According to The Hill's blog, Senator John McCain (R-AZ) announced today in a floor speech his opposition to the nomination of Judge Sonia Sotomayor to the United States Supreme Court. This announcement comes after one of McCain's closest allies, Senator Lindsey (R-SC), was the only Republican to vote in favor of Judge Sotomayor during the Judiciary Committee vote last week. The article also quoted parts of McCain's speech:

"An individual who does not appreciate the common sense limitations on judicial power in our democratic system of government ultimately lacks a key qualification for a lifetime appointment to the bench," McCain said.

"I know of no more profoundly anti-democratic attitude than that expressed by those who want judges to discover and enforce the ever-changing boundaries of a so-called 'living Constitution,'" he added.

McCain, however, also mentioned the Democratic filibuster of Miguel Estrada's appeals court nomination, saying "an excellent resume and an inspiring life story are not enough to qualify one for a lifetime of service on the Supreme
Court."

The Supreme Court's reversal of the New Haven, CT firefighter case Ricci v. DeStefano also played into McCain's decision. "This case proves that Judge Sotomayor does not faithfully apply the law we legislators enact," he said.

Senator Chuck Grassley (R-IA) today released a statement today declaring his decision to oppose the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court. Grassley stated:

I've had the opportunity to vote on many judges and Justices since becoming a member of the Senate Judiciary Committee. We confirmed a great number of them. I had hoped to be able to vote for Judge Sotomayor to be the next Justice on the Supreme Court, but after a thorough review of the hearing record and her cases, speeches and writings, I have come to the conclusion that I cannot support Judge Sotomayor's nomination.

My vote must be based on the nominee's respect for and adherence to the Constitution and judicial restraint. I question if Judge Sotomayor will be able to set aside personal biases and prejudices to decide cases in an impartial manner and in accordance with the Constitution.

At her confirmation hearing, I asked specific questions about the property rights of private citizens afforded by the Fifth Amendment. My colleagues asked detailed questions about the now famous Ricci case, the right to privacy and the Second Amendment right to bear arms. I was not convinced that Judge Sotomayor understands the rights given to Americans under the Constitution, or that she will refrain from expanding or restricting those rights based on her personal preferences. I am not certain that Judge Sotomayor won't allow those personal beliefs and preferences to dictate the outcome of cases before her. There's no question that nominees have become quite adept at dodging our questions, but her lack of clear and direct answers to simple questions regarding the Constitution were troubling. Some of her answers were so at odds with statements she has made over the years, that it was difficult to reconcile them.

Nearly 20 years ago, then Judge David Souter talked during his confirmation hearing about courts "filling vacuums" in the law. That concept greatly worried me, because courts should never fill voids in the law left by Congress. Since Justice Souter has been on the Supreme Court, his decisions have proven that he does believe that courts do indeed fill vacuums in the law. My vote has come back to haunt me time and time again. So, I've asked several Supreme Court nominees about courts filling vacuums at their hearings. Her lukewarm answer left me with the same pit in my stomach I've had with Justice Souter's rulings that I had hoped to have cured with his retirement, and reinforced my concerns with her hearing testimony, cases and speeches.

Only time will tell which Sonia Sotomayor will be on the Supreme Court. Is it the judge who proclaimed that the court of appeals is where "policy is made," or is it the nominee who pledged "fidelity to the law?" Is it the judge who disagreed with Justice O'Connor's statement that a wise woman and a wise man will ultimately reach the same decision, or is it the nominee who rejected President Obama's empathy criteria?

There's no doubt that Judge Sotomayor has the credentials on paper to be a Justice on the Supreme Court. But, her nomination hearing left me with more questions than answers about her judicial philosophy, and I cannot support her nomination.

In an article posted today, this "marks the first time Grassley [has] opposed a high-court nominee in his 29 years on the committee." In addition, "Grassley, the Judiciary Committee's No. 2 Republican, is the fifth of seven Republicans on the committee to announce plans to oppose Sotomayor, President Barack Obama's first high-court nominee."

Senator Jeff Sessions (R-AL), ranking Republican on the Senate Judiciary Committee, announced in a USA Today Op-Ed today that he will vote against Judge Sonia Sotomayor for her nomination to the U.S. Supreme in tomorrow's committee vote. Sessions stated:

She rejected the president's "empathy standard," abandoned her statements that a
judge's "opinions, sympathies and prejudices" may guide decision-making, dismissed remarks that personal experiences should "affect the facts that judges choose to see," brushed aside her repeated "wise Latina" comment as "a rhetorical flourish," and championed judicial restraint.

Judge Sotomayor's attempt to rebrand her previously stated judicial approach was, as one editorial page opined, "uncomfortably close to disingenuous."

Why not defend the philosophy she had articulated so carefully over the years?

Because the American people overwhelmingly reject the notion that unelected judges should set policy or allow their social, moral, or political views to influence the outcome of cases. Rather, the public wants and expects restrained courts, tethered to the Constitution, and judges who impartially apply the law to the facts.

