Sotomayor Hearing Live Blog, Day 2, Blog 3

By Big Tent Democrat, Section Supreme Court
Posted on Wed Jul 15, 2009 at 01:07:04 PM EST
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Specter is up. I can't follow it right now. Please do so in the comments.

Update: I saw Specter's riff on judicial legislation and the ridiculous "proportionality and congruence" standard the Court invented for determining whether the Congress was acting within its Commerce Clause power. Best thing in the questioning I have seen.

Update (TL): The transcript from this morning (part 1)is available here. Part 2 is here, Part 3 is here and Part 4 is here.

More . . .

For those wondering about the case Baker v. Nelson cited by Sen. Grassley, it is a 1972 case where the Supreme Court dismissed a writ of certiorari said the issue of gay marriage did not present a federal question. The Court distinguished Loving v. Virginia, which ruled that bans on interracial marriage was not on point because classification based on sexual orientation could not be compared to classification based on race.

Baker is actually a nonsensical decision that is simply not defensible. Of course a federal question was presented. Whether a right to gay marriage under the equal protection clause would be upheld is not to the point. A federal question was presented.

Now more than ever, the absurdity of Baker has been made manifest - the passage of DOMA, the imposition of DADT (imagine a gay soldier who decides to get married in one of the jurisdictions that recognize gay marriage) and Lawrence prove without a doubt that a federal question is presented by this issue.

< Sessions, Hatch, Supported Extreme Right Wing Group Accusing Cabranes, Sotomayor Of Terrorist Links | Advice And Consent: Part XXX >

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Sotomayor Hearing Live Blog, Day 2, Blog 3 | 128 comments (128 topical)

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The Court is a public institution (5.00 / 3) (#33)
by andgarden on Wed Jul 15, 2009 at 01:34:40 PM EST

And Perry Mason. (5.00 / 1) (#40)
by oculus on Wed Jul 15, 2009 at 01:37:25 PM EST

: I can see (none / 0) (#44)
by Capt Howdy on Wed Jul 15, 2009 at 01:39:47 PM EST

why he would think it was "pretty cool"

I like (5.00 / 1) (#47)
by Capt Howdy on Wed Jul 15, 2009 at 01:41:12 PM EST

where he is going.

Net neutrality (5.00 / 2) (#50)
by magster on Wed Jul 15, 2009 at 01:42:07 PM EST

Glad to see him raising the issue.

Love (5.00 / 1) (#63)
by jbindc on Wed Jul 15, 2009 at 01:57:45 PM EST

that he's asking "different" questions.

Now we're onto Age Discrimination

: I'm not watiching` (none / 0) (#68)
by BackFromOhio on Wed Jul 15, 2009 at 02:03:42 PM EST

so excuse me if I'm saying what's being mentioned, but the 2nd Cir is known (at least it used to be) for its position that those over 40 comprise a protected class

ou go, Al, Does the Constitution (5.00 / 1) (#67)
by oculus on Wed Jul 15, 2009 at 02:02:53 PM EST

contain a right to privacy.

Wow (5.00 / 5) (#69)
by Steve M on Wed Jul 15, 2009 at 02:04:00 PM EST

she is defending the right of privacy by taking it all the way back to Meyer v. Nebraska and Pierce v. Society of Sisters. Just like the college paper I wrote that was so good I got accused of plagiarism!


& who was it (none / 0) (#71)
by BackFromOhio on Wed Jul 15, 2009 at 02:05:23 PM EST

that you were accused of plaigarizing?


No one (none / 0) (#82)
by Steve M on Wed Jul 15, 2009 at 02:10:40 PM EST

the professor just kind of made a comment to me like, "are you SURE this was your own work?" I mean, as legal writing goes it was probably pretty pedestrian, but it was a good effort for an undergraduate.

My original source for understanding the privacy argument was, of all things, Robert Bork's The Tempting of America. But I certainly didn't plagiarize Bork! Basically, I looked up the cases Bork had cited, read through them in the Supreme Court Reports, and pieced the argument together myself. It was kinda fun.


