Live-blogging the Sotomayor hearings

The Senate Judiciary Committee picks up with day three of hearings on a Supreme Court nomination

By Mike Madden
July 16, 2009 1:50AM (UTC)
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WASHINGTON -- The Senate Judiciary Committee picked up right where it left off today, with day three of confirmation hearings on Sonia Sotomayor's nomination to the Supreme Court. Salon will be covering the proceedings all day here in War Room, from the very close quarters at a press table behind Sotomayor in the Hart Senate Office Building. (Seriously -- if I'm not careful, I may wind up typing on the laptop of the reporter next to me instead of mine.) You can also watch a live video stream here.

The hearing began at 9:30 a.m. Eastern. Sen. John Cornyn, a Texas Republican who also chairs the GOP's Senate campaign committee for the 2010 elections, is grilling Sotomayor first about -- yes, you guessed it -- whether she'll be impartial. Look for frequent updates (and you can follow me on Twitter as well).


UPDATE, 6:25 p.m. EDT

Local TV stations in D.C. are reporting that the suspect in the shooting incident has died. Apparently, police stopped the driver of a white Mercedes near Union Station -- the train station a few blocks from the Capitol -- and the driver sped off, firing at Capitol Police officers. It's unclear exactly why he fled, but the police fired back, and killed him.

That sad news wraps up Salon's live-blog of the hearings for the day. Check back tomorrow for more coverage of Sotomayor's nomination.


UPDATE, 6:00 p.m. EDT

More on the shooting near the Capitol: Police were reportedly chasing someone in a white Mercedes, who crashed into a barricade. A witness told me they heard 8-10 shots fired and saw cops running over with automatic weapons.

"It took a while for me to recognize [the sound]," said the witness, who didn't want to be identified. "It was kind of like, 'Oh, shit.'"


Cops responded from all over, instantly -- "I mean, everyone" came to the scene, the witness says.

The area the police have blocked off is a block away from the Hart building, where the sotomayor hearings were taking place, and across the street from the Capitol. Capitol Police officials are expected to brief reporters soon.


The local NBC affiliate is reporting that the man taken to the hospital was a 35-year-old shooting suspect, and that he was shot by a Capitol Police officer.

UPDATE, 5:50 p.m. EDT

Sen. Ben Cardin, D-Md., just wrapped up his questioning of Sotomayor, and the committee is in recess until Thursday morning.


But there's other news on Capitol Hill right now: A shooting that took place near one of the Senate buildings. A victim is being taken to the hospital, and law enforcement is sealing off entrances to the Capitol. Senators are reportedly getting special protection.

UPDATE, 4:35 p.m. EDT

Sonia Sotomayor simply can't satisfy Jeff Sessions.


The Senate Judiciary Committee just started its second round of questions, with each member getting 20 minutes to quiz Sotomayor again. And you may not be surprised to learn that Sessions still hasn't been won over to her side, even after nearly 10 hours of question-and-answer so far.

"I have to say, I'm still concerned about some of the issues that have been raised," Sessions told the nominee. The main issue he's concerned with is, naturally, her now-notorious "wise Latina" quote, which Sessions seems to have decided means Sotomayor will use a seat on the Supreme Court to seek revenge on gringos everywhere for any number of slights, real or imagined. "You seem to say in your approach and throughout that speech that backgrounds, sympathies and prejudcies can impact how you rule," Sessions said, somewhat indignantly.

But the Alabama Republican is also suspicious of whether Sotomayor will be sufficiently deferential to the rights of all Americans to arm themselves to the teeth. He picked up on some remarks Sotomayor made yesterday, speaking about a Second Circuit court ruling that let a local law banning nunchucks stand; the appeals court, including Sotomayor, had said the Second Amendment didn't limit the ability of states and cities to pass gun (or ninja weapon) control laws. Sotomayor said yesterday that was because the right to bear arms was not "a fundamental right," which seemed to provoke Sessions's wrath.

"I think that's what makes people worry about our courts and our legal system today, and whether agendas are being promoted through the laws, and not strictly what the law says," he said.


Suddenly, Sotomayor -- who has been unfailingly patient throughout the hearing -- interjected, asking if she could expound on her answer. And then she proceeded to give Sessions a lecture that could have come straight out of an introduction to American law class.