In the end, her testimony served as a repudiation of judicial activism.

But pledging "fidelity to the law" and practicing judicial restraint are different things. Which Sotomayor will we get?

At the hearings, which were praised for their substance and respectful tone, we looked closely at the record:

-- Her 2006 private property decision permitted the government to take property from one developer and give it to another.

-- Her 2008 Ricci decision allowed a city to discriminate against one group of firefighters because of their race. That ruling was recently reversed by the Supreme Court.

-- Her 2009 Second Amendment decision would give states the power to ban
firearms.

These rulings have three things in common. Each was contrary to the Constitution. Each was decided in a brief opinion, short on analysis. And each was consistent with liberal political thought.

I don't believe that Judge Sotomayor has the deep-rooted convictions necessary to
resist the siren call of judicial activism. She has evoked its mantra too often. As someone who cares deeply about our great heritage of law, I must withhold my consent.

In a press release today, Senator Bob Bennett (R-UT) announced his intent to oppose the nomination of Judge Sotomayor's nomination to the U.S. Supreme Court. Senator Bennett is one of the seven, still-serving Republican Senators who had supported Sonia Sotomayor's nomination to the circuit court in 1998. He issued the folloing statement:

"It is the constitutional duty of a senator to examine whether a nominee will uphold and defend the principles contained in the Constitution, respect the rule of law, render well-reasoned and precedent-respecting decisions, and refrain from judicial activism. Although Judge Sotomayor has strong credentials, extensive experience and an impressive background, I have come to the conclusion that her record while serving on the Second Circuit argues against promoting her to the highest court in the land.

"I cannot reconcile my strong belief that the Constitution guarantees the right to bear arms with Judge Sotomayor's stated belief that the Second Amendment is not a 'fundamental right.' Additionally, I am concerned about statements she has made indicating a tendency toward judicial activism. While she is continually defending her comments as misunderstood, the fact remains that she has made statements that clearly imply she believes judges are tasked with policymaking.

"The rate at which Judge Sotomayor's cases have been overturned by the Supreme Court is cause for great concern. Eighty percent of the cases she's participated in that have been heard or considered by the Supreme Court have been reversed or vacated, which further indicates to me a tendency to legislate from the bench.

"Finally, Judge Sotomayor has stated that she believes American judges should consider foreign law when interpreting the Constitution. The Constitution is an inspired document and I strongly believe the Supreme Court should strictly interpret American law based on the Constitution rather than the laws of other countries.

"This has been a close call for me because I support the president's constitutional prerogative to nominate justices and I am reluctant to substitute my judgment for his. However, in the end, I have decided that I must vote no."

Senate Republican Leader Mitch McConnell (R-KY) stated in a press release today that he "will formally announce his opposition to Judge Sonia Sotomayor's nomination to the U.S. Supreme Court in a floor speech on Monday, July 20." Here are excerpts from his prepared remarks:

"From the beginning of this confirmation process, I've said that Americans expect one thing when they walk into a court room, whether it's a traffic court or the Supreme Court - and that's equal treatment under the law. Over the years, Americans have accepted significant ideological differences in the kinds of men and women that various presidents have nominated to the Supreme Court. But one thing Americans will never tolerate in a nominee is a belief that some groups are more deserving of a fair shake than others. Nothing could be more offensive to the American sensibility than that. Judge Sotomayor is a fine person with an impressive story and a distinguished background. But above all else, a judge must check his or her personal or political agenda at the courtroom door and do justice even-handedly, as the judicial oath requires."

"Judge Sotomayor's record of written statements suggest an alarming lack of respect for the notion of equal justice, and therefore, in my view, an insufficient willingness to abide by the judicial oath. This is particularly important when considering someone for the Supreme Court since, if she were confirmed, there would be no higher court to deter or prevent her from injecting into the law the various disconcerting principles that recur throughout her public statements. For that reason, I will oppose her nomination."

"In her writings and in her speeches, Judge Sotomayor has repeatedly stated that a judge's personal experiences affect judicial outcomes. She has said her experiences will affect the facts that she chooses to see as a judge. She has argued that in deciding cases judges should bring their sympathies and prejudices to bear. She has dismissed the ideal of judicial impartiality as an 'aspiration' that, in her view, cannot be met even in most cases. Taken together, these statements suggest not just a sense that impartiality is not possible, but that it's not even worth the effort."

"Judge Sotomayor's record on the Second Circuit is troubling enough. But, as I said, at least on the Circuit Court, there's a backstop. Her cases can be reviewed by the Supreme Court. This meant that in the Ricci case, for example, the firefighters whose promotions were unfairly denied could appeal the decision. Fortunately for them, the Supreme Court sided with them over Judge Sotomayor. If, however, Judge Sotomayor were to become a Supreme Court Justice, there would be no backstop. Her rulings would be final. She'd be unencumbered by the obligation of lower court judges to follow precedent. She could act more freely on the kinds of views that animated her troubling and legally incorrect ruling in the Ricci case. That's not a chance I'm willing to take."

