Liveblogging the Sotomayor Confirmation Hearing (Day 3)

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Updated 5:49: With that Sen. Leahy gaveled the third day of hearings to a close, approx a midway through the Senators' second round of questioning for the nominee. The Committee is in recess until 9:30 tomorrow morning. We'll resume then. Thanks, everyone..

Updated 5:48 Sen. Cardin has for the first time asked Judge Sotomayor about the First Amendment's prohibitions on establishing a religion and interfering with the free exercise of religion. Judge Sotomayor is providing a pretty thorough descripton of her ruling in a case in this area.

Updated 5:43: Sen. Grassley just ran through the by now typical Republican litanny of publicly criticizing Judge Sotomayor's speeches and in this case, criticizing her ruling in the property rights case Didden. Nothing new here. Now Sen. Cardin (D-Maryland) is questioning Sotomayor. Chairman Leahy has said this will be the last questionner of the day.

Updated 5:27: Judge Sotomayor uses the term "I have no quarrel" which conservatives such as Clarence Thomas have used to described their view on Roe v. Wade. She then corrects herself saying "I have no quarrel sounds equivocal," and then says more forcefully, "I believe..."

Updated 5:23: In reponse to a question about Baker v. Nelson, a 1972 case which Sen. Grassley (R-Iowa) seems to believe prevents the Supreme Court from exercising jurisdiction over cases involving same-sex marriage, Judge Sotomayor gets into the question of what to do when two precedents of the Supreme Court come into conflict. This process of choosing between two potentially applicable precedents is one of those functions of a Supreme Court justice which makes "applying the law to the facts" less than a mechanical ("umpire"-like) process.

Updated 5:17: Sen. Feingold has now moved on to the incredibly important issue teed up by the Supreme Court's decision to have re-argued, in September, Citizens United v FEC , which raises the question of the extent to which Congress can regulate corporate expenditures around elections. Fairly predictably, Judge Sotomayor declines to say anything about her views on this topic, including what the Constitution says about corporations. (The answer, for those following out there, is "nothing:" the Constitution never says the word "corporation.")

Updated 5:12: Sen. Feingold has launched into our first discussion of the Supreme Court's recent ruling in Caperton v. Massey (similar to the case in the John Grisham book "The Appeal"). The Supreme Court split 5-4 along ideological lines in Caperton, with the majority finding that the Constitution required an elected West Virginia Supreme Justice who had recieved most of his campaign funds provided by one coal company executive to recuse himself from an important appeal involving that coal company.

Updated 5:08 We're back, and Sen. Russ Feingold is up now. (D-Wisconsin)

Updated 4:54: Leahy just called a 15-minute recess. We'll be back shortly.

Updated 4:50: Sen. Hatch returns Judge Sotomayor to President Obama's views of judging and asks specifically about his use of the term "empathy." Sotomayor is gentler on the President than she was yesterday. She says that while she can't speak for him and can only speak for herself, understanding perspective can inform the way one looks at a legal issue but cannot dictate its outcome.

Updated 4:46: In a 1999 speech at Columbia Law School Judge Sotomayor had a lovely passage defining justice: "an elegant and beautiful word that moves people to believe that the law is something special." In an answer to Sen. Hatch just now about how Court of Appeals judges do justice, Judge Sotomayor described justice in a far less inspiring justice, as simply "setting precedent for lower courts."

Updated 4:29: Sen. Kohl (D-Wisconsin) is raising a new issue for the first time, the heightened pleading requirements (which make it more difficult for plaintiffs in many antitrust and other suits to maintain a lawsuit) of Bell Atlantic v. Twombly. This is an example where a conservative majority on the Court has been "legislating", if you will, effectively enacting judicially-imposed tort reform.

Updated 4:24: Interesting, perhaps, that Judge Sotomayor refers to the plurality opinion in Planned Parenthood v. Casey, as the best articulation of the factors for applying the doctrine of stare decisis. Useful here that she points to Justice John Marshall Harlan's brilliant dissenting opinion in Plessy as the basis for arguing that Brown was not simply overturning a prior ruling, but Brown was returning to the true original meaning of the Equal Protection Clause of our Constitution.

Updated 4:17: Sen. Kohl is getting back into a question of when it's appropriate to overrule precedent, pointing out that landmark cases like Brown v. Board of Education have overturned prior rulings (in that case, overruling Plessy v. Ferguson.)

