Sotomayor, Day Two

Today’s Senate Judiciary Committee hearing on Sonia Sotomayor’s confirmation was, as one might expect, a mixed bag. My sense was that the dialogue was at a little higher level than we sometimes see in that committee–less bloviation by the Senators, for one thing. Sotomayor came across as a likable figure, I thought–but that is based on reading the transcript, not watching on television.

By her own account, she is single-mindedly devoted to the rule of law–feelings be damned! Lindsey Graham got off the best line of the day:

I listen to you today. I think I’m listening to Judge Roberts.

This Roberts-like exchange was pretty typical:

GRAHAM: Do you believe the Constitution is a living, breathing, evolving document?

SOTOMAYOR: The Constitution is a document that is immutable to the sense that it’s lasted 200 years. The Constitution has not changed except by amendment. It is a process — an amendment process that is set forth in the document.

It doesn’t live other than to be timeless by the expression of what it says. What changes is society. What changes is what facts a judge may get presented…

I couldn’t have said it better myself.

Unfortunately, Sotomayor did not respond truthfully to questions about her “wise Latina” speech, as I noted earlier today. She also fell in with Dianne Feinstein’s misrepresentation of how the Supreme Court treated her opinion in the Riccci case:

FEINSTEIN: Now, it was just said that all nine justices disagreed with you in the Ricci case, but I want to point out that Justice Ginsburg and three other justices stated in the dissent that the Second Circuit decision should have been affirmed. Is that correct?

SOTOMAYOR: Yes.

But that isn’t correct, as Sotomayor must know. As Paul wrote here, all nine justices disagreed with Sotomayor’s analysis of the issues and her affirmance of summary judgment. Justice Ginsburg, who wrote the dissent, articulated a “good cause” criterion that was different from the standard that Sotomayor applied. In footnote ten, she wrote:

The lower courts focused on respondents’ “intent” rather than on whether respondents in fact had good cause to act. See 554 F. Supp. 2d 142, 157 (Conn. 2006). Ordinarily, a remand for fresh consideration would be in order.

So Ginsburg and the other dissenters would have reversed the summary judgment and remanded the case for further proceedings under the good cause standard. Later in her dissenting opinion, Ginsburg wrote:

As earlier noted, I would not oppose a remand for further proceedings fair to
both sides. See supra, at 26, n. 10.

Thus, while there was much to approve of in Judge Sotomayor’s first day of testimony, her answers raised serious questions about her veracity.

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