The Opinion Manufacturing Division invited a half dozen or so esteemed legal minds to comment on the Senate Judiciary Committee's hearings this week on the nomination of Judge Sonia Sotomayor for the Supreme Court. Here are the submissions for Day Two of the hearings, in chronological order. To read Day One's remarks, go here.

Tuesday, July 14

7:02 p.m.
Erwin Chemerinsky
Dean, UC Irvine School of Law

In response to hours of intense questioning, Judge Sonia Sotomayor said all of the right things to ensure that her confirmation will not have any unexpected problems. On Monday, Senator Lindsay Graham said that she would be confirmed unless she had a "meltdown." On Tuesday, there was no meltdown. Quite the contrary, she showed herself be to be extremely intelligent, exceptionally knowledgeable, and unfailingly poised.

She repeated the slogan that "judges apply, not make the law." Although I understand why this is said, I find it frustrating that nominees find it necessary to say something so clearly incorrect and that gives the public such a misleading picture of what the Supreme Court does. Every first-year law student knows that judges make law. In a common law system, like the United States, most of tort, contract, and property law is judge-made law. Everything the Supreme Court does makes law. To pick an example from a recent Supreme Court case, the Court would have made law whether it allowed or prohibited strip searching of a student suspected of having prescription strength ibuprofen. Whether the Court found a constitutional right to abortion in Roe v. Wade, or rejected such a right, it would have made law.

Saying that "judges apply, not make the law" is not only inaccurate, but harmful....

So far the Senate confirmation hearings for Judge Sonia Sotomayor have been as predictable as a Bob Herbert or Charles Krauthammer column. Democratic members of the Judiciary Committee have tossed her softballs. Republicans, slighting her voluminous work product as a judge, have harped about her now-infamous comment in a lecture that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.”

Equally predictable, and perhaps necessary, was Sotomayor’s artful recantation of her “wise Latina” gaffe (gaffe as defined by Michael Kinsley: telling the truth). Pressed by Sen. Jeff Sessions of Alabama (Latino population: 2.7 percent), the nominee acknowledged that her “wise Latina” comment was “a rhetorical flourish that fell flat.” It left the misimpression, she said, “that I believed that life experiences commanded a result in a case, but that's clearly not what I do as a judge.”

Strictly speaking, she’s right on both counts. Her speech didn’t include the word “command.” And she did say in the lecture that she aspired as a judge to “transcend . . . personal sympathies and prejudices.” But the theme of the speech is hard to square with Sotomayor’s statement on Tuesday that judges “should examine what they're feeling as they're adjudicating a case and to ensure that that's not influencing the outcome.”

Whoa. If that's what her speech was saying, why bother dwelling on the importance of race or gender if the perspectives they yield are to be abandoned? Actually, in her speech Sotomayor referred to “excellent” studies showing that female judges “vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases.” If they don’t, what’s the point of seeking gender diversity?

You don’t have to believe that judges are “robots” who vote only and always on the basis of their life experiences to accept that outcomes sometimes are affected by such factors. I’m going out on a limb here, but maybe, just maybe, Chief Justice John Roberts’ experience representing business clients allows him to appreciate (or overvalue) the employer’s perspective in a job discrimination case.

It’s likely both that experience affects how judges rule in some cases, and that those same judges believe they are transcending their experience and ruling simply on the law. Alas, that reality is too complex to be acknowledged in the partisan forum of a confirmation hearing.

As I sat listening to Sen. Orrin Hatch's (predictable) opening remarks at Judge Sonia Sotomayor's confirmation, I hoped -- against hope? -- that Republicans eventually would move beyond whining about "Democrat" opposition to President Bush's nominees. If that happens, C-SPAN junkies will be bombarded by technical terms and case citations. Click here for a crib sheet, originally published on the first day of Chief Justice John G. Roberts Jr.'s confirmation hearings. Here's a sample:

