Live-blogging the Sotomayor hearings, day 4

Live updates from the Hart Senate Office Building.

By Mike Madden
Published July 16, 2009 7:58PM (EDT)

WASHINGTON -- The Senate Judiciary Committee is back in session today for a fourth day of questions to Judge Sonia Sotomayor. Look below for frequent live updates. And you can also watch the hearings live, here.

UPDATE, 3:45 p.m. EDT

A very strange panel is underway now in the hearing room, thanks to the political considerations involved in picking witnesses for each side. Democrats called in New York Mayor Mike Bloomberg, Manhattan District Attorney Robert Morgenthau, Arkansas Attorney General Dustin McDaniel and Leadership Conference on Civil Rights CEO Wade Henderson to praise Sotomayor and to argue that her legal record puts her squarely in the mainstream of American jurisprudence. Republicans countered with Frank Ricci and Ben Vargas, two of the firefighters in the New Haven, Conn., case who lost a ruling over the allegedly disparate racial impact of a hiring exam that Sotomayor was involved in, as well as Peter Kirsanow and Linda Chavez, who both oppose affirmative action.

Questions from members of the committee are bouncing around among all the witnesses (though most of the senators are ignoring Ricci and Vargas except to give them broad compliments and gratitude for their service). Ricci and Henderson are sitting next to each other at the middle of the table. The panel only makes the hearing seem all the more like pure political spectacle.

UPDATE, 1:25 p.m. EDT

Sonia Sotomayor's portion of her confirmation hearings just ended, after three rounds of questioning from the panel. The final round, where each senator got only 10 minutes, was sort of a lightning round; Democrats all skipped it, and the GOP raced through the same talking points they'd been hitting for the previous three days.

More than 2,000 people attended the hearings in person, chairman Patrick Leahy said -- the public has been rotating through on temporary passes for a few minutes at a time, so a lot of people have been able to get in.

The hearings are on a short break, and will resume soon with a series of witnesses testifying about Sotomayor's qualifications. The only real drama expected the rest of the way will come later in the afternoon, when New Haven firefighter Frank Ricci testifies about the case he lost in a federal appeals ruling that Sotomayor joined.

UPDATE, 12:55 p.m. EDT

The Democratic staff of the Senate Judiciary Committee just passed around photocopies of a letter from Bill Clinton to chairman Patrick Leahy (though it was dated two days ago, so it's not clear why it just arrived). "Dear Mr. Chairman," Clinton begins, "I write respectfully to urge the Senate's speedy confirmation of the Honorable Sonia Sotomayor as Associate Justice of the Supreme Court of the United States."

It's mostly standard stuff about Sotomayor's "compelling life story" and how it makes her "the true embodiment of the American Dream." But there was one line that stood out a little.

"If confirmed, Justice Sotomayor will be the second jurist in history nominated to three judgeships by three different Presidents," Clinton writes. 

It's a pretty trivial point; people don't often make a big deal out of the second person to achieve some more or less meaningless distinction. Could it be that the true historical significance Clinton had in mind was that one of the presidents who nominated Sotomayor to one of those positions was William Jefferson Clinton?

UPDATE, 12:20 p.m. EDT

It's easy to see what the most urgent legal matters facing our nation are, from listening to Republican members of the Senate Judiciary Committee question Sotomayor: abortion; racist discrimination against white people in New Haven, Conn.; judges who insist on recognizing that people have different perspectives and views depending on their life experiences; and, most of all, the right of all Americans to arm themselves heavily with whatever sorts of weapons they want.

Sen. Tom Coburn, an Oklahoma Republican who may be the most die-hard conservative in the Senate, was just pressing Sotomayor on that last point. The GOP is extremely concerned with cases making their way through the legal system, which the Supreme Court will likely take up sometime soon, that could settle the question of whether state and local governments, or only the feds, are bound by the Second Amendment. Sotomayor was involved in a case that -- relying on existing caselaw -- ruled that local governments were allowed to ban weapons, because the gun amendment didn't apply to them.

So Coburn bore down like a man down to his last few bullets. "My constituents in Oklahoma understand, as do most Americans, that the right to own guns hangs in the balance," he said. "It may very well hang in the balance with your ascendancy to the Supreme Court." Yes, America, Sonia Sotomayor (presumably followed by President Obama) is coming to take your guns away.

As she's done every single time a Republican has raised the matter, Sotomayor refused to engage in the debate, saying she couldn't discuss the legal questions at stake because of the likelihood that the Supreme Court will have to rule on them. But Coburn kept pressing. Finally, Sotomayor's patience wavered a bit.

"Senator, would you want a judge or a nominee who came in here and said, 'I agree with you; this is unconstitutional,' before I had a case before me, before I had both sides discussing the issues with me, before I spent the time that the Supreme Court spent on the Heller decision -- and that decision was mighty long?" she said. "I don't know that that's a justice that I can be."

Thus chastened, Coburn decided he'd spent enough time on guns, and promptly moved back to abortion.

UPDATE, 11:10 a.m. EDT

Today's session is starting to take on a valedictory feel, with senators asking questions that aim for more sweeping answers about Sotomayor's life, unlike the previous two days, which were pretty narrowly dialed in on specific topics and cases. California Democrat Dianne Feinstein, for instance, got Sotomayor to talk about what being a judge has meant to her:

My career as a judge has shown me that, regardless of what my desires were, that my life, what I have accomplished, does serve as an inspiration for others. It's a sort of awesome sense of responsibility. It's one of the reasons that I do so many activities with people in the community -- not just Latinos but all groups -- because I understand that it is women, it's Latinos, it's immigrants. It's Americans of all kinds and all backgrounds. Each one of us faces challenges in our life. Whether you were born rich or poor, of any color or background, life's challenges place hurdles every day. And one of the wonderful parts of the courage of America is that we overcome them. And I think that people have taken that sense that, on some levels, I've done some of that at various stages in my life.

