APP's Quote-of-the-day:

"Our own royalty, somebody who we have become so extraordinarily proud of, somebody who I've just come to adore, and who is somebody who's going to make us proud for many, many years to come, because she's not term-limited, the newest justice of the Supreme Court, Sonia Sotomayor." - President Barack Obama

Hat tip: The Blog of the Courtier (with commentary).

The Associated Press:

The Senate confirmed Sonia Sotomayor Thursday as the first Hispanic justice on the Supreme Court. The vote was 68-31 for Sotomayor, President Barack Obama's first high court nominee. She becomes the 111th justice and just the third woman to serve.

Democrats praised the 55-year-old Sotomayor as a mainstream moderate. But most Republicans voted against her, saying she'd bring personal bias and a liberal agenda to the bench.

Senators took the rare step of assembling at their desks on the Senate floor for the historic occasion, rising from their seats to cast their votes.

Gary Marx and Wendy E. Long of the Judicial Confirmation Network made some interesting points about what one should take away from the Sotomayor hearings:

Barack Obama repeatedly stated -- as a Senator, a candidate, and as President – that he believes judges should decide “the difficult cases” based upon the judge’s own personal views, experiences, and beliefs – what he sometimes called “empathy” or what is in the judge’s “heart” – instead of what is written in the laws of our democratic society. We have known for some time that the American people overwhelmingly reject this liberal judicial activist philosophy of the courts.

What we did not expect – and what was, frankly, shocking – was Judge Sotomayor’s flat rejection of the Obama judicial philosophy on the witness stand before the Senate Judiciary Committee. She set forth a view of the role of the Court that matched that of Chief Justice John G. Roberts and President George W. Bush.

Her testimony embracing judicial impartiality and “fidelity to the law” was in considerable tension with her long record of siding – inexplicably and without any respectable legal analysis – with the liberal-left-favored parties, causes, and outcomes in the “difficult” cases. Her testimony was also at odds with her long record of speeches and articles asserting, among other things, that impartial judging is not really possible, that her own personal background and beliefs affect the “facts [she] choose[s] to see” as a judge, and that it’s fine for a judge to “develop a novel approach [and] push[ ] the law in a new direction.”

The disconnect between The Sotomayor Record and The Sotomayor Testimony gave some Senators concern about her truthfulness under oath before the Judiciary Committee. But her vigorous rejection of the Obama Standard of judging signals an important capitulation in the battle over the proper role of the courts in our constitutional republic.

Sometimes, the way a battle is lost can predict the path towards winning the war, in this case, the ongoing struggle for nominating supreme court apointees who respect the Constitution.

APP's extensive commentary on the Sotomayor nomination has been archived here.

The Senate is scheduled to vote on the Supreme Court nomination of Judge Sonia Sotomayor today at 3:00 p.m.  Ed Whelan at NRO's Bench Memos reports that 31 Republican senators are on the record with pledges to vote "nay" on the nomination; eight others have said they will vote "yea"; only Ohio's Senator George Voinovich has not indicated which way he will vote.

I said here at APP the other day: "if the Obama team can't get the nay votes below 30 with a nominee who tries as hard as Sonia Sotomayor did to 'channel' Chief Justice John Roberts, then they could be in trouble next time."  In a Senate with 60 Democrats, and efforts afoot to make GOP senators fear a "Hispanic backlash," a dissenting tally of more than 30 senators is a small but important victory for the Republican leadership.  Kudos to minority leader Mitch McConnell, ranking Judiciary member Jeff Sessions, and outspoken Sotomayor critics Jon Kyl, John Cornyn, and Tom Coburn.

As Ed Whelan at NRO's Bench Memos reports, John McCain's announcement that he will vote "no" on the confirmation of Judge Sonia Sotomayor to the Supreme Court brings the total number of Republican senators who have announced likewise to 27.  National Journal's "Ninth Justice" blog says:

Only six out of the Senate's 40 Republicans have said they will vote for Sotomayor. If all the rest vote no and all Democrats vote yes, the final tally would be 64-34 (ailing Democratic Sens. Edward Kennedy of Massachusetts and Robert Byrd of West Virginia aren't expected to vote).

How does this stack up historically?  In the distant past, unrecorded voice votes in the Senate were often used for confirmation of Supreme Court justices.  The last time that happened was when Abe Fortas was confirmed as associate justice in 1965 (ironically, just a few years later, scandal would cause Fortas's nomination for chief justice to be withdrawn).  For data on all presidential nominations and Senate confirmation votes, see this page posted by the Senate's historian.