• United States v. Lopez. In this 1995 decision the court by a 5-4 vote struck down the federal Gun Free School Zone Law, saying that Congress had exceeded its power under the Commerce Clause to regulate activities under the purview of the states.
• Color-blindness. The notion, frequently invoked by opponents of affirmative action, that the Constitution's guarantee of "equal protection of the laws" and the 1964 Civil Rights Act prohibit laws that confer any benefits on the basis of race, even if the beneficiaries are members of groups that were the victims of racial discrimination in the past.
• Comparable worth. A system in which a government agency sets pay scales based on whether jobs done primarily by women (e.g., nursing) are of "comparable worth" to those mostly done by men (e.g., truckdriver). As a lawyer in the Reagan administration, Roberts called the concept "pernicious" and "anti-capitalist."
• Hamdan v. Rumsfeld. A July 15, 2005, decision by the U.S. Court of Appeals for the District of Columbia in which Roberts joined the majority opinion upholding the legality of the military tribunals established by the Bush administration to try foreign suspected terrorists at Guantanamo Bay.

As a bonus, here's the Supreme Court decision overruling Sotomayor's ruling in the now-famous New Haven firefighters case. Who knows, somebody might bring it up.

Nicholas Kamm / AFP/Getty Images

An international accord on global warming? The editorial board celebrates, even though the agreement falls far short of what's needed to make a real difference. Still, it represents a new willingness by industrialized nations to tackle the issue in a serious way. The board finds something else to celebrate in the new get-tough stance by L.A. schools chief Ramon C. Cortines, who sent out letters saying that teachers who don't perform basic job duties -- like giving required tests -- will be written up. A week later, the union suspended its boycott of the tests. Coincidence? The board thinks not. One final thing to kvell about: LAPD did a great job on security for the Michael Jackson memorial, the board cheers -- but what was going on with the rest of city government? Ordering sandwiches in from Wrightwood and posting a humiliating plea for pennies to cover the costs of the memorial? The posting didn't even work; the website went down.

It's not like the city is incapable of doing anything right. By all accounts, the Police Department and traffic officers handled their end of Tuesday's event flawlessly. But in so many other ways, City Hall bumbling makes Los Angeles look laughably low-tech, shamefully disorganized, simultaneously an easy mark and a swindler, and cheap and pathetic besides.

On the other side of the fold, former longtime legislator John Vasconcellos analyzes the ingredients that went into making the state budget crisis so bad (Hint: Proposition 13 gets dragged in by its tax-restricting toes), and offers his personal recipe for climbing out of the hole. And Miguel A. Estrada, a native of Honduras and member of the U.S. delegation to President Manuel Zelaya's 2006 inauguration, explains why Zelaya's ouster isn't the millitary coup people think. To understand that, he writes, you need to know a couple of quick things about the Hunduran constitution:

Article 239 specifically states that any president who so much as proposes the permissibility of reelection "shall cease forthwith" in his duties, and Article 4 provides that any "infraction" of the succession rules constitutes treason. The rules are so tight because these are terribly serious issues for Honduras, which lived under decades of military rule.

As detailed in the attorney general's complaint, Zelaya is the type of leader who could cause a country to wish for a Richard Nixon. Earlier this year, with only a few months left in his term, he ordered a referendum on whether a new constitutional convention should convene to write a wholly new constitution. Because the only conceivable motive for such a convention would be to amend the un-amendable parts of the existing constitution, it was easy to conclude -- as virtually everyone in Honduras did -- that this was nothing but a backdoor effort to change the rules governing presidential succession.

Photo: The closing moments of the Michael Jackson memorial event at Staples Center. Credit: Mark Terrill-Pool / Getty Images

Liberals and conservatives on the U.S. Supreme Court disagreed dramatically during the past term on everything from the regulation of "indecent" broadcasting to employment discrimination to whether elected judges should recuse themselves from cases involving campaign benefactors.

A notable exception came in the 8-1 holding that an Arizona school had violated the 4th Amendment rights of a 13-year-old girl by subjecting her to a strip search (the dissenter was Clarence Thomas, taking his familiar role as outlier). The near-unanimity confounded publicly expressed fears by Justice Ruth Bader Ginsburg that the result might be affected by the fact that her eight male colleagues "have never been a 13-year-old girl."

Ginsburg's anxiety was understandable given the gender divide at oral arguments over whether removing your clothes is all that traumatic for a teenager. Ginsburg must have cringed ...