: Aw, that's too bad (5.00 / 1) (#103)
by Cream City on Wed Jul 15, 2009 at 03:18:01 PM EST

as I know how it feels to have a prof not believe that I finally could achieve my potential. :-) And as a prof now, I try to refrain from putting such questions just that awful way.
But without a basis for suspecting plagiarism, the prof actually may have been thinking of another possibility for a suddenly stupendous paper from a student. It could be the "boyfriend/girlfriend factor." I can attest to the amazing improvement in some of my so-so students from falling love with an A-plus English major to, um, proofread their papers! At least, that's what one so-so student told me was all that his girlfriend did on the paper. . . .
Whatever. He paid more attention to her than to his English profs, I guess, because his own work (in class) improved, too. And he got through college, the first in his family to do so. Ah, the power of love.

: Today profs do need to (none / 0) (#94)
by BackFromOhio on Wed Jul 15, 2009 at 02:25:53 PM EST

accuse anyone, as they have various software programs available that check out papers for plagiarism

Accused of plagiarism? (none / 0) (#73)
by andgarden on Wed Jul 15, 2009 at 02:06:32 PM EST

That's strange, because I think both of those cases are cited in one or two of the concurrences in Griswold.

For those who like the 9th amendment, see Goldberg's concurrence.


So she's plagiarising you? (none / 0) (#74)
by sarcastic unnamed one on Wed Jul 15, 2009 at 02:06:52 PM EST

Damn (5.00 / 1) (#75)
by lilburro on Wed Jul 15, 2009 at 02:07:05 PM EST

just getting so tired of this! Say you're pro-choice already!

Ok I know that's not gonna happen but it seems like the same answer every time no matter how many Senators take a crack.

Still, even though Franken isn't my (5.00 / 1) (#78)
by oculus on Wed Jul 15, 2009 at 02:09:21 PM EST

Senator, I'm glad he asked the direct question. I'm ok with her latest response.


: She did (none / 0) (#84)
by lilburro on Wed Jul 15, 2009 at 02:12:50 PM EST

acknowledge it explicitly. After this hearing which has thoroughly demonstrated she is not much interested in judicial activism I am not too worried. But still...

I found it telling (5.00 / 2) (#86)
by Steve M on Wed Jul 15, 2009 at 02:13:41 PM EST

that after he asked about the right to privacy encompassing abortion, and she was very careful to answer in terms of what the Court has said as opposed to what she believes, he studiously avoided asking a followup to try and get at what she believes. He knew she wasn't going to give it up, and asking the question would have simply reinforced the fact that she wasn't saying one way or the other.


OMG, Jeff Sessions cannot (5.00 / 4) (#98)
by Anne on Wed Jul 15, 2009 at 03:04:38 PM EST

let go of the "wise Latina woman" comment - I would so love to here Sotomayer say, "Given that I have repeatedly explained my comments, given context for my comments, offered up the reality of my record, and none of these things have satisfied you that I have been and will continue to impartially apply the law in making my decisions, it is pointless for me to add more, and will have to leave it to you to fulfill your advise and consent responsibilities in whatever way you see fit. I will say, however, that this continued attempt to get me to bend to your will on this and many other issues seems to be conveying a strong message that you would have no problem with judicial activism if you thought the outcome would be to your liking. I cannot and will not give you any hope that I can or will serve in that manner."

But, I dream.

: Asked and answered. (none / 0) (#100)
by oculus on Wed Jul 15, 2009 at 03:08:03 PM EST

: Face of the GOP (none / 0) (#102)
by andgarden on Wed Jul 15, 2009 at 03:13:19 PM EST

$h*t eating grin.

Dahlia Lithwick (5.00 / 1) (#101)
by lilburro on Wed Jul 15, 2009 at 03:13:17 PM EST

offers a look at the "Sotomayor Doctrine."

Overall I think this hearing might be more interesting had the Ricci case not have happened. I think perhaps she is defending herself as a fact following, precedent loving jurist mostly because of her decision in Ricci. Had she not been compelled (particularly because of her race) to do so, she might be able to speak up more about her general philosophy. Frankly, I'm just not finding her answers during this hearing all that interesting. Of course the questions definitely suck.

great blog (5.00 / 2) (#126)
by Jlvngstn on Wed Jul 15, 2009 at 04:54:10 PM EST

even if this entire thread goes straight over my head, I still find myself reading all the comments.....Fun

Specter Recounts all of the extreme R nominees (none / 0) (#1)
by andgarden on Wed Jul 15, 2009 at 01:08:46 PM EST

he has supported, and suggests that Sotomayor is following in their footsteps. Still, he has a point.

