Sonia Sotomayor – Day 2

Does Senator Jeff Sessions understand the roles of the various courts?  Does he understand the use of precedent?  Is he really a lawyer?  Kate Phillips blogging the hearing in the New York Times

Judge Sotomayor, confronted by Senator Sessions about how her take on a wise Latina’s decisions differed from that of Judge Miriam Cedarbaum, pointed out that Ms. Cedarbaum was her friend and was sitting in the audience. (In one of her speeches, Ms. Sotomayor had referred to Ms. Cedarbaum’s discussions about the number of women joining the bench and whether those numbers were having any impact.)Mr. Sessions repeatedly said he was “troubled” and very concerned as to whether she could be impartial if she couldn’t put her experiences aside. Ms. Sotomayor replied that she believed she did apply the facts to each case, and applied the law.

We all see the world through our own lens.  Sessions, whether he wants to admit it or not, see the world through his white, Southern, racist one.  To expect any judge to lay aside his or her experience when looking at a case is to want robots or cyborgs to become judges.  However, we do not want them to judge cases on emotion or experience alone, they must also apply the law.

Howard Fineman blogging this afternoon for Newsweek wrote

Sotomayor was saying that it was better to admit the existence of personal biases, and then control them with that knowledge. Sessions was forced to argue that a judge must come to the bench with no biases whatsoever─an ironic position indeed for a son of the segregated Deep South.

Senator Schumer tried to tackle this issue.  Phillips writes

He began by knocking down concerns over empathy that Republicans have cited: “Now I believe that empathy is the opposite of indifference,” he said, adding “the opposite of having ice water in your veins.”

He then went through a number of cases, including the litigation around the plane crash into Long Island Sound brought by the surving families.  Even though she, along with everyone in the country, felt for the plaintiffs, she applied the relevant law and ruled against them.

And then there was her Republican “supporter”, Lindsey Graham, who turned condesending and lecturing

Mr. Graham has been one of the more outspoken critics in the Senate about the judge’s wise Latina remarks. As we mentioned Monday, he complained, around the time of his meeting with her, that as an “everyday white guy,” he wouldn’t have been able to get away with such comments.During his session today, Senator Graham pounded home that point. Perhaps this was his Southern upbringing coming out, but at one point as he wove his way through his objections to her statements, he said, “Do you understand, ma’am?”

If he had uttered those words — that as a white man he would make a better decision, for example, against a minority opponent in a political race, “they would have my head,” Mr. Graham declared.

In a chastising voice, Mr. Graham added: “It would make national news and it should. Having said that I am not going to judge you by that one statement. I just hope you’ll appreciate the world we live in, meaning you can say those things and still inspire somebody and still get a chance to get on the Supreme Court.” If others used those words, they “wouldn’t survive.”

Does that make sense? he asked.

Yes, she answered.

And then she went to to hope that we will move past this type of thinking and had Graham agreeing that if the hearing moved the discussion closer to this goal, it would have been worth while.

Back to Fineman

So it goes: pretty easily for the judge. The feeling in the Hart Building hearing room today is almost sleep-inducing, for the following reasons

  • The discipline, preparation, canniness, record, and intellect of the nominee.
  • The ambivalence, even confusion, of her GOP interlocutors (with the exception of the canny Lindsey Graham).
  • The nature of confirmation hearings, which have become a form of predictable puppet theater, especially since everyone knows in advance that Sotomayor has the votes.

Aside from her personal demeanor─calm, almost painfully explanatory─Sotomayor’s best weapon in the hearings has been her record as a judge. There just aren’t many cases that the GOP has been able to cite to make her sound like a wild-eyed “activist,” liberal or otherwise. So far, they have mentioned about 10 of her cases, out of hundreds.

This Wasserman cartoon from the Boston Globe sums it up well.


Sotomayor: Day One

It was the first day of confirmation hearings for Sonia Sotomayor.  She didn’t get to say much and it is a good thing she has all that experience on the bench where she learned to listen because the Senators all got to make opening statements.  And when she did speak, she was short and to the point as she talked about her background and her judicial philosophy “assuring senators that she believes a judge’s job “is not to make law” but “to apply the law,” as the two parties used her nomination to debate the role of the judiciary.”

Al Franken made his debut as a Senator,

As most of you know, this is my fifth day in office,” he said, as a few people laughed. He then turned somber, saying that he took his oath of office very seriously.

I thought he was clearly a little nervous as he said he represented the common person, the one who is not a lawyer.

But the real kicker was Senator Jeff Sessions.  I think he resented the fact that he never made it though his district court nonination hearings and now had to be the ranking Republican on a Judiciary Committee about to confirm an Hispanic woman to the Supreme Court.  He came off as a bitter, sour old white guy.

Eugene Robinson writes in this morning’s Washington Post

The only real suspense in the confirmation hearings for Supreme Court nominee Sonia Sotomayor is whether the Republican Party will persist in tying its fortunes to an anachronistic claim of white male exceptionalism and privilege.

Republicans’ outrage, both real and feigned, at Sotomayor’s musings about how her identity as a “wise Latina” might affect her judicial decisions is based on a flawed assumption: that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things. Any “identity” — black, brown, female, gay, whatever — has to be judged against this supposedly “objective” standard.

Thus it is irrelevant if Justice Samuel A. Alito Jr. talks about the impact of his background as the son of Italian immigrants on his rulings — as he did at his confirmation hearings — but unforgivable for Sotomayor to mention that her Puerto Rican family history might be relevant to her work. Thus it is possible for Sen. Jeff Sessions (R-Ala.) to say with a straight face that heritage and experience can have no bearing on a judge’s work, as he posited in his opening remarks yesterday, apparently believing that the white male justices he has voted to confirm were somehow devoid of heritage and bereft of experience

Amy Klobuchar captured the diversity issue in a different way in her statement as quote in the New York Times live blog on the hearings

In describing their varied experiences, Ms. Klobuchar notes that sitting near her is Senator Whitehouse, who grew up in Laos and Cambodia as the son of a diplomat while she worked as a carhop at the A&W Root Beer stand. In addition, she pointed out, while Senator Hatch is a gospel music songwriter, Mr. Leahy is quite the Dead-head and once had difficulty taking a call from the president because he was onstage at a Grateful Dead concert.

Eugene Robinson again

The whole point of Sotomayor’s much-maligned “wise Latina” speech was that everyone has a unique personal history — and that this history has to be acknowledged before it can be overcome. Denying the fact of identity makes us vulnerable to its most pernicious effects. This seems self-evident. I don’t see how a political party that refuses to accept this basic principle of diversity can hope to prosper, given that soon there will be no racial or ethnic majority in this country.

There is, after all, a context in which these confirmation hearings take place: The nation continues to take major steps toward fulfilling the promise of its noblest ideals. Barack Obama is our first African American president. Sonia Sotomayor would be only the third woman, and the third member of a minority group, to serve on the nation’s highest court. Aside from these exceptions, the White House and the Supreme Court have been exclusively occupied by white men — who, come to think of it, are also members of a minority group, though they certainly haven’t seen themselves that way.

Judging from Monday’s hearing, some Republican senators are beginning to notice this minority status — and seem a bit touchy about it.

Sotomayor confirmation hearing

Day Two, coming up.