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Tuesday, July 14, 2009

The Hearing of Judge Sotomayor Day 2

There was plenty of fireworks in the second day however, for the most part, the back and forth between Senators and Judge Sotomayor could only be interesting to serious political junkies and constitutional scholars.

The most important part, in my opinion, came in a back and forth between John Kyl and the Judge. Senator Kyl quoted President Obama's standard for choosing a Supreme Court justice.

Ninety-five percent of the time the law is so clear that it's just a matter of applying the law. I'm not somebody who believes in a bunch of judicial law-making.

What you're looking for is somebody who is going to apply the law where it's clear. Now there's gonna be those five percent of cases or one percent of cases where the law isn't clear. And the judge has to then bring in his or her own perspectives, his ethics, his or her moral bearings. And In those circumstance what I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being being dealt with sometimes unfairly, that the courts become a refuge for justice. That's been its historic role. That was its role in Brown v Board of Education.


Senator Kly asked Judge Sotomayor if she agreed that in five percent of the cases a judge looks outside the law and looks inside their hearts like the president suggests. Judge Sotomayor categorically rejected this philosophy. In fact, the judge was clear that judges follow the law in all cases. She said that she always attempts to follow the law in all the cases that come before her. This rejection was something I predicted way back when Souter first announced his retirement that the Republicans had an opportunity to use the very line of questioning that Kyl made.

Now, a hearing for a Supreme Court Justice is the perfect platform to turn this from nice sounding euphimisms into the radical agenda that it is. This can be done through direct questions like "President Obama believes that the Supreme Court should venture into issues of redistribution of wealth and political and social justice. Is this something you agree with? How would you see it come about?" There are other direct questions like this one. "President Obama believes that empathy for the poor and downtrodden is an important quality for a Supreme Court Justice. Do you agree and can you give an example of a case in which empathy played a role in your decision making?"

The rejection of Obama's judicial philosophy by his own nominee is the biggest story of the day. The toughest questioner of the day was Senator Jeff Sessions. Judge Sotomayor was questioned repeatedly about her "wise Latina" comment. She claimed that it was a bit of bad word play.

My play on those words fell flat. It was bad.

Of course, given that Judge Sotomayor made these "wise Latina" comments at least six times in prepared statements, that's a bit of a stretch. She was peppered with questions regarding this comment. She was also grilled about Ricci. Though, all too often, the back and forth on specific cases got bogged down in wonky Constitutional jargon that only Constitutional scholars could understand. Frankly, this diarist isn't embarrassed to admit that for the most part the jousts went over my head.

Sotomayor was mostly on the defensive. The Democrats hammered the theme that she's "the most experienced Supreme Court nominee" in years. Ironic, how the Democrats suddenly think that experience is important.

In conclusion, the Republicans got a lot of good licks in. That Kyl got Sotomayor to reject the president's judicial philosophy has significant consequences well beyond the hearings. Sotomayor is still on track to become our next Supreme Court justice, but she's also on track to have a majority of Americans oppose her nomination.

Meanwhile, the Republicans won a battle in a larger war. I said that they could use these hearings as an opportunity to frame the president's judicial philosophy as part of a radical agenda. Kyl's question and Sotomayor's answer effectively did that. The idea that a judge should ever decide any case based on anything but the law was rejected by the president's own nominee. That's huge politically.

Here's some video of Lindsey Graham questioning the Judge.

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