Updated 4:13: Sen. Sessions is doing an effective job comparing Judge Sotomayor's remarks at her hearing and a speech she gave in April regarding the use of foreign law. The speech does seem pretty clear in agreeing with the views of Justice Ginsburg about citation to foreign law, and disagreeing with the contrary views of Justice Thomas and Justice Scalia. Judge Sotomayor's right in the speech, Justice Ginsburg has the better of this argument. Why doesn't she just say that now? (Chief Justice Roberts and Justice Alito quite agressively agreed with and defended the position taken by Justice Scalia and Justice Thomas.)

Updated 4:06: Judge Sotomayor says something forcefully here, that she could have helpfully clarified before: I have not pre-judged the question that the Supreme Court left open in Heller, which is whether the Second Amendment is incorporated against the states. That's a fair question to ask her in this area, and she's now clearly answered it, though her assertion that the Second Amendment is not "fundamental" continues to rankle the Republicans.

Updated 4:02 : Sen. Sessions, on more "wise Latina." (Drink if you're still playing along.) Guns too. Not sure either side is making any headway here.

Updated 3:55: Sen. Leahy has just asked Judge Sotomayor about the constitutionally-secured right to counsel recognized in Gideon v. Wainwright. In response she tells a nice story about how she voluntarily continued to serve as the Second Circuit's Criminal Justice Act coordinator, far longer than any other judge on the Second Circuit.

Updated 3:50 Strange. Sen. Max Baucus just entered the room and walked away with Chuck Grassley. Must be something happening on healthcare?

Updated 3:46: Lilly Ledbetter, a Supreme Court plaintiff so famous she appeared at the Democratic National Convention in August, just made her first appearance in a question by Chairman Leahy, along with Savannah Redding, the plaintiff in the case this term involving a strip search of her when she was 13 years old. Sen. Leahy talks about these rulings as illustrating why we need diversity and real life experience on the bench.

Updated 3:41: After his own mic apparently failed, Sen. Leahy has moved into Franken's seat, letting Franken briefly chair the hearings -- something we say is fully warranted by Sen. Franken's recent masterful questioning of Senator. We'll upload a photo of Franken playing chair ASAP.

Updated 3:35: Okay we're about to get started again. Looks like the break was even shorter than Sen. Leahy expected, because they're filing back into the room. Must not have been anything interesting in Judge Sotomayor's FBI file. After two and a half hours of nothing but Democratic questioning, Republicans will finally get back in the game in this, the second round of questioning. With the last two Democrats raising questions about whether Judge Sotomayor was adequately answering questions, it will be interesting to see whether Republicans start picking up more agressively with this complaint.

Updated 3:10: Franken ended his questions by returning to Perry Mason and stumping Judge Sotomayor with a question about the one case Perry Mason lost. Anyone out there know the answer to this?

Leahy then gaveled the hearing into recess for the private session between the Committee and the nominee regarding her FBI background check. The hearing is scheduled to resume later this afternoon, whenever that meeting is done. Stay tuned.

Updated 3:09 Franken seems to be moving a bit from his textualism in making the point that the word "privacy" does not appear in the Constitution, yet the Court has long recognized that protection for privacy. He concludes by suggesting it's not "relevant" whether words are in the Constitution, which may be going too far. But it is certainly true that words that express bedrock constitutional principles including federalism, checks and balances, and separation of powers never appear in the Constitution, yet have long appropriately guided the Supreme Court's jurisprudence.

Updated 3:01: Sorry this is so late in the day. Here'e our view from the Skybox. You'll see the New Haven firefighters in the section behind (and to the left of) Sotomayor, and the heads of Sens. Klobuchar, Kaufman, and Specter in the bottom of the photo.


Updated 2:54: Perhaps the greatest textualist in Supreme Court history was Justice Hugo Black, and homespun former Senator from Alabama. Sen. Franken so far seems to aspire to pick up on Black's mantle. I love this guy.

Updated 2:53: Al Franken has just become my favorite Senator on this Committee, pulling out his pocket Constitution and reading the Fifteenth Amendment, while complaining about the Supreme Court's decision to call into question the Voting Rights Act. Why has taken this long for a Democratic Senator to make this point this effectively??

