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Whereupon a brief recess is called.
11:28: Sen. Hatch, who is viewed as a possible Committee vote in SS's favor, begins with a crowd-pleaser: the Second Amendment. Hatch asks SS whether she believes that the right to bear arms is not a fundamental one; SS responds irritably, insisting that it is an open issue upon which it would be inappropriate to opine. She is clearly referring to cases pending before several circuit courts of appeal. "So," Hatch says, "you admit that it's an open issue?" SS looks puzzled, as, Clerquette suspects, do many lawyers within earshot. They banter about incorporation, and whether the Second Amendment applies to the States. Hatch tries to corner SS into agreeing that rational basis is a "permissive standard;" unwilling to commit to Hatch's [somewhat opaque] point, SS appears flustered. Each time Hatch says "permissive standard," SS seems more rattled.
Hatch changes gears. Time for Ricci! Why the per curiam opinion? he asks. Why didn't Judge Cabranes know about the opinion until he read about it in the newspaper? If it was a case of first of impression, what precedent did the panel follow, and why didn't they explain it more thoroughly? Hatch jumps from point to point. SS follows, visibly cranky and slightly confused.
12:00: For reasons that remain unclear, Miguel Estrada, the red herring of yesterday's hearing, has come up again. Sen Feinstein wonders how Miguel Estrada became part of the confirmation pricess.
12:06: Sen. Feinstein asks for a brief tour of judicial precedent. Clerquette feels suddenly nostalgic for law school.
(After a break, we rejoin the hearings already in progress)
3:15: It appears that one can miss several hours of hearing juiciness and be no worse for the wear. We rejoin the hearings in progress, and find John Kyl giving SS the business about the WLW issue. Ah, the more things change ...
Kyl asks whether extrajudicial speeches about women and minorities on the bench reveal SS's belief that women and minorities (i.e., wise Latina women) are better decision-makers. SS sounds as though she is getting tired of talking elliptically about life experiences. She tells Kyl that, in "decision after decision after decision [etc.]" she has made it clear that her decisions are not based on biases. Despite a[nother] long, tactful disquisition about the richness of life experience, Kyl is not completely satisfied. He wants to know whether SS believes that race, gender, and ethnicity make her judicial decisions better than those of an old white dude, and focuses on a speech in which SS said that, if enough women and minorities occupied the bench, the law would begin to change.
Gotcha? Nope: still not. After a painstaking explanation of the differences between men and women, SS falls back on the ol' "I guess my rhetorical flourish failed." Could this incident be know, from this day forward, as RhetoricGate?
Whereupon the hearing is adjourned for a ten minute break.
3:54: Sen. Schumer takes the floor. Questioners have been focused on SS's alleged sympathies and biases, he says, but the Chuckinator wants to talk brass tacks. Specifically, he would like to discuss her long, illustrious record. He intends to prove that she will not "put her experience and empathies" before the rule of law.
As a preliminary matter, Sen. Schumer asks, can SS promise to be fair and balanced? SS says she will. Do you swear, he presses on, not to let your empathies displace the rule of law? She will. He moves on to specific cases. First: In re Air Crash off Long Island. Did SS have sympathy for the plaintiffs in the case, who were the survivors of those killed in the crash? If you cut her, does she not bleed?
SS confirms that, yes: like the world at large, her heartstrings were plucked. Nonetheless, she did not feel that the plaintiffs had a remedy under the law. Ah ... Clerquette sees where this is going, Chuckinator. Schumer is making the case that SS is non-empathetic (even when the parties in question are the survivors of people killed in a plane crash) and, a fortiori, impartial.
Next: Washington v. Rockland County, a case in which the plaintiffs were law enforcement officers. SS, like any good American, loves heroes like law enforcement officers, right? Yet she ruled against the officers. Once again, folks, this shows that SS is no creampuff. She can be a coldhearted WLW if need be.
