I won't be around to blog about this past 5 pm. But I think there is an interesting political discussion going on about whether any Republicans on the Judiciary Committee will vote for Judge Sonia Sotomayor's confirmation. I think Graham and Hatch probably will. Maybe Grassley too.

As a political matter, I would be thrilled as a Democrat if no Republicans vote for Sotomayor. Indeed, a party line vote in the entire Senate would be the best political result for Democrats.

As it is, having Jeff Sessions being the leading voice for the GOP on this nomination is an unmitigated political disaster for Republicans. Top it off with no GOP votes for Sotomayor in the Judiciary committee and no GOP votes for her in the Senate would be political manna from heaven for the Democratic Party. the Latino vote will be 75% Democratic for the foreseeable future.

So go ahead Republicans, make the Democrats' day - unanimously vote no on Sotomayor. More . . .

Afternoon session starts. Grassley up. Interested in property rights and the Takings clause. Asks about Kelo. Sotomayor responds by saying she thinks property rights are important constitutional questions. Waves the American flag. Says the issue in Kelo was the amount of deference to be granted to state and local government's decision on what constitutes public purpose and use, and could such a determination allow for private development. She segues to a case she decided where she ruled in favor of a property owners procedural rights.

BTW, Kelo was properly decided. Sotomayor answered that Kelo followed existing SCOTUS precedent. Grassley argues Kelo was an "expansion" of the takings power. (Grassley is wrong). Sotomayor ducks the question.

More later.

For Jefferson Beauregard Sessions III, white men deserve preferential treatment. Given his stated sympathies for the KKK, this is hardly surpising. But it is worth noting. In his opening statement, Sessions said, Sessions said:

I will not vote for — no senator should vote for — an individual nominated by any President who believes it is acceptable for a judge to allow their own personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.

(Emphasis supplied.) Yet, Sessions voted for Samuel Alito, who testified in his confirmation hearings that he does take his own personal background and sympathies into account as a judge:

Sessions demands preferential treatment for white men. He clearly applies a stricter standard to persons who are not white men. Given his history, this is hardly surprising. But it is also the perfect embodiment of the Republican philosophy.

h/t to Media Matters. Speaking for me only

Jeff Toobin captured the entire philosophy of the Republican Party, embodied by Jefferson Beauregard Sessions III, only white men are oppressed. Only white men are unbiased and without prejudice. Media Matters has the clip:

JEFF TOOBIN: What’s worth noting about what Jeff Sessions -- the line of questioning, was that being a white man, that’s normal. Everybody else has biases and prejudices[,] . . . but the white man, they don’t have any ethnicity, they don’t have any gender, they’re just like the normal folks, and I thought that was a little jarring.

Good on Toobin.

Speaking for me only

I start with Hatch asking about Judge Cabranes' dissent on denial of rehearing en banc was right that this was an issue of first impression. I generally agreed with Judge Cabranes opinion but he was clearly wrong when he said the case was one of first impression. It wasn't. There was both controlling 2nd Circuit and Supreme Court precedent.

Sen. Feinstein emphasizes Sotomayor's respect for precedent. She is animated for her on the point. Now she asks about the women's right to choose and the long list of precedents that were ignored by the Roberts Court in Carhart II. Sotomayor will of course dance around the issue, since that is what we expect nominees to do now. I hate that. I want answers. Sotomayor says the issue was different than the previous cases. I say BS to be quite frank. The funny thing is is Sotomayor may use the Roberts Court's subterfuge in its stealth overruling of precedents against them if she is on the Court. This is actually the most interesting thing Sotomayor has said so far.

Feinstein now cites Scalia's criticism of Roberts and his group's practice of stealth overruling of precedent. Feinstein quotes Scalia's accusing Roberts of "judicial obfuscation." for once, Scalia is right. Sotomayor deflects the question. But Feinstein makes her point. DiFi doing good imo. More . . .