Updated 2:47: Sen. Franken is not a lawyer, but he's effectively pushing against Judge Sotomayor's statement that Court's only follow Congress and interpret congressional legislation. In fact, under the First Amendment frequently set the parameters for what Congress may and may not do. (Score one for the "People's Representative")

Update 2:42: Franken's now making a passionate case for net neutrality, discussing the Supreme Court's 2005 ruling in a case called Brand X. He's surely playing effectively here to the Netroots community.

Updated 2:40: Al Franken's starting off now, on familiar territory -- talking about his love of Perry Mason. But he comes around to an interesting point, which is that Judge Sotomayor watched Perry Mason, decided she wanted to be a prosecutor rather than a defense attorney (as Perry Mason was), but this point ended up going nowhere, and ended up sounding a bit like Lake Wobegon.

Updated 2:35: Another long speech from Sen. Specter about fascinating topics including Bush v. Gore, ending with antoher fairly pedestrian question about whether Judge Sotomayor will support having cameras in the Court.

Updated 2:33: Putting a sharper point on his criticism of Judge Sotomayor for not answering, Specter says (jokes??) that Sotomayor's record is "exemplary," though her answers are another matter. But he then clarifies, appropriately, that she will be judged more on her record than her answers.

Updated 2:30: More powerfully than anyone else so far this hearing, Sen. Specter just criticized Chief Justice Roberts for saying one thing when he was a nominee and doing another as a justice, chronicling his statements about "deference" to Congress as a nominee, and his statements as a justice evaluating the Voting Rights Act. It's not clear whether Sen. Specter is referring here to Robert's statements in oral argument or his opinion in the "NAMUDNO" (Voting Rights Act) case. We have a good overview of that ruling here.

Updated 2:26: From our view above and behind Sen. Specter's head, we can see that he actually has printed out Supreme Court cases in front of him. He's getting into now one of the most important issues in modern constitutional law and one of the issues that is most sharply dividing the current Supreme Court. In a nakedly activist ruling by the Supreme Court in City of Bourne v. Florez (1997), establishing an entirely new test for the constitutionality of laws passed by Congress under the post-Civil War Amendments. The conservatives on the Court have lined up behind this test, and threatened this term to strike down the Voting Rights Act for exceeding congressional authority under these amendments. The Court's progressives have aggressively dissented. This is a key area for progressives to talk about the activism of the Roberts Court, and Sen. Specter is pushing Judge Sotomayor hard to take sides on this issue.

Updated 2:21: Sen. Specter is pushing Judge Sotomayor on his idea that the Court's core holding in Roe v. Wade -- that a woman has a constitutionally-protected right to choose -- should be considered a "super precedent" because of how many cases that have reaffirmed this holding. Judge Sotomayor doesn't adopt this terminology.

Updated 2:19: Something that's been a little surprising this hearing is how little attention has been directed to the question of whether Judge Sotomayor is "answering" questions, something that has been a major issue in past confirmation hearings. Interesting that some of the most pointed remarks on this are coming from Senator Specter, who is now on the Democratic side of the ledger.

Updated 2:12: After a long, passionate speech about the role of the Court, Sen. Specter asks a fairly pedestrian question about the size of the Supreme Court's caseload. After Judge Sotomayor fails to give an immediately responsive answer, Specter moves on to another question.

Updated 2:11: Sen. Specter is burnishing his progressive chops, defending both empathy in judicial decisionmaking and the Warren Court, while defending his long ago, and courageous at the time (because he was a Republican then) vote against Robert Bork.

Updated 2:07: Okay we're back and starting again with Sen. Specter (D-Pennsylvania), and getting toward the end of the string of five Democrats. After starting in a promising fashion with some effective questioning about constitutional first principles and the progressive promise of the Constitution, things bogged down considerably during Sen. Klobuchar's detour into the role of the prosecutor and Sen. Kaufman's detour into the nuances of corporate law. Let's see if the oldest new Democrat can get things back on track.

Updated 1:00: Okay Leahy has (finally!) called a lunch break. We'll be back at 2pm.

Updated 12:48: Since we're sitting above and behind Senators -- particularly the ones who are currently boring us -- we can look over and see what they see from their chairs. We're hungry and waiting for lunch, and just noticed Sen. Kaufman still has 12 whole minutes of questioning time remaining (and a clock in front of him that ticks down, second by second.)

