Sotomayor and Fundamental Rights

Tuesday, July 14, 2009

Randy Barnett, over on Volokh, has a good take on part of the Sotomayor hearings. It deals with a line of questions from Orrin Hatch and Russ Feingold. Unlike some past hearings, these were really good, substantive question, especially the ones from Feingold. Barnett points out that:

more than once she said a right was "fundamental" if it was "incorporated" into the fourteenth amendment.
I agree with the author...that is backwards. A right is incorporated if it is fundamental. I am not sure if she just didn't understand the question or it is her belief that a right isn't fundamental unless a court says the 14th Amendment "incorporates" it. I hope it is not the latter, because that would most certainly go against majority opinion.

Read the excerpts from the article. Again, I tend to agree with the author. Sotomayor gives responses that are totally lacking in substance. I can understand a desire to be cautious, but the questions being asked here are fair, relevant, and important. She owes us a decent effort and well-thought out answers.


B Mac 7:16 PM  

I disagree. I watched several segments of the hearings today, and I think she was generally very forthcoming. She answered questions regarding Roe, Kelo, and a bunch of other hot-button topics, and did so in much more detail than either Alito or Roberts. And for the record, she called the "individual right" to keep and bear "settled law."

Part of the problem was that there were some really dumb, dumb, poorly worded, dumb questions, and after 15 hours of questioning, she became hesitant to answer "yes" or "no" to a 3 minute question.

Exhibit A: John Kyl (R-AZ)

Kyl spent a solid 5 minutes building up to an attempted 'gotcha'. He then tried to get Sotomayor to pledge to recuse herself from ANY case involving the 2nd amendment because she took part in the Maloney decision.

That's right; he actually suggested she agree to recuse herself from an entire area of Constitutional Law because she already used up her punch-card in that area of law. And she laugh audibly. That's two points for the nominee.

steves 8:30 PM  

I never suggested she was a complete failure, but dealing with the questions posed by Hatch and Feingold, her answers were lacking. I would also say that questions dealing with fundamental rights are important. Did you read the excerpts?

B Mac 8:38 PM  

I did. And I don't mean to be harsh on Senator Hatch, but I had to read the question twice to figure out what the hell he was asking. And even when I figured out what he was asking, I didn't know what he was asking.

steves 8:48 PM  

Barnett thought Hatch's question was confusing, as did I. Feingold, on the other hand, was clear. As much as I am not always a fan of him, he did a good job here and I doubt anyone would say that he was out to get Sotomayor.

B Mac 8:52 PM  

If Hatch had asked...

"Judge Sotomayor, do you believe that fundamental rights arise from Lawrence-v-Texas-esque 'emerging awareness' standard, or do they need to be rooted in some more traditional 'concept of ordered liberty' basis?"


"Judge Sotomayor, do you believe that the right to bear arms is a fundamental right?"

...and she had given the same answer, I'd be a lot more concerned.

Bob 10:09 PM  

F'in lawyers.

(Just so you guys know whenever you discuss Asslammer-V-Buttkiss or Pokeadude-V-Lickachic, I am going to curse lawyers.)

steves 11:54 PM  

I doubt she believes the RKBA is a fundamental right, but I honestly didn't expect Obama to appoint someone who did. As for property rights, she is overall mediocre, at best. One of her cases, Didden v. Village of Port Chester was absolutely dreadful.

Pokeadude-V-Lickachic was a seminal case.

B Mac 8:25 AM  

Pokeadude-V-Lickachic was a seminal case

HAAAAAAAAAAAAAAHAHA. I just wet myself a little.

Bob 9:03 AM  

"HAAAAAAAAAAAAAAHAHA. I just wet myself a little."

As long as you didn't seminal yourself.

B Mac 9:21 AM  

Bob, if you want to see true law nerdness... enjoy.

steves 10:17 AM  

B Mac, that was funny. Bob, don't go me.

B Mac 10:47 AM  

After watching some more of the hearings, I think I just figured it out.

She's boring.

Granted, that's probably the right strategy for her, as she will only be rejected if something crazy happens. She's sort of a "live boy, dead girl" nominee at this point, so I can't blame her. But she's being very boring.

steves 12:08 PM  

Yeah, maybe you are right, but her inability to answer some of the questions is still kind of bothersome. I think Obama could have done better, but I think she will make it through this.

Smitty 2:18 PM  

I think her inability to answer questions doesn't show a lack of knowledge. I think it's political. She is cautious in the Obama-style "way too cautious" vein, so she gives answers that aren't exactly evasive but aren't exactly forthcoming, just like Obama. She doesn't give the republicans any meat to chew, but makes other folks nervous about what she does...and doesn't...say. But it's political. So like Obama, the real proof of her intentions will present themselves when it's too late: when she's seated, which she will be.

And yeah, she's intensely boring. Her measured, calm tone is to the point where it's sleepy.

Smitty 2:23 PM  

And I watched that video. I only got like 1/3 of it.

steves 3:25 PM  

Smitty, I am sure that is a major part of it...I hope. The only other alternatives are her being stupid or wrong. The major difference between her and Obama is that if we don't like the job he is doing, we can say bye bye after his term is up. If Sotomayor makes it, then we are stuck with her for a long time.

