And Sotomayor actually answered some of them.

In particular, asked by Franken whether she believes the Supreme Court’s recent decision invalidating part of the Voting Rights Act was an “activist” decision that overrode the intent of Congress and the language of the Constitution, she declined to comment on the Supreme Court’s opinion, but instead pointed out her own ruling in a previous case involving the Voting Rights Act, strongly implying that she thought the Supreme Court had indeed gone too far.

In the case she decided, “I suggested that issues of changes to the Voting Rights Act should be left to Congress in the first instance,” she said. That was one of the most direct answers on an issue likely to come before the court that she’s given yet.

And Franken wins points for asking another roundabout question meant to elicit her views on “judicial activism” — a phrase Sotomayor said she doesn’t like to use.

“How often have you decided a case on an argument or a question that the parties have not briefed?” asked Franken.  This question goes to the heart of the Ricci reverse discrimination case, where the Supreme Court on its own set out a new standard for lower courts to follow, then refused to send the case back to the courts to let the parties brief how it applied to the facts at hand.

Sotomayor could not remember a single instance of doing that as a judge.

She also couldn’t remember, when Franken asked her as he wound up his questioning, the name of the one case that the prosecutor on the Perry Mason show won.  To which Franken replied: “Didn’t they prepare you at the White House for this hearing?”

Here’s Cornyn, speaking to Sotomayor with a tone of severe disapproval: “You wrote that the law is always in a necessary state of flux. That it’s not a definitive ‘capital L’ law that many would like to think exist. And that the public fails to appreciate the importance of indefiniteness in the law. Can you explain why you think indefiniteness is so important?”

“It’s not that it’s important to the law as much as it is what legal cases are about,” Sotomayor responded in the same patient, methodical tone she’s used throughout her confirmation hearing. “People bring legal cases to the law because they believe precedents don’t clearly answer the factual situation in their case. That’s why they bring cases.  If law was always clear we wouldn’t have judges. Its because there is indefiniteness not in what the law is but its application to new facts that people sometimes feel it’s unpredictable.”

But Cornyn persisted: “You wrote what appears to be an endorsement that judges can change the law,” he said, clearly disturbed by that idea.

Interestingly, when Cornyn criticized Sotomayor for her decision in the reverse discrimination case of Ricci v. DeStefano, and expressed his support for the Supreme Court’s decision, he didn’t mention that the Supreme Court made new law in that case. As Sotomayor explained when Cornyn expressed “shock” that Sotomayor and the other Second Circuit judges gave such “short shrift” to the sympathetic claims of the hardworking white firefighters:

“The Supreme Court in its decision set a new standard for reviewing what an employer is doing — the substantial evidence test,” said Sotomayor. That standard wasn’t addressed by the court of appeals, she said, because it wasn’t even argued to the court by the parties in the case. “That was a new standard created by a decision by the court, borrowing from other areas of the law.”

Cornyn quickly moved on to the next subject.

“I’m deeply concerned by your assertion that the law is uncertain,” said Coburn. “We want justice to be predictable. I’m worried that our Constitution may be seen to be malleable and evolving whereas I, as someone who comes from the heartland, believe, as do the people I represent in Oklahoma, that there is a foundational document and statutes and treaties that should be the rule rather than our opinions.”

Sotomayor’s statements that there exist “a series of perspectives” and that neutrality “will not allow escape from choice and judging” are disturbing, Coburn said.

“That implies that the law is not objective but subjective. Then all rulings are subjective and we lose the glue that binds us together.”

Of course, Coburn’s ideal of perfect predictability in the law that allows an escape from judgment and perspective would obviate the need for a Supreme Court — and today’s confirmation hearing.

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Slamming the interest in “empathy” that President Obama expressed early on in his search for a nominee, Sessions said: “Empathy for one party is always prejudice against another.”

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The Senate Judiciary Committee is getting all sorts of suggested questions from law professors today, ranging from the role of federalism in our constitutional system (from Stanford law prof — and former SCOTUS candidate — Kathleen Sullivan) to whether, given Sotomayor’s interest in diversity, she thinks we’ll have too many Catholics on the court if she is confirmed (the wise non-Latina question of Ann Althouse at the University of Wisconsin).

Georgetown’s Randy Barnett in The Wall Street Journal is already calling these “the Seinfeld hearings” — all about nothing — and suggests senators ask Sotomayor not how she’d decide particular cases, which of course she can’t answer, but instead how she interprets particular clauses of the Constitution and whether the Justices ought to be bound by the original meaning of the text.

All that’s well and good, and surely some of those questions will be asked by serious lawmakers today, but what’s likely to dominate the hearings and the news that comes out of them are the grandstanding statements about comments Sotomayor made decades ago in personal speeches she was asked to give about how her Puerto Rican heritage has influenced her as she rose to great heights in the legal profession.