Udpated 12:43: Sen. Kaufman just asked Judge Sotomayor whether Congress has the constitutional authority to regulate the financial markets. She declines to answer because such legislation may be passed and may be challenged. This seems over cautious: the Constitution gives Congress the authority to regulate interstate commerce. It's hard to imagine a law that fits more clearly within that authority than a statute regulating the financial market.

Update 12:37: Updated Sen. Kaufman seems to view his job here as reinforcing the idea that Delaware is a state that cares about business. His questions have focused almost entirely on fairly obscure aspects of corporate law. Judge Sotomayor ultimately comes to a pretty sophisticated articulation of why court rulings must be predictable, to ensure effective dealings between corporations. Can Sen. Kaufman give us a little smile from under those little glasses?

Updated 12:35: Having listened to her just talk about grain commodity training for 10 minutes, Sen. Kaufman (D-Delaware) asks her how that experience helped her as a judge. For a while at least, the question seemed to stump her.

Updated 12:31: Mkay, now we're talking grain commodity trading and orange peel. Really not sure where we're going with this. (Maybe she's filibustering till lunch.)

Updated 12:29: More bad baseball jokes. Then the Chairman turns to something truly important: the freezing cold temperatures in our "icebox," noting correctly that we are cheering the fact that the AC here is crapped out. The Senators and other people in the hearing room don't seem as pleased with this development.

Updated 12:25: Now we're talking about Miss America. Finally. Sotomayor and Klobuchar are discussing the sentencing disparity for white collar criminals, which I guess would include Miss America. (Does she wear a white collar??)

Updated 12:20: Judge Sotomayor is doing a nice job here pushing back on a policy complaint by Sen. Klobuchar about a recent ruling by the Supreme Court that requires lab workers to testify in person about lab results. Judge Sotomayor pretty powerfully notes that constitutional rights sometimes cause inconveniences to prosecutors and other government actors. (This term, a divided Supreme Court - with an odd line up including Justices Scalia and Stevens - held that the Confrontation Clause of the Sixth Amendment required in person testimony by lab workers.)

Updated 12:15: The lights in the room just flickered, apparently a brief power outage. It's probably been overloaded by pumping freezing air into HuffPo's skybox. (Or shall we call this the "icebox."?) Judge Sotomayor, as she has been throughout the hearing, is unflappable, calmingly asking the Chairman only for permission to continue an extremely detailed answer to a question about a "tough on crime" ruling she issued in a child pornography case. Meanwhile, Sen. Klobuchar is spending a lot of her time defending Judge Sotomayor as a "tough on crime" judge, though I'm not sure anyone on the other side has questioned her credentials here.

Updated 12:08: Judge Sotomayor is developing here an argument about how perspective and understanding helped her as a prosecutor to advance the broader cause of justice. This is an argument she developed much more fully in this speech from 1999. It's an effective argument that I thought would have come up before now. I think Judge Sotomayor's having a better day today than yesterday, helped in part by the fact that more of the questions today are coming from the friendlier side of the aisle.

Updated 12:02: Sen. Klobuchar started her questioning with a nice remark about how men and women have different perspectives and experiences, explaining how she had run into Judge Sotomayor's mother in the womens' room -- something no men on the Committee hopefully did. It sounds like Judge Sotomayor's mom would make a pretty interesting witness, if given a chance.

Updated 11:56: And we're back. Sen. Klobuchar (D-MN) is next. Leahy just laid out the schedule for the rest of the day, saying that after Sens Klobuchar and Kaufman we will break for lunch, after which Sens. Specter and Franken will ask there questions. Then the Committee will go into a private session so they can discuss Sotomayor's FBI background check, a standard formality.

Updated 11:36: Leahy has just called for a 15-minute recess. We'll resume liveblogging shortly.

Updated 11:33: So now we're talking about growing pot. Finally.

The issue is how to apply the Constitution's timeless words to new circumstances. In this case: can the police fly over your home and measure the thermal output to determine if you have heat lamps for growing pot? Not something James Madison spent a lot of time thinking about. Judge Sotomayor's doing a nice job of explaining the evolution of law in this context.

Updated 11:24: Sen. Whitehouse and the next four questioning Senators are all Democrats. This is where the number advantage by Democrats really comes into play, and it is their real opportunity to take over the narrative of the hearing. Sen. Whitehouse is starting things off well by focusing on places the Constitution points in a progressive direction.

