Bench Memos

Sotomayor Hearing — Hatch’s Round 1

[After 20-minute recess, Leahy says that lunch recess will occur after Hatch and Feinstein rounds, with hearing resuming at 2:00]

Hatch:  Is Gonzales v. Carhart (partial-birth abortion) settled law?

SS:  All Supreme Court precedents are settled, subject to respect as stare decisis.

OH:  On question of Second Amendment’s application to the states:  Doesn’t the Court’s treatment of Miller in Heller cast doubt on Second Circuit’s reliance on Miller?

SS:  Different issue.  I bring open mind to every case. 

OH:  [Lots of time (far too much, in my view) on Second Amendment and “fundamental” rights.]  In Maloney (post-Heller), you held that Second Amendment didn’t apply against states.  You relied on 1886 ruling in Presser.  That case involved the privileges-and-immunities clause, but incorporation cases rested on Due Process Clause.

SS:  I relied on binding Second Circuit precedent. 

OH:  On Ricci:  You didn’t cite any precedent, right?

SS:  I think we cited Bushey case.  [Wrong, though district court decision that panel referred to did.]

OH:  Didn’t circuit precedents deal with race norming?

SS:  But principles are the same.  [That contention hardly explains why panel wouldn’t explain how that is so or why it would use unpublished summary order.]

OH:  Judge Cabranes learned about unpublished ruling only by reading about it in newspaper, said it raised important questions of first impression.  Justice Kennedy said there were few, if any, precedents on the issue.  Was he wrong?

SS:  Kennedy wasn’t looking at how Second Circuit law would apply.

OH:  Why didn’t your panel offer its own analysis?  You’ve agreed that the case raised difficult questions.  People for the American Way is smearing Frank Ricci.

SS:  I would never approve of such reprehensible conduct.