Sotomayor has been questioned on a wide spectrum of issues over the past four days. As the second round of questioning wraps up, The New York Times compiled a list where Sotomayor stands on those issues according to her own words:

DEATH PENALTY

"The issue for me with respect to the death penalty is that the Supreme Court, since Gregg, has determined that the death penalty is constitutional under certain situations. I have rejected challenges to the federal law and its application in the one case I handled as a District Court judge, but it's a reflection of what my views are on the law."

GUNS

"The Supreme Court did hold that there is in the Second Amendment an individual right to bear arms. And that is its holding, and that is the court's decision. I fully accept that."

ABORTION

"The court's decision in Planned Parenthood v. Casey reaffirmed the core holding of Roe. That is the precedent of the court and settled in terms of the holding of the court." A constitutional requirement for a health exception to abortion restrictions "has been a part of the court's jurisprudence and a part of its precedents. Those
precedents must be given deference in any situation that arises before the court."

FOREIGN LAW

"American law does not permit the use of foreign law or international law to interpret the Constitution. That's a given, and my speech explained that, as you noted, explicitly. There is no debate on that question. There's no issue about that question. ... The question of use of foreign law, then, is different than considering the ideas that it may, on an academic level, provide."

PROPERTY RIGHTS

The Kelo v. New London case, in which the Supreme Court decided that the government can take property for private development rather than a traditional public use like schools and roads "is now a precedent of the court. I must follow it. I am bound by a circuit - a Supreme Court decision, as a Second Circuit judge. As a Supreme Court judge, I must give it the deference that the doctrine of stare decisis would suggest. The question of the reach of Kelo has to be examined in the context of each situation. And the court did in Kelo note that there was a role for the courts to play in ensuring that takings by a state did in fact intend to serve the public - a public purpose and public use."

EXECUTIVE POWER

"In all of the situations, once you've looked at what Congress has done or not done, you then are directed to look at what the president's powers may be under the Constitution minus whatever powers Congress has in that area. So the whole exercise is really, in terms of Congress and the executive, an exercise of the two working together. And in fact, that's the basic structure of our system of government. That's why the Congress makes the laws; the president can veto them, but he can’t make them."

POWER OF CONGRESS TO REGULATE

In United States v. Lopez, "and in some of its subsequent cases, the court was examining, as I mentioned, a wide variety of factors. They included whether the activity that the government was attempting to regulate was economic or non-economic; whether it was an area in which states traditionally regulated; whether the statute at issue had an interstate commerce provision as an element of the crime; and then considered whether there was a substantial effect on commerce. It looked at the Congressional findings on that last element, the court did, and determined that there weren't enough in the confluence of factors that it was looking at to find that that particular statute was within Congress's powers. That's the basic approach it has used to other statutes it has looked at."

AFFIRMATIVE ACTION

"The question of whether affirmative action is necessary in our society or not and what form it should take is always first a legislative determination in terms of legislative or government employer determination, in terms of what issue it is addressing and what remedy it is looking to structure. The Constitution promotes and requires the equal protection of law of all citizens in its 14th Amendment. To ensure that protection, there are situations in which race in some form must be considered. The courts have recognized that. Equality requires effort, and so there are some situations in which some form of race has been recognized by the court. It is firmly my hope, as it was expressed by Justice O'Connor in her decision involving the University of Michigan Law School admissions criteria, that in 25 years race in our society won't be needed to be considered in any situation. That's the hope."

On Monday, Cleta Mitchell, RNLA Co-Chair, appeared on CBS News Blogs: Unplugged: Reaction to the Sotomayor Hearing (Cleta's segment starts around 16:00 in):


Watch CBS Videos Online

Senator Jon Kyl (R-AZ) provided a tough round of questions for Judge Sonia Sotomayor during her U.S. Supreme Court nomination hearings today. Trying to get at the heart of the "empathy" issue, Senator Kyl quoted President Obama's comments after he voted against Chief Justice John Roberts during his confirmation hearings. According to a post on the Washington Wire, the Wall Street Journal, Kyl asked Sotomayor if she agreed with President Obama's opinion that the approach to judging is "that the law only takes you the first 25 miles of a marathon and the final mile must be determined by what is in the judge's heart." According to the posting:

"No, sir, I wouldn't approach the issue of judging the way the president does," Sotomayor said. "Judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law."

She added, "It's not the heart that compels conclusions in cases, it's the law."

Kyl, like other Republicans, has expressed displeasure with Obama's comment that a judge should have "empathy," which Kyl emphasized is a nonlegal concept. He asked Sotomayor whether she has ever heard a lawyer say that he could not rely on the law, but had to appeal to empathy or some other nonlegal idea.

