Sonia Sotomayor Pledges Fidelity to the Law
Sonia Sotomayor, the first nominee to the Supreme Court by a Democratic president in 15 years, told the Senate Judiciary Committee Monday, on the opening day of her confirmation hearing, that her judicial philosophy can be distilled to just a few words: “fidelity to the law.”
As a federal trial judge and appellate judge during the past 17 years, said Sotomayor, she has sought to “strengthen both the rule of law and faith in the impartiality of our justice system.”
Her statement came at the end of the first day of her confirmation hearing, a day filled with opening statements from each senator on the committee, in which they strove to define Sotomayor. Democrats set about portraying her as a seasoned jurist with a “modest” and restrained approach, while Republicans sought to cast doubt on her impartiality, saying her statements and rulings have been unduly influenced by her own background.
Despite the drama and ceremony that accompany any Supreme Court confirmation hearing, Sen. Lindsey O. Graham (R-South Carolina) quickly put the proceedings in context in his opening statement: “Unless you have a complete meltdown,” he told the nominee, “you are going to get confirmed.”
Monday was the first time that Sotomayor, 55, who rose from projects of the South Bronx to a member of U.S. Court of Appeals for the 2nd Circuit, has spoken publicly since President Obama selected her May 26, the first Latina nominated to serve on the nation’s highest court.
Sotomayor, speaking firmly in a voice tinged with her native Bronx, recounted for the senators her now-familiar biography, the child of poor parents who moved from Puerto Rico. “The progression of my life has been uniquely American,” she said.
“Over the past three decades, I have seen our judicial system from a number of different perspectives – as a big-city prosecutor, a corporate litigator, a trial judge and an appellate judge,” said Sotomayor.
She said that she decided more than 450 cases as a federal district court, before her elevation to the appellate court – a position, she said, in which she has decided “a wide range of constitutional, statutory, and other legal questions.”
“Throughout my 17 years on the bench, I have witnessed the human consequences of my decisions,” she said. “Those decisions have been made not to serve the interests of any one litigant, but always to serve the larger interest of impartial justice. … In each case I have heard, I have applied the law to the facts at hand. My personal and professional experience help me listen and understand, with the law always commanding the result in every case.”
Senators will not begin their questioning of Sotomayor, which will form the bulk of the hearing, until Tuesday morning.
For now, Republicans tried to make the first Supreme Court hearing of the Obama administration as much a referendum on the president as on the nominee, 55. Republicans also sought to cut into the political mileage Democrats have accrued through Obama’s nominating the first Hispanic to the nation’s highest court, with some citing Miguel Estrada, a Hispanic lawyer whose appeals-court nomination by President George W. Bush was blocked by Democrats in 2002 and 2003.
Republicans also emphasized a speech Sotomayor gave at the University of California at Berkeley in 2001, widely cited by her detractors in the weeks since her nomination. In it, she said that she hoped that a “wise Latina” judge might make better decisions than a white man. The committee’s ranking Republican, Jeff Sessions (Alabama), said that her remarks in that speech were not an anomaly, saying that Sotomayor had said similar things in public “at least five times over the course of a decade.”
Sessions was one of several Republicans who criticized Sotomayor’s role in a case, Ricci v. DeStefano, in which the Supreme Court late last month overturned a decision by three 2nd Circuit judges. The high court ruled that white firefighters had been discriminated against when the city of New Haven, Connecticut, withdrew a promotional test in which minority candidates scored worse than whites.
“I will not vote for, and no senator should vote for, anyone who will not render justice impartially,” said Sessions. “Call it empathy, call it prejudice or call it sympathy, but whatever it is, it’s not law,” he said. “In truth, it’s more akin to politics, and politics has no place in the courtroom.”
Democrats countered that Sotomayor’s years on the federal bench, first as a U.S. district judge before joining the appellate court in 1998, have been characterized by what Sen. Charles E. Schumer (D-New York) her home-state senator, called “judicial modesty.”
Schumer said: “Judge Sotomayor puts rule of law above everything else. Given her extensive and even-handed record, I’m not sure how any member of this panel can sit here today and seriously suggest that she comes to the bench with a personal agenda.”
