Sotomayor's Third and Final Day of Questioning

     Yesterday the Senate Judiciary Committee concluded its third and final day of questioning of Supreme Court nominee Sonia Sotomayor.  There were a number of "rhetorical flourishes" by both the senators and the nominee.

     Here is a link to the transcript of the first portion of yesterday's hearing; at the end of this post are links to transcripts for of all the confirmation hearings on Sotomayor.  

     The day presented plenty of fireworks but not surprises, and several key Republican senators expressed admiration for the nominee, if not outright support.  The outcome of the hearings does not, at this point, appear to be in doubt. 

     I have chosen to highlight the following passages from yesterday's hearing: (1) Sotomayor's instructive response to repeated questioning by Senator Coburn for her specific positions on controversial issues; (2) Senator Coburn expresses opposition to the use of foreign law to interpret the Constitution, then relies upon it himself; (3)  Coburn's closing remarks expressing admiration for Judge Sotomayor; (4) Senator Franken's "straight line" asking Sotomayor why she wanted to be a justice of the Supreme Court, and Sotomayor's humorous response; (5) Senator Jess Sessions, the Republican leader on the Committee, revealed that there would be no filibuster of her nomination; (6) Senator Graham, as always, expressed complex, nuanced, and thoughtful mixtures of ideas in his understanding of the Constitution and his approach to matters of human interaction.  I have chosen to excerpt three of his observations on Ricci and Brown v. Board of Education, what a fundamental right is, and his final comment on Sotomayor's "wise Latina" remark.

(1)  Here is what Sotomayor had to say to Senator Coburn after repeated attempts to pin down her views on topics like abortion and gun rights:

SOTOMAYOR: Senator, would you want a judge or a nominee who came in here and said, I agree with you; this is unconstitutional before I had a case before me, before I had both sides discussing the issues with me, before I spent the time that the Supreme Court spent on the Heller decision — and that decision was mighty long. It went through two years of history, did a very thorough analysis and discussion back and forth on the prior opinions of the court. I don't know that that's a justice that I can be.

(2)  And here is Coburn in an apparent contradiction over the appropriateness of relying upon foreign law to interpret the Constitution.  At first he opposes its use and asks Sotomayor to agree it should not be used:

COBURN: Will you affirm to this committee and the American public that, outside of where you are directed to do so through statute or through treaty, refrain from using foreign law in making the decisions that you make that affect this country and the opinions that you write?

SOTOMAYOR: I will not use foreign law to interpret the Constitution or American statutes. I will use American law, constitutional law to interpret those laws except in the situations where American law directs the court.

He then, however, uses foreign law in precisely the same way that justices of the Supreme Court have used it in death penalty and gay rights cases – not as controlling the interpretation of the Constitution, but informing the discussion as to what is reasonable or feasible:

COBURN: And so what I was trying to draw out to you is, where do we stand in this country, when 80 percent of the rest of the world allows abortion only before 12 weeks, only before 12 weeks? And yet we allow it for any reason at any time for any inconvenience under the health-of-the-woman aspect.

(3)  In his closing remarks Senator Coburn speaks from the heart in explaining his principal reason for opposing Sotomayor's nomination while expressing his admiration for her as well:

COBURN: I've got 30 seconds left. I want to ask you another question. You said just a minute ago people are passionate about what they believe in. And I've read your speeches and your publications, and I believe you're passionate. And I believe your speeches reflect your passions.

I look at myself. And when I give a speech, you know, I let it all go, what I really believe. I'm more measured — some people wouldn't believe that — up here, but I am more measured when I'm here, but when I give a speech.

And the problem I'm having is, I really see a dissonance about what you said outside of your jurisprudence. And the only thing — the only — the only ability we have to judge is what that passion has relayed in the past and your statements here, in combination with your judicial practice.

And so you are an admirable judge, an admirable woman. You have very high esteem in my eyes for both your accomplishments and your intellect. I have yet to decide where I'm going on this, because I am still deeply troubled because of the answers that I couldn't get in the 50 minutes that I've been able to ask and also deeply troubled because I believe what you've spoken to the law students, what you've spoken in your writings truly reflect your real passions, which I sometimes find run in conflict with what I think the Constitution has to say.

But I thank you for giving us such a cordial response, and I am mightily impressed. Thank you, Mr. Chairman.

(4)  Senator Franken plays Abbot to Sotomayor's Costello, giving Sotomayor the opportunity to tell a funny story about why she wants to be a Supreme Court justice:

FRANKEN: OK. Thank you. Thank you, Judge Sotomayor, for your patience and your terrific answers. We've heard a lot about your thoughts on specific cases and on principles of jurisprudence. I'd like to ask a much more general question, and one that I think is a really good question in job interviews. And that is, "Why do you want to be a Supreme Court justice?"

SOTOMAYOR: You're going to hate me for taking a few minutes, but can I tell you a story?

FRANKEN: I would love it.

SOTOMAYOR: Because it will explain who I am and why.

When Senator Moynihan first told me that he would consider sending my name to Senator D'Amato for consideration as a district court judge, he asked me to keep it quiet for a little bit of time, and I asked permission to tell my mom and Omar. He said, "Sure."

