Although surely plenty of senators agree with the idea of preventing gun violence, it’s a testament to how influential the NRA has become that no one had the courage to ask Sotomayor to explain the inherent reasonableness of regulating firearms in a country where more than 50 children are killed every week by guns.

Here’s what the Brady Campaign had to say about the NRA’s statement and Sotomayor’s nomination:

“During the second day of her Senate confirmation hearings, Judge Sotomayor has now been asked for her views on the Second Amendment.  She has given clear and responsible answers, while not pre-judging any issues that may come before her on the Court.  We have been impressed with her presentation.

“In stark contrast, gun lobby extremists have revealed their preference for an activist Supreme Court Justice who would support their ‘any gun, anywhere, anytime’ ideology.  Judge Sotomayor’s comments today as well as her judicial opinions in cases involving gun laws, however, show respect for the Constitution, for precedent and for the considered judgments of legislative bodies in protecting communities from gun violence.

“Judge Sotomayor’s background and her experience as a prosecutor have given her an invaluable understanding of the devastating impact of gun violence on families and communities.  Because of her experience enforcing gun laws, she brings to the bench an appreciation of the importance of those laws in protecting our citizens.

“The Brady Campaign enthusiastically endorses Judge Sonia Sotomayor for the position of Associate Justice of the United States Supreme Court.” [The Brady Campaign's emphasis, not mine.]

It’s worth noting that despite harsh and one-sided questioning on the Second Amendment issue, Sotomayor was careful never to say how she’d vote on the matter were it to come before the Supreme Court — which it very likely will during her expected tenure. Although she’s ruled in the past that there is no “fundamental” right of an individual to bear arms that’s enforceable against state governments, the court opinion she signed onto carefully explained that the court believed that result was mandated by Supreme Court and Second Circuit precedent. The Seventh Circuit Court of Appeals, in an opinion by the conservative Chief Judge Frank Easterbrook, has reached the same conclusion.

The Supreme Court could rule differently, however, and given that its latest ruling on the gun issue was a 5-4 decision, Sotomayor’s position on the issue is important. Even if Sotomayor rules as the Brady campaign might hope, though, NRA supporters could win the day if the key gun question — whether there’s a “fundamental right” to possess a gun that’s enforceable against the states — reaches the court before President Obama gets to appoint another justice.

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Judge Sonia Sotomayor (Zuma Press)

Most commentators and reporters have assumed that when it comes to Judge Sonia Sotomayor’s record, there’s little to suggest how she might rule on critical matters of executive power and national security that are sure to be among the most controversial issues before the court in the next few years.

One exception to that is a Fox News report on Tuesday, which cites Sotomayor’s March 2003 lecture to a class at Indiana University Law School, where she said, “We have suspected enemy combatants detained in secret and given different process than criminals. One can certainly justify that type of detention under precedents and current law.”

Illustration by: Matt Mahurin

To Lee Ross at Fox News, this was a pronouncement “that could draw criticism from liberal groups.” But in the context of the entire lecture, which Sotomayor provided, along with a mass of other materials, to the Senate Judiciary Committee on Monday evening, the statement appears to be simply an explanation to law students of where the courts had come down on the issue so far. The issues would eventually reach the Supreme Court, which would affirm the government’s right to detain certain enemy combatants indefinitely. But at that time only a district court from the Southern District of New York and the U.S. Court of Appeals for the Fourth Circuit had addressed the questions.

Notably, The New York Times on Wednesday focuses on a different part of the lecture in which Sotomayor expresses skepticism about the government’s authority under the USA Patriot Act “to impose nationwide wiretaps with little judicial supervision” and to monitor use of the Internet.

While reporters and bloggers have noted that Sotomayor has never worked in the federal executive branch and has sat on courts that don’t hear many executive power challenges, her record from the bench is not a blank slate. In fact, just last year, she joined two other judges in ruling that sections of the USA Patriot Act regarding national security letters are unconstitutional. And in the case of the Canadian former detainee Maher Arar, arrested while changing planes at John F. Kennedy airport and rendered by U.S. authorities to Syria to be tortured, he claims, Judge Sotomayor played an active role in a heated two-hour argument before the full 2nd Circuit Court of Appeals in December. (The court has not yet issued its opinion.) Both of those cases — largely overlooked by the media as indicators of Sotomayor’s inclinations on executive power — suggest that Sotomayor will be no wallflower in cases challenging unchecked executive authority in matters of national security.