That may make it less a “show about nothing” and more of a “show trial” staged by Sotomayor’s staunch Republican critics, who will try to choreograph the proceedings to make their point that race and gender ought to be completely irrelevant when it comes to justice, notwithstanding our long history of racial, ethnic and gender discrimination that’s necessitated legislation to combat it.

That clash between the strictly color-blind view espoused by the current Roberts court, and reflected in the majority’s decision in the white firefighters’ lawsuit, Ricci v. DeStefano, and the more liberal view of the dissenters in that case that balances the ultimate goal of a color-blind society with the history of race relations in the United States, is likely what will really be on trial today.

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The full Republican list, annotated with that person’s special area of interest:

*Linda Chavez, President, Center for Equal Opportunity (labor, affirmative action)
*Sandy Froman, Esq., Former President, National Rifle Association of America (guns)
*Dr. Stephen Halbrook, Attorney (guns)
*Tim Jeffries, Founder, P7 Enterprises
*Peter Kirsanow, Commissioner, U.S. Commission on Civil Rights (affirmative action)
*David Kopel, Esq., Independence Institute (guns)
*John McGinnis, Professor, Northwestern University School of Law (affirmative action)
*Neomi Rao, Professor, George Mason University School of Law (Constitutional law)
*Frank Ricci, Director of Fire Services, ConnectiCOSH (Connecticut Council on Occupational Safety and Health) (affirmative action)
*David Rivkin, Esq., Partner, Baker Hostetler (presidential power)
*Nick Rosenkranz, Professor, Georgetown University School of Law (presidential power)
*Ilya Somin, Professor, George Mason University School of Law (Constitutional law)
*Lieutenant Ben Vargas, New Haven Fire Department (affirmative action)
*Dr. Charmaine Yoest, Americans United for Life (pro-life)

The presence of only one pro-life activist on the list is striking.

Army Lt. Gen. Stanley McChrystal (defenselink.mil)

A former military interrogator who contributed to the manhunt for a senior Iraqi terrorist has urged the Senate Armed Services Committee staff to press Lt. Gen. Stanley McChrystal, the Obama administration’s nominee to lead U.S. troops in the Afghanistan war, on what he knew about detainee abuse committed by troops in Iraq under his command when McChrystal goes before the panel Tuesday morning for his confirmation hearing.

“Gen. McChrystal, he was there in Iraq often, and he may have been separated from these things by couple layers [of subordinates] but it would’ve been his responsibility to know what was going on,” said Matthew Alexander, the pseudonym of a former Air Force interrogator whose non-coercive interrogations in 2006 helped identify and kill Abu Musab al-Zarqawi, then the leader of al-Qaeda in Iraq.

Illustration by: Matt Mahurin

McChrystal helmed the Joint Special Operations Command from September 2003 until August 2008. From 2004 until 2006, an elite Special Operations-led task force, known eventually as Task Force 6-26, hunted Zarqawi and other high-valued terrorists in Iraq, and in the course of attempting to extract intelligence from detainees it acquired in that pursuit, some task force members were found to employ abusive interrogation techniques and even cruel treatment outside the interrogation chambers. In June 2004, the head of the Defense Intelligence Agency, Vice Adm. Lowell Jacoby, wrote to the top Pentagon intelligence official that Task Force 6-26 would send detainees to a temporary Baghdad holding facility “with burn marks on their backs,” and one of his interrogators “witnessed TF 6-26 officers punch a prisoner in the face to the point the individual needed medical attention.” According to a report by Human Rights Watch in 2006, McChrystal received Jacoby’s memo.

Additionally, at a Task Force facility known as Camp Nama, members of the task force were said to have “beat prisoners with rifle butts, yelled and spit in their faces and, in a nearby area, used detainees for target practice in a game of jailer paintball,” The New York Times reported. A pseudonymous former interrogator identified as “Jeff Perry” who was part of the Task Force in early 2004 told Human Rights Watch that “written authorizations were required for most abusive” interrogation techniques, “indicating that the use of these tactics was approved up the chain of command.” Perry further told the human rights organization that he saw McChrystal at Camp Nama “a couple of times. I know what he looks like.”

A few weeks ago, Alexander spoke with Mark Jacobson, a top Senate Armed Services Committee staffer, by phone for about half an hour, about McChrystal. While Alexander did not say that he worked with McChrystal while serving in Iraq as an interrogator — and he declined to specify in an interview that he was a member of the secretive Task Force 6-26 — he communicated that the Senate panel ought to clarify what knowledge McChrystal had of the abuse. “He needs to answer what happened in Iraq in 2006 [with] detainee treatment,” Alexander said. “I don’t know what he knew or didn’t know, but he needs to be asked.” He added that he gave the committee a list of questions to ask McChrystal.

