Wednesday, July 15, 2009
U.S. Judge Sonia Sotomayor returned to the hearing room of the Hart Senate Office Building on Wednesday morning for her third day of Supreme Court confirmation hearings. She will try to reveal little more than she did in her first day of questions from the Senate Judiciary Committee.
Sotomayor's colloquies with senators on Tuesday covered many of the hot-button topics that may come before the Supreme Court, including abortion, gun rights and presidential power.
However, the nominee avoided making any dramatic or highly controversial pronouncements on those topics, often calling them "settled precedent" or describing previous Supreme Court cases on the subject in detail. Her cautious tone led Republican Sen. Lindsey Graham of South Carolina to say, "I listen to you today, I think I'm listening to [Chief Justice John] Roberts."
Republicans contrasted those modest statements with bolder comments Sotomayor has made in speeches. "These speeches really throw a wrinkle into everything," said Graham.
The most controversial of those comments is the "wise Latina" statement. In 2001, Sotomayor told a law school audience at the University of California, Berkeley: "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." She has made similar comments elsewhere.
"The context of the words that I spoke have created a misunderstanding," Sotomayor told senators Tuesday, noting that the remarks had been made in front of groups of female lawyers and, often, Latino lawyers or law students.
She added: "To give everyone assurances, I want to state upfront, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe that every person has equal opportunity to become a good and wise judge, regardless of their background or life experiences."
Judge Sonia Sotomayor also told senators that she disagreed with President Obama when he said that in a certain percentage of judicial decisions, "the critical ingredient is supplied by what is in the judge's heart."
Obama made those comments in 2005, at the confirmation hearings for Chief Justice John Roberts, whom Obama voted against.
When asked by Arizona Republican Sen. Jon Kyl whether she agreed with Obama's statement, Sotomayor said, "No, sir, I wouldn't approach the issue of judging the way the president does."
"I can only explain what I think judges should do," Sotomayor said, adding, "Judges can't rely on what's in their heart. ... It's not the heart that compels conclusions in cases, it's the law."
Defending Her Impartiality
Kyl was one of several aggressive questioners on the Senate Judiciary Committee whom Sotomayor faced Tuesday. Sotomayor repeatedly emphasized her impartiality as a judge, saying judges must decide each case based on specific facts and law, rather than on personal, subjective considerations.
She and her supporters often returned to her record as a judge, while critics focused primarily on comments Sotomayor has made off the bench.
"The process of judging is a process of keeping an open mind," Sotomayor told the committee. "It's the process of not coming to a decision with a prejudgment ever of an outcome."
Ranking Republican Sen. Jeff Sessions of Alabama said those statements strike the right note, and "had you been saying that with clarity over the last decade or 15 years, we'd have a lot fewer problems today."
Sessions said he was troubled by "a body of thought over a period of years" suggesting that Sotomayor believes that a judge's background will affect the result in cases.
The nominee rejected that characterization. "My record shows that at no point in time have I permitted my personal views or sympathies to influence the outcome of a case," she told Sessions. "In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result."
Of 'Ricci' And 'Roe'
Sotomayor also addressed the most controversial case she has decided as a judge, Ricci v. DeStefano. Sotomayor was part of a three-judge panel on the court of appeals that ruled against white firefighters challenging a promotion test that the city of New Haven, Conn., threw out after no black firefighters qualified for promotion.
The Supreme Court recently disagreed with Sotomayor and overturned the lower court ruling. Sotomayor told the committee that she "decided that case on the basis of a very thorough, 78-page decision by the district court and on the basis of established precedent" — not on her opinion of what the preferred outcome of the case should be.
When asked whether the Supreme Court's two landmark decisions on abortion rights — 1973's Roe v. Wade and 1992's Planned Parenthood of Southeastern Pennsylvania vs. Casey — were settled precedent, Sotomayor agreed. (For the record, Chief Justice John Roberts and Associate Justice Samuel Alito called those cases precedents deserving of respect during their confirmation hearings.)
Sotomayor's dialogue with senators also included exchanges on gun rights, presidential power and the Supreme Court's role in striking down acts of Congress.
A Composed Nominee
The nominee's tone in the hearing was consistently slow and measured. She seemed to be striving not to create any drama, even as senators sometimes raised their voices.
Graham said that demeanor does not match some anonymous comments about Sotomayor's judicial temperament that have been submitted by lawyers to a legal Web site. Some of those comments described Sotomayor as "aggressive" and a "bully."
"Do you think you have a temperament problem?" asked Graham.
"No, sir," replied Sotomayor. "I believe that my reputation is such that I ask the hard questions, but I do it evenly for both sides."
Democrats were more full-throated in their defense of Sotomayor than the nominee was in defending herself. "This very reserved, very factual and very considered nominee is being characterized as being an activist when she is anything but," said California Democrat Sen. Dianne Feinstein.
If she is confirmed, which Republicans frankly acknowledged seems nearly certain, the 55-year-old Sotomayor would be the first Hispanic and the third woman ever to serve on the Supreme Court. President Obama has tapped her to replace Justice David Souter, who often sided with the court's more liberal minority. Sotomayor is not expected to alter the ideological balance of the court in any significant way.