Updated 11:22: Sen. Whitehouse is asking some very interesting questions about constitutional first principles here. He starts by talking about the jury system, which, as we've explained here, the Framers' viewed as the bulwark of democracy. Conservative justices, in a number of rulings over the past decade, have limited the role of juries. This is one of many areas where we have noted the text and history of the Constitution points in a progressive direction.

Updated 11:10: We've moved on to questions from Sheldon Whitehouse (D-Rhode Island). After hearing a lot about oaths yesterday, Sen. Whitehouse asks Sotomayor to take a pledge saying she will approach the law precisely the way she's said she will over the past day an a half. Unsurprisingly, she agreed.

Updated 11:09: Sen. Coburn has proven himself to be a pretty effective questioner here, from the conservative side of the ledger. Judge Sotomayor's attempt to explain the difference between "using" foreign law, on the one hand, and citation to foreign law on the other, probably struck most people as a pretty fine line.

Updated 11:02: Sen. Coburn has returned to questions about foreign law. We've discussed this issue here.

Updated 11:00: For the first time in this hearing, Sen. Coburn is really pushing Judge Sotomayor to provide her personal opinion on an issue, asking whether she personally believes that he has an individual right to self defense. Judge Sotomayor should try to explain that it is difficult for her to step outside of her role as a judge when discussing legal issues. I'm not sure how well this is going to fly, but Sen. Coburn gives her a bit of an out by saying he has the same problem sometimes in his role as a doctor.

Updated 10:55: Sen. Coburn is making some pretty effective rhetorical points about the Second Amendment, effectively making Judge Sotomayor's Maloney ruling (on gun rights) look legalistic. He also just powerfully articulated the fairly progressive history of the incorporated Second Amendment. As we've noted here, the reason we think the Second Amendment is incorporated against state action is because it was a clear intent of the founders of the Fourteenth Amendment to make sure that freed slaves had guns to protect their homes and families against the well-armed former confederate rebels.

Updated 10:48: From life, to death. And now to guns. We're back to yesterday's repeated questioning about whether Second Amendment rights are "fundamental," or just important.

Updated 10:45: Sen. Coburn is asking some fairly profound questions here, such as "Can states define what constitutes death?" Again, predictably, Judge Sotomayor responds, "It depends."

Updated 10:43: Sen. Coburn, a practicing doctor, is pushing Judge Sotomayor to discuss the intersection between the law and advances in medical technology, which has pushed forward the date of fetal viability. Judge Sotomayor is appropriately declining to answer given the possibility of these cases coming before her.

Updated 10:39: Sen. Coburn (R-Oklahoma), one of the more staunchly pro-life conservatives, just apologized to Judge Sotomayor for the recent outbursts of pro-life protestors, including of Jane Roe herself, who was arrested on Monday.

Updated 10:37: Sen. Cardin (D-Maryland) is asking Judge Sotomayor about her views on pro bono service by lawyers, and judicial involvement in their community. This gives Jufdge Sotomayor a nice opportunity to shine a more positive light on the many speeches she's given to public interest groups over the past two decades.

Updated 10:32: Sen. Cardin has been methodically looking through hot button issues such as affirmative action and privacy, laying out the progressive position on these issues. As you would expect is largely simply reciting what the Supreme Court has held in these areas.

Updated 10:23: Sotomayor doesn't really engaged Sen. Cardin here, simply explaining the deference she will give to Congress on environmental cases.

Updated 10:22: Sen. Cardin is now making an empassioned case against recent rulings by the Supreme Court that chip away at the foundations of environmental laws, including the Clean Water Act, the National Environmental Protection Act, and the Superfund law. Once again, for a good overview of the Court's 5 (of 5) anti-environmental rulings this term, click here.

Updated 10:18: This exchange between Sen. Cardin and Judge Sotomayor was an effective illustration of the Democrats' case that it's the Roberts Court that is being activist. Hopefully this will start a more concerted effort by Democratic Senators to go on the offense.

Updated 10:15: Sen. Cardin just asked a powerful question about judges' role in upholding congressional laws that protect civil rights, including the right to vote. Judge Sotomayor confirms that she has "passion" about the fundamental right to vote, and she is now discussing her powerful dissent in Hayden v. Pataki (which we discussed here).

