I'm watching the Senate Judiciary Committee this morning, voting along strict party lines. The Democrats moved to subpoena Mark Judge, and that failed. The Republicans voted to schedule the vote for noon, and that succeeded.
Now, some Democrats have walked out. Three I think. They've found microphones out in the hallway, and others remain in place, delivering statements. Right now, Leahy is repeating Dr. Ford's phrases — "indelible in the hippocampus" and "uproarious laughter."
His side has already lost, but it has not lost the midterm elections, and both parties have staunchly closed ranks for that upcoming battle.
Showing posts with label Leahy. Show all posts
Showing posts with label Leahy. Show all posts
September 28, 2018
September 14, 2018
"Brett Kavanaugh misled the Senate under oath. I cannot support his nomination."
I read the WaPo headline out loud.
Meade said, "Who's that, Captain Queeg?"
Yeah, it's Patrick Leahy. Meade was right.
To understand the Leahy = Queeg reference, see my "Observations from the Kavanaugh hearings" (Sept. 5) — point #9 on my 15-point list of observations.
I find the Democrats' fight against Kavanaugh so irksome. Have you seen Ruth Bader Ginsburg's denouncement of the "highly partisan show"?
I saw that first at Facebook, where my son John posted it. Ginsburg, in that clip, asked to compare the Kavanaugh hearings to her own, says "The way it was was right. The way it is is wrong." (I like the "is is/was was" locution.) At Facebook, I say:
Meade said, "Who's that, Captain Queeg?"
Yeah, it's Patrick Leahy. Meade was right.
To understand the Leahy = Queeg reference, see my "Observations from the Kavanaugh hearings" (Sept. 5) — point #9 on my 15-point list of observations.
I find the Democrats' fight against Kavanaugh so irksome. Have you seen Ruth Bader Ginsburg's denouncement of the "highly partisan show"?
I saw that first at Facebook, where my son John posted it. Ginsburg, in that clip, asked to compare the Kavanaugh hearings to her own, says "The way it was was right. The way it is is wrong." (I like the "is is/was was" locution.) At Facebook, I say:
The way it was in the past was how it should be, and it's become "a highly partisan show." She talks about how Justice Scalia was treated in 1986. But she never mentions Bork and Thomas! Wasn't that a highly partisan show, back in the good old days? And the reason there wasn't much pressure on the Scalia nomination was that at the same time there was the elevation of Rehnquist to Chief Justice, and there was what was arguably "a highly partisan show" about that.
I'm sure she remembers what happened to those other nominees, and maybe the questioner follows up about them. The follow-up question should also ask her whether her approach to answering questions (which everyone since her has used) was devised after examining the problems that had already been encountered. This good-old-days presentation is okay for a start, but if there's no follow-up, this should be seen as ridiculous.
December 18, 2017
"What they did to Al was atrocious, the Democrats.... The most hypocritical thing I’ve ever seen done to a human being..."
"... and then have enough guts to sit on the floor, watch him give his speech and go over and hug him? That’s hypocrisy at the highest level I’ve ever seen in my life. Made me sick.... Here’s a man, that all he said [was], 'Take me through the Ethics Committee. I will live by whatever decision and I will walk away thinking about this opportunity I’ve had while I was here. But you find out if I’m a predator.'... I hope they have enough guts ... and enough conscience and enough heart to say, 'Al, we made a mistake asking prematurely for you to leave.'"
Said Senator Joe Manchin, arguing that Al Franken should not follow through with his announced resignation.
Manchin was not one of the Senators who called for Franken's resignation, but Patrick Leahy was, and he's now saying he regrets it: "I think we acted prematurely, before we had all the facts... In retrospect, I think we acted too fast." Oh, bullshit. The whole point was acting fast, and you knew you were acting fast. It's not something you're figuring out later.
I'm calling for Leahy's resignation for acting precipitously, as he now admits, and for lying now and saying he's only noticing the excessive speed "in retrospect." I think the fast action was done to affect the Alabama election. What a sorry business!
Said Senator Joe Manchin, arguing that Al Franken should not follow through with his announced resignation.
Manchin was not one of the Senators who called for Franken's resignation, but Patrick Leahy was, and he's now saying he regrets it: "I think we acted prematurely, before we had all the facts... In retrospect, I think we acted too fast." Oh, bullshit. The whole point was acting fast, and you knew you were acting fast. It's not something you're figuring out later.
I'm calling for Leahy's resignation for acting precipitously, as he now admits, and for lying now and saying he's only noticing the excessive speed "in retrospect." I think the fast action was done to affect the Alabama election. What a sorry business!
May 9, 2014
"It May Already Be Too Late to Confirm a Replacement for Ruth Bader Ginsburg" is a silly title that isn't even trying to say what this TNR article is about.
Not long ago, lawprof Erwin Chemerinsky and others were pressuring Justice Ruth Bader Ginsburg to heave herself out of her seat on the Supreme Court to give President Obama the opportunity to replace her, but no point now, according to Simon Lazarus and Tom Donnelly at The New Republic, in a piece with the silly title "It May Already Be Too Late to Confirm a Replacement for Ruth Bader Ginsburg."
I'm saying "silly" because the fussy accuracy consciousness of the first half of the title turns into blatant inaccuracy paired with the second half of the title. As long as the United States in its current form, under our Constitution, persists, it's never too late to confirm a replacement for Ruth Bader Ginsburg. Whenever Justice Ginsburg's seat becomes available, some President will nominate someone who will be confirmed by the Senate.
What it "may" already be too late for is what the Lazarus-Donnelly article means to tell us about, which I don't have to read their article to know. It's too late for President Obama to nominate the kind of Supreme Court Justice he presumably wants — a solid liberal — and to get confirmation from the Senate. The November election is too close, the Democratic Party is at risk of losing the Senate, the spectacle of attempting to confirm a liberal Supreme Court nominee will put Democratic Senate candidates at greater risk, and the GOP Senators will have reason to drag out the confirmation process so that it might not even be successful.
The most interesting point that Lazarus and Donnelly make — not reflected in the silly title or in the idea the silly title is meant to express — is that keeping a left-leaning Justice off the Court is an issue that works for Republican candidates far more that getting a left-leaning Justice onto the Court could work for Democratic candidates.
But Lazarus and Donnelly imagine — or purport to imagine — that "Democrats and progressives" can "transform the politics around the courts" — that is, make voters get excited about putting left-leaning Justices on the Court. Lazarus and Donnelly present a 3-point plan to accomplish this transformation:
1. Make people see that that liberal Supreme Court Justices will help them economically. That sounds really complicated to me. I doubt if the proposition is true, and what's the argument that it is?
2. Democrats and progressives should scare people about the consequences of allowing right-leaning judges to get their hands on left-leaning legislation like the Affordable Care Act. They need to warn people that "radical" theories like federalism, "[o]nce pie-in-the-sky academic musings," now get serious respect from Supreme Court Justices.
Speaking of pie in the sky... picture a liberal political candidate trying to alarm citizens about the idea that the Constitution gives limited enumerated powers to the federal government and reserves power to the states. Speaking of things confined to the academy! You can make intra-law-school folk nod their head at the notion that federalism is dangerous, but in normal political speech, even Democratic Party candidates assure us of their respect for the role of the states in our constitutional scheme.
