Supreme Court nominee Judge Sonia Sotomayor endured her first (and, sadly, probably last) filibuster yesterday as the members of the Senate Judiciary Committee gave their opening speeches (and the lot, though ten minutes each, took hours) before she got to say a word.
By the time Sen. Arlen Specter (D-Pa.) was through, the poor lady looked as if she was in some sort of alimentary distress.
Sen. Patrick Leahy (D-Vt.), chairman of the committee, began opening remarks yesterday at an uneventful hearing. What was the most surprising about Leahy’s remarks is that he was neither struck by lightning nor afflicted with a rapidly growing nose.
Leahy’s more outrageous fabrications included, “It is the most transparent confirmation hearing ever held” and “… she is a careful and restrained judge with a deep respect… for the powers of the other branches of the government, including the law-making role of Congress.”
As to the first claim, hundreds of boxes of documents have been withheld covering Sotomayor’s 12 years in leadership roles at the Puerto Rican Legal Defense and Education Fund (PRLDEF), including her time serving as the Chair of the Litigation and Education Committee and Vice President of the Board of Directors. The PRLDEF is a radical legal activist organization, far outside of the mainstream of legal thought in America. The White House claims the PRLDEF documents they withheld from GOP senators pertaining to her tenure there are “irrelevant.”
Sotomayor’s stated principle of weighting judicial outcomes based on her own personal biases as well as her stated practice of legislating from the bench (“It is the court of appeals is where policy is made. I know, I know, that this is on tape, and I should never say that.”), could have been proved or disproved by those documents, but the fact that they were withheld raises a presumption of the former, not the latter.
In his opening statement, Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Judiciary Committee, pointed to Sotomayor’s own statements that bring into question her ability to serve on the Court with impartiality.
Sessions said, “During a speech 15 years ago, Judge Sotomayor said, ‘I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt… continuously to judge when those opinions, sympathies, and prejudices are appropriate.’ And in the same speech she said, ‘My experiences will affect the facts I choose to see as a judge.’”
“Having tried cases for many years, these statements are offensive to me,” Sessions said.
“I think it is noteworthy that, when asked about Judge Sotomayor’s now-famous statement that a ‘wise Latina’ would come to a better conclusion than others, President Obama, White House Press Secretary Robert Gibbs, and Supreme Court Justice Ginsburg declined to defend the substance of the nominee’s remarks,” Session continued. “They each assumed that the nominee misspoke. But the nominee did not misspeak. She is on record making this statement at least five times over the course of a decade. These are her own words, spoken well before her nomination. They are not taken out of context.”
Sessions pointed out that judges take an oath to administer justice impartially, an oath he then read aloud:
“I . . . do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States. So help me God.”
During opening fawning statements by Sen. Dianne Feinstein (D-Calif.), the first of many protesters throughout the day disrupted the proceedings. Shouting, “Abortion is murder,” and “Stop the genocide of poor Latinos,” the man was escorted out of the hearing room by the Capitol Police. Police confirmed two of the protesters were arrested.
Sen. Jon Kyl (R-Ariz.), the Senate Republican Whip, noted in his opening remarks that Obama seeks to change over 220 years of judicial standards in appointing judges who will apply “empathy” and other prejudices and biases to their decisions.
“I respectfully submit that President Obama is simply outside the mainstream in his statements about how judges should decide cases,” Kyl said. “I practiced law for almost 20 years before every level of state and federal court, including the U.S. Supreme Court, and never once did I hear a lawyer argue that he had no legal basis to sustain his client’s position, so that he had to ask the judge to go with his ‘gut’ or ‘heart.’ If judges routinely started ruling on the basis of their personal feelings, however well-intentioned, the entire legitimacy of the judicial system would be jeopardized.”
Sen. Tom Coburn (R-Okla.) addressed the danger to self-governance as a result of undermining our judicial system through bias.
“Our nation is at a critical point, and we’re beginning to see cracks,” Coburn said. “The thing that binds us together is an innate trust that you can have a fair and impartial judgment in this country. … Even more important is the — your questioning of whether the application of impartiality in judging, including transcending personal sympathies and prejudices, is possible in most cases or is even desirable is extremely troubling to me.”
One of the more comic notes was that now seated on the Democrat side of the committee member dais way down at the end of the table reserved for senators with the least seniority is Sen. Arlen Specter (D-Pa.). He lost all of his committee seniority when he jumped over to the Democrat Party earlier this year. So he sits at the end of the table outranking only newbie Sen. Al Franken (D-Minn.).
Speaking of Franken, after an it’s-all-about-me soliloquy covering everything from his own swearing in (“As most of you know, this is my fifth day in office. That may mean I’m the most junior senator, but it also means that I am the senator who most recently took the oath of office.”) to watching Supreme Court hearings in the past, Franken made such contributions to the dialogue as, “I’m may not be a lawyer but neither are the overwhelming majority people in the United States,” and “Judge, I’m — I’m here to learn from you.”
After an introduction by Sen. Kirsten Gillibrand (D-N.Y.), Sotomayor was sworn in then gave her opening remarks.
“The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged,” Sotomayor said. “That is why I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position, sympathetic or not, is accepted or rejected.”
That was hardly the case in Ricci v. DeStefano, the controversial New Haven firefighters’ discrimination case that was recently overturned by the Supreme Court. Sotomayor’s opinion was one paragraph in length and did not address any of the underlying issues. I caught up with Sessions in the hallway after the hearing and asked him about that discrepancy.
“I did think that it was oddly inappropriate to render a decision in a case that important with just really one paragraph of substantive discussion,” Sessions said. “Also the Second Amendment case was oddly short, too. The other circuits who dealt with it wrote much, much more to discuss the issues in their per curiam opinions.”
The most recent Rasmussen survey conducted at the end of June only 37% of those surveyed said Sotomayor should be confirmed while 39% opposed the nomination.
Tuesday, the questioning of Sotomayor begins.
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