Today in Washington D. C. - July 15, 2009 - Hate Crimes Amendment to DOD Funding Bill

Senate resumed consideration of the fiscal 2010 Defense authorization bill, S. 1390. The bill would authorize $679.8 billion in military funding. Yesterday, Senate Majority Leader Harry Reid offered and filed cloture (thus no debate allowed) on an amendment to the bill to expand hate crimes laws to cover “gender, sexual orientation or gender identity.” The cloture vote could be at 1 AM Friday. Democrats are seeking for an agreement to hold the vote earlier in the day. This a hate crimes bill is being proposed to be added to (hidden within) the Pentagon's budget which would inital target the civilians and setup a conflict with the Uniform Code of Military Justice (UCMJ).

This morning, the Judiciary Committee resumed hearings on the nomination of Judge Sonia Sotomayor to be an associate justice of the Supreme Court. Today’s hearing continues the second round of questioning of the nominee. Each senator will have up to 20 minutes to question Judge Sotomayor. If senators finish their questions today, witnesses for and against Judge Sotomayor will be heard from, including Frank Ricci of the New Haven Fire Department.

On the third day of the Senate Judiciary Committee’s hearings on Judge Sotomayor’s nomination to the Supreme Court, three important themes emerged. First, questions from Republican senators again exposed a series of inconsistencies between Judge Sotomayor’s record and her statements in the hearing yesterday. Second, members of the press and other observers noticed that Sotomayor was, in The Washington Post’s description, “increasingly avoiding . . . questions.” Third was the undercurrent that these hearings are also setting the stage for future judicial nominations under President Obama.

As Republican senators pressed Judge Sotomayor on a number of areas, her testimony again seemed to conflict with her prior record. Sen. Tom Coburn (R-OK) wanted her to clarify her views on courts making policy. Sotomayor said, “We don’t make policy choices in the court.” But Sen. Coburn replied, “I’m reminded of one of your quotes that says you do make policy.” Just four years ago, Judge Sotomayor was saying at Duke University, “Court of Appeals is where policy is made.” Sen. Coburn also brought up the subject of courts using foreign law in deciding on U.S. constitutional issues. Sotomayor said, “I have actually agreed with Justice Scalia and Thomas on the point that one has to be very cautious even in using foreign law with respect to the things American law permits you to.” Yet, The New York Times has video of a speech Sotomayor gave only a few months ago where she criticized Justices Scalia and Thomas for their critiques of the use of foreign law. Senators also returned to the subject of Sotomayor’s work at the Puerto Rican Legal Defense and Education Fund (PRLDEF). Ranking Republican Jeff Sessions (R-AL) asked Sotomayor, “Isn’t that true that you were more active [in that group] than you may have suggested to Senator Graham yesterday?” She again tried to distance herself from the group’s advocacy activities. However, PRLDEF litigation committee minutes confirm that board members including Sotomayor were routinely briefed on litigation. At one point, Sotomayor chaired PRLDEF’s litigation committee and was responsible for reviewing current litigation and briefing the board on it.

Despite these inconsistencies, The Washington Post noted that Sotomayor was “increasingly avoiding [senators’] questions. By midafternoon [yesterday], even two Democrats on the panel sounded frustrated by her long, elusive replies.” ABC News’ Jan Crawford Greenberg wrote, “[I]t was striking to see Sotomayor dance around issues [and] decline to defend liberal philosophy . . . .” And the Los Angeles Times pointed out, “Sotomayor sidestepped questions on abortion, gun rights and gay rights Wednesday . . . leaving both conservative and liberal activists troubled.”

Meanwhile, The New York Times looks down the road today to examine how these hearings will affect future nominations. The Times points out, “both sides are trying to use the Judiciary Committee hearings to define the parameters of an acceptable nomination in case another seat opens up during Mr. Obama’s presidency” Critically, the NYT notes, “By forcing Judge Sotomayor to retreat from Mr. Obama’s desire for justices with ‘empathy,’ Republicans have effectively set a new standard that [his] future nominees will be pressed to meet.” Indeed, “Several legal experts said Judge Sotomayor’s testimony might make it harder for Mr. Obama to name a more liberal justice next time. She repudiated the president’s assertion that ‘what is in a judge’s heart’ should influence rulings and rejected the liberal idea that the Constitution is a ‘living’ document whose meaning evolves with society.”

As questioning continues today, and the committee eventually moves on to hearing from witnesses for and against the nominee, it’s worth keeping these themes in mind. They’re also likely to resurface in floor debate. Related Material:
- SRCC: Judge Sotomayor Was Not Just a Board Member of Puerto Rican Legal Defense and Education Fund
- SRCC: Confirmation Conversion Part 10: Foreign Law
- SRCC: Day 3 Questioning: Judge Sotomayor’s Inconsistencies
- SRCC: “Increasingly Avoiding” Questions
- VIDEO: Democrats Profess Their Love for Sotomayor, Talk About Their “Goosebumps”
- SRCC: Judge Sotomayor’s Record of Advocacy Coincides with Her Decisions as a Judge

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