If we date the modern era of Supreme Court nominations from that of Thurgood Marshall in 1967, a period when all Senate votes have been recorded roll calls, then in the last 42 years three nominations have gone down to defeat (Clement Haynsworth in 1969, G. Harrold Carswell in 1970, and Robert Bork in 1987).  And in the nineteen recorded votes (including these three defeats), the mean vote division has been 76.8 for confirmation and 19.5 against.  If we toss out the five occasions when those voting were unanimous and there were no recorded "nay" votes, then the mean in the fourteen non-unanimous votes has been 68.4 for confirmation and 26.5 against.

So Judge Sotomayor, if she garners only 64 votes for confirmation and 34 senators vote against her, would be well below the average in "yea" votes and markedly above it in "nays."

Will this matter to her as a judge?  Aside from any mild pangs of disappointment she may or may not experience, it shouldn't.  Justice Samuel Alito's confirmation in 2006 was 58-42, and it doesn't seem to have affected him a bit.  Justice Clarence Thomas was confirmed by a record-close 52-48, and he is no shrinking violet as a Supreme Court justice.  For a judge, a confirmation is a confirmation.

But 34 votes against Judge Sotomayor ought to matter to the Obama White House, as a shot across its bow about how future vacancies may be treated by senators in the opposition party.  Replacing the liberal Justice David Souter, after all, was not the highest-stakes struggle, even when it meant a soon-to-be 70-year-old replaced with a 55-year-old.  Replacing the next justice could be much more contentious.  And if the Obama team can't get the nay votes below 30 with a nominee who tries as hard as Sonia Sotomayor did to "channel" Chief Justice John Roberts, then they could be in trouble next time.

Most importantly, a high "nay" tally with few defections from Republican ranks is an important sign that GOP senators are getting their act together.  It means they are recognizing that every Supreme Court nomination--even the ones that don't look highly pivotal, that come from a personally popular president, that play on the power of ethnic politics, and that arrive in a Senate with 60 Democrats--every nomination is a matter of principle, and the votes are just as important as the arguments.  The votes mean that you mean those arguments. 

From the Associated Press:

The Senate Judiciary Committee has voted to approve Supreme Court nominee Sonia Sotomayor to be the first Hispanic justice.

The committee voted 13-6 Tuesday morning to send Sotomayor's nomination to the full Senate, where she's expected to be confirmed easily next week.
Just one Republican, South Carolina's Lindsey Graham, joined Democrats in voting for President Barack Obama's first high court nominee. The panel's chairman, Vermont Democrat Patrick Leahy, called Sotomayor a restrained, fair and impartial judge who has not favored any one group of people over another. But the top Republican, Alabama's Jeff Sessions, said her speeches and some rulings revealed beliefs that conflict with the idea of blind justice and fidelity to the law.

A long title, but great content below:

Millions of Americans believe that states can prohibit abortion in the third trimester, yet current Supreme Court jurisprudence has manufactured a right to unfettered abortion right up to the time of the child’s birth. How did Americans become so confused on this issue and how did the Supreme Court end up where it has? [Read on...]

APP appreciates that Prof. Franck pointed out in his article that this discussion began through an exchange with an APP commenter.

Franck's piece was also re-printed on LifeSiteNews.

Hadley Arkes, who contributed two essays to APP last week ("Sotomayor & Natural Rights" ) ("Sotomayor & Feinstein"), talks today about what can be learned from the Judge Sotomayor hearings:

Two weeks ago, in the run-up to the hearings over Sonia Sotomayor, I took the moment to sketch out a different strategy for the pro-lifers in these hearings. For thirty years, the Democrats have sought to extract from the Republican nominees a promise to respect the holding in Roe v. Wade as deeply “settled law.” But at the same time they have been content to shield from the public any precise sense of what that holding actually was: that abortions could be ordered for virtually any reason throughout the entire length of the pregnancy—and perhaps even after the child was born. I argued that the primary aim of the questioning should not be to attack Judge Sotomayor, but to put on the record some news that would be jolting to the public, straining for the party of abortion in Congress, and especially embarrassing for the most radical pro-abortion President we have yet to see.

That column of mine elicited many kind comments from our readers, along with urgings that something be done to put the plan into the hands of pro-life senators on the Judiciary Committee. We rarely report back to our readers, but in this case I thought it would be apt to offer a brief report to our readers on “what happened next.” [Read on...]

Senate Republicans intend to slow down Judiciary Committee action on the Supreme Court nomination of Sonia Sotomayor, but all signs point to a relatively smooth path to confirmation.