Schumer noted that she had dissented from her colleagues on the court less frequently than Samuel A. Alito, Jr., had during his years as an appellate judge before he was nominated by Bush and became the last justice confirmed to the Supreme Court, 4 1/2 years ago. That record, the senator said, “shows that she is in the mainstream. She’s agreed with Republican colleagues 95 percent of the time. She has ruled for the government in 83 percent of immigration cases against the immigration plaintiff. She has ruled for the government in 92 percent of criminal cases. She has denied race claims in 83 percent of the cases and has split evenly on employment cases between employer and employee.”
In a similar vein, Schumer and Sen. Richard J. Durbin (D-Illinois) both predicted that she would prove less ideological on the Supreme Court than Chief Justice John G. Roberts, Jr., who had said at his confirmation hearing in 2005 that a judge’s role was to be merely an umpire. Durbin said, “It’s hard to see home plate from right field,” and added that Roberts’s action on the court have been a “triumph of ideology over common sense.”
Five minutes before the hearing began this morning, Sotomayor wore a broad smile and a royal blue jacket and black skirt as she walked into the packed hearing room of the Hart Senate Office Building, accompanied by the committee’s chairman, Sen. Patrick J. Leahy (D-Vermont).
In leading off the hearing, Leahy portrayed Sotomayor as a nominee with an uncommonly extensive judicial resume. “She is the first nominee in well over a century to be nominated to three different federal judgeships by three different presidents,” said Leahy.
He compared Sotomayor to Thurgood Marshall, the court’s first African American justice, and Sandra Day O’Connor, its first female member.
Conservatives and some Republicans, said Leahy, have attempted to “twist her words and her record. … Ideological pressure groups have attacked her before the president had even made his selection,” said Leahy. “They then stepped up their attacks by threatening Republican senators who do not oppose her.
“In truth,” he said, “we do not have to speculate about what kind of a justice she will be because we have seen the kind of judge she has been. She is a judge in which all Americans can have confidence.”
Democrats are betting that an overly zealous assault on Sotomayor by Republican senators could anger Latinos and accelerate the shift of Hispanic voters away from the party, particularly in the South and West. Conservatives are hoping to use the Sotomayor hearings as a way to motivate their base if they can successfully portray her as an activist judge whose “empathy” for certain groups guides her rulings more than court precedent or the written law.
Before Monday, Republican senators had given mixed signals on how hard they plan to press Sotomayor, with supporters saying harsh questioning would be politically risky; but pressure from the conservative base mounted this morning. Jay Sekulow, the influential head of the conservative American Center for Law and Justice, issued a statement saying that the Senate “must fulfill its constitutional role in providing advice and consent and that means asking the tough, in-depth questions about Judge Sotomayor’s view of the Constitution and her judicial philosophy.”
Sessions was careful not to strike too barbed a tone in his opening statement, saying that the hearing would be “respectful” and would consisted of “a thoughtful dialogue and maybe some disagreements.”
Sen. John Cornyn (R-Texas), who leads the Republican’s campaign arm, the National Republican Senatorial Committee, cited three speeches Sotomayor has given in recent years in which, he said, she advocated in favor of judges changing the law, even a “radical change,” and advanced the idea of foreign courts as basis for domestic rulings.
“We thank you for your candor in these speeches,” Cornyn told the nominee. “Not every judicial nominee is so open about their judicial philosophy. Yet many Americans wonder what these various statements mean – and what you’re trying to get at with these remarks. And many more wonder whether you are the kind of judge who will uphold the written Constitution – or the kind of judge who will veer us even further off course – and towards new rights invented by judges rather than ratified by the people.”
Republicans repeatedly jabbed at Obama. At one point, Graham recalled the president’s role in Supreme Court confirmations of the recent past, when he was in the Senate. “When he was here,” Graham said of the president, “he set in motion a standard, I thought, that was more about seeking the presidency than being fair to the nominee.
“When he said, ‘The critical ingredient is supplied by what is in the judge’s heart,’ translated, that means, “I’m not going to vote against my base, because I’m running for president,” said Graham.
The hearing had barely begun before it was interrupted by a brief protest. As Sen. Dianne Feinstein (D-California) was giving her opening remarks, an abortion protester in the back of the room punctuated the somber quiet by screaming out, “Senator, what about the unborn?” A few seconds later, just before he was promptly hauled out of the room by a security guard, he referred to “unborn Latinos”.