Comments continue to cascade in response to  Catherine Lyons' thoughtful post on the president of France's broadside against burqas. I thought I'd add my 2 cents' worth, even they're pennies I spent in 2004 when I was writing for another newspaper. In a column headlined "Scarves and Smugness," I suggested that Americans ought to refrain from judging the French too harshly for their ban on the wearing of headscarves -- and other religious garments and adornments -- in state schools.

That policy had drawn criticism from the Bush administration, criticism  echoed by President Obama in his June 4 speech in Cairo. Freedom in America, he said, " is indivisible from the freedom to practice one's religion. That is why there is a mosque in every state of our union, and over 1,200 mosques within our borders. That is why the U.S. government has gone to court to protect the right of women and girls to wear the hijab, and to punish those who would deny it."

In my column (full text here) I wrote:

"Official tolerance for religious diversity in this country is a relatively recent phenomenon. It wasn't until 1987, in response to an adverse Supreme Court decision, that Congress allowed Jewish military officers to wear yarmulkes with their uniforms. Only recently have Christmas pageants in public schools been repackaged as ecumenical 'holiday celebrations' that also make note of Hanukkah and Kwanzaa. . . .

"It is tempting to recommend to the French that they copy the U.S. First Amendment, which the Bush administrations seems to think offers simple answers to the question of religious expression in state schools. But that amendment itself pulls in two directions: prohibiting governmental 'establishment of religion' but guaranteeing the 'free exercise' of religion. Into which category should we place an exception in a school dress code for religious apparel?
 
"The sort of 'multicultural' pluralism the Bush administration recommends to France took time to develop in this country and in England, where until the 19th century Roman Catholics and other 'Nonconformists' were second-class citizens. Earlier than that, in Elizabethan times, Catholics were presumed to be traitors because they answered to a pope who had excommunicated England's Protestant queen. The line between religion and politics in those days was a blurred and bloody one. So it is, some would argue, in contemporary France with its large Muslim minority."

"Some would argue" was a hedge on my part, and I'm still torn about whether France should bolster its wall of separation between church and state. I do think that the burqa controversy raises the question of whether Americans should equate the particulars of our democracy or civil society with universal imperatives like representative government, separation of church and state and fair trials. Take the question of an independent judiciary, which appears on the checklists of most definers of democracy. In this country, an independent judiciary includes the right of the Supreme Court to nullify unconstitutional statutes. Britain historically has not gone that far, not surprisingly given its lack of a written Constitution. But British justice, though sometimes flawed (as is American justice), has a deserved reputation for political independence. And while the British have an encouragingly expansive understanding of freedom of religion, they also have an Established Church.

Banning women from wearing the burqa anywhere strikes me as a violation of the basic principle of religious freedom. Banning headscarves and crucifixes from state schools, not so much.  France is more of a stickler for secularism than the is United States, because of its history and culture and not just out of concern about unassimilated Muslims. I'm not quite willing to say  "Vive la différence," but neither will I excommunicate France from the free world.

The Times editorial board focuses on the failing healthcare system in the United States, urging Congress and all parties involved to start the reform process now before it's too late. Despite sharp disagreements over some of the proposed fixes, the board notes the broad consensus about three main problem areas: rising costs, incomplete coverage and questionable quality:

On the Op-Ed side of the fold, Steven Hill proposes several ways that California can approach a constitutional convention that will potentially remake the state into California, Version 2.0. The problem, he writes, is how to choose delegates. He concludes that random selection -- as done in Canada, among other countries -- may be the best and fairest option. Gregory Rodriguez discusses the danger of urban downsizing and the Obama administration's consideration of a plan to shrink deteriorating cities by bulldozing neighborhoods:

And Susan R. Barry reflects on the beauty of a 3-D world as well as the potential benefits of 3-D movies in spotting visual defects in children.

Photo: Democrats on the Senate Banking Committee hold a rally in Washington, D.C., for their healthcare overhaul bill on June 16. Credit: Robert Giroux / Getty Images

Here's a look at the blogosphere's reactions to the work of the Times' Opinion Manufacturing Division this week:

The Opine Editorials, a blog in defense of marriage, disagrees with this week's Times' editorial about the California Marriage Amendment, chiding its remarks as "marriage neutering."