"Fundamental is a legal term that I didn't make up," Sotomayor said, still maintaining a steady, polite tone of voice. "It was the Supreme Court's term. It uses it in the context of whether a particular constitutional provision binds the states or not. And so I wasn't using the word -- the panel wasn't using the word in Maloney in the sense of its ordinary meaning."

Sessions tried to reply: "Well, I know you were using the constitutional, legal meaning, but that's hugely important."

And then Sotomayor continued on to explain that she didn't want to get into a debate over whether the Second Amendment binds state and local governments because the Supreme Court is virtually guaranteed to hear a case on that very question sometime soon -- probably with her on it.


"When the court looks at that issue, it will decide is it incorporated or not, and it will determine by applying the test that it has, subsequent to its own precedent, whether or not it is fundamental and incorporated," Sotomayor said. "The Maloney decision was not addressing the merits of that question."

Sessions, apparently, decided to fold. "Alright, well, we'll review that," he said, and moved on to the next topic.

UPDATE, 3:15 p.m. EDT

Al Franken has been in office for only a week, and already, he's going back on a major campaign promise.


Throughout his Minnesota race against incumbent Republican Sen. Norm Coleman last year, Franken took great pains to show voters a side they might not have noticed in his "Saturday Night Live" days -- Franken, the serious policy wonk. Apparently, it worked well enough to convince a majority of the voters to send him to Washington, even if it took eight months for Coleman to give up the dream that he might hold onto his seat. But the word came down from Democratic officials that Franken, upon arriving here, would be playing the straight man for a while.

And yet... some old habits are tough to shake. So the former comedian opened his half-hour of questions for Sonia Sotomayor with a little bit of deadpan. Sotomayor had been talking earlier in the day about her childhood love of the TV court drama "Perry Mason," and and how it inspired her to become a prosecutor.

"I was a big fan of 'Perry Mason,'" Franken said. "It amazes me that you wanted to become a prosecutor based on that show, because in 'Perry Mason,' the prosecutor, Burger, lost every week, with one exception, which we'll get to later."

The room, and the nominee, broke up laughing, but Franken just sat there with the slight grin of a man who knows his jokes can kill. And with that, he got back on the serious train again -- mostly -- asking Sotomayor about attempts by Internet service providers to restrict content, about judicial activism by conservative judges and about whether the Constitution confers a right to privacy, which is the legal concept that underpins Roe v. Wade.

Still, 30 minutes is a long time to stay serious for a recovering comedian. So as he asked Sotomayor about privacy, Franken got the crowd laughing again. Yesterday, Lindsey Graham had asked Sotomayor whether there is "anything in the document written about abortion." Franken played with that theme a little.

"Are the words 'birth control' in the Constitution?" he asked. When she said they weren't, he replied, "Are you sure?" He then prompted Sotomayor to agree that the Constitution does convey a right to privacy, though she carefully cited 50 years of case law to do so.

Finally, realizing his time was almost up, Franken returned to "Perry Mason."

"What was the one case in 'Perry Mason' that Burger won?" he asked. Sotomayor laughed, and said she couldn't remember. "I just was always struck that there was only one case where his client was actually guilty," she said. "And you don't remember the name of that case?" Franken asked. "Didn't the White House prepare you?"

(Not to be outdone, White House aides e-mailed reporters that the case in question was "The Case of the Deadly Verdict," which originally aired on Oct. 17, 1963. UPDATE: With the committee in a closed session, reporters have been diligently Googling old "Perry Mason" episodes. A correspondent for the French wire service AFP has discovered that according to what seems to be the definitive online "Perry Mason" source -- -- Mason actually lost court decisions in three cases -- and, apparently, he actually got the verdict overturned in the episode the White House had flagged. Really, they need to get the air conditioning working in the hearing room again as quickly as possible.)

The committee is now in a closed session, so senators can discuss Sotomayor's FBI background check. They're expected to return a little before 4 p.m. EDT.

UPDATE, 2:25 p.m. EDT

Apparently Arlen Specter took the whole party-switching thing very seriously. The Pennsylvania Republican-turned-Democrat just told Sonia Sotomayor he wants to go over the following list of topics in his questions:

"Before going into a long list of issues which I have on the agenda -- separation of power, and wireless wiretaps, and secret CIA programs, and voting rights, and the Americans with Disabilities Act, and a woman's right to choose, and the Environmental Protection Agency, and the Clean Water Act, and television, and the Second Amendment -- I'd like to make an observation or two."

