Quick Notes on Sotomayor & Heller

NOTE: Bumped for another day of questions. Updates below. Now with daily labels in bold to make it easier to figure out where we are in the process.

DAY 2
There’s much more intelligent conversations to have about Sotomayor’s discussion of Heller and gun rights, but one quick note about something that made me laugh.

Sen. Leahy is asking simple questions like whether she merely accepts that Heller prevailed, blah, blah, blah. However, she expanded upon one of his questions about Maloney by saying that she has a friend who hunts, so clearly she understands the meaning of Heller.

I really did laugh out loud at that one, especially when she elaborated to justify Maloney because Heller was so narrow for specific circumstances.  Last I checked, Dick Heller wasn’t trying hunt anything in the District of Columbia when he brought that case.

I’ll update this post with random musings or notes as the day continues.

UPDATE: Orrin Hatch is now questioning Sotomayor on details of past gun cases.  They are leading to discussion of incorporation.  My understanding of what she’s trying to say is that incorporation was not only not at issue in Heller, but that the Court didn’t consider the Second Amendment to be fundamental enough to incorporate – even though she admitted that incorporation wasn’t addressed in the case.

She’s trying to take mad notes about Orrin’s questions.

Her responses on Hatch’s questions about fundamental rights are trying to lay a framework for her likely decision to refuse incorporation.

Fundamentally, we have to realize that she’s replacing Souter.  He wouldn’t be with us anyway.  Not to mention, she’s hardly an intellectual leader.  Listening to her answer other questions made that plenty clear.

Hatch flat out said he believes the cases she based Maloney on were the wrong line of legal thinking.

Now she’s trying to justify Maloney because of the “arms” used.  Apparently nunchucks are inherently dangerous because they could hurt people around you.  Umm, that doesn’t bode well for guns.  My internet skipped for a second before she said that, so there may be context lost.

UPDATE: Dianne Feinstein referenced guns as an example in regards to the Commerce Clause.  But my internet connection is getting slow, so it was skipping during her answers.  I’ve turned on the tv to follow it, and Dianne is making clear that Sotomayor needs to allow Congress to regulate “these things” after discussing guns again.

UPDATE: Poll time. Does Feinstein just want to put on a show for the left with the gun control talk, or is she really concerned that the power of Congress to regulate guns will be eroded?  Have we really scared her with Heller?

[poll id=”13″]

UPDATE: CNN’s talking heads are jumping on the Second Amendment questions right now.  They aren’t saying much that’s noteworthy or relevant.

UPDATE: They are replaying the quotes of her saying the Second Amendment is still an open question.  They are saying that guns are one of the issues that could generate a political response.  One pundit summed up her answers into three categories:

1. “I didn’t mean what I said for 10 years!” The denial that she didn’t mean to sound like her race and gender were key to how she decides cases, regardless of the years of speeches where she certainly implied they were relevant.
2. “I can’t answer that because it may come up later.” The punt. Anything that might ever come before the Court is punted.
3. “It wasn’t my fault!” Then we have the answers that just blame everything on precedent and claims that she can’t do anything about precedent.

To a large degree, the last two answers are pretty common with any nominee.   The versions of answer number 1 are going to be more relevant to the debate moving forward.

UPDATE: The Senate GOP jumps on board with reviewing her answers to Second Amendment questions.

UPDATE: I’m letting a bit of the snark out over on Twitter.

UPDATE: Russ Feingold is now saying that it’s perfectly logical for Sotomayor to have ruled against incorporation.  He’s asked her to confirm that she would recuse herself if Maloney is heard at SCOTUS.  He’s also asking if she would recuse herself from NRA v. Chicago.  She said she’d look at the past to decide whether to recuse herself or not.  However, she indicates the two cases are different, so probably not.  She doesn’t want to answer about the “general principle” for incorporation of fundamental rights like the Second Amendment.

The tone of Feingold’s questions makes me wonder if he’s trying to ask enough to appease constituents.  Are WI residents calling him?  If so, keep it up. :)

He’s specifically if incorporation will be inevitable. She seems to be distinguishing between nunchucks and guns. I’m not sure what that means for us.