3. Convince people that left-leaning constitutional interpretation is actually what the Constitution means, not simply what lefties like. Lazarus and Donnelly admit that Democratic politicos "cede the legal high ground to their Republican adversaries." The remedy is supposedly to roll out legal academics to inform the public of the theories that support the results liberals like. Supposedly, Senator Leahy is leading they way by pointing out that the decisions he doesn't like are wrong as a legal matter. And Obama sometimes throws rhetoric into his speeches about "the enduring strength of the Constitution," so there's that. And there are those law professors who've been working for years writing material that "demonstrates that the Constitution’s text and history often point in progressive—not conservative—directions." Roll those guys out. (I'm saying "guys" because Lazarus and Donnelly name 5 law professors and they're all guys, so I thought I'd insert some War-on-Women dissonance.)
Well, left-leaning politicos really should try to do this. They have ceded the high ground to conservatives, but I think the liberal constitutional law material doesn't play very well in common political discourse, and for too long the go-to liberal argument has been law is just politics and it's all about outcomes. If lefties abandon the all-about-politics meme and commit to taking legal arguments seriously and to demonstrating the soundness of their interpretation, they'll be taking quite a risk. As a law professor, I'd love to see it. I'd have some great blogging material.
But, honestly, I think the actual politicians know they can't operate on that level, AKA "the high ground." Still, I'd love the opportunity to poke at them and try to topple them as they posture and pose up there.
I'm saying "silly" because the fussy accuracy consciousness of the first half of the title turns into blatant inaccuracy paired with the second half of the title. As long as the United States in its current form, under our Constitution, persists, it's never too late to confirm a replacement for Ruth Bader Ginsburg. Whenever Justice Ginsburg's seat becomes available, some President will nominate someone who will be confirmed by the Senate.
What it "may" already be too late for is what the Lazarus-Donnelly article means to tell us about, which I don't have to read their article to know. It's too late for President Obama to nominate the kind of Supreme Court Justice he presumably wants — a solid liberal — and to get confirmation from the Senate. The November election is too close, the Democratic Party is at risk of losing the Senate, the spectacle of attempting to confirm a liberal Supreme Court nominee will put Democratic Senate candidates at greater risk, and the GOP Senators will have reason to drag out the confirmation process so that it might not even be successful.
The most interesting point that Lazarus and Donnelly make — not reflected in the silly title or in the idea the silly title is meant to express — is that keeping a left-leaning Justice off the Court is an issue that works for Republican candidates far more that getting a left-leaning Justice onto the Court could work for Democratic candidates.
Most Democratic voters simply don’t see the courts as relevant to the—mainly economic—issues they care about most....This is an amusing concession that liberals need to do their court appointments when elections aren't too close. It's Democrats and not Republicans who want to avoid accountability for judicial appointments.
In contrast, Republicans savor high-decibel political fights over the courts. In the short term, they see them as a way of firing up their base and burnishing their brand as defenders of the Constitution and the rule of law....
This asymmetry yields a chronic, structural disadvantage that limits the options available for Democratic and progressive leaders, when battles flare in the ongoing war over the courts.
But Lazarus and Donnelly imagine — or purport to imagine — that "Democrats and progressives" can "transform the politics around the courts" — that is, make voters get excited about putting left-leaning Justices on the Court. Lazarus and Donnelly present a 3-point plan to accomplish this transformation:
1. Make people see that that liberal Supreme Court Justices will help them economically. That sounds really complicated to me. I doubt if the proposition is true, and what's the argument that it is?
Since June 2008, Senate Judiciary Committee Chair Patrick Leahy has held recurrent hearings designed “to shine a light on how the Supreme Court’s decisions affect Americans’ everyday lives,” showcasing victims of decisions detrimental to employment safeguards, retirement security, consumer protection, health care coverage, and securities fraud protections. And in the wake of the Court’s recent decision in McCutcheon v. F.E.C., which struck down long-established limits on aggregate campaign contributions by wealthy donors, Leahy and Senate Rules Committee Chair Chuck Schumer announced joint efforts to spotlight how “five justices once again have decided to rule on the side of moneyed interests,” beginning with former Justice John Paul Stevens’s high-profile testimony last week before the Senate Rules Committee. Most visibly, Senator Elizabeth Warren, leader of the Democrats’ populist wing, has begun to tie the courts to her larger economic message, warning progressives about “the corporate capture of the federal courts.” These are steps in the right direction, but thus far, these limited probes that have barely registered with the media or the public.Patrick Leahy shining a light somehow doesn't get media attention. I'm sure the media would help with the liberal-judge-appointing agenda if they could, so the failure to direct the public's attention to where Patrick Leahy is shining his light is strong evidence that Step 1 doesn't work too well.
2. Democrats and progressives should scare people about the consequences of allowing right-leaning judges to get their hands on left-leaning legislation like the Affordable Care Act. They need to warn people that "radical" theories like federalism, "[o]nce pie-in-the-sky academic musings," now get serious respect from Supreme Court Justices.
Speaking of pie in the sky... picture a liberal political candidate trying to alarm citizens about the idea that the Constitution gives limited enumerated powers to the federal government and reserves power to the states. Speaking of things confined to the academy! You can make intra-law-school folk nod their head at the notion that federalism is dangerous, but in normal political speech, even Democratic Party candidates assure us of their respect for the role of the states in our constitutional scheme.
3. Convince people that left-leaning constitutional interpretation is actually what the Constitution means, not simply what lefties like. Lazarus and Donnelly admit that Democratic politicos "cede the legal high ground to their Republican adversaries." The remedy is supposedly to roll out legal academics to inform the public of the theories that support the results liberals like. Supposedly, Senator Leahy is leading they way by pointing out that the decisions he doesn't like are wrong as a legal matter. And Obama sometimes throws rhetoric into his speeches about "the enduring strength of the Constitution," so there's that. And there are those law professors who've been working for years writing material that "demonstrates that the Constitution’s text and history often point in progressive—not conservative—directions." Roll those guys out. (I'm saying "guys" because Lazarus and Donnelly name 5 law professors and they're all guys, so I thought I'd insert some War-on-Women dissonance.)
Well, left-leaning politicos really should try to do this. They have ceded the high ground to conservatives, but I think the liberal constitutional law material doesn't play very well in common political discourse, and for too long the go-to liberal argument has been law is just politics and it's all about outcomes. If lefties abandon the all-about-politics meme and commit to taking legal arguments seriously and to demonstrating the soundness of their interpretation, they'll be taking quite a risk. As a law professor, I'd love to see it. I'd have some great blogging material.
But, honestly, I think the actual politicians know they can't operate on that level, AKA "the high ground." Still, I'd love the opportunity to poke at them and try to topple them as they posture and pose up there.
March 27, 2014
"Do I have the best credentials? Probably not. ‘Cause, you know, whatever."
So said Scott Brown, who — look at him, people! — puts the face in self-effacement. What can he do but admit to the short-comings of his residency in New Hampshire, which he'd like to represent in the U.S. Senate? But no other Republican was going to oust the Democratic incumbent Sen. Jeanne Shaheen, so if New Hampshirites want to contribute to tipping the Senate to a GOP majority, they'll have to accept a man with a lot of Massachusetts in him.
Brown moved to New Hampshire last December, but he moved into what had been their vacation house (since 1993). And he was born in New Hampshire, unlike Shaheen, who was born in Missouri, which makes it possible for Brown to say — jokingly? — “Sen. Shaheen is not from here, but apparently it’s a problem with me?” Shaheen has been a New Hampshire resident since 1973.