What does that mean? (none / 0) (#3)
by lilburro on Wed Jul 15, 2009 at 01:11:15 PM EST

Sorry I can't hear him word for word.


They all talked about their life experiences (none / 0) (#5)
by andgarden on Wed Jul 15, 2009 at 01:11:34 PM EST

But of course (5.00 / 4) (#16)
by Steve M on Wed Jul 15, 2009 at 01:28:32 PM EST

there is unquestionably a political double standard! Republican nominees have to demonstrate they will be caring and compassionate, Democratic nominees have to demonstrate they will follow the law and eschew activism. That's the silly game we play.


Too bad they can't say what they actually think (5.00 / 3) (#18)
by andgarden on Wed Jul 15, 2009 at 01:30:11 PM EST

I'd prefer that.


Me too (none / 0) (#28)
by Steve M on Wed Jul 15, 2009 at 01:33:21 PM EST

but let's face it, it's a job interview. You know how those go.

Heck, I got into trouble while interviewing for my current position by saying that I thought Allen Iverson was a good player. Who knew there would be such controversy?


: hehe (none / 0) (#36)
by andgarden on Wed Jul 15, 2009 at 01:35:29 PM EST

: Probably why Pres. Obama waited (none / 0) (#55)
by oculus on Wed Jul 15, 2009 at 01:49:40 PM EST

til he was elected to opine on NBA greats.

: AI called MJ and said (none / 0) (#125)
by Jlvngstn on Wed Jul 15, 2009 at 04:48:13 PM EST

that he would give up his starting role in the all-star game if MJ wanted it. He was the only one to do so. Stand up guy and a great baller.

Is Specter really a (D)? (none / 0) (#2)
by oculus on Wed Jul 15, 2009 at 01:10:08 PM EST

"The Warren Court changed the law almost every day"?

: He's muddling his scripts (5.00 / 2) (#4)
by andgarden on Wed Jul 15, 2009 at 01:11:17 PM EST

: you know the answer to that question. (none / 0) (#111)
by coigue on Wed Jul 15, 2009 at 03:50:55 PM EST

Is he bashing Bush re wiretapping? (none / 0) (#6)
by jbindc on Wed Jul 15, 2009 at 01:13:43 PM EST

I feel your pain, Sen. Specter, (none / 0) (#7)
by oculus on Wed Jul 15, 2009 at 01:17:34 PM EST

re you not getting notice from SCOTUS.

Here is an interesting paragraph from the Senator's website:

His legal background and experience in constitutional law provided the skills to chair the dignified confirmation hearings of Chief Justice Roberts and Justice Alito. In earlier confirmation hearings he had the courage to cross party lines in opposing Judge Bork and disagreeing with conventional wisdom in supporting Justice Thomas after dissecting the contradictory and highly charged testimony.

Ha. Now that Specter is a Nu Dem (5.00 / 4) (#39)
by Cream City on Wed Jul 15, 2009 at 01:36:52 PM EST

he really ought to not taking any credit for the Thomas hearings, just reminding one and all of Specter's despicable behavior toward Anita Hill.


Did you see her on TV? (5.00 / 4) (#81)
by Radiowalla on Wed Jul 15, 2009 at 02:10:02 PM EST

She was on one of the cable shows... CNN maybe... making comments about the hearings. She looked very well.

I believe Anita!


: I believe Anita! (5.00 / 5) (#83)
by Militarytracy on Wed Jul 15, 2009 at 02:11:13 PM EST

Wasn't Specter the one ... (5.00 / 2) (#90)
by Robot Porter on Wed Jul 15, 2009 at 02:21:04 PM EST

to pull out the quote from the novel The Exorcist?


The questions are interesting (none / 0) (#8)
by magster on Wed Jul 15, 2009 at 01:17:34 PM EST

on what kind of workload is appropriate and Specter's frustration with the Supreme Court not taking up a FISA related separation of powers issue.