What Judge Sotomayor actually believes the law is when it comes to the treatment and detention of suspected terrorists, and the type of justice they’re afforded, is critically important to how the Supreme Court will rule on these issues in the coming years, however. As Charlie Savage wrote recently in The New York Times, the impact of a new justice on presidential power could make all the difference. “Important rulings on executive authority — striking down military commissions and upholding habeas corpus rights for Guantanamo detainees — have been decided by a five-vote majority, including Justice Souter, on the nine-member court,” Savage explained. Justice Souter was a strong proponent of limits on executive power, voting to strike down the first incarnation of military commissions created by President Bush, and voting in favor of providing Guantanamo detainees’ habeas corpus rights. A new judge could swing the majority the other way. And both of those issues — the new Obama military commissions and habeas rights for detainees at other U.S. prisons abroad, such as Bagram — are likely to reach the Supreme Court in the next few years.

“To my mind, this is the most significant issue for the court, especially given the radicalism of Roberts and Alito on presidential supremacy,” wrote Andrew Sullivan on his blog at The Atlantic recently.

In the 2008 ruling Doe v. Mukasey, Judge Sotomayor joined an opinion written by Judge Jon Newman that struck down parts of the USA Patriot Act. The law put a “gag order” on companies that received a National Security Letter from the FBI requiring the company to turn over information about their customers, and required the recipient of the letter to go to court to have the gag order lifted. The three-judge panel of the 2nd Circuit, including Sotomayor, ruled that it was the government’s burden to justify to a court why it had to silence an NSL recipient. The court also invalidated sections of the Patriot Act that required judges to assume as true the FBI’s claims about what would harm national security.

As the court wrote: “There is not meaningful judicial review of the decision of the Executive Branch to prohibit speech if the position of the Executive Branch that speech would be harmful is ‘conclusive’ on a reviewing court, absent only a demonstration of bad faith. … The fiat of a governmental official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements. ‘Under no circumstances should the Judiciary become the handmaiden of the Executive.’”

While it’s hardly a radical position for a federal court to reject a government’s arguments that its positions are unreviewable by any court, it does suggest that Sotomayor is willing to stand up to broad executive claims of unreviewable power in matters of national security. That’s likely to come up in cases raising the matter of state secrets, “preventive detention” of suspected terrorists and the creation of military commissions.

Sotomayor herself was explicit about her suspicion of the government’s assertion of unreviewable power in the national security context during the argument in Arar v. Ashcroft. Sotomayor wasn’t physically present in the courtroom, but her larger-than-life image was beamed on a screen via satellite teleconferencing technology, giving her what one blogger called “a Star Trek immensity.”

The government’s lawyer, Jonathan Cohn, was attempting to argue that the case is so “inextricably bound” with matters of foreign policy and national security that the courts should just stay out of it, since those are the exclusive domains of the executive branch.

Sotomayor, like many of her colleagues, was skeptical. In her most striking exchange with the government’s lawyer, she asked, “are you saying that there should be no Bivens action [a right to sue federal officials] for any torture by a federal agent?”

Cohn quickly said no, that’s not the government’s position, unless the issue is “fraught with national security implications.”

Sotomayor pressed the point: “So the minute the executive raises the specter of foreign policy or national security, it is the government’s position that that is a license to torture anyone, a U.S. citizen or a foreign citizen? License meaning you can do so without any financial consequence. That’s your position?”

Although Cohn claimed again that he was not saying that, Sotomayor had correctly seized upon the implication of his argument — that the government cannot be sued for torture so long as it claims that the suit raises foreign policy or national security concerns. And the nature of her questioning suggested strongly that she did not agree.

Though the full Second Circuit Court of Appeals declined to re-hear the case, suggesting a majority of judges agreed with Sotomayor, columnists from Richard Cohen of The Washington Post and Stuart Taylor at National Journal to Ed Whelan at National Review have attacked Sotomayor for allowing the city of New Haven to consider the racial impact of determining promotions based purely on an exam that had a racially disparate impact.

If we lived in a society where the law forbids ever taking race into account, then the critics might be right. But we don’t live in a race-blind society and our laws — such as the Civil Rights Act, under which New Haven could have been sued for discrimination if it had promoted only white firefighters — acknowledge that.

