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Sen. Jon Kyl Questioning at Judge Sotomayor Confirmation Hearing

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Tuesday, July 14, 2009; 3:48 PM

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SEN. JON KYL: Thank you, Mr. Chairman.

Judge, could I return briefly to a series of questions that Senator Feingold asked at the very beginning relating to the Maloney decision relating to the Second Amendment.

JUDGE SOTOMAYOR: Sure.

KYL: Yes...

SOTOMAYOR: Good afternoon, by the way.

KYL: Oh, I'm sorry?

SOTOMAYOR: Good afternoon, by the way.

KYL: Yes, good afternoon. You had indicated, of course, if that case were to come before the court, under the recusal statute, you would recuse yourself from participating in the decision.

SOTOMAYOR: In that case, yes.

KYL: Yes. And you're aware -- or maybe you're not -- but There are two other decisions both dealing with the same issue of incorporation, one in the Ninth Circuit, one in the Seventh Circuit. The Seventh Circuit decided the case similarly to your circuit; the Ninth Circuit has decided it differently, although that case is on rehearing.

If the court should take all three -- let's assume the Ninth Circuit stays with its decision, so you do have the conflict among the circuits, and the court were to take all three decisions at the same time, I take it the recusal issue would be the same. You would recuse yourself in that situation?


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