Specter isn't letting her filibuster (none / 0) (#9)
by andgarden on Wed Jul 15, 2009 at 01:18:26 PM EST

Frankly, I'm happy about that.

He is good at questioning. I wouldn't (none / 0) (#10)
by oculus on Wed Jul 15, 2009 at 01:19:49 PM EST

enjoy being cross-examined by him.


Me either (none / 0) (#11)
by andgarden on Wed Jul 15, 2009 at 01:21:07 PM EST

: I'd love to listen to him in a SCOTUS (none / 0) (#12)
by oculus on Wed Jul 15, 2009 at 01:24:05 PM EST

case conference.

Didn't he start out in (none / 0) (#19)
by BackFromOhio on Wed Jul 15, 2009 at 01:30:14 PM EST

D.A.'s office?


Yup (none / 0) (#22)
by andgarden on Wed Jul 15, 2009 at 01:31:55 PM EST

Yes. Two terms as elected (none / 0) (#24)
by oculus on Wed Jul 15, 2009 at 01:32:39 PM EST

District Attorney in Phil.


Before that, the Warren Commission (none / 0) (#29)
by MKS on Wed Jul 15, 2009 at 01:33:34 PM EST

He is the author of the single ("magic") bullet theory....

He is a good example of BTD's "pols will be pols" theory. I don't dislike him personally, and he is bright, and he can and should be muscled into doing the right thing....


As staff attorney (none / 0) (#30)
by MKS on Wed Jul 15, 2009 at 01:34:02 PM EST

Was he the author (none / 0) (#35)
by BackFromOhio on Wed Jul 15, 2009 at 01:35:01 PM EST

or just a supporter?


Since you asked (5.00 / 1) (#51)
by MKS on Wed Jul 15, 2009 at 01:42:54 PM EST

Here is a couple of excerpts from Wikipedia:

The theory, generally credited to Warren Commission staffer Arlen Specter[1] (now a U.S. Senator), posits that a single bullet, known as "Warren Commission Exhibit 399" (also known as "CE399"), caused all of the non-fatal wounds in both President Kennedy and Texas Governor John Connally....

.....

1. Warren Commission staff lawyer Norman Redlich was asked by author Vincent Bugliosi in 2005 whether Specter was the sole author of the single bullet theory and he said "No, we all came to this conclusion simultaneously." When asked whom he meant by "we", he said "Arlen, myself, Howard Willens, David Belin, and Mel Eisenberg." Specter did not respond to Bugliosi's request for a clarification on the issue. Reclaiming history: the assassination of President John F. Kennedy, Vincent Bugliosi (W.W. Norton & Company, New York, 2007) Endnotes, pp. 301-6.

He was the Author -- cap A. (none / 0) (#42)
by brodie on Wed Jul 15, 2009 at 01:37:51 PM EST

WC had compartmentalized each major aspect of the crime, and Specter got the How part -- ballistics evidence and related.


: And here is a photo (none / 0) (#56)
by MKS on Wed Jul 15, 2009 at 01:49:52 PM EST

of Arlen demonsrating the trajectory

Sen. Specter seems to be intent (none / 0) (#13)
by oculus on Wed Jul 15, 2009 at 01:25:51 PM EST

on tweaking SCOTUS. Not sure he care that much how Judge Sotomayor responds.

Yup, he's calling out Roberts (5.00 / 2) (#14)
by andgarden on Wed Jul 15, 2009 at 01:26:24 PM EST

which is necessary, frankly.


Listen up, says Sen. Specter, I sent you (5.00 / 1) (#15)
by oculus on Wed Jul 15, 2009 at 01:28:06 PM EST

your homework assignment. What's your answer.


Is there anything Congress can do (none / 0) (#17)
by oculus on Wed Jul 15, 2009 at 01:29:44 PM EST

once a judge walks across the street? She says: see my 17-year record.


heh (5.00 / 2) (#20)
by andgarden on Wed Jul 15, 2009 at 01:30:56 PM EST

The right answer was "impeachment."

Another answer is to expand the court and dilute the vote.


Haha (5.00 / 1) (#34)
by Steve M on Wed Jul 15, 2009 at 01:34:49 PM EST

It would be awesome to see her give that answer. "Well, Senator, you could always expand the size of the court and pack it with new Justices who will dilute my vote." Watch everyone's eyes bug out.