According to Sgt. Kimberly Schneider of the U.S. Capitol Police, 48-year-old Robert M. James was charged with disruption of Congress. James, of Centreville, said later that he was trying to remind Republican senators “of their principles,” adding, “This is one of these rare moments when attention is focused in a singular way.” Standing outside the Hart building alongside noted antiabortion opponent Randall Terry, James said, “the unborn have no one to speak for them. This is our opportunity – that someone who can speak for them will stand up and defend them.”
Almost two hours later, another abortion protester interrupted the opening statement of Sen. Richard J. Durbin (D-Illinois). Andrew R. Beacham, 27, of Indiana, was also charged with disruption of Congress. And in the afternoon, two others tried to disrupt the proceedings as they were leaving the hearing room.
Leahy sharply rebuked the gallery after each outburst, saying at one point, “Judge Sotomayor deserves respect, to be heard. These Senators deserve the respect of being heard.”
Sotomayor’s handlers said there would be “watch parties” in more than 30 states, with supporters gathering to hear from the woman they hope will replace retiring Justice David H. Souter. In Washington, the Hispanic Bar Association planned to gather at a law office to watch Sotomayor’s opening statement.
Sunday, sources predicted that a surprise could come late Monday, if several Republican senators announce their support for Sotomayor’s nomination. That would effectively seal her appointment to the court and make the only question how many votes she will receive.
Among those who some court watchers say could make an early announcement are Sen. Mel Martinez, of Florida, the only Latino Republican in the chamber, and Sens. Richard G. Lugar,of Indiana, and Susan Collins and Olympia J. Snowe, both of Maine.
Meanwhile, both political parties have released a list of witnesses who will appear before the Judiciary Committee later in the week. The Republican witnesses will include a former president of the National Rifle Association, a firefighter from New Haven, Connecticut, and an antiabortion activist, reinforcing the themes that Republican senators hope to cement as the hearings close by the end of the week. Charmaine Yoest, president of Americans United for Life, wrote recently in the Washington Times that “Justice Sotomayor’s lack of reflection combined with her record of abortion activism shows that, with her on the court, the unborn would be at greater risk than ever before.”
The Democratic list includes David Cone, a former Major League Baseball pitcher who watched as Sotomayor helped resolve baseball’s strike; Michael R. Bloomberg (I), the mayor of New York; and Michael J. Garcia, a former U.S. attorney appointed by President George W. Bush.
Obama called Sotomayor Sunday after he returned from a three-nation overseas trip, the White House announced. Press secretary Robert Gibbs said in a statement that Obama “complimented the Judge for making courtesy calls to 89 Senators in which she discussed her adherence to the rule of law throughout her 17 years on the federal bench” and “expressed his confidence that Judge Sotomayor would be confirmed to serve as a Justice on the Supreme Court for many years to come.”
Sotomayor is expected to meet for a short time with senators in a closed-door luncheon, most likely on Thursday. The meeting is standard procedure for Supreme Court nominees.
Otherwise, the judge will be before the cameras the entire time.
[thanks to jay tamboli and Free Internet Press via CC BY 3.0]
The José Medellín Case: When Moral Law and International Law Collides
Should outsiders stepping foot on foreign land be shielded or granted immunity for any atrocious act or heinous crime committed while in that alien territory? Does crime beget crime? When a balancing of interests emerges in the practice of criminal law, can one law be truly more dominant than another to merit the promulgation of a court decision? These are but some of the issues that linger in the mind long after justice had been meted in connection with the controversial case of José Ernesto Medellín.
Even for a heinous crime offender as Medellin, certain quarters questioned, and continue to question, if indeed justice was served when he faced capital punishment. The very grave offense he exacted on two innocent, unsuspecting Houston girls had, on the other hand, instigated a national outrage that reverberates to this day. Medellin, it will be recalled, was lethally injected after the US Supreme Court held him liable for the heartless gang rape and murder of two teenaged girls in Texas. The case, which was hyped by mainstream U.S. and other international media and, one can imagine, even utilized to boost propaganda campaigns to serve elite interests, goes down American history as one of the most vicious crimes perpetuated by foreigners in American soil. Not that the case, per se, actually needed to be hyped. Neither executive clemency nor lawyer arguments that the Medellin case would serve as precedent to a nation’s non-adherence to the rule of law could quash the Supreme Court decision of liability for the Mexican-born offender.