UPDATE: Sen. Kyl is also asking about Second Amendment issues, and he’s clarifying whether she’ll recuse herself if Maloney/Chicago/Nordyke are combined before the SCOTUS. She’s backing down, indicating that she may choose to stay on. He’s hammering her on whether she will properly recuse herself if they are combined in any order.

He really is going after her on complying with the recusal statute and arguing that she needs to recuse herself if they accept Chicago and Nordyke because it’s the same legal issue as Maloney. He notes that it’s not about details in the cases because she did deal with a strict incorporation in Maloney and the likely issue at hand in the other cases will be strict incorporation questions, so it’s a fair question. He then went for the peer pressure angle and talked about similar vows from Alito & Roberts. He actually said he believed that if the question before the Court is strict incorporation, it would be improper for her to hear any of the three previously mentioned cases. Go Kyl for being direct.

UPDATE: Schumer is up. He says he’ll follow upon what Sessions & Kyl asked. They both asked about race comments, so I don’t know if he’ll mention guns. Not a single mention of the Second Amendment. His job was to make her look less “empathetic” in her judgment, in the words of Obama. He asked her to talk about sympathetic cases where she had to follow legal standards and rule against them. But, in responding to one question, she said that hateful speech is clearly protected under the First Amendment. Oh really?

UPDATE: Sotomayor is refusing to answer if she’s a strict constructionist, saying she doesn’t like labels. Is “wise latina” not a label? She seems to like that one quite a bit. He seems to have stumped her on what’s in the Constitution. She’s having to stop and think about her answers on abortion. I won’t get into the abortion issue here, but it was funny watching her try to think about it.

DAY 3
UPDATE: And we’re on to Day 3 (2, really). Sen. Coburn is asking that Sotomayor “educate him” on Maloney and why she’s now denying that she said it wasn’t fundamental. She claims that Maloney recognized Heller, so clearly she wasn’t saying it wasn’t fundamental. He’s also calling her out for claiming that Heller specifically ruled that the Second Amendment wasn’t incorporated, but he then told her to specify whether the SCOTUS set precedent with the case or simply didn’t answer a question it wasn’t taken up. She finally conceded that they simply did not rule on it and in fact they implied it should be taken up.

Coburn is going back to the history of restoring rights to minorities in the South because of infringement by the states. I love the issue coming up since she has made such a big deal out of race.

He also points out that she said yesterday something that is directly spelled out in the Bill of Rights – the Second Amendment – is still “open” and debated law, while she claimed that something not spelled out – abortion – is “settled” law. If Roe settled abortion in the broad sense, then Heller settled the Second Amendment. That concerns me that if she considers it open, then she would be willing to actually overturn Heller given the opportunity.

He specifically asked her for a specific right to self-defense. She won’t answer. She says she can’t think of a case where SCOTUS has said that people do have that right. She can’t think of any federal laws on self-defense. He’s asking specifically if she personally believes that as an individual has a right to defend themselves. She said she can’t answer something like that, not because she thinks she’ll hear a case, but it seems to be a complicated question for her. He’s even giving her the out to say there could be a case someday. However, she says it’s just so difficult because she’s a judge and she just doesn’t think like that. She uses an extreme examples that are clearly not self-defense to say that’s why it is complicated, so she can’t explain whether she believes that an individual can defend themselves against a direct attack.

I’ll be honest, the clearly uncomfortable answers to those questions and the extreme examples of non-self-defense situations make me wonder if she actually does believe in any level of self-defense. The closest she would come to saying anything about an individual’s right to save their own life is that there are some situations that New York’s criminal law that allow for a self-defense argument.

UPDATE: I would actually be curious to know if there is any precedent for asking a nominee a similar question about a simple right to defend your life. I actually give her some leeway for not directly answering many questions because of the nature of these proceedings. It happens both ways. But, that evasiveness on self-defense was beyond disturbing. I’m fairly confident she could have answered it in an intelligent way without getting in the way of future cases. But, I’d like to know if there are other examples of answers to similar questions by other nominees. I want to know if her evasiveness was in line with expectations or truly dodging an important, yet simple question.

UPDATE: Amy Klobuchar says she personally supports the Heller decision, and just asked Sotomayor to again say that she acknowledges Heller happened. There was nothing insightful about Sotomayor’s response, but rather about Klobuchar’s statement. She supported the individual rights view so much that she refused to join the majority of the Senate in signing onto a brief in support of Heller.