"Exactly, sir," Sotomayor said. "We apply law to facts. We don’t apply feelings to facts."

Although is no surprise that there have been several hecklers during the nomination hearings of Judge Sotomayor, there was one interesting anti-abortion heckler yesterday. As stated in an Associated Press article:

The plaintiff in the landmark abortion-rights case Roe v. Wade, who became an abortion protester in recent years, was among four demonstrators arrested Monday for disrupting Sonia Sotomayor's Supreme Court nomination hearing.

Norma McCorvey, 61, of Texas, better known as "Jane Roe," began screaming that Sotomayor was "wrong" about abortion during the opening statement of the newest member of the Senate, Al Franken, D-Minn.

Ms. McCorvey, like all other hecklers, was removed by officers immediately. "McCorvey was among a group that had been in seats reserved for the public." Sen. Leahy (D-VT) was quick to warn the crown that disruptive behavior would not be tolerated. AP reports, "Those arrested were charged with unlawful conduct-disruption of Congress."

Supreme Court nominee Sonia Sotomayor's response to questioning on abortion issues during today's U.S. Supreme Court confirmation hearings was not much of a surprise. According to an Associated Press article, "she considers the question of abortion rights is settled precedent and says there is a constitutional right to privacy." When asked about Row v. Wade, Associate Press reports:

Sotomayor told the Senate Judiciary Committee that "there is a right of privacy. The court has found it in various places in the Constitution." She said this right is stated in the Fourth Amendment protection against unreasonable search and seizure and in the 14th Amendment guaranteeing equal protection of the law. She declined to say pointblank if she agreed with the high court's precedent on this volatile issue.

Answering a question later from Sen. Orrin Hatch, R-Utah, Sotomayor said that "all precedents of the Supreme Court I consider settled law," subject to the possibility of subsequent reversal, such as when the court last month renounced a previous precedent in a reverse discrimination case.

A question asked on twitter, "Do you suppose Judge Sotomayor's would-be colleagues on the high court are watching hearings, too?"

The Associated Press answers:

The Supreme Court is on summer break and justices are likely fanned out across the country enjoying their time off. Of course, some may be tuning in to find out where the woman who likely will become their next colleague stands on a host of issues. But if the justices aren't glued to the screen, you can be certain they have law clerks taking detailed notes for them.

During Senator Leahy's (D-VT) questioning during day two of the United States Supreme Court confirmation hearings of Judge Sonia Sotomayor, Leahy gave Sotomayor an opportunity to explain her past comment, "a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life," and respond to the criticism, and allegations of racism, it evoked.

She responded to Leachy by explaining that it was a comment meant to inspire young Latino students to believe they can be anything they want to be. She followed up by saying that she does not believe that any ethnic or racial group has an advantage in "sound judging." Sotomayor stated the reason she chose the words she used were to attempt "to convey that both men and women were equally capable of being wise and fair judges." According to CNN, Sotomayor additionally stated, "I was trying to inspire them to believe that their life experiences would enrich the legal system, because different life experiences and backgrounds always do. I don't think that there is a quarrel with that in our society."

According to the same article, Sotomayor also stated, "I want to state up front, unequivocally and without doubt: I do not believe that any ethnic, racial or gender group has an advantage in sound judging."

Senator Jeff Sessions (R-AL) also questioned Sotomayor on the same "wise Latina" comment. In response to his direct line of questioning, a Politico article stated:

She said she was simply trying to colorfully layer her comments on top of former Justice Sandra Day O'Connor's statement that wise old man and wise old woman would reach the same results in a case.

"I was trying to play on her words. My play fell flat. It was bad," Sotomayor stated.

But Sessions was not convinced:

Sessions also told Sotomayor that he felt her statements Tuesday were "quite inconsistent" with her past statements about the role a judge's background plays in making decisions.

"You do believe that you're background will affect the result in a case, and that is troubling me," Sessions said.

The New York Times has a live blog that updates several times throughout the day includes summaries of senators' questions and Judge Sotomayor's answers, pictures and important quotes. So far, the blog has outlined Sotomayor's responses to the following issues: the 'Tarzan' prosecution, the Ricci case, the wise Latina judge comment, Second Amendment and gun rights, policy-making, empathy, property rights, abortion, and Bush v. Gore.

To follow the live blog, click here, and periodically refresh to get the updated posts.