B Mac 6:59 PM  

This is not a new phenomenom... it dates back at least a few years.

steves 8:29 PM  

And I watched that video. I only got like 1/3 of it.

Not bad, really, considering that most of the references are obscure unless you are in law school or work in con law.

Joel 3:20 PM  

From what I see, she's playing it safe and answering questions in a "Defensive" posture, which is smart for anyone who, according to the pundits is a lock for confirmation.

Right now, She's answering questions like the football coach who keeps the ball on the ground in the last five minutes of a game because his team is up by 17. Just don't do (say) anything stupid and the game is won.

Rickey Henderson 12:33 AM  

Rickey is concerned by how fundamentally she looks like Rosanne Barr.

Bob 7:32 AM  

"Rickey is concerned by how fundamentally she looks like Rosanne Barr."

Not that Sotomayor is smoking hot or anything, but that statement was cruel. I despise Roseanne Barr. In my hell I am shackled to a woman like that.

Anonymous,  7:33 AM  

In my hell I am shackled to a woman like that.

I too like me women petite and quiet.

steves 7:50 AM  

True, Joel, but still disappointing. I don't mind defensive play in response to BS questioning, but there has been a fair amount of good questions (even from people that support Obama) that she has given shitty responses.

Rickey, I hadn't realized it, but you are right. :o

Rickey Henderson 12:52 PM  

No Bob, you are the cruel one. Rosanne Barr is a beautiful woman and Rickey will not stand idly by while you besmirch her good name. Throw down sir.

Mr Furious 9:29 PM  


I'm with the defensive posture. Her confirmation is all but assured, and she is simply running out the clock.

I also haven't been blown away by anything I've seen or heard from Sotomayor in either direction, but there's little doubt in my mind that she's qualified and will do a fine job. With the exception of his financial team, Obama hasn't made a bad appointment yet that I'm aware of.

Mr Furious 9:32 PM  

The only thing at this point that can derail her is getting trapped in some GOP gotcha question. Or a GOP follow-up to something from Feingold.

She's comfortably need to hoist threes or attempt two-point conversions.

[/tired sports analogies]

steves 10:38 PM  

I think she will do a mediocre job. I don't think her being on the court will shift it to the right or to the left, so in the long run, the next few appointments will probably be more crucial. Some of her positions are troubling (such as property rights). I agree that she is basically qualified and the traditional purpose of the Senate confirmation process was to make sure the President didn't appoint some moron or croney, not to come up with a person that was pleasing to everyone.

B Mac 3:13 PM  

I agree that she is basically qualified

She was Summa Cum Laude from Princeton, Editor of the Yale Law Review, and has been on the bench for 17 years. And of all of her decisions in those 17 years, the worst thing the Republicans on the Judiciary Committee could hit her on was an attempt to issue a per curium opinion in a case where the en banc Circuit ended up agreeing with her opinion.

Steve, I'm curious what it takes to become "very qualified" in teh traditional sense.

This is as close to a home run/tap-in/lay-up [/sports metaphors] nomination as you're gonna see for a while. If I had any problem with this nomination, it is that Obama "wasted" his most qualified nominee (given the fact that he will get at least one more open seat) at a time when he could have appointed a ham sandwich and gotten 51 votes.

B Mac 3:20 PM  

The other thing to consider is that Obama isn't trying to appoint a liberal Scalia; someone who will hold down the left flank for 30 years, and will issue the raging dissent.

Rather, he's looking for someone to bring the third most powerful man in America, Anthony Kennedy, to the left on close issues. I've heard speculation that she is intended to be the Bobby Seay/Jamie Walker of SCOTUS; brought in to go after one guy from the left side.

Damn, that wasn't a bad metaphor...

steves 9:07 PM  

Steve, I'm curious what it takes to become "very qualified" in teh traditional sense.

Not doing shit like this:

One person neither party asked to testify is Jeffrey Deskovic, who was convicted at age 17 of a rape and murder he didn't commit. In 2000, Sotomayor and another judge on the 2nd Circuit Court of Appeals issued a curt, two-page ruling that refused to even consider Deskovic's innocence claim because his attorney filed four days late (the attorney says he was given bad information by a court clerk). "We have considered all of petitioner-appellant’s remaining arguments and find them to be without merit," the opinion read. Deskovic, who had already served 10 years, went on to serve another six before DNA testing led police to the actual killer. In a moving essay earlier this month, Descovic asked to be heard.

From Criminal Justice Missing From Sotomayor Hearings. I am not a complete bleeding heart, but the rights of the accused are important to me. There are some other troubling aspects to that article.

She has a poor understanding of fundamental rights, a mixed, but mostly shitty understanding of property rights, and a questionable take on the rights of the accused. I am at a complete loss as to why you think she is home run. Can you provide me with some evidence of her great scholarship or fine judicial work?

steves 9:28 PM  

In regards to property rights, this article from the Detroit Free Press discusses Sotomayor and the Didden v. Village of Port Chester case. I read the case and it is as bad, IMO, as the editorial contends.

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