Massachusetts is closer to NH than Missouri is, but in the closeness there's "a complicated relationship":
I started thinking about Brown this morning because I was reading a Gail Collins column in the NYT called "The Season of the Twitch," referring to this being the "the season where center stage goes to whoever screws up the most" (and the Donovan song title). Brown's supposed screw up was that quote I put in the post title. Collins calls attention to that, I think, to dilute a truly damaging screw up by a Democrat, Bruce Braley, who was on track to win the Senate race in Iowa, until he got caught on video telling "a bunch of trial lawyers at a Texas fund-raiser that if they didn’t contribute to his campaign, Republicans might take control of the Senate and there would be 'a farmer from Iowa who never went to law school' running the Judiciary Committee."
Having begun with Brown and buried Braley in paragraph 12, Collins scampers back to the topic of Brown, declaring "New Hampshire’s still my favorite." She doesn't explain why, so I'm going to assume it's because it's a Republican screw up. Anyway, thanks to Collins for drawing my attention to this great — and totally not a screw up — ad by Joni Ernst, a Republican who's running for the Senate in Iowa, stating that she "grew up castrating hogs on an Iowa farm":
Ernst and Braley are running for the seat that Tom Harkin is vacating. Grassley is the other Iowa Senator. Braley attacked him as part of an argument for maintaining Democratic control of the Senate. Grassley is 80 years old and has served in Congress since 1975. He does have a family farm, operated by his son. His biography also shows him to have worked as a sheet metal shearer/assembly line worker for more than 10 years, and he has "PhD work" in political science. There's no reason to disparage Grassley for being a farmer. I see more reason to question whether he should be listing his occupation as "farmer," and certainly he deserves attack for hanging around Congress too long. But Grassley is not up for reelection this year. Braley is trying to say it's ridiculous for this man to chair the Judiciary Committee. The question for voters on this score is whether it's less ridiculous than having Patrick Leahy chairing the committee, which is what you get with a Democratic majority. Leahy is only 73, but like Grassley, he's been camped out in Congress since 1975.
Whatever. To sum up: Scott Brown is ultra-handsome, and Joni Ernst is an out-and-proud castrating woman.
Brown moved to New Hampshire last December, but he moved into what had been their vacation house (since 1993). And he was born in New Hampshire, unlike Shaheen, who was born in Missouri, which makes it possible for Brown to say — jokingly? — “Sen. Shaheen is not from here, but apparently it’s a problem with me?” Shaheen has been a New Hampshire resident since 1973.
Massachusetts is closer to NH than Missouri is, but in the closeness there's "a complicated relationship":
They share a state line, professional sports teams and a major media market, but there are traces of resentment among some New Hampshire natives. Thousands of Massachusetts residents moved into New Hampshire in recent years, drawn by lower taxes and cheaper real estate. The migration helped give Democrats a slight voter registration advantage, although the state is considered far more balanced politically than solidly Democratic Massachusetts.How does that cut for Scott Brown? He comes from Massachusetts, but he's a Republican, and other migrants from Massachusetts have tipped New Hampshire toward Democrats. Resentment toward Democrats from Massachusetts should translate into a vote for Brown, if the longtime New Hampshirites resist the liberalism of the newcomers. And Brown can also try to win the votes of those transplanted Massachusettans, who could see him as their guy.
Brown chuckled when 39-year-old Christine Kalinowski told him she was from “Southie,” or South Boston. She said she moved to New Hampshire just a few months ago, like him.There's that dynamic. I suspect the newer residents from Massachusetts think they are the cool kids, and they will like seeing themselves in the gorgeous face of Mr. Brown.
“I voted for him before,” she said, “and I’d definitely vote for him again.”
I started thinking about Brown this morning because I was reading a Gail Collins column in the NYT called "The Season of the Twitch," referring to this being the "the season where center stage goes to whoever screws up the most" (and the Donovan song title). Brown's supposed screw up was that quote I put in the post title. Collins calls attention to that, I think, to dilute a truly damaging screw up by a Democrat, Bruce Braley, who was on track to win the Senate race in Iowa, until he got caught on video telling "a bunch of trial lawyers at a Texas fund-raiser that if they didn’t contribute to his campaign, Republicans might take control of the Senate and there would be 'a farmer from Iowa who never went to law school' running the Judiciary Committee."
Having begun with Brown and buried Braley in paragraph 12, Collins scampers back to the topic of Brown, declaring "New Hampshire’s still my favorite." She doesn't explain why, so I'm going to assume it's because it's a Republican screw up. Anyway, thanks to Collins for drawing my attention to this great — and totally not a screw up — ad by Joni Ernst, a Republican who's running for the Senate in Iowa, stating that she "grew up castrating hogs on an Iowa farm":
Ernst and Braley are running for the seat that Tom Harkin is vacating. Grassley is the other Iowa Senator. Braley attacked him as part of an argument for maintaining Democratic control of the Senate. Grassley is 80 years old and has served in Congress since 1975. He does have a family farm, operated by his son. His biography also shows him to have worked as a sheet metal shearer/assembly line worker for more than 10 years, and he has "PhD work" in political science. There's no reason to disparage Grassley for being a farmer. I see more reason to question whether he should be listing his occupation as "farmer," and certainly he deserves attack for hanging around Congress too long. But Grassley is not up for reelection this year. Braley is trying to say it's ridiculous for this man to chair the Judiciary Committee. The question for voters on this score is whether it's less ridiculous than having Patrick Leahy chairing the committee, which is what you get with a Democratic majority. Leahy is only 73, but like Grassley, he's been camped out in Congress since 1975.
Whatever. To sum up: Scott Brown is ultra-handsome, and Joni Ernst is an out-and-proud castrating woman.
July 26, 2012
Sandra Day O'Connor says attacks on John Roberts "demonstrate only too well a lack of understanding that some of our citizens have about the role of the judicial branch."
She was testifying at a Senate Judiciary Committee hearing on civics education, which doesn't sound as though it was about airing grievances about her old colleagues on the Supreme Court, but Democratic Senator Patrick Leahy — the chairman of the committee — used the occasion to express his concern "about some of the rhetoric about the chief justice. He’s been called everything from a traitor to having betrayed President George W. Bush."
But watch the video at the link. O'Connor is almost robotic as she steps carefully through a bland transition back to her prepared text — watch her look down at her notes — which seems to the usual civics lesson about the framers and the Constitution:
She was also prompted give the other side a sound bite:
I'm guessing Justice O'Connor thinks it's unfortunate that her time, when called upon to testify about civics education, was used by politicians to extract politically useful statements from her, but that is how the time of politicians is usually spent, and it is exactly what a citizen expects to hear.
Ironically, that's a civics lesson.
But watch the video at the link. O'Connor is almost robotic as she steps carefully through a bland transition back to her prepared text — watch her look down at her notes — which seems to the usual civics lesson about the framers and the Constitution:
“It’s unfortunate. Because I think comments like that demonstrate only too well a lack of understanding that some of our citizens have about the role of the judicial branch, and I think the framers of our federal Constitution did a great job in understanding themselves that the judicial branch needed to be able to make independent decisions and the legitimacy — the lawfulness — of actions at the state and federal level...."But the news media got their sound bite: Unfortunate!
She was also prompted give the other side a sound bite:
Once Leahy was done, Sen. Charles Grassley of Iowa, the committee's senior Republican, wondered whether the real threat to judicial independence came from Obama's remarks in early April, after the court heard arguments in the health care case but nearly three months before it was decided.Not ideal! Take that!
"If there's a pending decision at the Supreme Court and the president was to express his views along those lines it would be surprising," O'Connor said. "I guess it could happen, but it's not what we expect and it's not ideal."
