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.