9:30: Sen. Leahy opens today's session, sounding slightly less burbly. Judge Sotomayor is finally dressed like a New Yorker, in a black suit.
9:34: Sen. Cornyn opens by reminding SS of that time, at band camp, when he told her that, by God, she would get an up or down vote if he had anything to say about it. Clerquette thinks that someone (ahem) wants to be rewarded with a thank-you and a Fudgie the Whale cake. Determined to leave no stone unturned, he turns to SS's WLW-ism. Did she really think that she could make a better decision than an old white dude? Did she really think that her rhetorical flourish had fallen flat?
Although SS probably wishes she could answer with a simple "See id.," she handles the question deftly. SS seems particularly sassy today; Clerquette thinks she has her "bench vibe" on.
Sen. Cornyn questions SS about a comment that the law is, at times, "in flux." Does this mean that judges must step in and make something less ... fluxy? SS responds by reassuring him that judges do not, of course, make law [except -- as one of Clerquette's law school professors would say -- when they do]. After she answers (in a manner too substantive and meaty to be truly satisfying), the Senator grills her about her statement that "physiological differences" might affect the way judges approach their task. Might she have been referring to ... being a woman? A wise, Latina, woman? SS's answer is too abstract for Cornyn's tastes, and he tells her that he can not reconcile her "physiological difference" theory with her "fidelity to the law." He appears to think, but does not say, "but whatever."
Next, Cornyn turns to an old favorite: abortion. He wants to know whether SS was asked, by the White House vetting team, about her views on abortion. Nope, she says; she wasn't. He asks her about [former partner] George Pavia's comments about her view on abortion. SS seems annoyed; she doesn't recall having discussed her views on abortion (or other issues) with Pavia, and assures the Committee that he has not read her jurisprudence. Why? Because he's a corporate lawyer, and corporate lawyers tend to have a rather, um, selective interest in actual law. Have we witnessed an early benchslap? You go, girl!
He finishes with a waltz through Ricci, taking SS to task (again) for the panel's per curiam ruling. Sloppy, sloppy, he seems to say. Hey, SS responds: Per curiam happens.
10:00: Sen. Cardin takes over, tossing SS a few softballs. He gives her the opportunity to explain that she is not a big, mean, bully ... just one, little ol' member of a hot bench. (With a ten minute limit on oral arguments, which makes lawyers MAD!) Then: on to civil rights, and SS's interest in "giving deference to Congress," especially where civil rights are concerned. (Clerquette thinks the Senator may have stumbled on a point perfect for inclusion in SS's Match.com profile: "I enjoy white Saabs, baseball, and deferring to Congress, especially where civil rights are involved. Also, fine wine and Fellini films.")
After a foray into Deference 101, Cardin turns to diversity. Might we finally tackle the paradox of composing a diverse Supreme Court, but then taking a nominee to task for identifying her own diverse qualities? Nah. But we will talk about the "role of diversity in society." Huh? Maybe Cardin considered narrowing it down a bit, but he clearly decided not to. SS uses the word "harkens," and then apologizes for her recent overuse of the word "harkens." Clerquette is utterly charmed by her awareness of the need to avoid word repetition. They cover other hot topics, including the importance of pro bono work.
10:37: Sen. Coburn begins by apologizing for outbursts, in the chamber, by vocal pro-lifers. Sure - they can get a little overexcited, but one shouldn't judge all pro-lifers by such a wacky bunch.
Coburn decides to move away from the limp, dead horse of SS's extrajudicial speeches, and on to abortion. Let's talk, he says, about what you would do if I were 38 weeks pregnant and found out that my baby had spina bifida. Ignoring the horrific image of Sen. Coburn's pregnancy, SS asserts that she cannot answer in the abstract. He throws her another hypo designed to elicit her opinion re: viability. If we have viability at 21 weeks, he says, shouldn't that help further erode the framework of Roe v. Wade judges consider the ramifications of advancing technology? SS says that she cannot talk about what "should" be done; only what the courts have done, which is precedent. Which, unlike one's empathetic, womanly urges, must always be followed.