: indeed (none / 0) (#43)
by andgarden on Wed Jul 15, 2009 at 01:38:45 PM EST

It's the right thing to do, unless we want to continue to allow Anthony Kennedy to be the final word on the Constitution.

Uh, well he sd. court packing didn't (none / 0) (#26)
by oculus on Wed Jul 15, 2009 at 01:33:18 PM EST

work. What say you?


: The reason it didn't work (none / 0) (#38)
by andgarden on Wed Jul 15, 2009 at 01:36:36 PM EST

was because the Democrats lacked the political will. Too many dixiecrats.

Wow. Specter, (none / 0) (#21)
by brodie on Wed Jul 15, 2009 at 01:31:07 PM EST

from the portion I've seen so far, is acting like a real crank. Condescending tone to Soto, too.

Guess he's still miffed at losing his seniority on the committee.

This is the way he always is. (5.00 / 2) (#25)
by andgarden on Wed Jul 15, 2009 at 01:33:04 PM EST

Sorry if I'm beating a tired horse (5.00 / 3) (#46)
by BackFromOhio on Wed Jul 15, 2009 at 01:41:04 PM EST

but I'm tired of these cranky guys feeling no constraints on how they conduct themselves vis-a-vis someone of the female variety. Reporter from Slate.com interviewed by Rachel Maddow last night indicated that the hostile questioners did not realize how poorly their demeanor played in the room, as a different crowd -- not shown on TV, is sitting behind Sotomayor.


Interesting (5.00 / 4) (#89)
by Militarytracy on Wed Jul 15, 2009 at 02:21:02 PM EST

During the questioning of Anita Hill I can't count how many times my chin hit the floor. I was just a kid then too but I got it, I understood it very well, didn't matter how many bras our mothers burned or how many abusive men they leave...the fight for equality is far from over. Could this dynamic have anything to do with that questioning of a woman as well? When I watched that I remembering thinking to myself "and they wonder why women fear reporting rapes in this country". They failed to comprehend that the whole world was watching them in their element working in their comfort zone?


Agree, Specter is (none / 0) (#53)
by brodie on Wed Jul 15, 2009 at 01:46:15 PM EST

usually hard to listen to, and that smug and condescending tone probably is natural to him -- made all the worse by all the years of being in the elite senate.

And you'd think the off-putting manner would have political consequences back home, but the guy has been in the senate since 1980 and so has never paid a major political price. Just loss of seniority so far ...


: I thought he was fine. Not really (5.00 / 2) (#58)
by oculus on Wed Jul 15, 2009 at 01:51:47 PM EST

questioning the Judge. Preaching to SCOTUS and espec. to CJ Roberts.

: Well, I just remembered that (none / 0) (#72)
by brodie on Wed Jul 15, 2009 at 02:05:41 PM EST

Specter is from the same home town as another famously cranky Repub senator, one Bob Dole -- the town being Russell, KS. Something in the water there, I guess.

Specter (none / 0) (#27)
by jbindc on Wed Jul 15, 2009 at 01:33:20 PM EST

VERY big on TV's in the SC...

I am much in favor of televising (none / 0) (#31)
by Democratic Cat on Wed Jul 15, 2009 at 01:34:15 PM EST

On Sunday nights (I think -- or maybe it's Saturday nights?) CSPAN radio broadcasts tapes of old SC hearings. Fascinating and educational.

: I agree, it seems to me (none / 0) (#91)
by KeysDan on Wed Jul 15, 2009 at 02:24:14 PM EST

that this question was a safe one to answer more directly. I believe it was Justice Souter who was among those on the Court who was most adamant in barring televised sessions. And, Senator Specter did list several other justices who were warmer to the idea.

The side of me that was trying cases (none / 0) (#32)
by oculus on Wed Jul 15, 2009 at 01:34:32 PM EST

with cameras in the trial courtroom says "no." Now I'd love it if SCOTUS permitted cameras during oral argument.

In my experience (none / 0) (#41)
by Steve M on Wed Jul 15, 2009 at 01:37:36 PM EST

cameras had the effect of turning judges into Lance Ito, which is to say, they would sit back and let the attorneys get away with all sorts of shenanigans because they didn't want to come across as unduly harsh on TV. That said, it's hard to imagine any of the Justices caring about that sort of thing.