Grassley also wanted to know what O'Connor thought about Obama's criticism during his 2010 State of the Union speech, with several justices in attendance, of the court's 5-4 decision in the Citizens United case that freed corporations and labor unions of most limits on political spending.It's unusual... not how that time is usually spent....
"I don't know if it threatens judicial independence. It's just not what a citizen expects to hear," she said. "It's unusual. It's not how that time is usually spent by presidents."
I'm guessing Justice O'Connor thinks it's unfortunate that her time, when called upon to testify about civics education, was used by politicians to extract politically useful statements from her, but that is how the time of politicians is usually spent, and it is exactly what a citizen expects to hear.
Ironically, that's a civics lesson.
February 3, 2011
How Patrick Leahy saved Charles Fried from revealing that many law professors think judges should decide constitutional questions to produce the best policy consequences.
At yesterday's Senate Judiciary Committee hearing on the constitutionality of the Affordable Care Act, Republican Senator Charles Grassley asked what you might think is a very basic question: "And do you think that judges should decide cases based on their best understanding of the meaning of the Constitution or on whether they think their rulings would have good or bad policy consequences?"
The witnesses — Oregon Attorney General John Kroger, lawyer Michael Carvin, and law professors Randy Barnett, Walter Dellinger, and Charles Fried — all immediately agreed [ADDED: with the first option].
Grassley, who was running out of time, added, "Obviously, it's good to have that understanding, that we're a society based upon law and not upon what judges just happen to think it might be."
It was Senator Leahy's turn at that point, and he began, spontaneously, off-script:
But when Leahy says "They don't admit it," Fried does not answer. Fried was saved from having to admit that he knows plenty of people — I'll bet he does — who would proudly admit it. I know law professors who not only admit it but trash you as naive or evil if you won't go along with them.
Leahy moves quickly to another question thus closing the uncomfortable opening: "But do you know anybody who should disagree with it?" Ah! The relief of the word "should"! If he had said "does," Fried would, in all likelihood, have had to say "yes." But Leahy said "should," and Fried could say "Not a soul." And Leahy could totter ahead onto his prepared script. Whew! That was a close one!
(I'm sorry I don't have a transcript to link to. Here is video of the event.)
The witnesses — Oregon Attorney General John Kroger, lawyer Michael Carvin, and law professors Randy Barnett, Walter Dellinger, and Charles Fried — all immediately agreed [ADDED: with the first option].
Grassley, who was running out of time, added, "Obviously, it's good to have that understanding, that we're a society based upon law and not upon what judges just happen to think it might be."
It was Senator Leahy's turn at that point, and he began, spontaneously, off-script:
LEAHY: Actually, on that last question, Professor Fried, do you know anybody that disagrees with that, whether the left or the right?Now, Fried is a professor at Harvard Law School. Of course, he knows lots of people who think judges should decide cases based on "whether they think their rulings would have good or bad policy consequence" and not on some sort of "understanding of the meaning of the Constitution." I'll bet he knows many people whose understanding of the meaning of the Constitution already automatically is: whatever would have good policy consequences.
FRIED: Well...
LEAHY: I mean...
FRIED: Yes, I'm afraid I do.
LEAHY: They don't admit it. But do you know anybody who should disagree with it?
FRIED: Not a soul.
LEAHY: I thought you might feel that way.
But when Leahy says "They don't admit it," Fried does not answer. Fried was saved from having to admit that he knows plenty of people — I'll bet he does — who would proudly admit it. I know law professors who not only admit it but trash you as naive or evil if you won't go along with them.
Leahy moves quickly to another question thus closing the uncomfortable opening: "But do you know anybody who should disagree with it?" Ah! The relief of the word "should"! If he had said "does," Fried would, in all likelihood, have had to say "yes." But Leahy said "should," and Fried could say "Not a soul." And Leahy could totter ahead onto his prepared script. Whew! That was a close one!
(I'm sorry I don't have a transcript to link to. Here is video of the event.)
May 7, 2010
"The hope that the next justice will be a check on the power of corporations is entirely appropriate."
Writes Jeffrey Rosen:
The judicial role is strengthened by the appearance of neutrality and fidelity to law. Conversely, judges undercut their own power when they make it sound as though they are reaching their decisions because of their support for legislation that is challenged as a violation of constitutional rights. When arguments for constitutional rights fail, it should be (or at least appear to be) because the claimed rights don't exist, not because the rights claimants' interests are "narrow" and run counter to what the majority wants. Rights are supposed to work against the preference of the majority, so we should be wary of someone who says courts must "protect[] American democracy from... narrow interests." He is saying rights are not rights.
After all, Stevens holds the seat that was previously occupied by William O. Douglas and Louis Brandeis, two of the leading anti-corporate crusaders of the twentieth century....Anti-corporate crusaders? Sure, pick an anti-corporate crusader, Obama, and let's see how the back-and-forth in the Senate Judiciary Committee plays out. I mean, the nominee will still be confirmed, but in the rest of the political arena, leading up to the November elections? That would be brutal for the Democrats.
Yet none of the leading candidates for the Court appears to be an economic populist....The Supreme Court itself stopped its own progressive forward glide when the opportunities for expanding constitutional rights arose in the context of redistribution of wealth (which is what Rosen and his ilk spin as "economic justice").
Why the absence of liberal economic populists from the shortlist?...
Since the 1960s, grassroots progressives have focused on non-economic issues: reproductive choice, for example, or civil liberties in an age of terrorism. That means that the current Supreme Court candidates had their legal sensibilities shaped in a political environment that was less preoccupied with questions of economic justice....
That’s a shame, because the most important issues the Roberts Court will confront over the next decade involve the constitutionality of environmental measures and economic regulations passed in the wake of the crash of 2008.... [I]t will not be enough for liberals simply to champion judicial deference for its own sake. The next justice will, like Brandeis and Douglas, need to make a substantive case for why these regulations are indispensable to protecting American democracy from the narrow interests of a corporate oligarchy....If "environmental measures and economic regulations" are going to be passed, then why is anything more than deference to legislatures needed? Why should a Supreme Court Justice think he could bolster arguments for deference to democracy by expressing enthusiasm for the substance of the choices that legislatures have made?
The judicial role is strengthened by the appearance of neutrality and fidelity to law. Conversely, judges undercut their own power when they make it sound as though they are reaching their decisions because of their support for legislation that is challenged as a violation of constitutional rights. When arguments for constitutional rights fail, it should be (or at least appear to be) because the claimed rights don't exist, not because the rights claimants' interests are "narrow" and run counter to what the majority wants. Rights are supposed to work against the preference of the majority, so we should be wary of someone who says courts must "protect[] American democracy from... narrow interests." He is saying rights are not rights.
Although the next justice may not be an economic populist, the confirmation hearings ahead are an opportunity to cast the spotlight on the intersection between economic populism and the law. Leahy and other Senate Democrats should use the hearings to ask the nominee to discuss these questions in depth.Great! A bloodbath. Sounds exciting. I'll watch.
April 22, 2010
July 15, 2009
Hello, from the road.
Somewhere in Indiana...
We're not even halfway to our goal today, but we needed to stop on an important mission and then again for some coffee and WiFi. In the car, we partook of some of the Sotomayorganza, but that got old after an hour or so. I had my notebook on my lap, and I wrote... I mean authored:
Not that it's disqualifying or anything. Just something that made me want to write in my notebook, back in Wisconsin a few hours ago. Now, as I said, we are in Indiana.