South Carolina Republican Lindsey Graham, after Feinstein, engaged in an odd free-flowing philosophical discourse about identity politics, the nature of judging and the hearings so far. Graham has been hard to read throughout the hearing; he keeps indicating he's likely to vote for Sotomayor's confirmation, but then he's also pursued her more aggressively and bluntly than most other members of the Judiciary Committee.

Today, he kept up that emotional and tonal seesaw. He noted to Sotomayor that the 1954 Brown v. Board of Education case had pushed society to make changes that politicians weren't brave enough to make, "certainly not brave enough in my state," and admitted that if he'd been in South Carolina elected office at the time, he probably wouldn't have voted for desegregation. And he said the case had taught the country a lesson about courts. (UPDATED: This originally said Brown was decided in 1955, mostly because Graham made a point of saying it was decided in 1955 and he'd been born in that year. Graham was wrong, but I should have checked it to begin with.)

"The reasons these speeches matter, and the reasons elections matter, is because people now understand the role of the court in modern society, when it comes to social change," he said. "That's why we fight so hard to put on the court people who see the world like us. That's true from the left, and that's true from the right."

Graham then asked Sotomayor about gun control, and whether she would use her personal views to decide whether the Second Amendment binds the states or not (a running theme for GOP members of the panel). She insisted she wouldn't, but that she'd follow case law and precedent and the Constitution. And then Graham got philosophical again.

I do believe, at the end of the day, you're not going to find a law book that tells you whether or not a fundamental right exists vis-a-vis the Second Amendment, that you're going to have to rely upon your view of America, who we are, how far we've come and where we're going to go in our relationship to gun ownership. That's why these choices are so important... And here's what I will say about you. I don't know how you're going to come out on that case, because I think fundamentally, Judge, you're able, after all these years of being a judge, to embrace a right that you may not want for yourself, to allow others to do things that are not comfortable to you, but for the group, they're necessary. That is my hope for you. That's what makes you, to me, more acceptable as a judge and not an activist, because an activist would be a judge who would be chomping at the bit to use this wonderful opportunity to change America through the Supreme Court by taking their view of life and imposing it on the rest of us. I think and believe, based on what I know about you so far, that you're broad-minded enough to understand that America is bigger than the Bronx, it's bigger than South Carolina.

And finally, Graham told Sotomayor (a little condescendingly) that he was proud of her hard work, but that she'd "said some things that just bugged the hell out of me," especially her speech about the "wise Latina" judge. He read a statement of support for Sotomayor by Ken Starr into the hearing record -- another sign he's likely to back her -- and then asked her to address anyone who was upset by her "wise Latina" speech.

"I regret that I have offended some people," she said. "I believe that my life demonstrates that that was not my intent to leave the impression that some have taken from my words."

Graham chimed in one last time: "You know what, Judge? I agree with you. Good luck."

UPDATE, 10:15 a.m. EDT

For a basic primer on the different ways Democrats and Republicans are approaching their questions to Sotomayor, you couldn't do much better than comparing today's first two senators to speak. Now you can play along at home (or work)! See if you can guess which ones of the following questions come from Arizona Republican Jon Kyl, and which ones come from California Democrat Dianne Feinstein:

QUESTION 1: Isn't it true that you were incorrect in your earlier statement that you were bound by established Supreme Court and Second Circuit precedent when you voted each time to reject the firefighters' civil rights complaint?

QUESTION 2: Let me clear one thing up. I'm not a lawyer. And I've had a lot of people ask me, particularly from the West Coast who are watching this, what is "per curiam." Would you please in common, every day English explain what "through the court" means?

QUESTION 3: Let me interrupt again, because you're not getting to the point of my question. And I know, as a good judge, if I were arguing a case before you, you would say, "That's all fine and dandy, counsel, but answer my question."

QUESTION 4: Well, for what it's worth, I think you are a walking, talking example of the best part of the United States of America.

Got your answers down? Good. Let's play... guess the partisan! So let's see. Questions 1 and 3 are fairly aggressive, seek to point out flaws in Sotomayor's record and/or testimony and -- here's the true giveaway -- take up the noble cause of the New Haven firefighters, supposedly scorned by Sotomayor because of their race. Whereas question 2 is a friendly softball that seems mostly designed to waste time and let Sotomayor show off her knowledge of the law, and question 4 is a 100 percent certified official U.S. Senate valentine to the nominee.

So if you guessed that Kyl was 1 and 3, and Feinstein was 2 and 4, you've demonstrated a finely tuned understanding of Washington's political tactics and Supreme Court kabuki theater. In other words, you win!

UPDATE, 9:50 a.m. EDT

Most of the people in the room at Hart 216 seem eager to, well, leave it. Welcoming Sotomayor to the fourth day of hearings, Judiciary Committee chairman Patrick Leahy, a Vermont Democrat, sounded a little salty. "If it seems long, it is a day longer than Chief Justice Roberts or Justice Alito were called upon to testify," he said. The air conditioning in the hearing room isn't working very well, and the forecast in Washington today calls for humidity and highs over 90. So it could get pretty testy in here before the day is done.

Senators are moving through their second round of questions now, with Arizona Republican Jon Kyl starting off. A third round may follow after that, and then the committee plans to hear from witnesses -- including New Haven firefighter Frank Ricci, whose case the GOP has been using to try to paint Sotomayor as biased against white men.

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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