Take, for example, the No Child Left Behind Act, one of the signature acts of the Bush administration, signed into law in 2002 with the overwhelming support of both Republicans and Democrats in Congress. That law, recognizing that minority children in this country have historically not done as well in school as white kids, explicitly requires school districts to categorize student success by, among other things, race. And the outcomes make a big difference for the district. If minority children are performing below a certain level, schools are penalized, and eventually can even be closed. So schools have an incentive to target extra resources toward minority students that aren’t performing well to ensure they meet the law’s targets.  Isn’t that a race-based standard?

Did any of the Republicans who sponsored the law – including John Boehner (R-Ohio) in the House and Judd Gregg (R-N.H.) in the Senate complain about that?  Not that I can tell.

When President George W. Bush and his fellow Republicans included race-based criteria in their legislative agenda, it wasn’t illegal discrimination or affirmative action; it was compassionate conservatism. When a Latina woman is among a group of judges who acknowledge racial realities, she’s a hard-left liberal with a “very expansive” reading of the constitution that’s guided by “her personal feelings” rather than the law.

When President George H.W. Bush nominated Sotomayor to the U.S. District Court for the Southern District of New York, the Princeton and Yale graduate, former prosecutor and commercial litigator, sailed through Senate confirmation with ease. But when President Clinton nominated her to the Court of Appeals, Republicans stalled her nomination for more than a year — reportedly because they knew that a spot on the highly-regarded Second Circuit would situate her well for a future appointment to the U.S. Supreme Court.

TWI’s David Wiegel has written about how Republicans are itching to use President Obama’s first Supreme Court nomination to galvanize Republican loyalists — something The New York Times picked up on this past weekend.

These latest attacks on Sotomayor’s legal opinions are just that — politics, not principle.

Thurgood Marshall Courthouse (Flickr Creative Commons License)

The U.S. Court of Appeals for the Second Circuit on Tuesday had an opportunity to consider a question that may become more pressing in coming years: Should the U.S. government have to pay damages to a innocent man arrested and secretly sent overseas where he faced certain torture?

That’s the issue at the heart of Arar v. Ashcroft, the case heard by 12 judges in an overflowing courtroom in New York. Over the course of an en banc argument that lasted more than two and half hours, the judges peppered lawyers on both sides with questions on arcane matters of immigration procedure and on the central moral issue of whether a victim of torture overseas at the behest of the U.S. government can seek a remedy from the government.

Illustration by: Matt Mahurin

As I’ve written before, Maher Arar, a 34-year-old Syrian-born Canadian, was arrested on his way home to Canada after a vacation visiting relatives in Tunisia in 2002. While changing planes at JFK airport, he was picked up by FBI agents and taken into custody, denied access to his lawyer and then secretly sent to Syria to be questioned about his alleged ties to Al Qaeda. In Syria, Arar said he was held in a grave-like cell and severely tortured until he confessed to weapons training in Afghanistan, where he’d never been.

Arar was released in 2003 after Syrian authorities said they found no evidence that he’d done anything wrong. A Canadian investigation reached the same conclusion and issued a formal apology and reparations.

Yesterday’s argument centered on whether Arar, assuming that all his claims are true, has any recourse against the U.S. government. The answer could affect many more victims of alleged government abuse in the “war on terror.” (Another case, that of four British men who claim they were illegally detained and tortured at the Guantanamo Bay prison, is the subject of a petition to the U.S. Supreme Court.)

Georgetown University law professor David Cole, on behalf of the Center for Constitutional Rights, which is representing Arar, argued that Arar has a right to sue the government for monetary damages because he was refused access to U.S. courts when he was first detained and because U.S. officials conspired to send him to Syria where torture is an often-used interrogation technique.

As Cole told the judges: “I don’t see any reasonable argument that a federal official can torture somebody or outsource that torture to somebody else.”

But that wasn’t really the concern of the government, according to Deputy Assistant Atty. Gen. Jonathan Cohn, who is representing former Atty. Gen. John Ashcroft and other federal officials and agencies. He argued that even if torture is immoral and illegal, that doesn’t give Arar the right to sue the government or any federal official for being tortured.

“This is about separation of powers,” contended Cohn, insisting that there is no precedent for allowing a non-citizen deported by the immigration service to sue the United States for damages. That he was deported in secret, was not intending to immigrate to the United States and was intentionally sent to a country where he would likely be tortured should make no difference, Cohn told the appeals court.

