Sotomayor Day 2: What To Watch For

Judge Sonia Sotomayor testifies during her day two of her confirmation hearing (Mario Tama/Getty)

Now that the Day 1 pleasantries are over, the real Sonia Sotomayor coronation … sorry, I meant “confirmation,” hearings can begin. Day 2 is the start of the always entertaining question and answer session, where politicians try to impugn or extol the politics of people appointed to a post that is supposed to be apolitical.

You already know the outcome (Sotomayor is going to be confirmed), and you already know the general way in which Republicans will try to attack the nominee (racist, liberal latina who hates the Constitution). But the hearings can still be massively entertaining, if you know how to follow along and find the funny.

After the jump, I want to give you a primer on some of the hilarious and hypocritical things we can look forward to on Day 2 of the Sotomayor confirmation hearing.

In no particular order, here’s what’s going to make today Christmas for political dorks with legal training:

Watching Republicans criticize Sotomayor’s Latino experience without criticizing Latinos.

We already know that some people are deeply offended by Sotomayor’s “a wise latina …” comment. If you use the phrase “wise latina” as an action phrase for a drinking game today, you’ll end up in the hospital by noon. The Republican base wants to the Republican Senators to beat up Sotomayor over this language. And they will. But every time they do it, demographic numbers about the rising population of Latinos in their states will be running through their heads. It’s a really fine line between beating Sotomayor up, and alienating an entire racial group. Can they do it? I just saw Philippe Petit walk a tightrope between the two towers, so anything is possible.

The Return of Miguel Estrada.

If Republicans were ever going to nominate a Latino, it would have been Miguel Estrada. Estrada is about as conservative as they come, but he has brown skin and at various Republicans thought that they could have gotten him through under the “Clarence Thomas Rule.” The CTR states that Republicans with dark skin can be more conservative than Republicans with light skin, while Democrats with dark skin have to be more moderate than Democrats with light skin. But notwithstanding the CTR, Estrada was so odious to Democrats that they filibustered his Court of Appeals nomination. But, trust me, Republicans will turn Estrada into the epitome of moderate jurisprudence by the end of the day.

Is Sotomayor actually liberal?

Listen closely when liberals like Chuck Schumer get time. They’ll be pumping up her “moderate” credentials so much, you’d think she was appointed by Bush. Oh wait, her first judicial appointment was by George H.W. Bush. We’re going to hear that a lot today.  We’ll hear that so much so that at the end of the day, somebody is going to have to remind me that Sotomayor is actually a Democrat, nominated by a Democratic President who won in a landslide, to be confirmed by a Senate with 60 Democratic members.

Wait, that doesn’t sound like a shiny Christmas morning toy. That sounds like getting a pair of socks and a macaroni card your wife forced your kid to make in order to suck up to Santa. Let’s just move on.

The Jeff Sessions Experience!

Jeff Sessions is the ranking Republican on the Senate Judiciary committee. Sessions used to be a judge. In another life, he was up before this very committee seeking confirmation. Back then the committee was controlled by Republicans. But Sessions couldn’t get confirmed because (wait for it) Republicans thought he was kind of racist. Please try to remember this every time Sessions opens his mouth. hilarity will ensue.

Al Franken: U.S. Senator

Oh, the junior Senator from Minnesota will not try to be funny. He’s a U.S. Senator now! But his “aww shucks, I’m not a lawyer, I’m just trying to understand” routine should still be pretty funny. If Jimmy Stewart could play Al Franken today, the performance would be replayed during the Oscars.

During today’s performance, the role of “Abortion” will be played by “Made Up Rights That Are Not In The Constitution.”

Nobody will actually say the “A-word.” It’s too much of a “hot button issue.” And there’s no upside to discussing it head on for either party. Sotomayor doesn’t change the balance of power on the Court and there are no abortion cases in the pipeline. But whenever a Republican talks about a “made up right,” they are talking about the right to privacy. The right to privacy is what the entire abortion regime is based upon, so if you believe in a right to privacy, you are probably going to support abortion. If you don’t believe in such a right, it becomes harder to defend abortion on a constitutional level.

But in the internet age — where people need to jealously guard their right to keep information on the internet private — it’s no longer a political winner for Republicans to frontally attack the right to privacy. So instead of talking about privacy, the polls numbers say they should talk about “made up rights that are not in the Constitution.” Who supports made up rights? Nobody! Except the right to privacy. Which people overwhelming support. Are you following me? The Republicans are hoping you’re not.

Check back later today for updates from the hearings.

Update 10:00: It took 15 minutes for Senate Judiciary Chairman Patrick Leahy to get to the Ricci v. DeStefano decision, and 20 minutes to bring up the “wise Latina” issue. Leahy just asked softballs designed to let Sotomayor get out her main talking points.

It appears that for Ricci, Sotomayor will be saying she had no choice but to follow the law.

For the wise Latina comment, Sotomayor had this to say: “The context of the words that I spoke gave everyone a misunderstanding … and to give everyone assurances, I want to state upfront, unequivocally, and without doubt, I do not believe that any racial or ethnic group has an advantage in sound judging.”