Alexander, who wrote about his Iraq experiences in his 2008 memoir “How To Break a Terrorist” and who works with Human Rights First to oppose torture, recalled that several of his colleagues attempted to use coercive interrogation techniques in the Zarqawi hunt, despite Alexander’s concerns over their dubious efficacy. “When I would go up to my boss and say there’s a better way” to interrogate detainees without torturing them, “his answer would be ‘I’m sorry… because there’s something above me controlling the interrogators and those interrogators have carte blanche to interrogate how they want,” Alexander said. “I don’t know Gen. McChrystal’s involvement in that, [or that of] his staff or below him. But i do know that mentality was extremely counterproductive and almost cost us our chance at finding Zarqawi.”

He continued, “We found Zarqawi in spite of the way the task force did business.”

McChrystal’s confirmation hearing is scheduled for Tuesday morning, when he is slated to testify alongside two other senior military officers nominated for top-level commands. Dave Pollock, a spokesman for the Senate Armed Services Committee, declined to comment on committee staffers’ interactions with Alexander or any other officer or enlisted servicemember under McChrystal’s former command. As to why McChrystal was not testifying on his own — which raises questions as to whether senators will have sufficient time to explore McChrystal’s role in the task force’s abuse of detainees — Pollock said, “It has been [committee] practice to deal with as many military nominations as require a hearing and are ready at the same time because there is not time to have a separate hearing for each nomination.”

There are deep pockets of support within the counterinsurgency and broader military communities for McChrystal, who is considered one of the finest, smartest and most distinguished Army officers of his generation. A senior Army official who served with McChrystal in Iraq recently described him to TWI as “unflappable.” On the Small Wars Journal website, the online nexus of the counterinsurgency community, a pseudonymous former subordinate of McChrystal’s described him as “the Pope” and said, “America’s mission in Afghanistan couldn’t be in better hands.”

Marc Garlasco, a former Pentagon intelligence analyst who co-wrote Human Rights Watch’s report on Task Force 6-26, lent personal support to McChrystal’s nomination. While Garlasco said, “we really don’t understand what [McChrystal's] involvement at Camp Nama was,” he added, “That doesn’t say whether or not he’s the right man for the job in Afghanistan. Personally, I think he may be.” Garlasco noted out the volume of civilian casualties in Afghanistan caused by Special Operations Forces and said that “put[ting] someone in charge who knows Special Operations Forces may be a good thing” in terms of “reining in” such mistakes.

Alexander didn’t go that far, but said that even if McChrystal did bear responsibility for detainee abuse, he would hardly be the only senior officer placed in such a situation. “Are they going to find a general officer now that hasn’t had detainee abuse [occur] under theircommand?” he said. “The answer is no, but there aren’t general officers who stood up and said no. There are not senior officers who ever stood up and said ‘I refuse to use enhanced interrogation techniques because it’s cruelty and it’s unlawful.” (An exception is Central Command chief Gen. David Petraeus, who, as commander of U.S. forces in Iraq in 2007, instructed his troops not to abuse detainees.)

“We’re not going to find anybody who has a clean past,” Alexander said. “What I want to see now is someone who has reformed.”

Clarification: Alexander never used the word “torture” to describe any of the techniques he rejected using in Iraq. In the line  “’When I would go up to my boss and say there’s a better way” to interrogate detainees without torturing them,” the word torture is the author’s paraphrase, not Alexander’s quote.

Specter’s staff has obviously been digging into the right-wing media, because at her confirmation hearing today, the senator brought up a 20-year-old footnote buried in a brief submitted to the Supreme Court in an abortion case — and highlighted in a recent National Review article by Andrew McCarthy — to accuse Johnsen of equating pregnancy with slavery.

“In your writings you go pretty far to one end of the political spectrum,” said Specter. “When I read in your writings that abortion bans are a violation of the 13th Amendment ban on slavery, that seems to me candidly beyond the pale.”

Johnsen was clearly flustered.

“I have never argued that there’s a 13th amendment violation when the government restricts abortion,” she said, though the rest of her answer was pretty muddled. From the discourse during the hearing, it wasn’t really clear what she had actually written in that brief.

Not that it really matters. At the time, she was a lawyer for the National Abortion Rights Action League, whose job is to fight legal restrictions on abortion rights. Sounds like Johnsen was just being a little creative.

However, that’s not likely to come up in her future job, if she’s confirmed, as OLC director. In any event, she made clear during the hearing, as she has in her writings, that the role of the OLC director is not to advocate for any particular position, but to present the executive branch with a fair and impartial reading of the law.