2009/07/16

The hearings on Judge Sonia Sotomayor's nomination to the Supreme Court

Something very puzzling about the hearings concerning the Supreme Court nomination of Judge Sonia Sotomayor. Republican questioners and of course, following along like puppy dogs, great chunks of the traditional media, seem to be very deeply interested in a statement that Judge Sotomayor made outside the courtroom eight years ago. Supreme Court nomination hearings normally concern what the nominee has said in their legal decisions, not on their outside speeches. The press corps felt obliged to an absolute rock-bottom bare minimum of due diligence and to state:

White House aides said the comment was being taken out of context, and predicted it wouldn't put the nomination off course.

But they've determinedly avoided going any further. The public has been left in the dark as to what the complete context of her "wise Latina" remark was. For the record:

When Sotomayor asserted, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life," she was specifically discussing the importance of judicial diversity in determining race and sex discrimination cases.

What she was not doing was making a general, sweeping statement about how a "wise Latina" would make better decisions in all cases.

It's also been noted that WaPo reporter Chris Cillizza has been writing "Winners and Losers" lists for the hearings, but gee, wow, amazingly enough (See "following along like puppy dogs" comment above) all of his "Losers" so far seem to consist entirely of Democrats. It's also been noted that Fox News saw fit to allocate 55 minutes on July 15th covering the remarks of two Republican Senators, but the remarks of six Democratic Senators warranted only 30 minutes of coverage.

Not that the larger political picture has been bad for Democrats. A Latino group decided to make Rush Limbaugh the issue and to pit his statements against those of Republican Congresspeople representing heavily Latino districts in Florida. In a Daily Kos Weekly State of the Nation Poll for July 6th thru the 9th (Daily Kos is what Bill O'Reilly calls a "far left...Web site, a vicious enterprise" so readers should keep that in mind and should apply the proper skepticism) the Latino regard for Republican Congresspeople is 5% favorable to 80% unfavorable, so Republicans can pretty much write off the Latino vote for the next few election cycles at least.

The blogger Christy Hardin Smith of firedoglake.com has been liveblogging the hearings, summarizing and paraphrasing what the participants say as opposed to doing a straight transcript. Her first entry is here. Another firedoglake blogger, Marcy Wheeler or "Emptywheel," tag-teams on the liveblogging and contributed a piece looking specifically at Sotomayor's answers on two important Supreme Court cases, Youngstown (Concerning Presidential powers versus those of Congress) and Korematsu ("Yeah, it's okay to put 100,000 Japanese-Americans behind barbed wire for the duration of World War II").

I'm troubled because rather than framing the question in terms, first and foremost, of Youngstown and a congressional limit on executive power, or of a warrant, she framed in in the same terms Yoo used to "authorize" it--with a very expansive view of what constitutes a "reasonable" search. It makes me worried that Sotyomayor would suggest that wiretapping a group like al-Haramain might be considered reasonable, even in spite of the restrictions that clearly limit doing so in FISA.
That said, when pressed (and Feingold did have to press her) she did ultimately agree that Youngstown would govern such cases.
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Now, Charlie Savage analyzed what I assume to be the same 2003 speech Feingold mentioned and concluded (with some reservations) that Sotomayor's statements--arguing for a particularized suspicion of illegality--auger well for her approach to civil liberties. I still have a somewhat queasy stomach about her immediate invocation of unreasonable search in this context. Others--including Kagro X, who actually has one of those fancy JD things and good judgment to boot, aren't so worried. Hopefully, I'm just being paranoid.
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I was very heartened by Sotomayor's response to Feingold's question about Korematsu and not judging from fear.

So Sotomayor gets a qualified approval on two important cases.

Absolutely marvelous photo of Senators Lindsey Graham and Jon Kyl as Graham questions Sotomayor (Completely irrelevant, but from the same site, Presidents Obama and Bush as they pitched the first ball in July 2009 and April 2009, respectively).


Democrats.Senate.Gov is also providing live feeds and video highlights to the hearings.

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