She further said of the wise Latina comment: “It was bad.”

I’m glad she cleared that up. That should be the last we hear about Sotomayor being racist, right?

Update 10:40: Okay, Jeff Sessions is now blatantly trying to pull a fast one on the American people. He’s asking Sotomayor why she didn’t apply “strict scrutiny” to the Ricci decision. As evidence that she did not apply a strict scrutiny standard, Sessions brings up the brevity of the unpublished Ricci decision.

But “strict scrutiny” is a legal concept that speaks to a standard of judicial review. It doesn’t mean “pay very close attention to this” in the way a non-lawyer might understand the term. It is entirely possible for a judge to apply strict scrutiny in an opinion that is one sentence long.

And Sessions knows this. He’s a lawyer. But he’s trying to suggest that Sotomayor essentially didn’t work hard enough on the Ricci case.

Painting a minority as somebody who does not do enough hard work? Who would have thought Sessions would do that? We’ll see if any Democrat is able to give her an opportunity to make this point again.

Update 11:10: The Senator Herb Kohl experience was lots of fun. First he asked her who her favorite Justice is, as if Kohl and Sotomayor were playing the dating game. Then there were entirely useless series of questions about affirmative-action and Roe v. Wade. Both matters are areas of settled law, and Kohl’s question is whether she agreed those issues were settled. Then Kohl — who owns the Milwaukee Bucks basketball team and is one of the wealthiest Senators — asked about anti-trust laws and whether Sotomayor was pro-business. She said that she wasn’t “pro” anything.

So, if you are scoring at home, you learned absolutely nothing about Sotomayor from Herb Kohl. I suppose it could have been worse.

Update 12:00: The best exchange of the day has been between Orrin Hatch and Sotomayor. First Hatch started in on guns. Unlike Jeff Sessions, Hatch was willing to engage in the substantive legal argument with Sotomayor on the “rational basis” standard that is applied to Second Amendment cases. Rational Basis means that the state can regulate something if they have a rational reason for doing so. Hatch wanted Sotomayor to admit that rational basis is more “permissive” of  government regulation than other standards. It clearly is, but Sotomayor didn’t want to say it that way. Point for Hatch.

But then Hatch began to overreach when they got into the Ricci discussion. Hatch tried to continue the Republican farce that “all nine Supreme Court Justices” disagree with the way Sotomayor and the Second Circuit “handled” the Ricci decision. But Sotomayor pointed out that it was not true and that the four dissenters on the Supreme Court wanted the case remanded back to the 2nd Circuit (Sotomayor’s current job) to give it a chance to apply the new law. Point for Sotomayor.

Unsatisfied, Hatch then went back into the implication that Sotomayor chose to take an intellectually easy way out to decide the Ricci case. These kind of attacks are intellectually dishonest.

But more than that, Sessions and Hatch have come dangerously close to calling Sotomayor intellectually lazy. That’s a dangerous allegation and a racially charged one. I hope the other Republicans don’t follow down that road.

Update 12:30: Dianne Feinstein was pretty substantive for most of her bit. But she started off with a fiery reminded that Miguel Estrada is not up for confirmation. We’ll see if that puts the kibosh on all of this Estrada talk.

Feinstein asked a lot of specific questions that Sotomayor couldn’t answer. But she also gave Sotomayor an opportunity to answer the issue of Presidential signing statements directly. Sadly, Sotomayor suggested there was some Constitutional wiggle room there.

The committee is going to break for lunch, which will also give Sotomayor a chance to elevate her broken ankle. But there wasn’t a whole lot of breaking news from the morning session. So far we’ve learned that “it was bad” to make the wise Latina comment, and that Jeff Sessions either doesn’t understand strict scrutiny or is confident that the American people don’t understand it.

We’ll see you after lunch.

Update 2:05: And we’re back, with Senator Chuck Grassley. He’s asking about property rights now, but if anybody is going to talk about abortion in a direct manner, it’ll be this guy.

Update 2:20: After a brief outburst from the peanut gallery, Sotomayor is launching into an explanation of the statute of limitations. Grassley seems annoyed because the statute prevented somebody from filing a claim under the takings clause of the Constitution. Funny, when the statute of limitations applied to prevent Lilly Ledbetter from claiming employment discrimination, Grassley seemed to understand what was going on just fine.

Update 2:40: Russ Feingold is now asking Sotomayor if mistakes were made regarding the nation’s post-9/11 policies. He’s not getting anywhere and he’s not going to get anywhere. The Eric Holder confirmation hearings was the time for this.

Update 3:10: Dear God. John Kyl is so annoying. He’s trying to get Sotomayor to say that she would recuse herself from any case involving incorporation of the 2nd Amendment to the states. Sotomayor said that she would recuse herself from a specific case that she decided while on the Second Circuit, but Kyl is not satisfied, he wants her to opt-out of the whole issue. He then tried to say that Roberts offered such a promise when he was up for confirmation. As usual, Jon Kyl is wrong.