Labels: Sotomayor, Supreme Court

The Republican National Committee compiled a list, found on gop.com, of Judge Sotomayor's decisions that have been overturned by the United States Supreme Court, and stated "seven of Judge Sotomayor's decisions reviewed by the Supreme Court were reversed outright":

Ricci v. Destefano, 530 F.3d 87 (2008) - Reversed 5-4 (Dissenting Ginsburg, Stevens, Breyer & Souter) ("Sotomayor's Resume, Record On Notable Cases," http://www.cnn.com/, 5/26/09)

Johns-Manville Corp. v. Chubb Indemnity Insurance Co., 517 F.3d 52 (2d Cir. 2008)¸ reversed by Travelers Indemnity Co. v. Bailey, 129 S. Ct. 2195 (2009)

Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2007) -- Reversed 6-3 (Dissenting: Stevens, Souter, Ginsburg) ("Sotomayor's Resume, Record On Notable Cases," http://www.cnn.com/, 5/26/09)

Lopez Torres v. N.Y. State Board of Elections, 462 F.3d 161 (2d Cir. 2006), reversed by N.Y. State Board of Elections v. Lopez Torres, 552 U.S. 196 (2008)

Swedenburg v. Kelly, 358 F.3d 223 (2d Cir. 2004), reversed by Granholm v. Heald, 544 U.S. 460 (2005)

Malesko v. Correctional Services Corp., 299 F.3d 374 (2000) -- Reversed 5-4 (Dissenting: Stevens, Souter, Ginsburg, Breyer) ("Sotomayor's Resume, Record On Notable Cases," http://www.cnn.com/, 5/26/09)

Tasini v. New York Times, et al., 972 F. Supp. 804 (1997) -- Reversed 7-2(Dissenting: Stevens, Breyer) ("Sotomayor's Resume, Record On Notable Cases," http://www.cnn.com/, 5/26/09)

In an eighth case, Merrill Lynch v. Dabit, 547 U.S. 71 (2006), the Supreme Court substantively vacated her opinion, noting that she had ignored two prior Supreme Court decisions, and effectively reversed her decision in Dabit v. Merrill Lynch, 395 F.3d 25 (2d Cir. 2005).

In a ninth case, Knight v. Commissioner of Internal Revenue, 552 U.S. 181 (2008), the Supreme Court affirmed Judge Sotomayor's outcome but faulted her for adopting a reading of the relevant tax statute that "flies in the face of the statutory language."

This compilation includes a section where Sotomayor's "mentor" on the 2nd Circuit Court discussed how Sotomayor "failed to grapple with the questions of exceptional importance raised in this appeal" in regards to the Ricci decision. This is followed by a review of several more cases where the "Supreme Court has continuously questioned Sotomayor's legal interpretation."

Ed Whelan, at National Review's Bench Memos, has an interesting post about Sen. Leahy's revisionist history (or bad memory) on what happened during the Miguel Estrada nomination. To set the stage, Lindsey Graham brought up Miguel Estrada to make the point that Republican opposition to Sotomayor is based on her judicial philosophy, not her race. He continued by saying every Republican on the Committee would have voted for Estrada. The point being this: Republican opposition is based on her judicial philosophy, not her race. It is also worth mentioning that some (like Byron York here) have argued that Democrats opposed Estrada specifically because of his race. You can watch Graham's statement by clicking here.

Leahy's interruption:

I'd just note, just so we make sure we're all dealing with the same facts, Mr. Estrada was nominated when the Republicans were in charge of the Senate, was not given a hearing by the Republicans. He was given a hearing when the Democrats took back the majority in the Senate ….

Whelan:

Well, let's "make sure we're all dealing with the same facts," Senator Leahy:

1. President Bush announced his nomination of Estrada to the D.C. Circuit on May 9, 2001. Fifteen days later, Senator Jeffords left the Republican Party and flipped control of the Senate from the Republicans to the Democrats. Leahy surely remembers that well, both because Jeffords was his fellow Vermonter and because the flip made him chairman of the Judiciary Committee.

2. When Leahy says that Estrada "was not given a hearing when the Republicans were in charge of the Senate," he is technically accurate in that Senate Republicans did not try to hold a confirmation hearing on Estrada's nomination within its first 15 days. Had they tried to do so (even before the ABA completed its evaluation of Estrada), Democrats never would have permitted it.

To put this timing in context: During the Bush 43 administration, the average time from nomination to hearing for federal appellate nominees was 166 days overall, and 197 days while Leahy was chairman. No federal appellate nominee other than Clinton renominee Helene White (the beneficiary of a special deal) received a hearing in less than 30 days. And of President Bush's first batch of nominees, the first to receive a hearing waited 62 days.

3. Leahy finally gave Estrada a hearing on September 26, 2002—more than 16 months after his nomination—but it was clear that Democrats would not vote Estrada out of committee. Once the Republicans regained control of the Senate in 2003, the Judiciary Committee promptly voted Estrada out of committee on a party-line vote (Republicans in favor, Democrats opposed). Democrats then filibustered his nomination on the Senate floor, defeating a record seven cloture votes.

4. It is outrageous of Leahy to give his grossly misleading account of the Estrada nomination in a context that vilely insinuates that Republican opposition to Sotomayor is based on her Hispanic ethnicity.

We know that Democrats are fond of revisionist history, but this is clearly an egregious example of it. Unfortunately, the only part of Sen. Graham's statement the media paid any attention to was his remark that she would be confirmed barring a "complete meltdown."

