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 immediately revisited the topic that drew the most attention during the first two days of hearings: her statement in speeches that she hoped a "wise Latina" might reach a better conclusion than a white male who hasn't lived that life.
"It is clear from the attention that my words have gotten and the manner in which it has been understood from some people that my words failed," Sotomayor said in response to questioning from Republican Sen. John Cornyn of Texas.
Cornyn said it is difficult to reconcile "two pictures that I think have emerged during the course of this hearing." One picture, said Cornyn, is of a moderate judge who often agrees with her colleagues on the bench. The other picture, from Sotomayor's speeches and other writings, has given Republicans concern.
As Cornyn told the nominee, "You will be free as a United States Supreme Court justice to basically do what you want" — which is why many Republicans have looked to Sotomayor's comments off the bench as an indication of the kind of Supreme Court justice she may be.
Still, Cornyn gave Sotomayor more reason to believe she will be confirmed, saying a filibuster "is not going to happen to you, if I have anything to say about it. You will get that up or down vote on the Senate floor."
The Abortion Issue
Sotomayor confirmed that neither President Obama nor any other White House staff asked her position on abortion before nominating her to the high court. "I was asked no question by anyone, including the president, about my views on any specific legal issue," she said.
On Tuesday, she told senators that she believes 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 — are "settled precedent." (For the record, Chief Justice John Roberts and Associate Justice Samuel Alito called those cases precedents deserving of respect during their confirmation hearings.)
Oklahoma Sen. Tom Coburn returned to the issue Wednesday morning, asking Sotomayor: "What is the settled law in America about abortion?"
In response, Sotomayor described the rulings that the Supreme Court has issued. When Coburn proposed a hypothetical scenario, Sotmayor declined to answer in the abstract.
"The question is, is the state regulation regulating what a woman does an undue burden?" said Sotmayor. "So I can't answer your hypothetical, because I can't look at it as an abstract without knowing what state laws exist on this issue."
Revisiting 'Ricci,' With Firefighters In Attendance
In an exchange with Cornyn, Sotomayor again tried to justify her decision in one of the most controversial cases she has heard in her 17 years as a judge — Ricci v. DeStefano. A three-judge panel that included Sotomayor ruled against a group of white firefighters who had sued the city of New Haven, Conn., for throwing out a promotions exam when no black firefighters qualified. The Supreme Court recently overturned that ruling.
Sotomayor said her panel evaluated the standard the city of New Haven used in deciding to throw out the exam. The city "made a choice under that existing law," said the nominee. "The Supreme Court, in its decision, set a new standard," she said.
As the nominee spoke, several New Haven firefighters sat in the audience of the hearing room.
The first three days of hearings have brought no dramatic fireworks. Sotomayor's demeanor was understated and slow. She rarely revealed more about her judicial philosophy than necessary. While Democrats frequently returned to the nominee's record as a judge, Republicans delved into her speeches and other comments off the bench.
