Hatch prefers to share his own views at Sotomayor hearing

This is an archived article that was published on sltrib.com in 2009, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Washington » When Utah Sen. Orrin Hatch had the chance to quiz Supreme Court nominee Sonia Sotomayor on Tuesday he didn't seem all that interested in learning her views.

And he didn't try to play to the multitude of cameras in the room, either.

Instead, in lawyerly fashion, Hatch delved deep into the details of two recent cases -- one involving gun rights and the other reverse discrimination -- in an attempt to convince Sotomayor that his position is right.

"I think it's important for you to know how I feel about these type of cases," Hatch told the 2nd Circuit Appeals judge. "These are important cases."

Their 30-minute exchange was consumed entirely with respectful yet technical questions prompting a senator near him to nod off and a legal expert to snidely comment that Hatch's line of questioning bordered on "incoherent."

At the very least, it was difficult for a nonlawyer to follow. One of the few accessible exchanges involved the definition of nunchucks and the potential damage they could inflict.

Sotomayor: "In [the] Maloney [decision], we were talking about nunchuck sticks. Those are martial arts sticks."

Hatch: "Two sticks bound together with rawhide or some sort of ..."

Sotomayor: "Exactly, when the sticks are swung -- which is what you do with them -- if there is anybody near you, you are going to be seriously injured because that swinging mechanism can break arms, can bust someone's skull.

The Maloney case focused on a New York state law that bans weapons, such as nunchucks, which James Maloney wanted to own for his personal protection. Sotomayor and two other 2nd Circuit judges upheld the state law, despite a recent Supreme Court ruling that said the 2nd Amendment gives individuals the right to bear arms.

Hatch believes Sotomayor erred in this case, relied on the wrong legal precedent and should have determined that the recent Supreme Court decision applied to states, making it much more difficult to pass weapons restrictions. He peppered his remarks with references to supporting cases, due process clauses and a rational basis standard.

Sotomayor said she simply followed previous case law in ruling on Maloney. But she also noted that it's likely the Supreme Court will take up the issue of whether the 2nd amendment governs all state and local gun control efforts.

"It's an open question," she said.

Hatch went into the same kind of detail when discussing the Ricci case involving white New Haven, Conn., firefighters who sued after the city tossed out a promotion exam because minority firefighters fared poorly.

Sotomayor joined in a decision saying city leaders had the right to abandon the test because they feared claims of racial discrimination, but the Supreme Court recently reversed that ruling on a 5 to 4 vote.

Hatch found Sotomayor's decision troubling and her legal reasoning questionable. He went to great length to tell her so, going through not just the case history but the inner workings of the 2nd Circuit.

During the exchange, prominent legal analyst Tom Goldstein, who writes the SCOTUSblog.com, took a few swipes at Utah's senator in his live commentary.

"No one without a law degree has a remote clue about what's going on," Goldstein wrote.

When Hatch ended a long quotation from a district court ruling by saying: "This seems complicated, I know."

Goldstein remarked: "No, it seems incoherent."

Hatch may have left the C-SPAN audience scratching their heads, but he appeared to be speaking to an audience of one. The Utah Republican recently said Sotomayor will undoubtedly get confirmed, meaning Tuesday's question-and-answer session gave him a chance to argue his case before she takes her place on the bench.

mcanham@sltrib.com" Target="_BLANK">mcanham@sltrib.com