The Judiciary Committee is scheduled to vote on Sotomayor’s nomination Tuesday. But the panel’s top Republican, Jeff Sessions of Alabama, said Monday he will postpone the vote until July 28, as allowed under committee rules.

None of the panel’s seven Republicans have yet indicated how they plan to vote.

Republicans on the Judiciary Committee had asked the nominee to elaborate on her testimony by answering written questions, but those resposes, posted on the committee’s Web site Monday evening, did not appear to raise any issues that would slow her path to confirmation.'

... Sessions signaled that Republicans would not seek a marathon debate on the nomination when it reaches the Senate floor. “I don’t think there’s any desire on our side just to prolong it for the sake of prolonging it,” Sessions said. - CQPolitics

Last week during the confirmation hearings on Sonia Sotomayor, I blogged here at APP that her answer to Sen. Tom Coburn on the present state of abortion law was simply wrong.  A commenter wanted more explanation, a wish I have seen expressed elsewhere when I or someone else makes the claim that the Supreme Court has established "abortion on demand" in its decisions.  Today at Public Discourse I have a pretty full explanation of this matter, and raise the question again, why didn't Judge Sotomayor get it right?

is wrapping up her testimony now, noting how far from "settled" the abortion issue is, thanks to the Supreme Court.  Charmaine is president of Americans United for Life, and notes how extreme are the positions Sonia Sotomayor has taken through the years.

This backgrounder has been prepared by APP staff. It highlights the important decisions made by Judge Sotomayor and what they could mean for her career on the Supreme Court should she be approved:

Based on her writings and judicial history, Americans ought to be wary of Judge Sonia Sotomayor’s fidelity to the mandate of the First Amendment’s freedom of speech and political expression.

Judge Sotomayor’s writings dealing with campaign finance regulation are detailed, and a 1996 law review article entitled “Returning Majesty to the Law and Politics: A Modern Approach” in the Suffolk University Law Review demonstrates her prevailing attitude.

The article, which she co-wrote with Nicole A. Gordon, asserted that “The continued failure to do this has greatly damaged public trust in officials and exacerbated the public's sense that no higher morality is in place by which public officials measure their conduct.”

In footnotes, the article also called attention to the “subtle distinction between illegal bribes and legal campaign contributions to politicians,” and suggested “the replacement of federal election finance system with total public financing of congressional campaigns.”

In addition, the Court of Appeals for the Second Circuit, in the 2006 case Landell v. Sorrell, held that a Vermont law limiting expenditures by candidates for office during the election cycle and on the contributions of individuals, political groups, and parties were constitutional. For example, national, state, and local parties together could give only $400 to a statewide candidate.

The District Court held that limits on candidate expenditures were unconstitutional, in violation of the First Amendment, but found that the limits on campaign contributions were not in conflict with the First Amendment, or the Supreme Court’s precedent in Buckley v. Valeo, except for those dealing with political parties.

The Court of Appeals for the Second Circuit reversed the District Court decision, ruling that all of Vermont's contribution limits were constitutional. Judge Sotomayor joined a concurrence written by Judges Sack and Katzmann in denying an en banc rehearing, and upholding the Circuit Court’s panel decision.

The Supreme Court in Randall v. Sorrell reversed the Circuit Court and invalidated Vermont's law by a 6-3 vote, with Justice Stephen Breyer writing the plurality opinion.

From Frank Ricci and Ben Vargas of the New Haven Fire Department, Peter Kirsanow of the U.S. Civil Rights Commission, and Linda Chavez of the Center for Equal Opportunity.  Chavez aptly characterizes Judge Sotomayor as having "drunk deep from the well of identity politics," a well she calls "dark and poisonous."

This backgrounder has been prepared by APP staff. It highlights the important decisions made by Judge Sotomayor and what they could mean for her career on the Supreme Court should she be approved:

Hayden v. Pataki: Based on this case, Americans ought to be wary of Judge Sonia Sotomayor’s judgment in allowing convicted felons the right to vote while held in prison.

In 2006, a number of New York inmates, included a convicted double cop killer, challenged that state’s law barring convicted felons from voting until they are released from prison or complete parole.

The District Court had dismissed the case and the Court of Appeals for the Second Circuit affirmed that ruling, holding that, “Congress did not intend or understand the Voting Rights Act to encompass” felon disenfranchisement statutes, such as that implement by New York. Judge Sotomayor dissented from the en banc majority ruling, claiming that the Voting Rights Act “applies to all ‘voting qualification[s].’”