UPDATE: I didn’t realize they had come out of closed session. So I’ve missed some questions. However, Jeff Sessions is questioning her on Second Amendment incorporation. He’s really going after her for language in her testimony about how it’s not settled (unlike abortion, according to Sotomayor) and she has ruled in Maloney already. He is also questioning her implying that she needs to recuse herself from any of the likely cases coming up since she has already ruled on the issue. She’s playing denial by saying that it’s not her fault, it’s all Scalia’s fault for not opening the door on the issue in Heller even though they weren’t asked to rule on it. He’s also addressing some concerns that are somewhat connected to comments Randy Barnett has raised with her statements (and likely understanding) of incorporation & fundamental rights.

UPDATE: Again, Leahy says he’s a gun owner. He also blames Maloney on Scalia to defend Sotomayor.

UPDATE: Orrin Hatch is again bringing up incorporation. I’d say from sheer numbers of questions, we’ve won the major debate. I wonder how many times Orrin Hatch ever thought he would say, “The Ninth Circuit got it right” in relation to guns.

UPDATE: She says that the Constitution creates rights. So does that mean we have no rights as humans outside of what the dead white men wrote for us?

UPDATE: Poll time! I’d like you to answer this question on the merits of the hearings, decisions, professional experiences, and documents regarding Sotomayor. Please do not vote in this poll if you just want to vote but haven’t really followed much about Sotomayor other than she was nominated by Obama.

This question is based on the fact that most legals minds I’ve read have said that Sotomayor is essentially playing defense and saying just enough to not dig herself into a hole. She doesn’t have to win anyone over, it’s merely a matter of not saying anything to sink herself. With the overwhelming majority in the Senate, it would be near impossible to sink herself unless she really sticks her foot down her throat. To minimize that prospect, she’s just not saying much.

[poll id=”14″]

DAY 4
UPDATE: Lindsey Graham is again hitting her on incorporation of the Second Amendment. At this point, it’s a bit redundant, but I suspect the purpose is to get more gems out of her like not believing in self-defense. Graham did just say he never thought he’d say the Ninth Circuit would get it right on the Second Amendment, and there was laughter in the room.

UPDATE: Specter just threw out a softball question about the Second Amendment, essentially reminding the GOP that the Seventh Circuit also ruled against incorporation. His only beefy questions are about making sure Congress is the supreme branch and cameras in the courtroom.

UPDATE: Tom Coburn is asking about how to determine fundamental rights. He notes that she told Specter she couldn’t tell him, and she refused to answer Coburn on the issue. But, she’s giving off long, detailed answers to Democrats on other issues. She’s punting because she doesn’t want to say that the same standard applies to “specific amendments” aka the Second Amendment. He’s calling her lack of understanding of the fundamental rights or refusal to say disturbing in terms of a lack of transparency for the American public. I would absolutely I agree.

He’s specifically asking her if she believes it’s an irony that the issue of gun rights really became an issue when minorities were being disarmed in the South. Of course, she won’t answer. She only acknowledges that SCOTUS ruled on Heller.

I’d like to know exactly why she says Roe completely settled the abortion issue, but Heller leaves open the question of gun control.

UPDATE: Leahy is again trying to calm down the Second Amendment concerns. The fact that the Democrats are so scared to have this argument stick is very good for us, even if Sotomayor is confirmed. Sessions piped up saying that it’s important because of the practical impact. Leahy then made a crack about the “restrictive” gun laws of Alabama, Oklahoma, & Wyoming – at least as compared to Vermont.

UPDATE: Okay, I said I would limit the snark to Twitter. But I just have to throw one out there in the form of another poll.

[poll id=”15″]

UPDATE: Sen. Kyl is asking about Maloney again, but I missed the question because I stepped away from the computer for a minute. Sorry for the lousy reporting.

Now he’s asking what the test would be for analyzing state and local gun control regulations. She’s dancing around it. The usual. He specifically asked which standard of review she would use. She said rational basis, which he then asks if that in fact gives the states and cities too much control because they are the least intrusive on government to prove why it’s needed to control a right. Sebastian is on the phone and says, “Bullshit! That means it’s not a right.”

I hate that I missed some of this conversation because this is the most useful line of questioning about the topic in a while. In fact, paired with the recusal challenges, I’d say that Kyl has asked the best gun questions when it comes to useful information.