We move on to Boykin v. KeyCorp, in which an African American woman was denied a home equity loan. Did SS sympathize with the dissed putative homeowner? Well, of course she did, but the woman's claim was untimely. Too bad! Empathy is no match for the formidable enemy known as "the statute of limitations."
Schumer moves on to Pappas v. Giuliani, in which the plaintiff was "repugnant," rather than cute and fuzzy. Pappas was dismissed from the police department for distributing "patently offensive," hateful, and racist, materials at work. Nonetheless, SS was able to put aside her feelings (which were non-empathetic, in this case) and stand up for the nasty little bugger's right to engage in hate speech. So unpalatable ... but so impartial, SS. (That, dear readers, is judicial hotness.)
And how about a group of asylum cases? Schumer asks. Well done, Chuckinator: Asylum cases are a perfect exemplar, a crucible for "greater subjectivity." They feature sympathetic plaintiffs, murky law ... in other words, all of the ingredients for a delightful dish of judicial activism.
But none of these factors chipped away at SS's magic shell of impartiality. No matter what her nougaty, wise, empathetic heart told her to do, she doled out justice with cold, hard efficiency. Schumer asks SS to explain her approach to these cases, blinking to communicate, in code, that this might be the opportune moment to champion Honduran immigrants. Mercifully, SS glides through an explanation of the byzantine immigration/asylum appeals process. At one point, she threatens to stray into substance, but the Chuckinator steps in. In short, he says, do these cases show that, in SS's courtroom, the rule of law is king? Yes, SS says humbly. Sounding nunlike, she mentions her "fidelity" to the law. She won't leave home without it.
Next, Schumer asks about the role of foreign law, the doctrinal borrowing of which is downright un-American. SS answers that she would never rule according to foreign law, which is non-binding. And, Sen. Schumer says, you would never base a decision on an icky non-binding source, would you? (Of course she wouldn't!) To hammer home his point, he mentions that Nino once used no fewer than five dictionaries as sources for different definitions of the word "modify." His point: the dictionary isn't binding, but Nino - the ultimate textual adherent - used it anyway. Like the dictionary, SS explains, foreign laws are just "tools." Tools, that is, for making wholesome, all-American decisions.
4:22: Senator Graham takes the floor. He tells SS that she has come across, in the hearings, sounding awfully like a strict constructionist. But in her extrajudicial speeches, he posits, she sounds tres activist. He wants the real Sonia Sotomayor to stand up. His pronunciation of her name, "Sodomyor" conjures the image of an American tourist in Paris, asking directions to the Loovrah.
Her speeches, Graham says, have been problematic. FYI, he tells her: don't become a speechwriter if "this law thing doesn't work out." FYI, Sen. Graham: don't become a condescending jerk if your candidate doesn't win the election. Whoops! Too late.
Graham wants to talk about legal realism. He asks SS to explain the concept, but then interrupts her to note that it's "kinda touchy-feely." SS tells him that she would not consider herself to be a disciple of legal realism. Well, then, Graham says: are you a strict constructionist? SS does not want to be labeled. Clerquette notes that the first judicial philosophy was too soft; the next was too hard. Will the third one be juuuuust right? Alas, Graham asks next whether SS is "an originalist." Maybe not.
On we go, to whether the Constitution is a living thing. Well, SS says carefully, it is immutable, to the extent that it has lasted for 200 years. It "does not live" she says, other than to be timeless. Clerquette smells a soundbyte! SS concludes that the Constitution has not changed ... but society has.
Graham asks SS what the best way for society to change might be. Clerquette thinks that perhaps the Senator should discuss this broad, sprawling topic later, over a joint illuminated by a lava lamp. Mercifully, he veers quickly into whether the Constitution mentions abortion. SS tries to answer the question, but walks into a trap. Abortion is not mentioned specifically, she says, but the Constitution makes broad provision under the due process ...