A cute little girl walks up to our table and stares. I say hi. She thinks a bit, then says, "Y'all got 2 computers?!" I say, yeah. She's all, "How'd you get that?" I say, we just got 'em, as her dad/older brother shoos her along.
Back to my Sotomayor notes.
Other techniques she's using: speaking very slowly, laying out the basics of case law, and repeating the most innocuous platitudes about judging.
We switched over to the satellite radio. 60s on 6. "Mrs. Robinson," then The Happenings doing one of those quasi-pedophilia-type songs that no one would do anymore ("Go away little girl..."). Click to 80s on 8. "Rock the Casbah." The 80s sometimes beat the 60s. Not often, but sometimes.
We switch off the radio, and I read the comments to the baseball pitch post out loud:
Time to close up the MacBooks and hit the road again.
We're not even halfway to our goal today, but we needed to stop on an important mission and then again for some coffee and WiFi. In the car, we partook of some of the Sotomayorganza, but that got old after an hour or so. I had my notebook on my lap, and I wrote... I mean authored:
"wrote... authored..."That was at 9:25 CT, when Sotomayor was in the middle of talking about some Ginsburg opinion. SS had already voiced the word "wrote" and then she changed it to "authored," as if "wrote" was a mistake. I know there are people who think "wrote" and then make a point to say "authored" — and do all sorts of other hoity-toity substitutions — but, jeez, if the simple world has already slipped out, move on. Don't let people hear that you do that.
Not that it's disqualifying or anything. Just something that made me want to write in my notebook, back in Wisconsin a few hours ago. Now, as I said, we are in Indiana.
A cute little girl walks up to our table and stares. I say hi. She thinks a bit, then says, "Y'all got 2 computers?!" I say, yeah. She's all, "How'd you get that?" I say, we just got 'em, as her dad/older brother shoos her along.
Back to my Sotomayor notes.
strategy: boring us to deathAnd I remember saying something like: "She's talking about precedent so much because it's her way to nullify anything that she ever did as a Court of Appeals judge. She did it because of precedent, so she's not really responsible for anything." But there's room to maneuver within the limitations of precedent, and in the things that she did — while citing precedent — we can perceive her leanings, and we quite properly want to know what her leanings are.
+ avoiding creating highlights for the nightly news
no one has ever said "precedent" so many times in a confirmation hearing
Other techniques she's using: speaking very slowly, laying out the basics of case law, and repeating the most innocuous platitudes about judging.
We switched over to the satellite radio. 60s on 6. "Mrs. Robinson," then The Happenings doing one of those quasi-pedophilia-type songs that no one would do anymore ("Go away little girl..."). Click to 80s on 8. "Rock the Casbah." The 80s sometimes beat the 60s. Not often, but sometimes.
We switch off the radio, and I read the comments to the baseball pitch post out loud:
Paul Zrimsek said — paren — "Placeholder for a thousand words of bafflegab involving depth of field and photo-editing software, somehow proving that Obama threw a perfect strike" — close paren. Ha ha. I would front page that.Later, we get back to the Sotomayorganza, and it's Al Franken at last. He's talking about himself again, saying something that we start parodying: Here I am, Al Franken, a Senator, talking to you, Sonia Sotomayor; we are here, in the Senate, and I am talking and you are talking. Check the transcript and you'll see. He's in this inane "I am a Senator" mode, and he's breaking all records for using the word "I." He bumbles through pointless questions detailing cases and revealing he knows next to nothing about actual Supreme Court cases. He ends his segment by asking Sotomayor: What's the title of the "Perry Mason" episode where Perry Mason lost a case? This gives Sonia a chance to giggle a bit in a human manner — after being ploddingly robotic all day. She doesn't know the title, and it turns out Al doesn't either, which baffles old man Leahy.
Time to close up the MacBooks and hit the road again.
Am I going to live-blog Day 3 of the Sotomayor hearings?
No, no. I'm afraid I can't. I've got places to go. But I will listen to it, live, on the satellite radio as we cover a lot of miles today. And I'm going to take notes in a notebook, because that's how much I care.
And when I stop for a cheeseburger in a McDonalds, I'll get on the WiFi and share my observations, which may or may not be skewed by my personal experience of watching the interstate fly by instead of watching the faces of the Senators confronting the wise Latina.
Somebody, anybody, please, take the initiative to live-blog in the comments — to live-comment the hearings. Or not. Say anything. On the topic of Sotomayor. I'll put up a general open thread in a few minutes. Then, I'm throwing my things in a suitcase, so we can be in the car by 9 Central Time, when Senator Leahy restarts the proceedings.
And when I stop for a cheeseburger in a McDonalds, I'll get on the WiFi and share my observations, which may or may not be skewed by my personal experience of watching the interstate fly by instead of watching the faces of the Senators confronting the wise Latina.
Somebody, anybody, please, take the initiative to live-blog in the comments — to live-comment the hearings. Or not. Say anything. On the topic of Sotomayor. I'll put up a general open thread in a few minutes. Then, I'm throwing my things in a suitcase, so we can be in the car by 9 Central Time, when Senator Leahy restarts the proceedings.
July 14, 2009
Live-blogging Day 2 of the Sotomayor confirmation hearings.
8:16 CT: Just setting up a post. The hearings begin at 9 CT. Stop back.
9:01: Leahy asks a question about the incorporation of the 2d Amendment, and Sotomayor makes it clear that, as a Supreme Court Justice, she would have an open mind about it, although as a Court of Appeals judge she saw herself bound to a precedent. Leahy asks about a federal statute that had been challenged as exceeding the commerce power and expresses pleasure at the degree of deference she showed to Congress. Note that in both cases, the Constitution lost out to the power of government, but Leahy and Sotomayor, operating in a smooth dance, made it seem more as though she were exhibiting neutral fidelity to the law — which is, of couse, the theme of these hearings.
9:09: The first mention ever of YouTube in a Supreme Court confirmation hearing, as Sotomayor says her statement — at Duke — that the Court of Appeals is where policy is made needs to be heard in its full context (and not just in that YouTube snippet). She's answering a question from Sessions that invites her to talk about her various famous quotes that have been used to portray her as a judge who is not a humble follower of the law.
9:10: "Life experience has to influence you," Sotomayor says. "We're not robots who don't have feelings. We have to recognize those feelings, and put them aside." I add the italics to indicate dubiousness. Sessions jumps in to remind her that she had said that judges should not deny the difference that come from experience and heritage. Sometimes the "sympathies and prejudices are appropriate." That's a quote from her speech. So when is it appropriate? She says that sometimes "the law" requires it. She is trying to reframe her old remarks so that they mean that the judge is "testing" to make sure that improper emotions are not influencing the decision. It's all about fidelity to law. Sessions points out — and I think he's right — that she's saying the opposite of what she said before.
9:21: Sotomayor makes the powerful statement that her "wise Latina" remark "was bad," that it was an attempt at at a play on something Justice O'Connor had said (that a wise man and a wise woman would reach the same result) and that it "fell flat." The context of her whole speech was to inspire young Hispanic students, to make them feel that their life experiences were a valuable asset. ADDED: So she answered the first of the questions I asked in yesterday's NYT op-ed: "When you said you hoped that 'a wise Latina' would make better judicial decisions, did you mean it as a pleasantry aimed at people who had invited you to speak about diversity or will you now defend the idea that decision-making on the Supreme Court is enhanced by an array of justices representing different backgrounds?" The answer is: It was just a pleasantry that suited the feel-good occasion and not meant to be taken seriously.