The issues connected with the Medellin case appear far more complicated and far-reaching, considering that Medellin was the first to be executed from a list that included 50 other Mexican nationals facing death sentence who sought refuge in an international treaty provision. Article 36 of the Vienna Convention stipulates that arrested foreigners are vested with a cloak of immunity and the right to have some access to or contact with their consulates in their home country following arrest/detention.
Not since the Supreme Court ruling that declared abortion a constitutionally protected basic right of women has there been a greater uproar than the international commotion created by the Jose Medellin case. Protection of life or respect for the fundamental right to live was clearly the violation in the Medellin case, and the Court somehow appeared to do right in its verdict in the eyes of many. A clear difference in Roe v. Wade is that even as countless groups protested the legal opinion upholding abortion as a woman’s fundamental right, the assailants presented strong arguments, even if, upon closer analysis, it is also the protection of life that is being curtailed. In both Medellin and Roe v. Wade, it would appear, public outrage is very much understandable. For in the end, it is the American values that majority still hold dear that is sacrificed. Indeed, being exposed to the raw edges of human existence can greatly influence people’s thinking and mindset on what is or what is not morally permissible. The fact that Jose Medellin was merely 18 when he, his brother, and other gang members who were less than 18 years of age at the time their crime was perpetuated does not diminish the gravity of the act.
What many adopting the legal stance may have contemplated on is where exactly does moral law end and international law begin? Many other cases have shown these often collide. In the end, though, it may all boil down to being human, assuming of course, that one is of sane mind. After all, who would not be infuriated when a convicted felon faces his victims closest of kin with nary an earnest trace of remorse even as he offers an apology coupled with a pre-execution statement that expresses his hope that his execution brings closure to the aggrieved kin?
Copyright Issue In Video Recorded By Police Cars
From 4(3)Blog:
Today’s decision in Scott v. Harris, as Marty Lederman writes, involves the majority’s interpretation of videotape recorded by the police cars involved in the chase that left the plaintiff paralyzed. The Supreme Court has, rather unusually, put the videotape up on its website and suggests that readers of the opinion watch the tape for themselves.
There is a minor copyright hook here: assuming that there is an author (on which more presently), the videotape is copyrighted — the exclusion for government works in the US covers only works of the federal government — and putting the whole thing up on the Court’s website infringes the copyright owner’s rights. The copyright owner in footage of Reginald Denny’s beating — surely at least as newsworthy — has successfully sued news organizations who broadcast that footage without paying. But, given that the Court asks us to evaluate the tape for ourselves so that we will understand its legal analysis, there’s a strong fair use argument. You don’t have to trust the Court’s judgment if you can look for yourself. Because the legal analysis requires assessing the entire context of the car chase, copying the entirety of the relevant events is necessary to the use — thus, an analysis that in litigated cases (e.g., Nuñez v. Caribbean International News Corp., 235 F.3d 18 (1st Cir. 2000)) has so far only covered photographs should also extend to other media. Moreover, though states can own copyrights, the reason they put cameras on police cars has nothing to do with copyright’s incentive structures and everything to do with recording events for later oversight. This affects both the type of work (factual) and the market analysis (not really operative even if there is a market for footage of police chases).
Of course, many of these considerations apply in the average substantial similarity case. Courts have included black-and-white pictures of accused works, and sometimes accusing works, in prior opinions. Given available technology, they should consider going further. Why shouldn’t an opinion include relevant excerpts of plaintiff’s and defendant’s works, of whatever medium? Those of us who teach IP know that words on the page are essentially useless for helping students understand the substantial similarity inquiry for non-literary works. If writing about music is like dancing about architecture, and if the judicial enterprise requires a public attempt to justify and explain decisions, then copyright cases in which substantial similarity or transformativeness are at issue should routinely set forth the relevant evidence, even when that evidence does not consist of words.
/end rant.
One could also ask whether there was any authorship at all in the footage, since no human chose camera angles or anything else we conventionally associate with authorship in film. At most, a human was involved in editing — selecting which footage was relevant to the dispute. But that might not have risen to the necessary originality, if everyone would have agreed about the relevant time period, as seems likely; deciding where to start and where to stop within a minute or so is not particularly creative.
More important than the copyright angle, though, is the extent to which the Supreme Court treated video as transparently providing access to truth. Jessica Silbey has written an excellent article on the subject of film as evidence/film as unmediated truth. Given what the Court said in this case and the attention devoted to the issue of interpretation by the dissent, as well as the spread of video cameras throughout public places, her article will only increase in relevance over time.