Craig Hymowitz, Co-Chair of the Philadelphia chapter of the RNLA, recently appeared on KYW Newsradio 1060 to discuss the nomination of Judge Sotomayor:

KYW Newsradio 1060 Philadelphia - Judging The Judge

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Most commentators, including Wendy Long and Ed Whelan at National Review's Bench Memos, agree that today's hearings were largely uneventful. Republican Senators were respectful of the proceedings and cordial towards Judge Sotomayor, but issued stern warnings of the dangers of judicial activism, personal bias, and Obama's "empathy" standard. Highlights included what Wendy Long described as Sen. Sessions' "gracious and statesmanlike" performance; Sen. Hatch reminding everyone of President Obama's record of voting against Janice Rogers Brown, Roberts and Alito; and Senator Coburn's remarks concerning Sotomayor's assertion that the law is uncertain. Coburn's concerns are something that have been overshadowed and need to be explored further, as the ideas represent a potential serious threat to the rule of law.

Wendy Long summed up Sotomayor's remarks very astutely:

For her part, Judge Sotomayor followed her short, White House mandated script, and even forcefully did her best John Roberts imitation, saying that her "judicial philosophy" is "simple:" "fidelity . . . to . . . the . . . law." Great, Judge . . . now we just need to hear how we reconcile that with "choosing to see" the facts you like in a case before you, and how it squares with the law you're supposed to be faithful to being so indefinite that a judge herself has to invent its meaning?

We will see how well Sotomayor does tomorrow when Republicans delve into her lengthy record and numerous past controversial comments. Tomorrow's hearings starting at 9:30 AM tomorrow morning with Chairman Leahy's questions.

Today the Judicial Confirmation Network urged Senators to oppose the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court. A memo sent by Wendy Long, counsel, and Gary Marx, Executive Director on behalf of the JCN, to its members and supporters, states:

We have seen enough to conclude that nothing that Judge Sotomayor or her liberal backers say in her hearings this week can alter the significant record before us, and accordingly, we are today asking Senators to vote "no" on her
nomination. Far more relevant than whatever she says this week, as a result of White House coaching, is what she has said and done in the past. In short, past performance is indicative of future results. Her record of decisions and statements is a far better predictor of what she would do in the future as a Supreme Court Justice than any self-serving testimony she may offer this week.

Judge Sotomayor's two decades of speeches, law review articles, legal advocacy, and judicial decisions lead us to conclude that, if she is confirmed, Justice Sotomayor would be a supreme liberal judicial activist, outdoing the Justice she is replacing, David Souter, in this regard. Her view that judges should rely on their own views, instead of the law as written, in deciding cases would take our nation a critical step further away from the Rule of Law and toward the Rule of Nine Lawyers.

The memo breaks down Sotomayor's record into categories of her judicial philosophy, radical activism, case law in racial quotas and preferences, the second amendment, property rights, voting rights for felons, and business, and lastly, questionable ethics. These sections from the memo are excerpted below:

I. Judicial Philosophy and Views Regarding the Rule of Law

In our country, judges are the servants of a written Constitution (the first one in history, now widely emulated) and the laws we make through our elected representatives. This is the definition of "self-government," or "government by the consent of the governed." So in America, under the "rule of law," judges are bound to apply neutrally the law that is written in the Constitution, Bill of Rights, and laws enacted by representative bodies of the people.

In her speeches and law review articles, Judge Sotomayor has rejected this view of the responsibility of judges, called "judicial restraint." Instead, she embraces the idea that judges' ethnic and gender characteristics, and their personal experiences and opinions, should be the basis of their judicial decisions. We call this "judicial activism." It was expressed precisely by Judge Sotomayor, speaking at Duke Law School, when she said: "The court of appeals is where policy is made."

II. Record of Radical Activism and Extreme Views

From 1980 to 1992, Judge Sotomayor held a number of leadership positions with the Puerto Rican Legal Defense and Education Fund (PRLDEF), including member of the Board of Directors, Vice President of Board of Directors, Chair of Litigation Committee, Chair of Education Committee, Special Vice Chair, Second Vice Chair, and First Vice Chair.

While she was a member of its Board, PRLDEF filed briefs in several high profile abortion cases. The PRLDEF took extreme positions, favoring mandatory public funding of abortion and declaring it to be a fundamental right - positions that, as Americans United for Life has noted, are more extreme than those of Justice Souter, the liberal activist she would replace on the Court.

PRLDEF's record of extremism extended beyond the courtroom. For instance, Sotomayor was one of three members of a PRLDEF Board task force that issued a report in March 1981 urging the organization to oppose the death penalty. The report's baseless conclusions included the racially obsessed trope that "Capital punishment is associated with evident racism in our society" and "the state of humanistic thinking in the world judge[s] capital punishment as a violation of those values."

III. Case Law

Racial Quotas and Preferences.