I think we're in a new age, with the free flow of information and all that. Virtually everything that happens in the world seems to be broadcast live on the Internet (although my wife didn't like my suggestion of a childbirth webcast). Televising Supreme Court arguments strikes me as a no-brainer at this point.


Grandstanding for the cameras (5.00 / 4) (#49)
by brodie on Wed Jul 15, 2009 at 01:42:02 PM EST

was one of the objections to having Congress televised way back when.

It happens of course, but the positive arguments in favor of televising -- mostly to do with public education and gov'l transparency -- far outweigh any downside.

Scotus is easily the least covered and understood important part of gov't. But bring in the cameras, and at least you give the MSM an easier way to cover more SC issues-- which they rarely do now.


Are you listening to Al Franken's (5.00 / 3) (#52)
by oculus on Wed Jul 15, 2009 at 01:44:52 PM EST

screed on the Internet?

P.S. One of the reasons I didn't care for cameras in the trial court was one of my friends videotaped the TV showing me expounding to the jury while the substance of the video was the highest verdict evah against my client!


I turned it on (5.00 / 2) (#54)
by Steve M on Wed Jul 15, 2009 at 01:48:12 PM EST

because I was curious to see our newest Senator in action. Really really long question! But it's nice to hear something a little outside the box, a chance for a real answer.


He seems a little big for his britches (5.00 / 3) (#57)
by andgarden on Wed Jul 15, 2009 at 01:50:07 PM EST

Reminds me of me.


He is ipoorlly mpersonating a (5.00 / 2) (#59)
by oculus on Wed Jul 15, 2009 at 01:53:03 PM EST

a Con. law professor.


I dunno (5.00 / 4) (#64)
by Steve M on Wed Jul 15, 2009 at 01:58:24 PM EST

My con law professor was every bit the character that Al Franken is, and then some. "Aw, poor little Ninth and Tenth Amendments, gettin' smaller and smaller!" (said derisively to a Federalist Society member)


heh (none / 0) (#70)
by andgarden on Wed Jul 15, 2009 at 02:04:02 PM EST

Mind you (none / 0) (#76)
by Steve M on Wed Jul 15, 2009 at 02:07:58 PM EST

the Fed. Soc. member got the last laugh, as he now sits on a Circuit Court of Appeals thanks to President Bush.


: Ugh. . . (5.00 / 1) (#79)
by andgarden on Wed Jul 15, 2009 at 02:09:49 PM EST

Elections have consequences.

Franken is doing an okay (5.00 / 4) (#66)
by brodie on Wed Jul 15, 2009 at 02:02:44 PM EST

job here as he gets into const'l substance, which is hardly his area of expertise. Not bad at all, I'd say, for his first major senate hearing.

Iirc, another nonlawyer on the comm'ee, DiFi, was far shakier in her earlier years on Jud'ry. She's passably good now after years of experience.


Are you (5.00 / 5) (#60)
by jbindc on Wed Jul 15, 2009 at 01:53:16 PM EST

good enough, smart enough, and do people like you?


absolutely (none / 0) (#48)
by Capt Howdy on Wed Jul 15, 2009 at 01:41:30 PM EST

Franken: so that means you're not (none / 0) (#61)
by oculus on Wed Jul 15, 2009 at 01:54:37 PM EST

going to tell us. Love it.

It was a very good question (5.00 / 1) (#62)
by Steve M on Wed Jul 15, 2009 at 01:57:19 PM EST

on the Voting Rights Act.

I would think she could at least offer the general proposition that Congress is entitled to deference in terms of how it chooses to enforce the Reconstruction Amendments... and, by the clever device of referring to one of her prior decision, it sounded like she did just that.

It's very disconcerting for me to think of the federal courts constantly monitoring the status of voting rights to determine if Section 5 is still necessary, as if they were overseeing the implementation of a consent decree or something.


: I think Franken could rip through (5.00 / 1) (#65)
by oculus on Wed Jul 15, 2009 at 02:00:43 PM EST

her responses and get an answer if he wanted to.

