathies and prejudices," Sotomayor responded by stating that her "good friend" Judge Cedarbaum was in the audience.  Cedarbaum told the Wall Street Journal, "I don't believe for a minute that there are any differences in our approach to judging, and her personal predilictions have no affect on her approach to judging."  Whatever your political views or opinion of Sotomayor's fitness for the bench, it was a fun day for a "people watcher."

     The most inspiring moments in yesterday's hearing occurred when Sotomayor was asked questions concerning the separation of powers.  In answer to Senator Feinstein's question regarding the power of the President to violate the law in defending the country from external threats, Sotomayor cited Justice Jackson's three-part test for resolving separation of powers disputes from the case of Youngstown Sheet & Tube v. Sawyer.  When she was asked whether the Supreme Court had erred in the case of Korematsu v. United States (1944), in which the Supreme Court had upheld the action of the government in confining tens of thousands of Americans of Japanese descent during World War II, Sotomayor stated:

     It is inconceivable to me today that a decision permitting the detention and arrest of an individual solely on the basis of their race would be considered appropriate by our government. �  A judge should never rule from fear. A judge should rule from law and the Constitution.

Senator Orrin Hatch asked Sotomayor whether the attacks of September 11, 2001, had changed her view of the Constitution, and she responded that it had not.  She stated: 

     The constitution is a timeless document. It was intended to guide us through decades, generation after generation to everything that would develop in our country. It has protected us as a nation, it has inspired our survival. That doesn't change.

Both in substance and in style I was reminded of Congresswoman Barbara Jordan's famous remark at the Watergate hearings on July 25, 1974. 

     My faith in the constitution is whole, it is complete, it is total, and I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.

Here are a video of Sotomayor's remark and one of Jordan's for you to compare.

Tagged as: barbara jordan, confirmation hearing, feingold, feinstein, graham, hatch, korematsu v. united states, questioning, Senate Judiciary Committee, sessions, Sonia Sotomayor, sotomayor, timeless, youngstown sheet & tube v. sawyer