Update 3:23: Here’s the problem for Sotomayor detractors. Kyl said that he has read all of Sotomayor’s speeches. He seemed very proud of that. But, has Senator Kyl read all of Sotomayor’s cases? No, no I don’t think he has.

In any event, Kyl is coming down very hard on how Sotomayor’s Latina identity could influence her opinions. I wonder if Kyl’s Latino/Latina constituents in Arizona are listening.

Update 3:30: Jon Kyl: “the clear inference is that this [influence by your Latina hertiage] is a good thing … that is the basis of concern a lot of people have.”

Sotomayor pivots to her 17-year record on the bench.

Boo. I was hoping for a “Sotomayor L. Jackson” moment was going to happen: “Yes I’m a wise Latina and I hope you burn in hell!”

But she does say “I don’t think anybody quarrels that diversity on the bench is good for America.”

Apparently, John Kyl agrees with that. But he thinks it’s a problem when diverse members embrace that diversity and makes different decisions.

To recap: Jon Kyl supports diversity, so long as everybody acts and thinks like an old white man.

Update 3:40: Time for another ten minute break, but not before Kyl got Sotomayor to say once again that her choice of words during the “wise Latina” speech was “a bad idea.”

It’s almost surreal to see white male Republicans from rugged western states seem so hell bent on feeling victimized.

But that is the problem isn’t it?  These guys don’t actually feel victimized or offended by Sotomayor’s choice of language, instead they feel like it’s an opportunity to score political points. I mean, look, we can settle this right now: please show my the one little white child who wanted to be a Supreme Court Justice, but feels that Sotomayor doesn’t think that he is smart enough or good enough to make it all the way. Show me the victim. Because I’m pretty sure that Jon Kyl wasn’t personally offended by anything Sotomayor said in all of those speeches he’s read. I bet I wouldn’t feel the same if somebody forced me to read everything that Kyl has ever written.

Update 4:00: Senator Chuck Schumer and Sotomayor should strongly consider conducting this bit in a nice room at the Hay-Adams. Perhaps with oysters and champagne.

Update 4:05: Schumer really wants to prove that Sotomayor has sympathy for people, but has no problem destroying their hopes and dreams if the cold dictates of the law demand it. Change you can believe in!

Update 4:15: Mmm … liberal cat nip. Sotomayor and Schumer started talking about immigration, and during her answer she referred to the office of immigration services, instead of it’s new name, “Homeland Security.” She then said that the old name was more “descriptive” than it’s new name. And Schumer sarcastically quipped right back that “some here think the new name is descriptive.”

It’ll be nice to have another person on the Court that thinks immigrants are not people that we have to defend against.

Update 4:30: It’s Lindsey Graham time. He immediately dismisses Schumer’s case analysis and goes back to the speeches.

He seems to want Sotomayor to self-label her judicial philosophy. She is resistant to this. Why does Senator Graham want labels? Because it’s much easier to explain complicated legal theories with short sound bites.

Update 4:35: Graham said, “I like you, for whatever that matters. In fact I may vote for you.” Charming no? Graham then launches into a personal attack about Sotomayor’s judicial temperament. All that stuff about being a “terror on the bench” and mean to her clerks. What does this have to do with the Constitution? Who knows? But Graham “likes her.” Do these kind of charming insults work in the South in some way that I am not aware of?

Update 4:45: Okay, so Lindsey Graham just did his song and dance that if he had said the white equivalent of the wise Latina comment, his career in politics would be over. Graham said that if he said that as a white male he would be better able to represent South Carolina — and his opponent was a minority — then it’d make national news.

Fair enough. But if Lindsey Graham said that his Christian faith made him better equipped to represent South Carolina then, say, an atheist — would it still make national news? Should it? Does he have any idea how hypocritical he sounds right now?

Graham seamlessly moves from that to 9/11. He asks Sotomayor if she knows anything about the people we are fighting. No racial animus there, is there?

Update 4:55: Graham finishes with questions about the death penalty and abortion, in the context of what she did with the Puerto Rican legal defense fund 30 years ago. In Graham’s view, this has something to do with the speeches she’s written. Sotomayor wants them to look at her judicial record, you know, since she’s trying to get confirmed as a Supreme Court Justice and all.

Update 5:00: Oh my Lord, it’s 5:00 p.m. and Dick Durbin is just get started. Sotomayor is having a chocking fit. She sounds like Mr. Smith during his going to Washington filibuster.

5:15: Pretty interesting admission from Dick Durbin. He admits that he voted for the draconian federal sentencing guidelines for crack, mainly because he was scared of this new drug. Now he admits that he was wrong. His question wants Sotomayor to answer a question about these guidelines that Obama is trying to change.

But she can’t answer it, not really. She acknowledges that it’s an unsatisfying answer, but what is she going to do? You can’t have Jon Kyl asking her to recuse herself from any case regarding drug laws.

Update 5:30: Dick Durbin doesn’t use all of his time. Yay. Could somebody get Sotomayor an oxygen mask. That was a long day.

Thanks for reading. I hope you enjoyed it.