U.S. Supreme Court nominee Judge Sonia Sotomayor has wrapped-up her final day of testimony before the Senate Judiciary Committee. La Opinión, the Spanish-language daily newspaper published in Los Angeles (and the largest Spanish-language paper in the nation), asked me to contribute a piece every day of the hearings. The first entry appears in the previous post. Here are the second and third.

June 16: Repetición y tácticas similares (Repetition and similar tactics)

http://www.impre.com/laopinion/noticias/estados-unidos/2009/7/16/repeticion-y-tacticas-similare-135639-1.html External Link

English translation:

Day 3 of the confirmation hearings of Judge Sonia Sotomayor were in many respects like the first two. The Senators asked questions about their own pet hobby horse (the "wise Latina" speech, the New Haven firefighter case, abortion, baseball, Perry Mason, etc.).

The questioning of Senator John Cornyn (R-Texas), who began the day, made me wonder why judges generally seem more sophisticated than politicians when discussing the law. During the hearings, the Senators generally made what I would call statements, rather than ask questions of the nominee. They also often appeared to have little interest in Judge Sotomayor's answers. Senators also tried to cajole her to reveal how she would rule in future cases, such as those involving abortion and Roe v. Wade, even after she told them that she would not comment on cases that might come before the Supreme Court.

Why the disconnect between the Senators and Judge Sotomayor? Lawyers and judges learn to carefully parse the law, often making fine legal distinctions, while politicians often speak about the law in generalities. Legislators often enact broad principles of the law, such as in the Civil Rights Act of 1964, and generally discuss crude characterizations of judicial philosophies, such as referring to "judicial activism" and "strict constructionists." In contrast, any lawyer knows that the facts are critically important to the decision in any case. Without knowing the facts, Judge Sotomayor, as have past Supreme Court nominees, find it difficult (as well as preferable) to opine about how she might decide a case.

Ironically, Senators - supporters as well as detractors - have repeatedly asked Judge Sotomayor for statements about the law in the abstract when they all know that judging requires application of the law to the specific facts of the case. Although the Senators want to know how a nominee will rule on important issues, it would be inappropriate for a nominee to state how a he or she would rule in a case without knowing the facts.

The Sotomayor confirmation hearings bring up once again the inappropriate vilification of Latino civil rights organizations, specifically the Puerto Rico Legal Defense & Education Fund, a mainstream Latino civil rights organizations. For a discussion of this phenomenon, see Concurring Opinions (http://www.concurringopinions.com/archives/2009/07/sotomayor-saenz-and-the-vilification-of-latino-civil-rights-organizations.html#comments ).

In an attempt to demonstrate that Judge Sotomayor supports abortion rights, Senator Lindsey Graham (R-SC) questioned her about the position taken in briefs in a case involving access to an abortion by the Puerto Rican Legal Defense & Education Fund (PRLDEF) (now known as Latino Justice) when she was a member of the board of directors, a position that she stepped done from in 1992. The brief equated denial of access to the kind of second class citizenship endorsed by the Supreme Court in the infamous Dred Scott decision. Senator Sheldon Whitehouse (D-RI) highlighted the obvious - that Judge Sotomayor's membership on the PRLDEF board was fully before the Senate when she was confirmed for both the district court and court of appeals and that board members do not ordinarily review briefs before they are filed. Once again, however, PRLDEF was smeared as a radical group.

At some level, it is troubling that Judge Sotomayor has to go through this process, which many would classify as tedious and pointless. One has to leave the third day of the hearings, however, most impressed with Judge Sotomayor, her intelligence, and temperament. One also is left to wonder why Latino civil rights groups like PRLDEF are viewed as suspect and possibly sinister while conservative activist groups, such as the Federalist Society, of which Chief Justice Roberts and Alito were members, are viewed as mainstream.

June 17: Sotomayor debe ser juez del supremo (Sotomayor ought to be a Supreme Court justice)

http://www.impre.com/laopinion/noticias/2009/7/17/sotomayor-debe-ser-juez-del-su-135931-1.html

English translation:

It seems fair to say that, after the lack of fireworks in the first three days, Day 4 - and the conclusion -- of the Judge Sonia Sotomayor confirmation hearings before the U.S. Senate Judiciary Committee began with low expectations. Ten Senators had the opportunity for a second round of questioning, which ultimately differed little from the first round. They were followed by witnesses from the American Bar Association (ABA) and those called by the Democrats ("majority") and the Republicans ("minority"). Perhaps the most surprising admission during the entire day was Senator Cornyn's statement that Judge Sotomayor had undergone "tedious" questioning.

The ABA found Judge Sotomayor to be "well qualified," which was no real surprise since the recommendation had previously been announced. Judge Sotomayor's 17 years on the bench - recall John Roberts had barely two years on the court of appeals before being elevated to the Chief Justice of the U.S. Supreme Court -- and rock solid reputation among judges and lawyers made the well qualified rating a foregone conclusion.

The "majority" witnesses included Michael Bloomberg, mayor of New York City, Robert Morgenthau, the District Attorney of New York when Sotomayor was an assistant district attorney, Louis Freeh, former director of the Federal Bureau of Investigation, Ramona Romero, President of the Hispanic National Bar Association, David Cone, former Major League baseball pitcher, and an assortment of politicians, lawyers, and law professors.

What was more surprising was the Latino civil rights groups not represented on the witness list. While the Judiciary Committee heard testimony from the Hispanic National Bar Association, a mainstream - and somewhat conservative -- group of Latino lawyers ranging the political spectrum. The Committee did not hear from Latino Justice (formerly the Puerto Rican Legal Defense & Education Fund (PRLDEF)), National Council for La Raza, the League of United Latino Citizens (LULAC), and the Mexican American Legal Defense and Educational Fund, all Latino civil rights groups that voiced strong support for Judge Sotomayor's confirmation.

PRLDEF's absence from the witness list is particularly telling. Earlier this week, I wrote about some of the criticism directed at Judge Sotomayor's service on the board of directors of PRLDEF. And today's questioning again put PRLDEF in an extremist, sinister light. In response to questioning from Senator Lindsey Graham (R-SC), Judge Sotomayor stated that PRDLEF had a goal of promoting the civil rights and equal opportunity for Hispanics. Graham tried to paint PRLDEF as an extremist group - opposing the death penalty, promoting abortion rights, and supporting "quotas" over tests. And Graham asked bizarre - at least if one has even a fleeting knowledge of the political and other diversity among Latinos -- questions about whether Judge Sotomayor ever knew any low income Latinos who supported the death penalty and opposed abortion (like my Mexican-American mother, I thought). She admitted that she had; indeed, she had emphasized in the much-maligned "wise Latina" speech at UC Berkeley in 2001 that not all Latinos think alike. Stating that Judge Sotomayor had said some things that "bugged the hell out of me," Graham, and others during the day, would not allow the "wise Latina" comment to die and made her apologize again and again for the comment. When given a turn, Senator Orrin Hatch also picked on the bona fides of PRLDEF.

The "minority" witnesses included conservative gadfly Linda Chavez, the former President of the National Rifle Association of America, Frank Ricci and Lieutenant Ben Vargas, two of the plaintiff is the New Haven firefighters cases, Dr. Charmaine Yoest of Americans United for Life, and an assortment of law professors, attorneys, and others. There were no real surprises here and the "minority" witnesses generally opposed the confirmation, just as much as the "majority" supported the confirmation.

And then it was over. One is left to wonder whether any minds were changed by the four days of hearings and the hearings were worth the effort. Judge Sotomayor weathered the questioning well and, in my estimation, will soon be confirmed as a Justice on the U.S. Supreme Court.

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