Yawner for some, Sotomayor hearings explored big issues

McClatchy NewspapersJuly 20, 2009 

WASHINGTON_ Pundits and many media types widely dismissed the Senate Judiciary Committee's four days of hearings on Sonia Sotomayor's nomination to the Supreme Court as devoid of drama and substance, and they've pronounced Tuesday's scheduled committee debate a foregone conclusion — Sotomayor will be confirmed.

Yawn.

Other legal and political experts, however, are offering a different view of last week's hearings and the prospects for this week's debate. For them, the proceedings have been nothing less than an intense and spirited dialogue about some of the most serious issues facing America today.

"Anyone who listened last week learned a lot about the key issues of today, the pros and cons of each side," said Susan Low Bloch, a law professor at Georgetown University Law Center.

For the record, Sotomayor appears to be a shoo-in.

The Judiciary Committee, with 12 Democrats and seven Republicans, is all but certain by July 28 to pass her nomination to the full Senate, where confirmation is likely. Three Republicans already have said they'll vote to confirm Sotomayor, as will all 58 Democrats and the body's two independents. The final vote is expected the week of Aug. 3.

So what's to watch? Students of government say plenty.

Last week's four days of hearings featured lengthy discourses on dozens of key issues facing Americans today: Gun owners' rights, how the U.S. should deal with terrorists and terrorists threat, abortion, securities law, and eminent domain. There were even questions about whether courts were limiting Internet access with decisions in key open records cases.

Sotomayor didn't directly address how she might rule on any of those topics. That led the dozens of reporters in the big hearing room to tweet and blog about her fond memories of the "Perry Mason" television show and her regrets over a 2001 comment about a "wise Latina" possibly having better judgment than a white male. That's primarily what made the television news shows, too.

Scholars, however, say a more careful review of video tapes and transcripts from the hearing will show a different picture.

"The problem with the hearings is that since Bork, a nominee can't really answer the questions" said Jack Beermann, professor of law at Boston University.

Robert Bork, nominated by President Ronald Reagan to the court in 1987, was rejected after Democrats objected to his explicitly conservative views. Since then, Supreme Court nominees have simply refused to outline their positions on a wide range of topics, making the hearings a poor way to gauge the nominee.

They were, however, a clear window into the thinking of the senators, who're often derided for being too glib, too rehearsed in their public statements and too partisan. That window showed the senators wrestling with questions the court is likely to grapple with for years.

Each senator got a half-hour in the opening round to ask Sotomayor questions, an unusually long amount of time by congressional standards. Each got 20 minutes in a second round, and Republicans requested and got a third session where they could engage Sotomayor for 10 more minutes apiece.

Newly seated Sen. Al Franken, D-Minn., used part of his time to raise questions about Internet access, saying he was concerned about whether the courts were threatening open access.

Sen. John Cornyn, R-Texas, engaged Sotomayor in a discussion of the difference between a political contribution and a bribe.

Sen. Lindsey Graham, R-S.C., raised issues about whether terrorism suspects get too-special treatment, and whether, if the U.S. is truly at war with al Qaida, whether al Qaida suspects couldn't be jailed, even without trial, "until they die."

Two subjects were particularly illustrative of big nuanced issues getting wide airing at the hearing: gun rights and government authority during the war on terror.

The gun dialogue showed why it's so difficult to resolve the age-old legal war over the meaning of a key constitutional provision. The war on terror exchange demonstrated how judges and senators struggle to apply the Constitution to situations the Founding Fathers couldn't have imagined.

Guns came up frequently during the hearings. Sen. Tom Coburn, R-Okla., asked about the 2008 District of Columbia v. Heller case, where the court ruled 5-4 that an individual has a constitutionally protected right to have a gun for private use.

That decision, Sotomayor said, "recognized an individual right to bear arms as a right guaranteed by the Second Amendment, an important right, and one that limited the actions a federal — the federal government could take with respect to the possession of firearms. And in that case we're talking about handguns."

However, her ruling in the case of Maloney v. Rice offered a different perspective, since a three judge appellate panel, including Sotomayor, said in an unsigned January opinion that the Second Amendment restricts only federal, not state, efforts to ban weapons.

The case, Sotomayor said last week, "presented a different question (from Heller), and that was whether that individual right would limit the activities that states could do to regulate the possession of firearms."

Sen. Orrin Hatch, R-Utah, attacked the Maloney decision, saying it created a "very permissive legal standard," which could mean that "virtually any state or local weapons ban would be permissible."

The exchanges over guns "tell us how the country remains divided. People want to keep their gun rights, but on the other hand, they know that more and more use of guns creates other problems," said Erika Montoya, a news editor at Terra.com, a New York-based Hispanic media company.

As for the war on terror, one senator focused specifically on the courts' inability to put greater curbs on executive use of surveillance.

Sen. Arlen Specter, D-Pa., was upset that the Supreme Court declined to consider a challenge to the government's terrorist surveillance program. A U.S. District Court in Michigan ruled the program unconstitutional in 2006, a decision reversed by the U.S. Court of Appeals for the 6th Circuit. The Supreme Court declined to hear the appeal.

Specter noted that while Congress had passed the Foreign Intelligence Surveillance Act "to establish the exclusive method for wiretapping," President George W. Bush "then claimed that he had the authority under Article II as commander in chief to have warrantless wiretaps."

That, Specter added, is "about as direct a conflict as you can have on separation of power," and something the Supreme Court should take up.

Specter wanted to know if Sotomayor would want to hear such a case. She wouldn't say.

"Senator, I'm sorry. I did mull this over. My problem is that without looking at a particular issue and considering the cert briefs file, the discussion of potential colleagues as to the reasons why a particular issue should or should not be considered, the question about . . ."

Specter cut her off. "I can tell," he said, "you're not going to answer."

Similar exchanges occurred on a variety of topics, from what good government means to how far the government could go in protecting privacy.

There's no way to know how many people watched those arguments and absorbed the details or whether anyone will watch for them as committee deliberations resume Tuesday.

Bloch, however, said she's hopeful.

"It shows you decisions are being made at a very high level," she said.

ON THE WEB

Supreme Court ruling in District of Columbia v. Heller

U.S. Circuit Court of Appeals ruling in Maloney v. Rice

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