That argument seemed to outrage Judge Guido Calabresi. He said that if he were changing planes in France and was picked up by the French authorities and whisked away to Syria where he faced the likelihood of being tortured for some alleged crime, he sure would hope the U.S. would have a problem with it. “You might have a very strong interest in creating an action in this country to prevent other countries from doing that,” he told Cohn.

Cohn’s other main argument was that the Arar case is too intertwined with national security and foreign policy, the prerogatives of the president, for the appeals court to get involved.

That didn’t sit well with Judge Barrington Parker, among others. “We look at matters that raise national security and foreign policy issues all the time,” he said, noting that the court frequently reviews petitions for political asylum and petitions for relief under the U.N. Convention Against Torture, which is supposed to prevent deportation to a country where someone has a reasonable belief they will be tortured. In such cases, “We’re always making comments in the international arena about international affairs.”

Some of the judges seemed more sympathetic to Cohn’s arguments. Judge Dennis Jacobs frequently tried to shush his colleagues so the government’s lawyer could make his argument, and Judge Jose Cabranes worried that allowing Arar to sue the government would open the door to thousands of other disgruntled immigrants who each year believe they were wrongly deported.

But several judges noted that the State Department has repeatedly assured the U.N.’s Committee Against Torture, in writing, that victims of torture at the hands of U.S. officials have cause to take civil action against the United States. They asked how Cohn could now suggest that the victims don’t.

In response, Cohn tried to distinguish between federal officials who send detainees to countries knowing they faced torture there from those who actually do the torturing themselves.

After allowing Cole a brief rebuttal, the court asked the government to produce more information — specifically, an unredacted copy of a report by the Inspector General for the Department of Homeland Security about the Arar incident.

While the Second Circuit court could rule on Arar’s case at any time, it’s likely to wait at least a few months. After all, the Obama administration could take a different position in the case — prompting a new 12-judge, multihour argument all over again.

As I reported earlier, the 34-year-old computer consultant of Syrian descent was apprehended by U.S. authorities in 2002 while he was changing planes at New York’s John F. Kennedy International Airport, on his way home to Canada after visiting relatives in Tunisia.

After a harsh interrogation without access to counsel in New York, he was flown to Syria against his will, where he was kept in a tiny underground prison cell and tortured until he eventually “confessed” to training for terrorism in Afghanistan; in fact, he’d never even been there.

For those with a strong stomach, here’s the federal district court’s description of Arar’s early days in Syrian detention, which he claims was coordinated with US authorities:

During his first twelve days in Syrian detention, Arar was interrogated for eighteen hours per day and was physically and psychologically tortured. He was beaten on his palms, hips and lower back with a two-inch-thick electric cable. His captors also used their fists to beat him
on his stomach, face and back of his neck. He was subjected to excruciating pain and pleaded with his captors to stop, but they would not. He was placed in a room where he could hear the screams of other detainees being tortured and was told that he, too, would be placed in a
spine-breaking [*11] “chair,” hung upside down in a “tire” for beatings and subjected to electric shocks. To lessen his exposure to the torture, Arar falsely confessed, among other things, to having trained with terrorists in Afghanistan, even though he had never been to Afghanistan
and had never been involved in terrorist activity.

Arar was eventually deemed innocent and returned home to Canada in 2003, where the Canadian government confirmed that he’d done nothing wrong and apologized for its role in his arrest.

With the help of the Center for Constitutional Rights and Georgetown law professor David Cole, in 2004 Arar sued American officials in a U.S. federal court for sending him to Syria to be tortured.  But his case was dismissed on the grounds that an investigation might reveal state secrets and harm national security.  The court also ruled that, as a foreigner deported by immigration authorities, he had no right to challenge his treatment by the United States.

Although a three-judge panel of the Second Circuit affirmed the district court’s ruling, holding that Arar has no right to sue federal officials no matter what was done to him, the full court  of appeals in August made the highly unusual decision to re-hear the case.  All 12 active judges of the court are scheduled to hear the arguments from both sides at 3 p.m. in New York.  The argument will stream live on C-Span.org.

For more on the Arar case and the US government’s program of extraordinary rendition, check out Jane Mayer’s excellent piece on the subject in the New Yorker.