9:22: Sessions asks about Ricci. She promised to him, back when she was confirmed as a Court of Appeals judge, that she would apply strict scrutiny to all racial discrimination. Why didn't she want a full hearing on an issue that Judge Cabranes called the most important race discrimination case the 2d Circuit had faced in 20 years? Why did she deal with it "in such a cursory manner"? Sotomayor, unsurprisingly, cites the very careful, thorough district court opinion that her panel had adopted.
9:35: Both Sessions and Sotomayor are terrific, by the way. This is a classic confrontation, at the highest level. It's a real thrill to listen in.
10:28: Senator Hatch takes over. He begins by asking if her adherence to precedent would include the case upholding the ban on partial-birth abortion. She gives a bland answer: precedent is subject to the doctrine of stare decisis. And he moves on! Why not follow up with some questions about when precedent may be overruled and whether she sees that particular precedent as a good candidate for overruling? Maybe some other Senator is set to pursue that line of inquiry and Hatch merely wants to be on record having mentioned it. What he moves on to is: guns.
10:29: Does Sotomayor see 2d Amendment rights as "fundamental" in the sense that means that they are incorporated in the 14th Amendment and thus applicable to the states? Sotomayor participated in a case that said that they were not, but her answer is about whether the Supreme Court had said that they are, so her answer is very much about precedent.
10:47: Hatch gets into the details of Ricci, and both Hatch and Sotomayor are patiently spelling out technical matters. I don't think many in the general audience will keep watching or that anything here will make the news highlights. Again, the topic is precedent. Sotomayor has rested heavily on the existence of precedent and the limitations on the role of a Court of Appeals judge. Hatch is endeavoring to show the ways in which precedent had not foreclosed key details of the case.
11:01: Dianne Feinstein sharply distinguishes Sotomayor from Miguel Estrada. Why compare those two? He had no judicial experience and he refused to answer some questions.
11:03: Feinstein expresses outrage that Sotomayor is portrayed as an activist. She can't possibly "be construed as an activist." She agrees with her colleagues on constitutional matters 98% of the time.
11:09: Now, Feinstein is giving Sotomayor a comfortable but serious opportunity to speak about following precedent in a duly judicial fashion. This is nicely handled by Feinstein, because it doesn't look too softball, but it is gently supportive and designed to make Sotomayor look solid and smart and, above all, dutifully faithful to the law.
11:23: Feinstein says that the Supreme Court, after 60 years of declining to strike down any laws as beyond the commerce power, in the last 3 decades, it has struck down 3 dozen. 3 dozen?! What Supreme Court cases is she talking about? Isn't it more like 3?
11:34: I'll be on Minnesota Public Radio soon, doing a call-in show that will be an hour or so long. Live streaming on-line. Here's the stream, they're having difficulty getting me connected. I'm on now.
1:09: We're back from the lunch break. (I didn't eat lunch. I gabbed on MPR.) Now, Senator Grassley is questioning Sotomayor about property rights, specifically whether Kelo was correctly decided. Sotomayor pays obeisance to property rights, then explains the majority's reasoning in Kelo and her devotion to stare decisis. We don't get an answer to the question whether she'd have voted with the dissenters in Kelo, but I get the cue that she would not.
1:12: Another heckler. Hard to understand what he's yelling, but I think I hear the word "babies" and presume it's another anti-abortion activist.
2:11: Sotomayor disentangles herself from Obama's line about "heart":
2:20: Jon Kyl is parsing the "Wise Latina" speech, looking at the whole context. She quoted lawprof Judith Resnik's statement that there is no "objective stance" and lawprof Martha Minow's statement that "no neutrality." Kyl says "That sounds to me like relativism." Then she works toward saying that judges from more diverse backgrounds will "make a difference." And "you seem to be celebrating this," not saying, as you said today to Sessions that you were looking to identify it so that you overcome it. She doesn't say anything new or piercing in response, even when Kyl repeats his challenge. I think the truth is that she has backed off from her statement and minimized it as fluff, so, yeah, the inconsistency is there. She's admitted it. What more can she do?
3:06: "We could do this all day long!" Chuck Schumer exclaims in the middle of describing case after case in which Sonia Sotomayor decided against the sympathetic party.
3:26: Lindsey Graham asks her to define and say whether she is: 1. a Legal Realist, 2. a strict constructionist, 3. an originalist. She's none of those things. "What is the best/most legitimate way for a society to change?" Is it by the action of judges? Graham asks this abstract question and quickly focuses on abortion rights. He doesn't really extract an answer from her here.
3:32: Graham blurts out "I like you" and segues into reading a bunch of quotes about her temperament (e.g., she's a "bully"). She says she "asks tough questions at oral argument." Does she have a temperament problem? Ugh! What can she say?! She says she doesn't. Graham drifts on to what he calls her "wise Latino" [sic] remark. Blah blah.
3:40: Graham says that if he'd said he could make better decisions because he's a Caucasian man, the explanation that he was trying to inspire some people, it would not save his career from destruction. Now, he likes the answer that some people deserve a second chance when they misspeak.
3:43: Graham asks what September 11, 2001 meant to her, then inquires whether she believes their are people "out there plotting our destruction." She answers yes. Graham wants to know if, under that circumstance, whether, under the law of war, we can hold members of the enemy force detainees indefinitely. She doesn't have an answer, and he wants her to think about it.
6:20: I had to run off before I could say anything about the last part of Graham's questioning, but it was particularly interesting. He wanted to know about her role on the board of the Puerto Rican Defense Fund, which notably equated the denial of government funding for abortion to slavery. Sotomayor's response was to try to distance herself from the Fund's litigation in particular cases. She was a board member, you see. Sotomayor evaded a lot of things today, didn't she? But I've got to give her credit for consistency here. She has a strategy to disengage from every single controversial thing she's ever been associated with. She's a good little modest judge just like John Roberts, isn't she?
9:01: Leahy asks a question about the incorporation of the 2d Amendment, and Sotomayor makes it clear that, as a Supreme Court Justice, she would have an open mind about it, although as a Court of Appeals judge she saw herself bound to a precedent. Leahy asks about a federal statute that had been challenged as exceeding the commerce power and expresses pleasure at the degree of deference she showed to Congress. Note that in both cases, the Constitution lost out to the power of government, but Leahy and Sotomayor, operating in a smooth dance, made it seem more as though she were exhibiting neutral fidelity to the law — which is, of couse, the theme of these hearings.
9:09: The first mention ever of YouTube in a Supreme Court confirmation hearing, as Sotomayor says her statement — at Duke — that the Court of Appeals is where policy is made needs to be heard in its full context (and not just in that YouTube snippet). She's answering a question from Sessions that invites her to talk about her various famous quotes that have been used to portray her as a judge who is not a humble follower of the law.
9:10: "Life experience has to influence you," Sotomayor says. "We're not robots who don't have feelings. We have to recognize those feelings, and put them aside." I add the italics to indicate dubiousness. Sessions jumps in to remind her that she had said that judges should not deny the difference that come from experience and heritage. Sometimes the "sympathies and prejudices are appropriate." That's a quote from her speech. So when is it appropriate? She says that sometimes "the law" requires it. She is trying to reframe her old remarks so that they mean that the judge is "testing" to make sure that improper emotions are not influencing the decision. It's all about fidelity to law. Sessions points out — and I think he's right — that she's saying the opposite of what she said before.
