By William Fisher
Today, the first full day of questions from members of the U.S. Senate Judiciary Committee considering the confirmation of Supreme Court Justice Sonia Sotomayor, was remarkable mainly for the softball questions asked by her Democratic supporters and the snarky, “gotcha” questions posed by her Republican opponents.
With a few notable exceptions, many observers found today’s hearing an exhibition of the triumph of politics over jurisprudence. Much of the session appeared to be more akin to a political debate among rivals in a political campaign than a discussion of the profound national implications of the appointment of a jurist to a lifetime appointment.
Chairman Patrick Leahy, a Vermont Democrat, the first questioner, sought to preempt Republican criticism of an oft-quoted 2001 off-the-court speech by Sotomayor, in which she said, "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 said, "I want to state upfront, unequivocally and without doubt: I do not believe that any racial, ethnic or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge, regardless of their background or life experiences.”
She explained that the speech was given to Hispanic and other young law students and that she was trying to inspire them to believe “they could be anything that they wanted to be.”
But the “wise Latina” issue was far from settled. It was raised again immediately afterward by the senior Republican on the Committee, Senator Jeff Sessions of Alabama. Sotomayor told him her background as a trial and appellate court judge had taught her to keep an open mind and not come to any cases with a prejudgment of the outcome.
But Sessions was apparently not satisfied; he returned to the “wise Latina” issue several times, as did Republican Senators Orrin Hatch of Utah, John Kyl, of Arizona, and Lindsey Graham of South Carolina. Sessions said he was “troubled” by the sentiment he finds in the remarks.
Overall, there was far more discussion of the “wise Latina” issue than of Sotomayor’s legal decisions or her approach to judging.
"We remain focused on some fundamental questions about the philosophy of Judge Sotomayor as expressed in her statement on more than one occasion over a period of 15 years," Sessions said yesterday after the hearings ended for the day.
"And they've expressed a rather serious critique of the classical ideal of blind justice," he said.
Trying to portray Sotomayor as an “activist judge,” the Alabama lawmaker cited her onetime comment suggesting that judges make policy.
"I do believe judges must apply the law and not make the law," the nominee said today.
"I don't think it's that clear," said Sessions.
But Sotomayor retained her composure, sitting with her leg elevated due a recent broken ankle, and with a half-smile reminiscent of the Mona Lisa. She smiled at Sessions and responded: "Life experiences influence us, in a good way. But that's not what drives the result. The impartiality in the law drives the result," she said.
She also said that she accepted as "settled" the current U.S. law permitting abortion, and indicated that she might be open to the idea of permitting Supreme Court hearings to be broadcast on television.
Sen. Charles Grassley, Republican from Iowa, asked Sotomayor about the Kelo case. Sotomayor said she "has to accept, because it is precedent" the court's ruling. The extent of the ruling, she says, "has to await the next case." In that case, the Supreme Court ruled that the city of New London, Connecticut, had the right to seize private property and turn it over to a commercial developer in order to encourage economic development.
Despite their criticisms, Republicans were careful to speak glowingly about Sotomayor’s humble beginning, her rise from a public housing project in the south Bronx to a distinguished career in the law.
"I would hope every American is proud that a Hispanic woman has been nominated to sit on the Supreme Court," said Sen. Jon Kyl, an Arizona Republican.
On this issue, the Republicans find themselves between a rock and a hard place: They need to be critical of the nominee, but they need to do it in a way that will avoid alienating Hispanic voters, who make up the nation’s fastest-growing minority demographic.
She was also questioned about a recent controversial ruling she and two other judges made against white New Haven, Connecticut firefighters who alleged reverse discrimination after being denied promotions.
Sotomayor explained that the ruling wasn't about affirmative action or quotas. "The issue was not what we would do or not do, because we were following precedent," she said, referring to her panel on the 2nd Circuit, whose ruling was overturned late last month by the Supreme Court. Sotomayor said she would "absolutely" have reached a different result in light of the Supreme Court's reversal.
The 55-year-old nominee was also grilled by Sessions on the issue of guns today. Rejecting a challenge to a New York state law banning possession of "chuka sticks," a martial arts weapon, Sotomayor said she was bound by a 19th century Supreme Court ruling that said the Second Amendment does not apply to state laws that limit weapons possession.
She noted that the justices, in ruling last year that individuals have a constitutional right to possess guns for self-defense, left open the question of whether the ruling would apply to state and local gun control laws. She said it is up to the high court, not other judges, to make that decision.
In response to questions from Democratic Senator Russ Feingold, Sotomayor declined to detail how she felt about the actions of the federal government after the terrorist attacks of September 11, 2001, the secrecy of the FISA (Foreign Intelligence Surveillance Act) court, warrantless wiretapping, the torture statute, and the limits of presidential authority because the issues are likely to come before the Supreme Court.
However, she volunteered that the power of the presidency is at its strongest when the executive branch of government acts in concert with congress.
Arguably, the only time Sotomayor appeared to be trying to find ways to evade non-judicial questions was when Senator Graham asked about her 12-year service on the board of the Puerto Rican Legal Defense and Education Fund, some 30 years ago. She ducked questions about taxpayer-funded abortions and the death penalty, saying as a board member her principal job was fund-raising. Graham promised to revisit the issue with her tomorrow.
Sotomayor is of Puerto Rican descent and was born in the Bronx, New York, where she and her family lived in a public housing project. If confirmed by the full Senate, she would be the Supreme Court’s first Latina Justice.
The hearing continues tomorrow.