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Sen. Feinstein Questioning at Judge Sotomayor Confirmation Hearing

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Thursday, July 16, 2009; 10:25 AM

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SEN. DIANNE FEINSTEIN: Thank you very much, Mr. Chairman.

I have great respect for Senator Kyl. I've worked with him, I guess, for about 12 years now on the subcommittee of this committee. But I think there is a fundamental misreading of the Supreme Court decision, if I understand it.

It's my understanding that the court was five-to-four. Is that correct?

JUDGE SOTOMAYOR: It was.

FEINSTEIN: And that the four dissenters indicated that they would have reached the same conclusion as the 2nd Circuit did. Is that correct?

SOTOMAYOR: That was my understanding.

FEINSTEIN: Thank you. Let me clear one thing up. I'm not a lawyer. And I've had a lot of people ask me, particularly from the West Coast who are watching this, what is per curiam. Would you please in common, every day English explain what through the court means?

SOTOMAYOR: It's essentially a unanimous opinion where the court is taking an act that -- where it's not saying more than what either incorporating a decision by the court below because it's not adding anything to it.

FEINSTEIN: Right.

SOTOMAYOR: In some cases, it's when there's, as Judge Cabranes in his dissent pointed out, in some cases, it's simply used to denote that an issue is so clear and unambiguous that we're just going to state the rule of law. It can be used in a variety of different ways. But it's generally where some -- where you're doing something fairly -- in a very cursory fashion, either because a district court judge has done a thorough job...

FEINSTEIN: Which was the case in this case.


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