In this post, the No More Tobacco Taxes blog puts forth a different take on the proposed tobacco tax, arguing that tobacco should not be targeted because it's "PC." This -- and the press release from the International Premium Cigar and Pipe Retailers also posted on the blog -- both mention the Times editorial, which favors the tax and the much-needed revenue it would generate for California.

Global Americana Institute President Juan Cole's blog, Informed Comment, linked to Babak Rahimi's op-ed in its broader discussion of the media coverage of the political turmoil and protests in Iran.

John Brown's Public Diplomacy and Press and Blog Review, Version 2.0 included Ben Ehrenreich's op-ed on torture as part of America's tradition in his roundup of blogs related to public diplomacy.

The Mahablog picked up on Douglas W. Kmie's op-ed that stated substituting the term "civil union" for "marriage" in the ongoing struggle for gay marriage legality would be a win-win situation. The Mahablog counters that the two terms are not the same, "marriage" implying that the status is backed by both the state and a religious entity while "civil union" only ensures the former's support.

American Chronicle cited the Times' June 17 editorial against the U.S. Supreme Court's decision to deny prisoners access to DNA testing, saying the editorial voiced the "dismay of millions within US and rest of the world on the subject."

Finally, KCET's blog used two of Tim Rutten's columns on traffic congestion and the implementation of toll roads in its discussion of the equity of congestion pricing in Los Angeles.

The editorial board bemoans the U.S. Supreme Court decision that inmates have no right to DNA testing that could exonerate them. Attempts by an accused person to find exculpatory evidence should be considered a basic part of due process. The board agrees with Colombian leaders that they, not the United States, should be the ones to try a man accused of holding 15 hostages including three who worked for military contractors. The board also takes a look at the Alameda Unified School District's new curriculum for teaching elementary school children about tolerance toward gays and lesbians, and concludes that the lessons take too heavy-handed an approach for such young children:

It's high time that schools took anti-bullying measures more seriously. We just never thought that would include requiring fifth-graders to recite the meaning of each letter in LGBT.

In attempting to discourage taunting of gay students, the Alameda Unified School District turned what should be a basic lesson on treating others kindly into a primer on sexual identity. Its new anti-bullying curriculum for kindergartners through fifth-graders will begin in the fall and focus solely on gay and lesbian issues -- as if harassment based on race, religion or failure to wear cool clothes were nonexistent. Parents who might object cannot opt their children out of it.

On the other side of the fold, writer Richard Farrell describes the haunting heights and low points of life with his domineering, sometimes abusive, sometimes intensely loving father. And a UCLA English professor parses the language of Middle East coverage and finds that it favors Israel over the concerns of Palestinians.

Illustration by Polly Becker for The Times

Obviously, some California public services will have to be cut, the editorial board observes, but what sense does it make to eliminate CalWorks, a program funded mostly by the federal dollars that enables people to get jobs and pay the rent? The board also notes that this is the big day for switching to digital TV, and it calls on the Federal Communications Commission to define the broadcasters' public-service obligations for digital channels.

CIA Director Leon E. Panetta might be right in saying that he can't possibly make public a single paragraph within 65 documents describing his agency's interrogation techniques, the board says, but that doesn't mean the federal judge in the case should take his word for it. The judge should review the documents personally before making a decision, the board advises.

 On the other side of the fold. a teacher of history and education says the use of the term "Hispanic" to denote an ethnic group is a relatively recent phenomenon in the nation's history, and one that has served to make those of Latin American descent feel more "other" than they used to. Supreme Court nominee Sonia Sotomayor should be seen as the first person of Puerto Rican descent who might be appointed to the high court, Jonathan Zimmerman argues, rather than as Hispanic. And Bill Maher has had enough with the puppies and the hamburgers; he wishes President Obama were less visible and barking more orders over the phone. The man is in serious danger of cute media overexposure, Maher huffs:

We like you, we really like you! You're skinny and in a hurry and in love with a nice lady. But so's Lindsay Lohan. And like Lohan, we see your name in the paper a lot, but we're kind of wondering when you're actually going to do something.

Illustration: Pedro X. Molina