She also joined the dissent of Judge Barrington Daniels Parker, Jr, who held that the state law was in violation of the Voting Rights Act, in part, because “Blacks and Latinos are prosecuted, convicted, and sentenced to incarceration at rates substantially disproportionate to those of Whites,” and thus diluted the voting strength of those communities.

This backgrounder has been prepared by APP staff. It highlights the important decisions made by Judge Sotomayor and what they could mean for her career on the Supreme Court should she be approved:

Riverkeeper, Inc. v. EPA: Based on this case, Americans ought to be wary of Judge Sonia Sotomayor’s priorities regarding the well-being of American consumers and the interests of environmental lobbyists.

A federal statute required power plants to maintain the "best technology available" (BTA) in order to limit the environmental impact of such plants on the wildlife located in nearby rivers and lakes.

Sotomayor’s majority opinion held that while the EPA may consider the costs posed to power plants, the EPA could not use a cost-benefit analysis. Instead, the EPA must first determine the most effective technology that may "reasonably be borne by the industry.”

Under this model, the costs would have amounted to $413 million and benefits would only come to $146 million. American consumers would then have been forced to pay billions of dollars more in energy costs every year.

The Supreme Court granted writ of certiorari, and later, by a 6-3 margin, reversed Sotomayor’s holding on the grounds that her interpretation of “best technology available” was far too narrow.

This backgrounder has been prepared by APP staff. It highlights the important decisions made by Judge Sotomayor and what they could mean for her career on the Supreme Court should she be approved:

Didden v . Village of Port Chester: Based on this case, Americans ought to be wary of Judge Sonia Sotomayor’s tendency to allow the seizure of citizens’ private property for other private use. 

In 2003, Bart Didden and Dominick Bologna sought to build a CVS pharmacy on the land that they jointly owned. In order to build the pharmacy the men needed to receive permission from Gregg Wasser, who had been designated by Port Chester to wield wide discretion in the established “redevelopment area.” Wasser demanded either $800,000 a 50% partnership interest in the CVS project.

Wasser then threatened to have the local government condemn the land if his interests were not sufficed by Didden and Bologna. After Didden and Bologna refused to conform to Wasser’s demands, their property was condemned the next day. The land was then used for the construction of a Walgreens.

Didden and Bologna proceeded to challenge the actions at the District Court level, claiming that such extortion, through the condemnation of their land, could not rightfully qualify as “public use,” as enumerated in the Fifth Amendment’s Takings Clause.

A three-judge panel on the Court of Appeals for the Second Circuit, including Judge Sotomayor, affirmed the District Court’s dismissal of the case.

At the GOP senators' request, Chairman Leahy has permitted a third round of questioning of Judge Sotomayor, each senator limited to just 10 minutes.  Sen. Sessions is leading off now.

Maloney v. Cuomo: Based on this case, Americans ought to be wary of Judge Sonia Sotomayor’s belief that the right to keep and bear arms is not fundamental, and that states may therefore prohibit such weapons of personal protection.

The Court of Appeals for the Second Circuit denied the petition of a New York attorney claiming that a state law prohibiting possession of a chuka stick (also known as a nunchaku) violated his Second Amendment right to bear arms. The District Court dismissed Maloney’s case, and the Court of Appeals for the Second Circuit affirmed the District Court’s holding.

In a per curium opinion, the three-judge panel, including Judge Sotomayor, held that the Second Amendment’s right to bear arms was not a fundamental right, and that it only applied to the federal government, and not the states. The Court of Appeals followed the precedent set forth by 1883’s Presser v. Illinois, which was decided before the notion of incorporation was endorsed by the Supreme Court in 1925’s Gitlow v. New York.

By following this outdated precedent, Sotomayor and her fellow panel-judges could limit the scope of the Supreme Court’s recent decision in District of Columbia v. Heller, which held that the federal government could not prohibit the possession of handguns for personal safety and household protection.

Ironically, the infamously liberal Ninth Circuit held that the right to bear arms was fundamental in nature (Nordyke v. King), and applied to the states via the Fourteenth Amendment.

Senator Arlen Specter, Democrat of Pennsylvania, concluded his second round of questioning by saying that he has a "strong hunch" that Judge Sotomayor's views on constitutional issues track closely with his own.

Will someone explain once again why, when so many agree on the wrongheaded idea that the Constitution means whatever the judges say it does, we should be satisfied with "hunches" about what they think rather than crystal-clear statements on their part?