9:21: Sotomayor makes the powerful statement that her "wise Latina" remark "was bad," that it was an attempt at at a play on something Justice O'Connor had said (that a wise man and a wise woman would reach the same result) and that it "fell flat." The context of her whole speech was to inspire young Hispanic students, to make them feel that their life experiences were a valuable asset. ADDED: So she answered the first of the questions I asked in yesterday's NYT op-ed: "When you said you hoped that 'a wise Latina' would make better judicial decisions, did you mean it as a pleasantry aimed at people who had invited you to speak about diversity or will you now defend the idea that decision-making on the Supreme Court is enhanced by an array of justices representing different backgrounds?" The answer is: It was just a pleasantry that suited the feel-good occasion and not meant to be taken seriously.
9:22: Sessions asks about Ricci. She promised to him, back when she was confirmed as a Court of Appeals judge, that she would apply strict scrutiny to all racial discrimination. Why didn't she want a full hearing on an issue that Judge Cabranes called the most important race discrimination case the 2d Circuit had faced in 20 years? Why did she deal with it "in such a cursory manner"? Sotomayor, unsurprisingly, cites the very careful, thorough district court opinion that her panel had adopted.
9:35: Both Sessions and Sotomayor are terrific, by the way. This is a classic confrontation, at the highest level. It's a real thrill to listen in.
10:28: Senator Hatch takes over. He begins by asking if her adherence to precedent would include the case upholding the ban on partial-birth abortion. She gives a bland answer: precedent is subject to the doctrine of stare decisis. And he moves on! Why not follow up with some questions about when precedent may be overruled and whether she sees that particular precedent as a good candidate for overruling? Maybe some other Senator is set to pursue that line of inquiry and Hatch merely wants to be on record having mentioned it. What he moves on to is: guns.
10:29: Does Sotomayor see 2d Amendment rights as "fundamental" in the sense that means that they are incorporated in the 14th Amendment and thus applicable to the states? Sotomayor participated in a case that said that they were not, but her answer is about whether the Supreme Court had said that they are, so her answer is very much about precedent.
10:47: Hatch gets into the details of Ricci, and both Hatch and Sotomayor are patiently spelling out technical matters. I don't think many in the general audience will keep watching or that anything here will make the news highlights. Again, the topic is precedent. Sotomayor has rested heavily on the existence of precedent and the limitations on the role of a Court of Appeals judge. Hatch is endeavoring to show the ways in which precedent had not foreclosed key details of the case.
11:01: Dianne Feinstein sharply distinguishes Sotomayor from Miguel Estrada. Why compare those two? He had no judicial experience and he refused to answer some questions.
11:03: Feinstein expresses outrage that Sotomayor is portrayed as an activist. She can't possibly "be construed as an activist." She agrees with her colleagues on constitutional matters 98% of the time.
11:09: Now, Feinstein is giving Sotomayor a comfortable but serious opportunity to speak about following precedent in a duly judicial fashion. This is nicely handled by Feinstein, because it doesn't look too softball, but it is gently supportive and designed to make Sotomayor look solid and smart and, above all, dutifully faithful to the law.
11:23: Feinstein says that the Supreme Court, after 60 years of declining to strike down any laws as beyond the commerce power, in the last 3 decades, it has struck down 3 dozen. 3 dozen?! What Supreme Court cases is she talking about? Isn't it more like 3?
11:34: I'll be on Minnesota Public Radio soon, doing a call-in show that will be an hour or so long. Live streaming on-line. Here's the stream, they're having difficulty getting me connected. I'm on now.
1:09: We're back from the lunch break. (I didn't eat lunch. I gabbed on MPR.) Now, Senator Grassley is questioning Sotomayor about property rights, specifically whether Kelo was correctly decided. Sotomayor pays obeisance to property rights, then explains the majority's reasoning in Kelo and her devotion to stare decisis. We don't get an answer to the question whether she'd have voted with the dissenters in Kelo, but I get the cue that she would not.
1:12: Another heckler. Hard to understand what he's yelling, but I think I hear the word "babies" and presume it's another anti-abortion activist.
2:11: Sotomayor disentangles herself from Obama's line about "heart":
[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court... what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.Sotomayor sticks to her strategy of declaring fidelity to the law. None of this "heart" business for her.
2:20: Jon Kyl is parsing the "Wise Latina" speech, looking at the whole context. She quoted lawprof Judith Resnik's statement that there is no "objective stance" and lawprof Martha Minow's statement that "no neutrality." Kyl says "That sounds to me like relativism." Then she works toward saying that judges from more diverse backgrounds will "make a difference." And "you seem to be celebrating this," not saying, as you said today to Sessions that you were looking to identify it so that you overcome it. She doesn't say anything new or piercing in response, even when Kyl repeats his challenge. I think the truth is that she has backed off from her statement and minimized it as fluff, so, yeah, the inconsistency is there. She's admitted it. What more can she do?
3:06: "We could do this all day long!" Chuck Schumer exclaims in the middle of describing case after case in which Sonia Sotomayor decided against the sympathetic party.
3:26: Lindsey Graham asks her to define and say whether she is: 1. a Legal Realist, 2. a strict constructionist, 3. an originalist. She's none of those things. "What is the best/most legitimate way for a society to change?" Is it by the action of judges? Graham asks this abstract question and quickly focuses on abortion rights. He doesn't really extract an answer from her here.
3:32: Graham blurts out "I like you" and segues into reading a bunch of quotes about her temperament (e.g., she's a "bully"). She says she "asks tough questions at oral argument." Does she have a temperament problem? Ugh! What can she say?! She says she doesn't. Graham drifts on to what he calls her "wise Latino" [sic] remark. Blah blah.
3:40: Graham says that if he'd said he could make better decisions because he's a Caucasian man, the explanation that he was trying to inspire some people, it would not save his career from destruction. Now, he likes the answer that some people deserve a second chance when they misspeak.
3:43: Graham asks what September 11, 2001 meant to her, then inquires whether she believes their are people "out there plotting our destruction." She answers yes. Graham wants to know if, under that circumstance, whether, under the law of war, we can hold members of the enemy force detainees indefinitely. She doesn't have an answer, and he wants her to think about it.
6:20: I had to run off before I could say anything about the last part of Graham's questioning, but it was particularly interesting. He wanted to know about her role on the board of the Puerto Rican Defense Fund, which notably equated the denial of government funding for abortion to slavery. Sotomayor's response was to try to distance herself from the Fund's litigation in particular cases. She was a board member, you see. Sotomayor evaded a lot of things today, didn't she? But I've got to give her credit for consistency here. She has a strategy to disengage from every single controversial thing she's ever been associated with. She's a good little modest judge just like John Roberts, isn't she?
July 13, 2009
Live-blogging the Sotomayor confirmation hearings.
8:22 Central Time: I'm setting up the post. The hearings start at the top of the hour. You can watch on-line at C-SPAN. I'll be watching, with a DVR assist to get quotes right, and I'll also be doing some radio commentary, at the breaks, on Minnesota Public Radio.
8:48: After reading some of the comments here, I want to say that, of course, I think that Sotomayor will be confirmed. So that won't be the focus of my commentary. There are plenty of genuinely relevant, important things to observe. You'll see!
9:02: The Senators all get to make — which means read — 10 minute statements. Patrick Leahy, is now reading Sotomayor's biography to us. Leahy has a raspy, annoying voice, and he stumbles over words, saying, for example, "pie partisan."
9:11: Leahy acts like it's a special problem that Sotomayor was attacked before Obama picked her. But that's the very best time to make the argument about possible nominees. It might influence the selection. Once the selection is made, it is extremely difficult to defeat it.