This is a line of questioning I’ll be looking for a full clip of later. I really hate that I missed it and I know Sebastian will want to hear it.

UPDATE: Sen. Graham is hitting on how important gun rights are to people. His question isn’t about that, but he just had to make the point. I think the high profile nature of guns in this hearing gives NRA leverage to oppose future nominees if they say anything remotely negative about the Second Amendment.

UPDATE: Wow, I think it’s over. Just for the record, they are expecting to have a full vote before the August recess.

UPDATE: Haha, joke’s on you! It’s not really over. We now have witness testimony. I imagine it will be a while before the gun issues come up. I also meant to say that Sessions read a good portion of Sandy Froman’s letter to the Committee. However, my laptop crapped out on me. I’m charging up the other one so this won’t happen. (I’m liveblogging while also doing chores.)

UPDATE: Sessions is using the letter from 33 Attorneys General against the Arkansas Attorney General who is supporting Sotomayor. He’s wondering if AG McDaniel is aware of how her appointment would likely go against his position on that. Sessions also made a jab about mayors who infringe upon the Second Amendment – Bloomberg apparently just walked in.

McDaniel said he doesn’t believe she’ll be a threat to the Second Amendment. Arkansas voters, that’s your clue to take action if she is appointed and votes against us. Make him pay for the lies.

UPDATE: Hahaha! Bloomberg is a comedian. He just said he’s a staunch defender of the Second Amendment who would have a lot in common with Sen. Sessions if only Sessions would chat with him about gun control.

UPDATE: My favorite part of the panel is coming up. We have the hotness of David Kopel with the fantastic-ness of Sandy Froman.

UPDATE: The Democrats apparently had Chuck Canterbury of the FOP to address the Second Amendment argument. Did he not here the part of the hearing where she denied ever having heard of any federal cases or laws that allow for self-defense or when she refused to answer whether she as a person believes an individual to defend themselves at all?

UPDATE: Yay Sandy! She notes that Sotomayor’s either refuses to engage on the issue or simply doesn’t get it. I wonder if either she or Dave will bring up the concerns of the rational basis test that came out in the hearing this morning.

She notes that the SCOTUS issued a directive for courts to re-examine incorporation rather than relying on precedent from the 1800s. Sandy notes that there really wasn’t much analysis in Maloney.

UPDATE: Now we’re onto the hottie! (Yeah, I’m going there.) I love his introduction – “The case of Sonia Sotomayor vs. the Second Amendment…” – you can tell he knows how to write an engaging articles. He notes that Maloney shows it’s not just about guns. Under her view, states could unilaterally ban all archery equipment under a weak rational basis argument. You hear that hunters?

He flat out calls her testimony & record on arms are glib & flippant.

UPDATE: We’ve got Ilya Somin up now on property rights. I won’t blog on the topic, but he’s a fellow Conspirator with Hottie Kopel.

UPDATE: Sessions is asking Sandy if she’s concerned about the incorporation issue, noting that she could make Heller completely worthless. She notes that because Sotomayor won’t outline her legal reasoning, it’s a concern that she could be beyond bad. Sessions also noted that NRA is officially opposing Sotomayor.

UPDATE: Kyl is asking Sandy again about rational basis and how low the standards are for that issue, with pretty much allowing any infringement. Nothing much to report on that front.

UPDATE: I’m confused since Stephen Halbrook was on the witness list and I haven’t seen him. He wasn’t on the second panel with Sandy & Dave, nor is he on the final panel. The first panel didn’t include him, either. I’m disappointed. Halbrook is a true Virginia gentleman. Not to mention, he’s fascinating to talk to in regards to history and gun laws.

I see now that the C-SPAN counter of panels is higher than mine. I guess I missed one. Maybe Halbrook was on it?

UPDATE: Wow, I totally messed that up. Turns out after they adjourned earlier, they came back for one more panel of speakers. Stephen Halbrook happened to part of that group, and I missed it. But, whatever took place, I caught the very end of it when Sen. Sheldon Whitehouse was talking about how SCOTUS “created a new right” in the Second Amendment. Then he said that they “discovered” the right after two hundred years. He doesn’t want Sotomayor sidelined over the gun issue. That’s interesting that they are a little concerned.