Republicans Tread Cautiously in Sotomayor Hearing

By William Fisher

In what many Congress-watchers see as Washington’s version of Kabuki Theater, the U.S. Senate Judiciary Committee today began its hearings on the confirmation of Judge Sonia Sotomayor to be the first Latina associate justice of the Supreme Court and only the third woman ever to be nominated to the nation’s highest court.

In a packed hearing room, the committee, 13 Democrats and 7 Republicans, will spend much of this week asking the 55-year-old nominee about her compelling up-from-poverty personal story, her judicial philosophy, the decisions she made in her 17-year record as a federal judge, and a number of her speeches and papers which have become controversial.

President Barack Obama chose Sotomayor in late May to take the place of Justice David Souter, who retired last month. Justice Souter was appointed by President George H.W. Bush, but has generally sided with the liberal wing of the court. Sotomayor’s presence would probably not appreciably alter the balance of the power on the conservative-leaning court.

While her confirmation is considered virtually certain – Democrats control both the committee and the full Senate – the thrust of the questions from representatives of the two political parties varied widely.

Democrats focused on Judge Sotomayor’s personal background, education, and experience as a 17-year a federal judge, and portrayed the nominee as a painstakingly careful “mainstream” jurist with a demonstrated record of applying the law fairly.

A majority of Republicans – some of whom have labeled President Barack Obama’s pick a racist – appeared to dismiss the bulk of her rulings as dictated by Supreme Court precedent, and instead cited a handful of controversial decisions and off-the-bench remarks to paint Judge Sotomayor as an extremist who could use her high court seat to tip the scales in favor of minority groups she considers victimized by American history. Controversial cases include discrimination complaints, gun rights, and her largely unknown views on abortion.

The party schism was seen in bold relief in this morning’s 10-minute opening statements from each of the committee members. But, in the surprisingly civil and respectful tone struck by Republican members, it was clear that they were well aware of the risk posed among Latino voters if their statements appeared to be overly harsh.

In his opening statement, the chairman of the committee, Senator Patrick Leahy, a Democrat from Vermont, criticized “distorted attacks” on Sotomayor on the basis of race. He said the nominee will rule on the basis of law, not ideology.

He compared Sotomayor to Thurgood Marshall, the court's first African American, and Sandra Day O'Connor, its first female member.

Conservatives and some Republicans, Leahy said, have attempted to "twist her words and her record. . . Ideological pressure groups have attacked her before the president had even made his selection," Leahy said. "They then stepped up their attacks by threatening Republican senators who do not oppose her.”

He said, "We do not have to speculate about what kind of a justice she will be because we have seen the kind of judge she has been. She is a judge in which all Americans can have confidence."

The committee's ranking Republican, Sen. Jeff Sessions of Alabama, criticized a speech Sotomayor gave in 2001, in which she said that she hoped that a "wise Latina" judge might make better decisions than a white man.

Sessions also referenced a recent case, Ricci v. DeStefano, in which the Supreme Court overturned a unanimous 2nd Circuit three judge panel of which Sotomayor was a member. The high court ruled that white firefighters had been discriminated against when the city of New Haven, Connecticut, withdrew a test for promotions because minority candidates scored more poorly than whites.

Sessions said he thought that American jurisprudence “is at a crossroads.” One path, he said, will take us down the “traditional road”, which gives our Constitution its “moral authority.” The other road, he said, takes us to “activist judges” who distort the Constitution to fit their political agendas.

Sessions disagreed with the characterization of Sotomayor as “moderate,” instead comparing her with Justice Ruth Bader Ginsburg, who he called “one of the most activist judges” on the Supreme Court.

In her brief remarks, which came at the end of three hours of statements from 20 senators, Judge Sotomayor told the Senators that her judicial philosophy is not to make law, but rather to apply the law to the facts of each case. “My decisions are not made to service the interests of any one litigant,” she said. She added that she was keenly aware of the impacts of her rulings on the lives of real people with real problems.

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. She graduated with an A.B., summa cum laude, from Princeton University in 1976, and received her J.D. from Yale Law School in 1979, where she was an editor at the Yale Law Journal.

Sotomayor was an Assistant District Attorney in New York for five years before entering private practice in 1984. She played an active role on the board of directors for the Puerto Rican Legal Defense and Education Fund.

Sotomayor was nominated to the U.S. District Court by President George H. W. Bush in 1991 and confirmed in 1992. In 1997, she was nominated by President Bill Clinton to the U.S. Court of Appeals.

The American Bar Association has given Judge Sotomayor its highest rating – “well qualified.” She has also received the support of law enforcement agencies, liberal think tanks, and most good-government and civil rights organizations. Conservative lawmakers and advocacy groups such as the National Rifle Association have raised questions about her fitness to serve on the court.

But the current consensus is that the Republicans are resigned to losing this fight. As South Carolina Republican Senator Lindsey Graham told her this morning, “Unless you have a complete meltdown, you are going to be confirmed.” Republicans have also been put in a delicate political position, since their party is actively wooing Hispanic voters – the nations’ fastest-growing minority demographic.

But, as was clear by this morning’s statements, Republicans will nonetheless mount an attack on Sotomayor as a predicate for a much harsher assault when President Obama nominates his next Supreme Court choice because that nominee is likely to change the Court’s liberal-conservative balance of power.