"Aha!" Graham says (or maybe not, but he definitely wanted to): that brings us to SS's speeches, which indicate a downright mavericky desire to use these "broad provisions" to make new law, rather than leaving that task to the big boys, or at least the elected ones.
Apropos nothing, Graham announces, "I like you." Then he offers the choice fruits from SS's review in the Almanac of the Federal Judiciary, including the pronouncements that she is "a terror on the bench," that she is "temperamental, excitable, and seems angry," "overly aggressive," "not very judicial," "out of control," "nasty to lawyers," and "can be a bit of a bully" (to name a few). He asks her why she is such a big, mean bully.
Sounding almost girlish, SS says that she asks some "tough questions." The Second Circuit is a "hot bench," she explains, and litigants are only given ten minutes for oral argument. Many attorneys find this "difficult and challenging."
"If I may," Graham responds, "they find you difficult and challenging." Oh, snap! Clerquette waits with bated breath for SS to open up a can of judicial bully on Graham's ass. Instead, she answers irritably, but calmly.
He moves on to the WLW situation, though not before a quick detour through Iraq, Afghanistan, and terrorism. (Relevance: unknown.) If you wanted to change Iraq or Afghanistan, he says, women might be helpful. But here in America, the thought that women and minorities might change the rule of law as we know it is downright disturbing. Again, Graham asserts that, if he tried to inspire someone by claiming that he would make a better Senator because he is a Caucasian male, he would have been in deep doo-doo. Putting aside the fact that, as a white man and a Latina woman, Graham and SS may not be similarly situated (sorry, Senator: analogy fail) Graham actually sounds a little ... jealous.
Moving on to September 11, 2001, Graham asks SS what Islamic fundamentalists think about women. (Nothing good). Are we at war? he asks. (Yes, we are.) Does SS know anything about military law? (Not really.) Are people out there right now, "plotting our destruction"? (Yes, probably.) Where is this going? Well, dear readers: straight to the detention of enemy combatants. Graham takes a rain check on further questioning.
Now, on to the Puerto Rican Legal Defense Fund, and its position on taxpayer funded abortions. SS says that she never read the briefs, in which, according to Graham, the organization argued that the denial of public funding for abortions was akin to slavery. Using the Fund as a proxy, Graham probes SS for her views on abortion (as a public health issue) and the death penalty. They flirt with the issues, and agree (in a manner of speaking) to revisit them at a later date. SS looks unenthused.
4:54: Senator Durbin, the Majority Whip, takes over. SS is visibly relieved, and takes a moment to laugh heartily at a Senate-caliber joke. Durbin cuts to the chase: WLW-Gate. It's not so bad, Durbin says, if you think about all the boneheaded decisions that [ostensibly] wise white men have made. See? Problem solved.
Durbin takes SS for a mild spin through the death penalty. SS restates the law, which she is, of course, committed to following. Durbin asks her to opine on the disproportionate impact of the death penalty on racial minorities. SS discusses a case in which the defendant claimed that the prosecutor's decision to pursue the death penalty was racially motivated, which she explored in a hearing. Of course, she made a narrow determination based on the facts and law before her. Duh.
Durbin moves along to the crack/powder cocaine sentencing disparity. Although he voted for it, he now regrets it. How does SS feel, he asks, about the issues of "race and justice" presented by the Sentencing Guidelines? SS concedes that, though it must be "unsatisfying" when a nominee does not "engage directly" with the issues at hand, Durbin probably can't get no satisfaction. In the case at issue, she followed the law (which did not then contemplate the safety valve exception). What's a girl to do? One can only. Follow. The. Law.
Of course, the Guidelines are no longer mandatory. Clerquette wonders: are we really going to get into this?? A thorough discussion of the Guidelines could take this hearing into extra innings. Fortunately, SS declines to discuss the issue, begging off because it remains in play. Bless your heart, SS. Durbin finishes with a quick foray into immigration, and whether the process needs to be streamlined. Simple answer, dear readers: yes. Can SS go home and put her lame foot up now?