During the John Roberts confirmation hearings, when Roberts argued against applying discrimination laws in memorandum, Senator Jefferson Beauregard Sessions III was adamant in defense of judges who "respected precedent:"

Roberts’ memorandums and briefs were “absolutely consistent with the Supreme Court ruling of the United States at that time. So, all I would say is, I think it’s unfair to suggest that he has a record that indicates that he was somehow wrong on civil rights at that time.” When asked about his brief as Deputy Solicitor General in Franklin v. Gwinnett County Public Schools, arguing that victims of intentional discrimination should not receive damages under Title IX, Senator Sessions said: “On the Gwinnett case, the Title IX, the women’s education case, the position you took that would deny the right to sue a state entity, a government entity for money damages, wasn’t that a position consistent with the position of the Court of Appeals that had written the only opinion on the subject? … So you, in advocating on that position, were expressing a view that was the view of the highest federal court in the land at that time?”

(Emphasis supplied.) Of course, that involved discrimination against non-white males so of course Jefferson Beauregard Sessions, admirer of the KKK, labeller of the NAACP as a "commie" organization, would think that. You see, Sessions has deep empathy for the poor white male - so oppressed in our society. Everybody else? Not so much, The perfect embodiment of the GOP.

Speaking for me only

Senator Leahy went through all the supposed "tricky" parts (Ricci, "wise Latina", etc.) and Judge Sotomayor responded. All rather mundane to me. Perhaps the high points for the ridiculous Traditional Media.

Nothing of real interest on judicial philosophy so far.

More when something of interest happens.

Senator Jefferson Beauregard Sessions III will be questioning next. Will he continue his "Lost Cause" campaign? We'll see. Sessions starts off being a a**hole. Apparently the Civil War continues . . .

Kagro at daily kos is sick of the umpire talk in the Sotomayor hearings. In fact, it was always a ridiculous argument, first forwarded by the disingenuous now Supreme Court Chief Justice John Roberts. During his 2005 confirmation hearings, I wrote about how disingenuous Roberts was to use the analogy:

It is an interesting analogy Judge Roberts draws. And it seems to me to be an excellent argument for why Judge Roberts must answer the questions put to him by the Senate. As any baseball fan knows, umpires are not uniform in the delineation of the strike zone. Some are "hitters" umpires. Some are "pitchers" umpires. Some call the high strike. Some call the outside pitch.

And when it comes to the Supreme Court of the United States, it is important that we know what Judge Roberts' "strike zone" is. His record, the part that was not concealed by the Bush Administration, gives many of us pause regarding Judge Roberts' "strike zone." His stated antipathy for the right to privacy, for voting rights measures, for discrimination remedies, etc., demands followup. What does your "rulebook" say about these things Judge Roberts?

Senators Feinstein, Whitehouse, Schumer and Durbin all pointed out today that Chief Justice Roberts was less than honest about what his judicial strike zone would be. In that sense, the umpire analogy still has its uses.

Speaking for me only

Today Senator Lindsey Graham (R-SC) spoke like a person prepared to defer to the President's choice of Judge Sonia Sotomayor and vote for her confirmation despite his disagreements with her judicial philosophy. While I disagree with Graham on the Senate's role regarding judicial appointments, I must credit him with consistency on this issue. Graham said:

“My inclination is that elections matter…President [Barack] Obama won the election, and I will respect that.” He criticized Obama’s rationale, when a senator, for voting against the nominations of Chief Justice John Roberts and Justice Samuel Alito, but he added, “We’ve got a chance to start over. I hope we take that chance. . . . My belief is that you will do well. Whether I agree with you on the big things in life is not relevant here. My question is whether you have earned the right to be here. . . .

(Emphasis supplied.) With due respect to Senator Graham, I disagree with him both on the "big things" regarding judicial philosophy and the fact that if he disagrees with Judge Sotomayor on those "big things," he should still vote in favor of Judge Sotomayor. He should not. He abdicates his responsibility as a Senator. More . . .

After being introduced by New York Senators Charles Schumer and Kristen Gillibrand, Judge Sonia Sotomayor presented her opening statement. The key part from Judge Sotomayor's opening statement:

In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.

The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged. That is why I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position, sympathetic or not, is accepted or rejected. That is how I seek to strengthen both the rule of law and faith in the impartiality of our justice system. My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.

The complete statement on the flip.

Senate Al Franken (D-MN) will be making an opening statement today in the Senate Judiciary Committee hearing on the nomination of Judge Sonia Sotomayor to the Supreme Court of the United States. In other words, the Al Franken Decade is about to begin.

Franken up now.

This is an Open Thread.

Senator Whitehouse's opening statement was masterful, substantive, cerebral, historical and did honor to the Senate. He is truly becoming a great Senator. The statement on the flip: