Judge Sonia Sotomayor’s confirmation hearings ended today. I hardly watched any of it on tv, but I got the highlights from David Waldman’s liveblogging at Congress Matters: Wednesday morning session, Wednesday afternoon session, Thursday morning session, and Thursday afternoon session.
On Wednesday Senator Chuck Grassley had a contentious exchange with Judge Sotomayor regarding a 1972 case on same-sex marriage. Tom Beaumont posted the transcript at the Des Moines Register site. Sotomayor read the case last night and answered more questions from Grassley about it today. I posted an excerpt from the transcript after the jump.
According to MSNBC reporter Norah O’Donnell, Grassley told her today that his constituents are “pretty unanimous against her,” referring to Sotomayor. On what basis can he make that claim? I don’t doubt that wingnuts have been working his phone lines, but I hope he doesn’t expect anyone to believe that Iowans overwhelmingly oppose the confirmation of this extremely intelligent and qualified judge.
Questioning of Sotomayor concluded this morning, and outside witnesses testified this afternoon. Republicans brought in New Haven firefighter Frank Ricci. His story has become a focal point for opponents of Sotomayor, because the Supreme Court recently found in his favor in a 5-4 decision that overruled a 2nd Circuit Court of Appeals decision involving Sotomayor. (Of course, Sotomayor’s critics don’t acknowledge the bigger picture of her rulings in race-related cases.)
It turns out that Ricci’s quite the veteran of employment lawsuits. He sued the city of New Haven in 1995, claiming that he was discriminated against because of his dyslexia, in violation of the Americans with Disabilities Act. Ricci also went to court to fight his 1998 dismissal from Middletown’s South Fire District. TPM-DC’s Brian Beutler observed,
[Ricci’s] views on jurisprudence seem to begin and end with the proposition that legal protections against discrimination are great when they work in his favor, and unconscionable when they don’t.
I don’t have a problem with people defending their rights in court, but Ricci was hardly the reluctant litigant some conservatives have made him out to be. Also, it’s worth noting that whether or not Ricci was treated unfairly, the position Sotomayor took in the Ricci case
is an act of judicial restraint. The Second Circuit panel, which included Judge Sonia Sotomayor, deferred to a decision of the elected officials of the City of New Haven. Whether the decision was correct or incorrect, it was decidedly the opposite of judicial activism.
In fact, the five conservative Supreme Court judges who overturned the lower court ruling in Ricci were engaging in judicial activism.
Share any thoughts about the confirmation process in this thread. How many Republicans on the Senate Judiciary Committee will vote to confirm Sotomayor?
UPDATE: MyDD user bruh3 has a good response to Grassley’s line of questioning on that 1972 decision. and it’s just a guess, is that Grassley has been hearing from a lot of evangelicals about gay marriage in recent months. They were already mad at him last year for questioning the tax-exempt status of some televangelists. Then Grassley’s reaction to the Varnum v Brien decision was found wanting by many Iowa social conservatives. I suspect he wanted to make a show of grilling Judge Sotomayor on this issue.
Excerpt from exchange between Senator Chuck Grassley and Judge Sonia Sotomayor about the 1972 Baker v. Nelson case:
GRASSLEY: Good morning, Justice – Judge Sotomayor. Yesterday, you said you would take a look at Baker v. Nelson, so I ask this question. You said you hadn’t read Baker in a long time and would report back. You added that if Baker was precedent, you would uphold it based upon stare decisis, consistent with your stance in cases like Keyhole (ph), Roe v. Wade, Griswold, many others that you mentioned this week.
Baker involved an appeal from the Minnesota Supreme Court which held that a Minnesota law prohibiting same-sex marriage did not violate the 1st, the 8th, the 9th or the 14th Amendment to the Constitution. The Supreme Court, in a very short ruling, concluded on its merits that, quote, “The appeal is dismissed for want of substantial federal question.”
Baker remains on the books as precedent. Will you respect the court’s decision in Baker based upon stare decisis? And if not, why not?
SOTOMAYOR: […] Baker was decided at the time where jurisdiction over federal questions was mandatory before the Supreme Court. And the disposition by the Supreme Court, I believe, was what you related, Senator, which is a dismissal of the appeal raised on the Minnesota statute.
What I have learned is the question of – it’s what the meaning of that dismissal is is actually an issue that’s being debated in existing litigation. As I indicated yesterday, I will follow precedent according to the doctrine of stare decisis. I can’t prejudge what the precedent means in the issue comes before – what a prior decision of the court means and its applicability to a particular issue is until that question is before me as a judge or a justice, if that should happen.
So at bottom, because the question is pending before a number of courts, the ABA would not permit me to comment on the merits of that. But as I indicated, I affirm that, with each holding of the court to the extent it is pertinent to the issues before the court, it has to be given the effects of stare decisis.
GRASSLEY: Am I supposed to interpret what you just said as anything different than what you said over the last three days in regard to Kelo or Roe or Griswold or any other precedents you said or precedents? Or would it be exactly in the same tone as you mentioned in previous days are previous precedents under stare decisis?
SOTOMAYOR: Well, those cases have holdings that are not open to dispute. The holdings are what they are. Their application to a particular situation will differ on what facts those situations present.
The same thing with the Nelson case which is what does the holding me[an]. And that’s what I understand is being litigated because it was a one-line decision by the Supreme Court and how it applies to a new situation is what’s also – would come before a court.