Next: The Second Amendment, and whether SS believes that the right to bear arms is a "fundamental" one. SS notes that, under [the Supreme Court's decision in] Heller, the right is not "fundamental," and under [the Second Circuit's opinion in] Maloney, it is not incorporated. As she did yesterday, SS offers the (somewhat motherly) qualification that, just because the right to bear arms is not "fundamental" in the technical sense, that does not mean that it is not very, very important and special in its own way. You get a gold star, Second Amendment! Yay! Alas, SS notes, she is helpless before the all-consuming power of precedent, and can offer no opinion as to whether gun rights should get a little more Constitutional love.
Coburn makes several attempts to elicit SS's own belief about whether there is a personal right to bear arms. She dodges. But, in the course of explaining state laws concerning self defense, she constructs a hypo in which she is physically threatened, but instead of reacting immediately goes home to fetch her firearm. She quickly adds that she is speaking hypothetically, and would never actually go home and get a firearm, which she does not have anyway. As she is explaining that she wants to avoid any misunderstanding (a la WLW?), Sen. Coburn interrupts to say that, if she did, in fact, run home and get her gun, she "would have some 'splainin to do." Ouch. Clerquette wonders whether Coburn will later regret having responded to the wise Latina woman in the parlance of a slightly ditzy woman's unwise Latino husband.
They take a quick spin through the topic of Foreign Law: Friend or Foe? SS again swears that, while she might read and consider foreign law (in the same way that one might read The Little Prince, for example, or a translation of Babar) she would never interpret the Constitution based on anything so ... foreign. He passes the baton to the fabulously named, though slightly lispy, Sen. Whitehouse.
11:09: Sen. Whitehouse tells SS that he recently got "goosebumps" thinking about the wonder of her nomination. Then he says "goosebumps," or its idiomatic equivalent, in Spanish. SS laughs heartily. Senators are funny!
Whitehouse (who must have fantasized about running for President, at some point) takes SS through scintillating topics such as: the jury system, law enforcement, the warrant requirement, and privacy rights.
Whereupon the Committee adjourns for a fifteen minute break.
11:55: Hearing resumes with some Senatorial levity from Senator Klobuchar, who commends SS on her patience and delights the crowd with a story about having encountered Mama Sotomayor in the bathroom. (Mama, it turns out, had plenty to say.) Klobuchar's own mother has apparently been sending her messages like, "Sen. Feinstein was brilliant. What are YOU going to say?" Clerquette is charmed by this anecdote, which illustrates the universal dissatisfaction of mothers.
Sen. Klobuchar, a former prosecutor herself, wants to chat about SS's experience as a prosecutor. They chat about duty, difficult charging decisions, and Perry Mason. The Senator addresses the concern that SS is will make "emotional" decisions, and, like Schumer, delves into cases intended to demonstrate SS's cold, hard, non-empathetic fidelity to the law. Clerquette wonders if Schumer and Klobuchar were inspired by [former Judge and UTR favorite] Michael Chertoff's suggested question for Sotomayor, in this NYT Op-Ed piece. (FYI, Sec. Chertoff also covered the foreign law issue. Thanks, Sec. Chertoff!)
12:25: Sen. Kaufman takes the floor. Rather than discussing SS's prosecutorial background, he would like to talk about her career in private practice. Yawn. SS offers several lofty reasons for deciding to go into private practice. She does not mention "the desire to make more than the minimum wage salary earned by public servants." SS tries to make grain trading contracts and dealer relations (albeit Ferrari's) sound exciting.
Sen. Kaufman takes SS through a variety of topics related to commercial practice, peppering his questions with statements like, "I am so glad we're talking about commercial law!" Clerquette wonders how many people have gone to lunch early. When SS veers into Chevron deference, Clerquette wonders how many people have stayed awake.
Whereupon the Committee breaks for lunch. The hearing will resume at 2.