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Sotomayor Hearing Recap: Day 1

Morgen on July 13, 2009 at 2:50 pm

No major developments in the first day of the Senate Confirmation Hearing for Judge Sotomayor. Which was to be expected given that the only thing on the schedule today were the opening statements. I thought Senator Sessions did an admirable job laying out the case against Sotomayor’s confirmation. In particular, he made a very effective case against the idea that “empathy” should be a criterion in judicial decision-making. On the flip side, I think the Democrats “wisely” emphasized Sotomayor’s extensive and mostly non-controversial track record as a District and Appellate court judge. While opponents of her nomination have singled out a few controversial decisions (e.g. Ricci), ultimately I think her balanced record as a judge has made it virtually impossible for her confirmation to be derailed.

Don’t get me wrong. I don’t think there is any doubt that had a white male judge made an equivalent statement to Sotomayor’s “wise Latina” remark, they wouldn’t even have made it to the confirmation hearing. It’s a completely indefensible statement, and I really look forward to the nuance and spin which will be required for Sotomayor to explain it. Speaking of Sotomayor, she made her opening statements today as well. It’s not very long – watch:

(update: click “YouTube” in the image below to watch it over there. CBS disabled embedding):

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I thought this was the key segment (starting at 2:00 in the clip above):

Throughout my seventeen years on the bench, I have witnessed the human consequences of my decisions. Those decisions have been made not to serve the interests of any one litigant, but always to serve the larger interest of impartial justice.

In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law.The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.

I guess this answers the question I asked on Friday: apparently she has chosen not to defend the idea that judges do in fact have a role in making law. Which is surprising in so far as she was caught on tape essentially admitting that this is the case. But not surprising in that EVERY candidate for the Supreme Court inevitably proclaims that their role is only to interpret the law.

Here is something to watch for on this. Senator Schumer and others have defended her “court is where policy is made” statement saying that Sotomayor herself said in the clip that “we don’t make law”, and that she wasn’t “promoting it or advocating it”. This is true, except for the very obvious fact that she was JOKING (if the laughter isn’t enough to clue you in, look for the aborted air quotes around her “we don’t make law” statement in the clip). I always thought this was one of the more ridiculous defenses of her statement, since she and everyone else in the room clearly believes that judges do make law. (The “wink-wink, nudge-nudge” moment that Scott joked about). But based on her statement today, I’m guessing that this may turn out to be her defense. (I’m going to jump through my monitor if a Republican Senator doesn’t ask the obvious follow-up question: so exactly what was the joke then?)

I think if there will be any fireworks they’ll come tomorrow, so I will embed a live feed on VS tomorrow morning. If you are going to watch, you might as well do so with us!

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Category: Politics |

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