Updated 10:12: For the first time Judge Sotomayor just compared her approach to that of her future colleagues, asserting that she will be an active questionner on the bench at oral argument. She specifically distances herself from the approach of Justice Thomas, who has questioned the utility of questionning at oral argument, and has himself not asked a question in two years. Nobody should expect that from Sotomayor.

Updated 10:08: Baseball continues to play a disproportionately large role in these hearings. Sen. Cardin just began his questions by claiming that Sotomayor not only saved baseball, but also protected Cal Ripkin's "ironman" streak of consecutive games played. Whatev's.

Updated 10:04: Back to the mind-numbing details of the Ricci New Haven firefighters case. For law geeks who want to explore this in more detail, click here. Judge Sotomayor, for the first time, makes the important point that 75% of cases in the Second Circuit are decided by "summary order" a point which undermines the Republican argument that this case was dismissive of the firefighters claims. Judge Sotomayor then appears to make what I believe is an erroneous statement, which she said yesterday too, that the district court ruling was 78 pages. I believe it was actually 48 pages, as has been noted. Surprised her team didn't catch this one.

Note, a number of New Haven white firefighters appear to be sitting in the audience today.

Updated 10:00: Sen. Cornyn asked a few new questions about Judge Sotomayor's views on reproductive choice. Sotomayor stated flat out that no one in the nomination process had asked her any questions about her specific views regarding legal issues. She also distanced herself from remarks by a former law partner of hers who had opined on Judge Sotomayor's likely view on reproductive choice, with Sotomayor saying, in effect, "I have no idea what he's talking about. And I don't know him all that well."

Updated 9:57: Judge Sotomayor just gave her clearest statement yet about how her perspective and understanding inform the law but don't change the law or what it commands. She needs to hammer this home with an example or two, such as the way Justice Ginsburg moved her colleagues on the Redding case involving the strip search of a 13 year-old girl.

Updated 9:46 As expected, Sen. Cornyn has started first by launching right into another disection of Judge Sotomayor's speeches, querying how those speeches can be squared with her portrayal of herself as a neutral "umpire." Judge Sotomayor seems well prepared for this line of questioning, and is doing a better job than she did yesterday in bridging the gap between her rule of law approach and some of her remarks.

Ok we're back in the skybox this morning, getting started with Day 3 of the Sotomayor hearing.

Let's start with a bit of a recap. Yesterday, I noted a tension in the opening statements of the Judiciary Committee democrats, with some defending President Obama's argument that empathy and what is in a judge's heart is an important consideration and others defending Judge Sotomayor as a judge who puts those considerations aside in her decision making and follows the law, period.

I thought based on her spare opening statement that Judge Sotomayor would try to bridge the gap, explaining how perspective and understanding can complement, rather than trump, the rule of law. But there was little gap bridging yesterday. Instead, empathy, perspective and understanding pretty much went out the window -- most directly when Sotomayor pointedly disassociated herself from Obama's remarks on judging -- as Sotomayor insisted over and over that her job is simply to apply the law to the facts.

This is a smart political strategy. It comports well with Sotomayor's judicial record, illustrated yesterday as Republican Senators flailed about trying with no success whatsoever to portray her rulings as anything other than follow the law. It also puts Republicans in the untenable position of not taking yes for an answer. As Senator Graham said yesterday Judge Sotomayor sounded quiet "I listen to you today, I think I'm listening to Judge Roberts." While Judge Sotomayor rejected labels and never called herself an "umpire," that was more or less how she described her view of the job.
But this strategy also has downsides. Most immediately, for the purposes of these hearings, it makes Judge Sotomayor's task of explaining some of her speeches a little more difficult, as she sure seemed to be saying more in at least some of these speeches than a role of a judge is to put aside her individual perspective. Expect today to again hear Republicans hammer Judge Sotomayor with questions starting "But you said right here . . ."

More importantly, Judge Sotomayor's approach obscures rather than illuminates very real differences between progressives and conservatives about the meaning of the Constitution and the role of a Supreme Court Justice. In all likelihood, once Judge Sotomayor is confirmed, the American public will have two "umpires," one of whom calls "balls" the other "strikes" on the most important legal questions of the day, with almost no discussion of where the strike zone should be set.