Amusing conclusion: neither of them (none / 0) (#77)
by oculus on Wed Jul 15, 2009 at 02:08:19 PM EST

remembers the Perry Mason case in which the prosecution got a guilty verdict.

Oooh. Per CNN: The Case (none / 0) (#80)
by oculus on Wed Jul 15, 2009 at 02:09:54 PM EST

of the Deadly Verdict.


That was funny (5.00 / 1) (#85)
by Steve M on Wed Jul 15, 2009 at 02:13:36 PM EST

Moment of levity from Sen. Franken. After Sotomayor responds with chagrin that she can't remember the name of the episode, Franken says with mock frustration, "Didn't the White House prepare you for this hearing?!" Laughter from the gallery, and then Sen. Leahy gets additional laughs when he says, "Well, Senator, aren't you going to tell us what the episode was?"


Now we know (none / 0) (#87)
by jbindc on Wed Jul 15, 2009 at 02:14:16 PM EST

The WH doesn't watch CNN because as Franken said, "Didn't the WH prep you for these hearings?"


Do you have a device that lets me watch (none / 0) (#88)
by andgarden on Wed Jul 15, 2009 at 02:15:50 PM EST

CNN from the future?


: It was snark (5.00 / 1) (#92)
by jbindc on Wed Jul 15, 2009 at 02:25:04 PM EST

But you don't need to watch it in the future - it's the same thing day in and day out.

Someone less busy than me ... (none / 0) (#93)
by Robot Porter on Wed Jul 15, 2009 at 02:25:53 PM EST

can get the details. But as I recall it was a really a trick. Perry "lost" the case, but it was really a set-up of some sort which Burger was in on.


Here's a clip: (none / 0) (#95)
by oculus on Wed Jul 15, 2009 at 02:30:49 PM EST

The internets... (none / 0) (#99)
by ColumbiaDuck on Wed Jul 15, 2009 at 03:06:04 PM EST

tell me that Mason did lose (and not on purpose) but later finds evidence that convinces him his client is innocent and races to find the real killer.


: I think, (none / 0) (#130)
by CoralGables on Wed Jul 15, 2009 at 05:39:57 PM EST

if my memory serves me correctly (always in doubt), there is a character in that episode that wore a long sleeve flannel shirt, and chewed on his collar as a nervous habit, that Perry thought was the perp.
The lack of chewing on a shirt in evidence becoming the key that pointed back towards Perry's client.

for the record (none / 0) (#96)
by Capt Howdy on Wed Jul 15, 2009 at 02:43:15 PM EST

all the right people are opposed to this nomination

: Yes (5.00 / 3) (#97)
by jbindc on Wed Jul 15, 2009 at 02:56:28 PM EST

I almost laughed out loud when Sessions read into the record that he had received letters from the Family Researc Council and Concerned Women for America and Gun Owners of America - all in opposition to this nomination.

Listening to Orrin Hatch argue for incorporation (none / 0) (#104)
by andgarden on Wed Jul 15, 2009 at 03:34:03 PM EST

makes me giggle.

I'm glad that Hatch is asking her about what (none / 0) (#105)
by andgarden on Wed Jul 15, 2009 at 03:36:01 PM EST

she said re "new rights" in the 90s.

Did you notice? She actually put (none / 0) (#106)
by oculus on Wed Jul 15, 2009 at 03:39:44 PM EST

her hand up near her shoulder. Wonder what she was thinking.


Didn't notice that (5.00 / 1) (#107)
by andgarden on Wed Jul 15, 2009 at 03:41:46 PM EST

But she did seem to walk back her statement from the 90s, which I'm happy about.

We don't need another Byron White.


She seems to be weary of this whole (none / 0) (#108)
by oculus on Wed Jul 15, 2009 at 03:42:29 PM EST

thing. Me too.


: It's endless (5.00 / 3) (#109)
by andgarden on Wed Jul 15, 2009 at 03:43:48 PM EST

If I had to go through this star chamber, I'd need drugs.

: If (5.00 / 3) (#110)
by jbindc on Wed Jul 15, 2009 at 03:45:01 PM EST

you had to answer the same 5 questions put to you in a thousand different ways over the course of 2 days, you'd definitely be weary.
At least Whitehouse, Klobuchar, and Franken (and even Specter) changed the subject.