Judge Sotomayor rejects the notion that Americans are entitled to equal protection of the laws and instead supports the notion that judges are appointed to represent certain constituencies on the Court.

In Ricci v. DeStefano, Judge Sotomayor applied her radical political preference for racial quotas to throw Frank Ricci and other firefighters out of court.

The Supreme Court recently reviewed the Ricci decision. The standard Judge Sotomayor applied in the case was so extreme not even one Justice on the United States Supreme Court agreed with it.

Second Amendment.

Judge Sotomayor has shown more hostility toward Americans' Second Amendment right to bear arms than any judicial nominee in recent history.

Property Rights

Judge Sotomayor's record on property rights should concern every American who believes that our government's ability to take private property from one person and give it to another in the name of "public use" is a threat to our liberty and our prosperity.

Voting Rights for Felons

In Hayden v. Pataki convicted felons who were in prison sued the state of New York alleging that it violated the federal Voting Rights Act by denying them the right to vote based on their race. Of course, they were not being denied the ability to vote based on their skin color but simply because they were locked up in prison. Judge Cabranes wrote a majority opinion upholding New York's law on the basis that the Voting Rights Act did not encompass felon disenfranchisement laws such as New York's. Judge Sotomayor dissented, arguing that the case should have been a clear win for the felons.

Business

Judge Sotomayor's record in business cases is troubling and unpredictable, in keeping with her view that the law should not be stable or knowable - a view of the law that should concern every entrepreneur and business person.

Questionable Ethics

Judge Sotomayor took steps in the Ricci case that are inconsistent with the rules of the Second Circuit in her attempt to sweep the firefighters' claims under the rug by originally deciding it in an unsigned summary order. She avoided circulating the opinion to other judges such that it might escape their attention, until her fellow judge Jose Cabranes read about the situation in the local newspaper and followed up. Without this happenstance, she would have buried the firefighters' claims and the case might never have made it to the Supreme Court, which reversed her.

The White House proudly announced that Judge Sotomayor had delivered her answers to the Senate Judiciary Committee's questions in just nine days. It was discovered almost immediately thereafter that Judge Sotomayor had failed to disclose an important memo she wrote for PRLDEF arguing against the death penalty in New York.

The memo concludes by stating:

In summary, Judge Sotomayor and President Obama share a belief that it is fine for judges to indulge their own political preferences and feelings when making decisions. That belief is demonstrable throughout Judge Sotomayor's career, in her speeches, in her law review writings, and in her judicial opinions.

We fully expect Judge Sotomayor to attempt to explain away her record by repeating the White House’s talking points about her newfound commitment to the rule of law and judicial restraint. It would not surprise us if President Obama's nominee suddenly testifies on the record with words similar to those used by Chief Justice Roberts and Justice Alito, two nominees President Obama voted against on the basis of judicial philosophy. Senators must see through this
double-talk.

Senators and the American public should recognize such a false claim of judicial humility as part of a design to ensure enough votes for confirmation, because the White House has coached her to testify in this manner to appeal to the majority of Americans who believe in judicial restraint and applying the Constitution and Bill of Rights equally to all, as they are written. Nothing that Judge Sotomayor says during one week of hearings could undo years of speeches, writings, and judicial opinions proving that she would continue, in a lifetime appointment to the unreviewable Supreme Court, to undermine judicial restraint or of constitutionally limited government.

Labels: Sotomayor, Supreme Court

The Los Angeles Times has posted some photos from the morning session. Highlights include the twin nephews of Judge Sotomayor taking a nap during the hearings and an activist being removed from the hearing room.

Found in an Associated Press article, some of Senator John Cornyn's (R-TX) remarks in his opening statement at the confirmation hearings of Judge Sonia Sotomayor include:

We recognize that lower court judges are supposed to be bound by Supreme Court and circuit precedent. To borrow a football analogy, a lower court judge is like the quarterback who executes the plays - not the coach who calls the plays. That means many of your cases don't tell us much about your judicial philosophy. But a few of your opinions do raise questions - because they suggest the kinds of plays you'd call if you were promoted to the coaching staff.

Judge Sotomayor: some of your opinions suggest that you would limit some of our basic constitutional rights - and some of your public statements suggest that you would invent rights that do not exist in our written Constitution.

Judge Sotomayor: we thank you for your candor in these speeches. Not every judicial nominee is so open about their judicial philosophy. Yet many Americans wonder what these various statements mean - and what you're trying to get at with these remarks. And many more wonder whether you are the kind of judge who will uphold the written Constitution - or the kind of judge who will veer us even further off course - and towards new rights invented by judges rather than ratified by the people.

