Judiciary Watch

Leahy urges Senate action on legal nominees

Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, expressed his frustration that the Senate has not confirmed any nominees to the federal judiciary this year.  He accused Republicans of stalling nominees who have been voted out of committee, including Andre Davis (4th Circuit Court of Appeals); David Hamilton (7th Circuit Court of Appeals); and Gerard Lynch (2d Circuit Court of Appeals).  Members of both parties have blamed each other for the backlog; and the scheduling of the vote on Judge Sonia Sotomayor’s nomination to the Supreme Court before the recess certainly has contributed to the delay. Majority Leader Harry Reid has said he hopes to move on the pending nominees after the vote on Sotomayor and before the Senate is set to adjourn August 7.

Sotomayor could get fewer votes than Roberts

Speaking at a news conference on Capitol Hill, Majority Leader Harry Reid, Democrat of Nevada, said the Senate would confirm Supreme Court nominee Judge Sonia Sotomayor next week before it adjourns for its August recess.  Reid expressed disappointment that more Republicans have not supported the nomination.  A recent count in the National Law Journal’s Vote Trackershowed 23 of the Senate’s 40 Republicans on record saying they won't vote for Sotomayor.  Sotomayor is on track to receive fewer votes than Chief Justice Roberts.

Support for the nominee might have been made more difficult for some Republicans and conservative Democrats when the National Rifle Association announced that a vote to confirm Sotomayor would count against them in the group's annual candidate ratings. The NRA has said Sotomayor is ''hostile'' to the Second Amendment right to bear arms.

Senate committee votes in favor of Sotomayor, 13 to 6

In a 13 to 6 vote, split almost along party lines, the Senate Judiciary Committee voted to endorse Judge Sonia Sotomayor's nomination to the U.S. Supreme Court.  Sotomayor's likely confirmation would make her the first Hispanic member of the high court, and only it's third woman justice.  As expected, Senator Lindsay Graham was the lone Republican committee member to endorse Sotomayor.  All 12 Democrats on the Committee voted in favor of the nominee.  The full Senate is expected to vote on the nomination before the August recess. At least five Republican Senators have announced their support of Sotomayor, assuring her confirmation by a comfortable margin.

Committee Republicans oppose Sotomayor confirmation

Senator Lindsey Graham of South Carolina said that he would support the confirmation of Judge Sonia Sotomayor as a Supreme Court justice, making him the sole Republican member of the judiciary committee to express his support for the nominee.  The endorsement came after Senator Jon Kyl of Arizona, the second-ranking Senate Republican, said he would vote against her.  Senator Jeff Sessions announced his decision to oppose Sotomayor’s nomination Monday in an  op-ed article in USA Today.  He wrote, “I don’t believe that Judge Sotomayor has the deep-rooted convictions necessary to resist the siren call of judicial activism.” 

Bush appointments moved bench in conservative direction

The May-June issue of Judicature, the bi-monthly journal of the American Judicature Society, features articles examining President George W. Bush’s legacy on the Federal Courts.  Bush had 59 confirmed appointments to the U.S. Courts of Appeal, 261 to U.S. District Courts, and two to the U.S. Supreme Court.  After an analysis of more than 2,500 opinions from Bush-appointed district court judges, University of Houston political scientist Robert Carp concludes that President Bush's judges are clearly the most conservative on record for all modern administrations.  Barbara A. Perry, a professor in the Department of Government at Sweet Briar College, finds that “in cases involving abortion, campaign finance reform, voting rights, Fourth Amendment protections, church-state issues, and public school integration, Roberts and Alito have pushed the high court to the more conservative position.”  
 

An article written by Jennifer Segal Diascro, an assistant professor at American University, and Rorie Spill Solberg, an associate professor at Oregon State University, finds that while Bush made a number of diverse appointments to the federal bench, overall the federal courts did not gain in the number of minority judges during his tenure.  Diascro and Solberg’s analysis suggests that Bush was motivated by ideology and strategy over diversity in choosing his appointments.  In contrast, former President Clinton seems to have stressed diversity over judicial philosophy, choosing minority and female judges who did not necessarily share his political ideology.   Diascro and Solberg predict that President Obama will emphasize diversity over philosophy as did Clinton, and site his nomination of Hon. Sonia Sotomayor as an example of this.

Committee vote on Sotomayor delayed

The Senate Judiciary Committee has delayed a vote scheduled for Tuesday on Hon. Sonia Sotomayor 's Supreme Court nomination. Republicans have asked for a one week delay, which is allowed under committee rules, pushing the vote to July 28.  Committee Chairman Senator Leahy said, "We all know that Judge Sotomayor will be confirmed," but expressed concern that she have enough time to prepare for the Court's 2009-10 term. 

A "gracious and fair hearing"

Judge Sonia Sotomayor concluded her testimony on the fourth day of her confirmation hearings before the Senate Judiciary Committee.  Before leaving the hearing room, she thanked everyone and said that she received a “gracious and fair hearing.” Much of the morning’s testimony revisited Ricci v. DeStephano, as Republican Senator Jon Kyl of Arizona pressed Sotomayor to justify the 2d Circuit’s ruling in that case.  Republicans have expressed concern throughout the week that Sotomayor’s moderate record as a judge is not consistent with her public comments.  Sotomayor’s now infamous “wise Latina” remark and how her views on race and gender could impact her decision making if she were confirmed seemed to dominate the proceedings.  But Senator Graham told the nominee, "You have been very reassuring here today and throughout this hearing that you're going to try to understand the difference between judging and whatever political feelings you have about groups or gender." Ranking Republican committee member Jeff Sessions said he does not support a filibuster nor does he expect any Republican senator would.  He also said that Sotomayor could expect a full Senate vote before the August recess.