Please explain re White. (none / 0) (#112)
by oculus on Wed Jul 15, 2009 at 03:51:43 PM EST

He dissented in Roe and wrote (none / 0) (#113)
by andgarden on Wed Jul 15, 2009 at 03:56:08 PM EST

for the majority in Bowers. He believed that any attempt to recognize substantive due process rights was Lochnerizing.


You are soooo ready for that final! (none / 0) (#114)
by oculus on Wed Jul 15, 2009 at 03:57:05 PM EST

Shh, don't jinx it! (none / 0) (#116)
by andgarden on Wed Jul 15, 2009 at 03:58:48 PM EST

More seriously, my professor clerked for White, so he talks about this stuff.


Ah. Good thiing you listened and (5.00 / 1) (#117)
by oculus on Wed Jul 15, 2009 at 03:59:49 PM EST

remembered.


: What's interesting is that White Concurred (none / 0) (#118)
by andgarden on Wed Jul 15, 2009 at 04:02:03 PM EST

in Griswold. But he would have used a rational relationship test.

I like that (none / 0) (#115)
by jbindc on Wed Jul 15, 2009 at 03:57:25 PM EST

"Lochnerizing"


Yes, Whizzer White (none / 0) (#131)
by KeysDan on Wed Jul 15, 2009 at 06:07:04 PM EST

was one of the two dissenters in Roe (the other, Rehnquist), a dissenter in Miranda----but, if you believe in redemption, he did turn down future Justice Samuel Alito for a clerkship.


Grassley asks about Marriage. . . (none / 0) (#119)
by andgarden on Wed Jul 15, 2009 at 04:17:53 PM EST

There are other precedents (5.00 / 1) (#121)
by Carolyn in Baltimore on Wed Jul 15, 2009 at 04:24:39 PM EST

like Loving v. Virginia thay would also have bearing in a marriage case.


: No question (5.00 / 2) (#122)
by andgarden on Wed Jul 15, 2009 at 04:25:19 PM EST

Marriage is a fundamental right, and this is clearly a federal question.

And she had to stop and think (none / 0) (#120)
by andgarden on Wed Jul 15, 2009 at 04:18:19 PM EST

about what she was going to call it, which I liked.


See my discussion (none / 0) (#123)
by Big Tent Democrat on Wed Jul 15, 2009 at 04:29:51 PM EST

under the fold.


I agree with what you write (none / 0) (#124)
by andgarden on Wed Jul 15, 2009 at 04:32:22 PM EST

And it's what makes Bill Clinton's statement the other day so disappointing.

There are at least two 14th Amendment problems with DOMA.


Baker v. Nelson (none / 0) (#127)
by Steve M on Wed Jul 15, 2009 at 05:00:02 PM EST

was an appeal, not a petition for cert. I know little about the procedure for appeals because they are rather esoteric compared to cert petitions. But my understanding is, at least under the law at the time you had the right to a non-discretionary appeal to certain decisions of a state's highest court, but in order to prevent the Supreme Court's docket from becoming congested they deal with many of those appeals in a summary fashion.

In other words, "lack of a substantial federal question" isn't the same as saying "no one has raised a federal argument, so there's no jurisdiction"; it's more like saying "the federal question isn't even close, so we're not going to waste our time giving it full consideration."

I agree, of course, that times have changed, although it may be true that lower federal courts are still supposed to treat Baker v. Nelson as binding because it's not the role of the lower courts to say "times have changed." I'm pretty certain that (1) Loving v. Virginia was correctly decided; and (2) if that case had been brought at an earlier time, like in 1870, the response most definitely would have been that it failed to present a substantial federal question.


Acceptng what you say as true (none / 0) (#128)
by Big Tent Democrat on Wed Jul 15, 2009 at 05:07:51 PM EST

then Baker v. Nelson is precedent for nothing as the rules of appeal have changed.

Write up a diary on it so I can post it on the front. Sounds interesting.


: Okay (none / 0) (#129)
by Steve M on Wed Jul 15, 2009 at 05:19:14 PM EST

This is an interesting question. I will try to write it up later if I have the time.
My bottom line is that Baker v. Nelson may well constrain the lower federal courts, but it is unlikely the Supreme Court would give it much weight in a stare decisis analysis.