Admittedly, Specter used to be the rare Republican who cared about some of those issues way back in, uh, April, before he became a Democrat. But still. If you didn't know his history, you'd think he was just another loyal, rank-and-file Democrat -- especially after he patiently waited for 17 other committee members to finish their questions before his chance came. Considering Specter used to be the top Republican on the committee, it must not have been an easy wait.

That said, he wasn't all that happy when Sotomayor dodged his questions (as she's been doing with most questions that try to get at how she'd rule on specific issues). He interrupted her a few times, pressed her snappishly on why she wasn't answering them, and finally, got in a backhanded compliment in the course of praising her.

"I think your record is exemplary, Judge Sotomayor," Specter told her. "I'm not talking about your answers, but your record. And you'll be judged more on your record than your answers."

UPDATE, 1 p.m. EDT:

The committee just broke for lunch, after mostly uneventful rounds of questions from two Democrats, Amy Kloubchar of Minnesota and Ted Kaufman of Delaware. Kloubchar did say she had run into Sotomayor's mother in the restroom during the last break, which led her to note that her own mother has been kibbitzing on the hearings in a series of phone calls to the Capitol. "I watched Sen. Feinstein [asking questions yesterday], and she was brilliant," Kloubchar quoted her mom as saying. "What are you going to do?"

When they return, it'll be Arlen Specter and Al Franken's turn for another 30 minutes of questions each. After that, they'll go into a closed session to talk about Sotomayor's FBI background check. At some point, aides will have to figure out how to fix the air conditioning in the hearing room, which went out about 30 minutes ago.

And then... the whole thing will start up all over again, with each senator getting 20 minutes this time. "I would hope that if the question has already been asked and answered, [senators] would resist the temptation to ask it again," Vermont Democrat Patrick Leahy, who chairs the committee, just said. But he had the tone of a man who is used to his prayers going unanswered.

UPDATE, 12:30 p.m. EDT:

Sen. Sheldon Whitehouse, a Democrat from Rhode Island, is a descendant of a colonial governor of Massachusetts; his father and his grandfather were both career U.S. diplomats. Whitehouse went to an exclusive New Hampshire prep school and to Yale. He may be the member of the Senate who best represents the old-line establishment. But that didn't stop him from trying out a little Spanish this morning, in an attempt to build some -- yes -- empathy with Sotomayor, she of the much-inspected Puerto Rican heritage.

"I was talking with some friends in Providence when I was home about your nomination, and I said it actually gives me goosebumps to think about the path that has brought you here today and, more importantly, to think about -- because it's not about you -- more important to think what that means about America, that path," he told Sotomayor. "And they said, 'No, no, no, no, you can't say goosebumps. You have to say piel de gallina.' And so I promised them that I would, so I'm keeping that promise right now."

"Piel de gallina," in case you couldn't guess from context, is the Spanish phrase for "goosebumps" (though if you translated it literally, you'd get "hen skin"). Let the record show that though Whitehouse's own background isn't remotely Puerto Rican, his Spanish was passable. He pronounced the "ll" with a bit of an Argentine-sounding accent, giving it more of a "zh" sound than it would get in Puerto Rican Spanish. But the anti-abortion protesters who interrupted the hearing Monday yelling in nonsensical Spanglish might want to hit Whitehouse up for a quick language lesson if they're planning to try again today.

UPDATE, 11:40 a.m. EDT:

We've just learned two things here in the hearing room: number one, Sonia Sotomayor would not be permitted -- under New York state law, at least -- to go get a gun during the next break and shoot Sen. Tom Coburn; and number two, if she did, Coburn might deserve it.

Once the Oklahoma Republican let his questions ramble from abortion to gun control, he started pestering Sotomayor about whether the Constitution allows people to defend themselves if they're under attack. "I think that's what American people want to hear, Your Honor, is they want to know, do they have a right to personal self-defense?" he asked.

That led Sotomayor into an explanation of her understanding of New York's self-defense laws. "Under New York law, if you're being threatened with imminent death or very serious injury, you can use force to repel that, and that would be legal," she said. "The question that would come up, and does come up before juries and judges, is how imminent is the threat."