U.S. Senate Republican Leader Mitch McConnell made the following remarks on the Senate floor this morning regarding the nomination of Judge Sonia Sotomayor:

Republicans take very seriously our obligation to review anyone who is nominated to a lifetime position on our nation's highest court. That's why Senators have taken time to review Judge Sotomayor's record to make sure she has the same basic qualities we look for in any federal judge: superb legal ability, personal integrity, sound temperament, and, most importantly, a commitment to read the law even-handedly. At the beginning of this process, I noted that some of Judge Sotomayor's past statements and decisions raised concerns. As we begin the confirmation hearings, those concerns have only multiplied.

Boiled down, my concern is this: that Judge Sotomayor's record suggests a history of
allowing her personal and political beliefs to seep into her judgments on the bench, which has repeatedly resulted in unequal treatment for those who stand before her.

But that's what these hearings are all about: giving nominees an opportunity to address the concerns that Senators might have about a nominee's record. In this case, the list is long.

To read McConnell's full release, click here.

Statements by Senator Orrin Hatch (R-Utah) include Obama's words from previous nomination hearings. An Associated Press article states:

The senate owes some deference to the president.

However, he's using then-Sen. Obama's words to invoke doubt about Sotomayor's fitness for the post. According to Hatch, Obama's own standard not so long ago was that judges "decide each case on the facts and the merits alone." That is: without regard to anyone's race or background.

Sessions came out of the gates full force this morning in his opening statement at Judge Sonia Sotomayor's Supreme Court Confirmation Hearing. The tone he set was that of concern about nominee Judge Sonia Sotomayor. A few highlights of Sessions' opening statement:

This nomination hearing is critically important for two reasons.

First, Justices on the Supreme Court have great responsibility, hold enormous power, and have a lifetime appointment.

Just five members can declare the meaning of our Constitution, bending or changing its meaning from what the people intended.

Second, this hearing is important because I believe our legal system is at a dangerous crossroads.

Down one path is the traditional American legal system, so admired around the world, where judges impartially apply the law to the facts without regard to their own personal views.

This is the compassionate system because this is the fair system.

In the American legal system, courts do not make the law or set policy, because allowing unelected officials to make laws would strike at the heart of our democracy.

I will not vote for - no senator should vote for - an individual nominated by any President who is not fully committed to fairness and impartiality towards every person who appears before them.

I will not vote for - no senator should vote for - an individual nominated by any President who believes it is acceptable for a judge to allow their own personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.

In my view, such a philosophy is disqualifying.

For the full statement, click here.

In an Op-Ed written by Senator Jeff Sessions (R-AL) this morning, Sessions stated, "As the top Republican on the Senate Judiciary Committee, I have pledged that Sonia Sotomayor's hearing will be fair and respectful - but also thorough and rigorous."

Sessions explained that nominating a Justice to the U.S. Supreme Court for a life term is an "awesome responsibility - determining the rights and freedoms for every individual in America." Because there are no term limits, Sessions stated:

We must look to the Constitution, which has made our legal system the envy of the world. American courts are tightly bound to the words of the Constitution and must defend the rights of every American - regardless of a judge's personal or political feelings in a case.

But President Barack Obama and Sotomayor have expressed a very different view of judging. This view says that justice should not be blind, that it should not be based only on the law and the Constitution, but that it should take a judge's own personal feelings into account.

The president says that when "constitutional text will not be directly on point," the critical ingredient for a judge is the "depth and breadth of one's empathy," as well as "their broader vision of what America should be." But when a judge shows empathy toward one party, does he or she not also show prejudice against the other?

It is important for the American people to feel confident that they will get a "fair hearing no matter our background, experience or politics."

Sessions also emphasizes the Judicial Oath:

"I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States. So help me God."

Politico has reported on a "200-plus page White House playbook distributed to Senate Judiciary Committee Democrats...." The strategy:

What emerges from the document is a streamlined, no-drama strategy modeled on the flawless performance of Chief Justice John Roberts back in 2005. Roberts bedeviled Democrats by deflecting questions about his judicial philosophy with the law school equivalent of Greenspan-speak, the art of saying virtually nothing in the most expansive language possible.

"Roberts is our gold standard," conceded one Democratic aide.

The document emphasizes three major talking points:

1. Sotomayor has an inspiring, only-in-America personal narrative, rising from a single-parent Puerto Rican home in the South Bronx to the apex of U.S. jurisprudence.

2. She's been a tough, law-and-order jurist and prosecutor absolutely adored by cops and other lawyers.

3. She respects precedent, has adopted a pragmatic legal approach and has more federal bench experience than any other high court nominee over the past 70 years.

"We want to make it the boringest hearings ever," said a senior Democratic Senate aide.

I hope the last part isn't true for all of us watching the hearings However, for those who remember Chief Justice Roberts hearings, it is little surprise that he is the "gold standard." However, it is also ironic because Democrats were consistently critical of Roberts and the noncommittal and expansive tone he took to frustrate Senate Democrats. We will see how successful Democrats will be in painting her as a moderate with the "tough, law-and-order" language when committee Republicans have a laundry list of liberal Sotomayor opinions to respond with.

Labels: Sotomayor, Supreme Court