So, they were visiting, and I told them, and mom was very, very excited. And she then said, "How much more money are you going to earn?" And I stopped and I said, "I'm going to take a big pay cut."

Then, she stopped and she stopped, and she said, "Are you going to do as much foreign travel as you do now," because I was flying all over the U.S. and abroad as part of my private practice work. And I said, "Probably not, because I'm going to live in a courthouse in Lower Manhattan near where I used to work as a Manhattan D.A."

Now, the pause was a little longer, and she said, "OK." Then, she said, "Now, all the fascinating clients that you work with," and you may have heard yesterday I had some fairly well known clients, "You're going to be able to go traveling with them and with the new people you meet, right?" And I said, "No. Most of them are going to come before me as litigants to the cases I'm hearing, and I can't become friends with them."

SOTOMAYOR: Now the pause was really long, and she finally looked and she says, "Why do you want this job?" And Omar, who was sitting next to her, said, "Celina, you know your daughter"– this is in Spanish — "You know your daughter." This is in Spanish. "You know your daughter and her stuff with public service." That really has always been the answer.

Given who I am, my love of the law, my sense of importance about the rule of law, how central it is to the functioning of our society, how it sets us apart, as many senators have noted, from the rest of the world, have always created a passion in me, and that passion led me to want to be a — a lawyer first and now to be a judge, because I can't think of any greater service that I can give to the country than to be permitted the privilege of being a justice of the Supreme Court.

(5) Senator Sessions was very critical of the brevity and summary nature of Sotomayor's opinion in the New Haven firefighters case, but in opening his questioning on Thursday he complimented Judge Sotomayor and vowed not to support any filibuster against her. He also predicted an early vote on her nomination:

SESSIONS: And, Judge, let me just say, before I go forward, that you've done a good job. You've had a good humor. You've been direct in your answers, and we appreciate that. I will not support and I don't think any member of this side will support a filibuster or any attempt to block a vote on your nomination. It's a very important vote. We all need to take our time and think it through and cast it honestly, as the occasion demands. But I look forward to you getting that vote before we recess in August.

(6) As these hearings have progressed I have become increasingly impressed with the complexity and multifaceted nature of Senator Lindsay Graham's outlook on politics and the Constitution, and today's hearing provided several examples confirming that view.  Here are his remarks on the Ricci case and Brown v. Board of Education, the judge's duty to ascertain what our fundamental rights are, and his parting interchange with Judge Sotomayor:

GRAHAM: � This will probably be the last time we get to talk in this fashion. I hope to have a chance to get to know you better, and we'll see what your future holds, but I think it's going to be pretty bright.

The bottom line is, one of the problems the court has now is that Mr. Ricci has a story to tell, too. There are all kinds of stories to tell in this country, and the court has, in the opinion of many of us, gone into the business of societal change not based on the plain language of the Constitution, but based on motivations that can never be checked at the ballot box.

Brown v. Board of Education is instructive in the sense that the court pushed the country to do something politicians were not brave enough to do, certainly were not brave enough in my state. And if I had been elected as a senator from South Carolina in 1955, the year I was born, I would be amazed if I would have had the courage of a Judge Johnson in the political arena.

But the court went through an analysis that separate was not equal. It had a basis in the Constitution after fact-finding to reach a reasoned conclusion in the law and the courage to implement that decision. And society had the wisdom to accept the court's opinion, even though it was contentious and literally people died.

We're going to talk about some very difficult societal changes that are percolating in America today, like who should get married, and what boundaries are on the definition of marriage, and who's best able or the most capable of making those fundamental decisions?

***

And Judge, that's why the Supreme Court matters. I do believe, at the end of the day, you're not going to find a law book that tells you whether or not a fundamental right exists vis-a-vis the 2nd Amendment, that you're going to have to rely upon your view of America, who we are, how far we've come and where we're going to go in our relationship to gun ownership. That's why these choices are so important.

And here's what I'll say about you. And you may not agree with that, but I believe that's what you're going to do, and I believe that's what every other justice is going to do.

And here's what I will say about you. I don't know how you're going to come out on that case, because I think fundamentally, Judge, you're able, after all these years of being a judge, to embrace a right that you may not want for yourself, to allow others to do things that are not comfortable to you, but for the group, they're necessary. That is my hope for you.

That's what makes you, to me, more acceptable as a judge and not a activist, because an activist would be a judge who would be champing at the bit to use this wonderful opportunity to change America through the Supreme Court by taking their view of life and imposing it on the rest of us.

I think and believe, based on what I know about you so far, that you're broad-minded enough to understand that America is bigger than the Bronx, it's bigger than South Carolina. Now, during your time as an advocate, do you understand identity politics? What is identity politics?

***

GRAHAM: The last question on the "wise Latina woman" comment. To those who may be bothered by that, what do you say?

SOTOMAYOR: I regret that I have offended some people. I believe that my life demonstrates that that was not my intent to leave the impression that some have taken from my words.

GRAHAM: You know what, Judge? I agree with you. Good luck.

     The hearings were compelling viewing – psychologically, sociologically, philosophically, and politically – and offered myriad reflections on the importance and centrality of the Constitution in American life.

Tagged as: Coburn, confirmation hearings, graham, sessions, sotomayor