9:14: Senator Sessions stresses impartiality and adherence to the law. "Our legal system is based on a firm belief in an ordered universe, an objective truth... Down the other path lies a Brave New World where words have no true meaning.... In this world, a judge is free to push his or her political or social agenda." "An ordered universe" comes close to grounding law in religion, but doesn't quite go there. Atheists can believe in "objective truth" too. Sessions is making a nice and clear statement of what really should be the GOP theme in these hearings. Law is not ideology or politics, and relativism undermines the rule of law.
9:36: Orrin Hatch reminds us of what Obama, as a Senator, said against Janice Rogers Brown. Turnabout is fair play. [Here's the text of Senator Obama's anti-Brown speech.]
9:49: Dianne Feinstein does not think judges are merely umpires (as John Roberts notably asserted at his confirmation hearings). Personal background informs decisionmaking — properly and inevitably.
10:00: Russ Feingold wants us to be wary of the term "judicial activism." It really is used to say, essentially, a decision I don't like.
10:22: Chuck Schumer is carrying a lot of weight, making the argument that the Republicans obviously are planning to demand that Sotomayor make for herself. He's laying out details that show Sotomayor has been impartial, that the outcomes in her cases do not reveal favoritism to certain times of litigants and antipathy toward others. She really has been an umpire, unlike Chief Justice Roberts who said he was an umpire, but check out the outcomes in his cases.
10:26: Lindsey Graham says that no Republican President would have picked her. Miguel Estrada would be the choice if the idea were to pick the first Hispanic Supreme Court Justice. But this isn't about ethnicity. It's about liberal and conservative, he says. He tells her outright, she'll be confirmed. That is, "unless you have a complete meltdown" — which she won't.
12:11: They're on lunch break now. I did 10 minutes of analysis of Minnesota Public Radio. And there were a few more Senators doing their opening speeches that I haven't said anything about. It's getting a little repetitive. Kind of a drag to have to go after so many others, but nothing is forcing the Senators to have this terribly clunky approach to opening the hearings. On the up side, it will be interesting to hear a little speech from Senator Al Franken. My guess is that — in an effort to establish his senatorial gravitas — he will be terribly boring.
1:20: Specter said a lot of pretty substantive things, but, sorry, I was bored. And now: It's Al Franken!!!! Ha ha ha! I'm laughing, because he's a comedian, but he's not saying anything funny.
1:31: A heckler! Hey, Franken is a comedian! He should have some snappy comebacks!
1:33: "Judge Soh-toh-my-AIR."
1:34: Franken keeps talking about himself. I just took the oath of office... I may not be a lawyer... blah blah blah.
1:35: Man, Franken has quickly adapted to the Senate. He's doing pompous and leaden as if he'd been lumbering along senatorially for decades.
1:41: Chuck Schumer is now sitting at the table next to Sotomayor. He's being the Senator from New York, introducing the nominee from New York.
2:06: Sotomayor stood to take the oath, saying "I. do." in a way that tracked the odd cadence used by Senator Leahy. in administering it. She then gave a plain and straightforward statement about her simple judicial philosophy: following the law as written. She presented empathy and her personal background something that might enhance her understanding of the facts. In the end, the only task is to say what the law is and apply the law to the facts. There's nothing for the conservatives to attack in that (unless they say they don't believe her, which isn't nice). She said what they say they wanted to hear. And this — not any complicated explanations about how empathy is a component of interpretation — is really the easiest and best way to appeal to Americans. Good job.
8:48: After reading some of the comments here, I want to say that, of course, I think that Sotomayor will be confirmed. So that won't be the focus of my commentary. There are plenty of genuinely relevant, important things to observe. You'll see!
9:02: The Senators all get to make — which means read — 10 minute statements. Patrick Leahy, is now reading Sotomayor's biography to us. Leahy has a raspy, annoying voice, and he stumbles over words, saying, for example, "pie partisan."
9:11: Leahy acts like it's a special problem that Sotomayor was attacked before Obama picked her. But that's the very best time to make the argument about possible nominees. It might influence the selection. Once the selection is made, it is extremely difficult to defeat it.
9:14: Senator Sessions stresses impartiality and adherence to the law. "Our legal system is based on a firm belief in an ordered universe, an objective truth... Down the other path lies a Brave New World where words have no true meaning.... In this world, a judge is free to push his or her political or social agenda." "An ordered universe" comes close to grounding law in religion, but doesn't quite go there. Atheists can believe in "objective truth" too. Sessions is making a nice and clear statement of what really should be the GOP theme in these hearings. Law is not ideology or politics, and relativism undermines the rule of law.
9:36: Orrin Hatch reminds us of what Obama, as a Senator, said against Janice Rogers Brown. Turnabout is fair play. [Here's the text of Senator Obama's anti-Brown speech.]
9:49: Dianne Feinstein does not think judges are merely umpires (as John Roberts notably asserted at his confirmation hearings). Personal background informs decisionmaking — properly and inevitably.
10:00: Russ Feingold wants us to be wary of the term "judicial activism." It really is used to say, essentially, a decision I don't like.
10:22: Chuck Schumer is carrying a lot of weight, making the argument that the Republicans obviously are planning to demand that Sotomayor make for herself. He's laying out details that show Sotomayor has been impartial, that the outcomes in her cases do not reveal favoritism to certain times of litigants and antipathy toward others. She really has been an umpire, unlike Chief Justice Roberts who said he was an umpire, but check out the outcomes in his cases.
10:26: Lindsey Graham says that no Republican President would have picked her. Miguel Estrada would be the choice if the idea were to pick the first Hispanic Supreme Court Justice. But this isn't about ethnicity. It's about liberal and conservative, he says. He tells her outright, she'll be confirmed. That is, "unless you have a complete meltdown" — which she won't.
12:11: They're on lunch break now. I did 10 minutes of analysis of Minnesota Public Radio. And there were a few more Senators doing their opening speeches that I haven't said anything about. It's getting a little repetitive. Kind of a drag to have to go after so many others, but nothing is forcing the Senators to have this terribly clunky approach to opening the hearings. On the up side, it will be interesting to hear a little speech from Senator Al Franken. My guess is that — in an effort to establish his senatorial gravitas — he will be terribly boring.
1:20: Specter said a lot of pretty substantive things, but, sorry, I was bored. And now: It's Al Franken!!!! Ha ha ha! I'm laughing, because he's a comedian, but he's not saying anything funny.
1:31: A heckler! Hey, Franken is a comedian! He should have some snappy comebacks!
1:33: "Judge Soh-toh-my-AIR."
1:34: Franken keeps talking about himself. I just took the oath of office... I may not be a lawyer... blah blah blah.
1:35: Man, Franken has quickly adapted to the Senate. He's doing pompous and leaden as if he'd been lumbering along senatorially for decades.
1:41: Chuck Schumer is now sitting at the table next to Sotomayor. He's being the Senator from New York, introducing the nominee from New York.
2:06: Sotomayor stood to take the oath, saying "I. do." in a way that tracked the odd cadence used by Senator Leahy. in administering it. She then gave a plain and straightforward statement about her simple judicial philosophy: following the law as written. She presented empathy and her personal background something that might enhance her understanding of the facts. In the end, the only task is to say what the law is and apply the law to the facts. There's nothing for the conservatives to attack in that (unless they say they don't believe her, which isn't nice). She said what they say they wanted to hear. And this — not any complicated explanations about how empathy is a component of interpretation — is really the easiest and best way to appeal to Americans. Good job.
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