Day Two of the Sotomayor Hearings

By Kevin Fayle on July 14, 2009 | Last updated on March 21, 2019

With the Senate Judiciary Committee on their lunch break, it seemed like a good time to check in and give a brief recap of the morning's events.

So far, the morning has been going well for Sonia Sotomayor.  While there have been a few moments of tension, she has kept her composure and responded to questions effectively. 

There were two major headlines to emerge from the morning sessions.  First, Sotomayor backed off of her infamous "wise latina" comment, telling the Committee that it was a poor choice of words.
Second, and more importantly, Sotomayor affirmed that the right to privacy is established Supreme Court precedent and confirmed that Roe v. Wade is still good law.

Yesterday's guest of honor, Miguel Estrada, also showed up again today as the Ranking Republican Jeff Sessions of Alabama and Committee Chairman Patrick Leahy of Vermont had yet another back and forth over the events that led to Estrada's withdrawal of his nomination to the DC Circuit. 

Finally, Dianne Feinstein (D - CA) questioned why Estrada kept coming up, even though it's pretty much an obvious attempt to get the GOP members in the Senate all riled up and ready for a filibuster.  It doesn't seem to be working, though, and it's starting to make Sessions look rather petty.

The Republican senators who have questions the judge so far -  Sessions and Orrin Hatch of Utah - have stuck to the party line and hammered Sotomayor on the 2nd Circuit panel's decision in Ricci v. DeStefano.  Sotomayor has handled the questions pretty well, stating that she was merely sticking to precedent and that the Supreme Court, in overruling the panel's decision, crafted a new standard that the 2nd Circuit never had an opportunity to apply.

Interestingly, Hatch repeatedly asked Sotomayor why, given that another 2nd Circuit judge thought that the circuit's precedent was inapposite to the case before the panel, did the 2nd Circuit panel not craft its own response to the problems presented in the case. 

Hatch was almost asking Sotomayor why she had refrained from judicial activism, which is ironic considering that the GOP's entire basis for attacking Sotomayor's nomination is that they believe she will engage in liberal activism on the bench.  What it reveals is that Republican senators, or at least Hatch, don't mind judicial activism as long as it gets them the results they want.

This has long been apparent, but it's interesting to see a hint of the truth peek through the smokescreen of rhetoric that hovered around the morning's questioning.

Overall, Sotomayor stuck to the usual Supreme Court nominee theme: I follow precedent, don't legislate from the bench, can't comment on how I would rule, etc., etc.

It was actually Democrats who threw out what I thought were the toughest questions this morning.  During his question period, Herb Kohl (D - WI) asked Sotomayor about Bush v. Gore, eminent domain, abortion and antitrust law.  Feinstein also brought up abortion, as well as stare decisis, the commerce clause and environmental regulation. 

Could it be that Democrats are worried about a reverse Souter?

See Also:
Sotomayor clarifies 'wise Latina' comment (AP)
Sotomayor: Wise Latina Comment Was "Bad"; Friends Who Hunt (WSJ Law Blog)
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