And then the exchange got weird:

SOTOMAYOR: If the threat was in this room, "I'm going to come get you," and you go home and get -- or I go home. I don't want to suggest I am, by the way. Please, I'm not -- I don't want anybody to misunderstand what I'm trying to say. If I go home, get a gun, come back and shoot you, that may not be legal under New York law because you would have alternative ways to defend...

COBURN (channeling "I Love Lucy"): You'll have lots of 'splainin' to do.

Strictly speaking, of course, Ricky Ricardo (and Desi Arnaz, the actor who played him) was Cuban, not Puerto Rican, as Sotomayor is. But still. You'd think the GOP would want to avoid invoking old-fashioned stereotypes of Latinos during the confirmation hearings for the first Latina Supreme Court nominee. Then again, the main Republican strategy for not alienating Latino voters during the hearings seems to be to constantly bring up Miguel Estrada, a conservative whose nomination to be a federal appeals judge was blocked a few years ago, as if to say, "Look -- we like some of you!" So maybe the Ricky Ricardo moment was inevitable.

At any rate, Sotomayor skipped right past it. "I'd be in a lot of trouble" if she shot Coburn, she said. "But I couldn't do that under a definition of self-defense."

UPDATE, 11:15 a.m. EDT:

Another reporter points out that Cardin took some poetic liberty with his ode to Sotomayor's baseball heroics; the 1994 baseball strike forced the cancellation of more than 900 games, which didn't affect Ripken's Ironman streak. When management thought about busting the strike with scab players, Orioles owner Peter Angelos said he'd rather not field a team than put replacement players out, if Ripken's pursuit of Lou Gehrig's record was threatened. (And that moment, nearly 15 years ago, represented the last time Angelos did anything particularly sensible with the Orioles.) Senators have, in general, gotten more than a little carried away with the baseball metaphors and references this week, so Cardin's hyped-up praise for Sotomayor is, sadly, not much of a surprise.

UPDATE, 10:41 a.m. EDT:

Sen. Ben Cardin, a Maryland Democrat, tossed some softballs at Sotomayor for the duration of his 30-minute question time -- starting by calling her a "hero to Baltimore baseball fans," because her ruling ending the 1994 baseball strike allowed Cal Ripken, Jr., to keep up his streak of games played, and ending with a hearty, "Very, very well said." That's been more or less the pattern with most Democrats -- call it a soft nuzzle, rather than a serious interrogation.

But a couple minutes later, Sen. Tom Coburn, Oklahoma's extremely conservative Republican, started his time. Apparently he's planning to spend most of it asking about abortion. First, he apologized to Sotomayor for the protesters who have interrupted the hearings. "The way you change minds is not to yell at people," he said.

And then he started asking hypothetical questions about late-term abortions. "Let's say I'm 38 weeks pregnant," he began. Hell of a way to make that kind of announcement, don't you think?

UPDATE, 10:20 a.m. EDT:

Cornyn picked up the banner of "Defender of White Males" this morning, pushing Sotomayor pretty aggressively on Ricci v. DiStefano, the New Haven, Conn., case where a white firefighter sued because the city threw out the results of a promotion exam that very few minority applicants passed. The Supreme Court overturned an appeals court ruling Sotomayor joined earlier this summer, and the GOP has spent much of the hearing picking over the case.

"I was shocked to see the sort of treatment that the three-judge panel you served on gave to the claims of these firefighters, by an unpublished summary order -- which was not likely to be reviewed or even caught by the other judges," Cornyn told Sotomayor. "Don't you think that these firefighters and other litigants deserve a more detailed analysis of their claims?"

So far, it's been remarkable to watch the GOP bash Sotomayor for saying she'd have empathy with some people because of her background and life experience, and also bash her for not having empathy with the firefighters in the Ricci case. The impression Cornyn and his allies have given is that the only people anyone ought to empathize with these days are white guys -- and that Sotomayor is a big threat to them. But maybe that makes some sense. It is, after all, hard for a white man to make it in the white man's world.

Mike Madden

Mike Madden is Salon's Washington correspondent. A complete listing of his articles is here. Follow him on Twitter here.

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