Senators assert Sotomayor gave "muddled" responses

Republicans expressed frustration with Sotomayor on Wednesday after a second day of questioning.  They expressed concern that the judge was deflecting their questions or was giving only vague or general responses, on topics such as abortion, voting rights and gun control.  At one point, Senator Coburn asked Sotomayor to answer a hypothetical question on self-defense “as a person, not as a judge.” In response to a line of questioning from Senator Grassley on marriage law, Sotomayor said she shouldn’t comment on it, because it may come before the court.  She sited the American Bar Association’s policy that judges should not comment on the merits of any pending or impending case.  Senator Orrin Hatch conceded, however, that Sotomayor’s confirmation is likely. “Has she handled all the questions well? No,” he said. “But she’s handled a lot of the questions probably well enough.”

Even as Republicans did their best to throw Sotomayor off guard on Wednesday, Democrats offered her the opportunity to show her lighter side.  Several Senators, Including Senator Al Franken, Democrat of Minnesota, asked the nominee about the “Perry Mason” television show, which Sotomayor has said influenced her decision to become a lawyer.  Democratic Senator Ben Cardin, of Maryland, countered criticism of Sotomayor’s temperament by reading more anonymous comments from the Almanac of the Federal Judiciary, from which Senator Graham had quoted on Tuesday.

The Senators will wrap up their questioning of Sotomayor on Thursday morning.  Later in the day witnesses such at Frank Ricci, the plaintiff firefighter in Ricci v. DeStefano, will testify.

Sotomayor answers questions on abortion rights, gun control

Sotomayor kept her cool as she faced a second day of questioning from members of the Senate Judiciary Committee.  Republican Senator John Cornyn of Texas was the first to address Sotomayor this morning.  Cornyn, courteous throughout, took the opportunity to revisit the nominee’s “wise Latina” comment, which has plagued her throughout the hearing.  Sotomayor once again sought to downplay the comments, explaining that one’s personal background “helps you listen and understand,” but that “[i]t doesn’t change what the law is and what it commands.”

In response to a question from Cornyn on abortion rights, Sotomayor said that the President had not discussed her views on abortion or Roe v. Wade with her before her nomination. And Sotomayor again was forced to explain her ruling in Ricci v. DeStefano, this time with members of the New Haven Fire Department, dressed in their uniforms, in attendance in the hearing room. 

Republican Senator Tom Coburn of Oklahoma pushed Sotomayor to elaborate on her position on abortion rights, asking “what is the settled law in America about abortion?”  Sotomayor cited recent Supreme Court history and said in Planned Parenthood v. Casey, “the court reaffirmed the core holding of Roe versus Wade, that a woman has a constitutional right to terminate her pregnancy in certain circumstances.”

There were some moments of levity today, even as Sotomayor faced tough questioning on emotionally charged subjects, including abortion rights and gun control.  In an exchange with Senator Coburn - involving a hypothetical situation where Sotomayor brought a gun to the hearing to shoot him - Sotomayor laughed, saying, “please don’t take that literally.”  Amidst laughter in the hearing room, Coburn responded, “You’d have lots of ’splaining to do,” invoking a popular line from "I Love Lucy."  At shortly after noon, as the lights dimmed momentarily and the air conditioner turned off with a loud noise, Sotomayor asked if it was a signal.  Senator Leahy told her to continue, joking “That was not a comment from above.”

 

Sotomayor deflects criticism of judicial temperament

Day two of Sotomayor’s confirmation hearings concluded with some tough questions regarding the nominee’s judicial temperament from Senator Lindsay Graham, Republican of South Carolina.  The Senator, referencing the anonymous lawyers’ evaluation in the Almanac of the Federal Judiciary, read aloud a string of comments from lawyers who appeared before Sotomayor on the 2d Circuit: “terror on the bench; behaves in an out-of-control manner; she is nasty to lawyers; she’ll attack lawyers for making arguments she does not like; she can be a bit of a bully.”  He concluded by asking Sotomayor if she has a “temperament problem.”

 “No, sir,” she answered, very matter-of-factly.  “I can only talk about what I know about my relationship with the judges of my court and with the lawyers who appear regularly from our circuit. And I believe that my reputation is such that I ask the hard questions, but I do it evenly for both sides.” She conceded without a change in her demeanor, “I do ask tough questions at oral argument.”

Senator Dianne Feinstein, Democrat of California, commended Sotomayor for her grace under fire. “I must say that if there’s a test of judicial temperament, you pass it here with an A plus-plus,” Feinstein said. 

The hearing resumes Wednesday for a second day of questioning from senators.  The Committee will convene at 9:30 a.m. to conclude the first round of questions, with Senators Cornyn, Cardin, Coburn, Whitehouse, Klobuchar, Kaufman, Specter and Franken.  Following a closed session and the lunch break, the Committee will reconvene in the afternoon to begin the second round of questions.