Rigorous Questioning Hasn't Fazed Nominee

By Alec MacGillis
Washington Post Staff Writer
Thursday, May 28, 2009

Senate Republicans have yet to decide how tough they will be in grilling Judge Sonia Sotomayor in her confirmation hearings, but this is clear: The Supreme Court nominee already has shown an ability to withstand rigorous questioning.

Partisan tensions were high when Sotomayor arrived in Washington in 1997 for her confirmation to the U.S. Court of Appeals for the 2nd Circuit. A rumor was making Republican rounds that President Bill Clinton wanted to elevate her from the federal trial bench because he planned to "fast-track" her to the Supreme Court if Justice John Paul Stevens decided to retire during Clinton's second term. Senate Republican leader Trent Lott (Miss.) delayed her confirmation by the full Senate, which occurred nearly a year after her hearing. And the rumor of Stevens's retirement turned out to be false.

But first she needed to survive the hearing, where Republicans asked astringent questions about some of the most sensitive issues of the time: mandatory minimum prison sentences, the confirmation of Supreme Court Justice Clarence Thomas and gay rights. She survived the hearing with a combination of assured self-defense and well-placed ingratiation, although she also avoided one line of questioning by saying she could not recall the case.

It remains to be seen whether the current Republicans on the Judiciary Committee will set a similar tenor for her Supreme Court hearing, and only one of the senators at the center of earlier questioning remains on the panel: Jeff Sessions (Ala.), the ranking Republican. But Sotomayor's 1997 hearing, as well as a far friendlier Democratic-led hearing in 1992 after President George H.W. Bush nominated her for a judgeship, does hint at what senators can expect from Sotomayor. She came across as a self-confident jurist who enjoys speaking about her humble roots, discusses legal reasoning in accessible language and is adept at tactfully defending controversial positions.

In 1997, Sotomayor seemed to satisfy then-Sen. Strom Thurmond (R-S.C.) by assuring him that she did not agree with those who think the Constitution needs to be read above all in terms of what "the words and the text mean in our time." And she told him that she did not care for the American Bar Association's practice of taking stands on issues such as abortion, because that "undermines their effectiveness on the central issues of their mission, which is the education of lawyers."

The toughest questioning came from Sessions, who scrutinized the depth of her support for minimum sentencing guidelines. First, he drew out of her a general statement of support for the guidelines.

Then he countered with a seemingly contradictory quote from the past: her strongly worded 1993 apology to a defendant to whom she gave a mandatory minimum sentence of five years: "I hope that yours will be among the many that will convince our new president and Congress to change these minimums. The only statement I can make is this is one more example of an abomination being committed before our sight. You do not deserve this, sir. I am deeply sorry for you and your family, but the laws require me to sentence you to the five-year minimum. I have no choice."

Sotomayor, a former state prosecutor, said the apology expressed her frustration over a feature in the sentencing rules that was later changed by Congress: the lack of a "safety valve" provision for defendants such as this one, a first-time offender without a history of violence who had shown a willingness to cooperate with prosecutors.

But Sessions pressed her on her "abomination" remark, saying a judge "has to be careful in conducting themselves in a way that reflects respect for the law." She conceded that "maybe I would not have called it an abomination" and assured him that "great respect both for the law and the process is terribly important." While she often gets letters from "heartbroken" families of defendants, she added, "I explain to them that as much as I understand their pain, that I have a greater obligation to society to follow the law in the way that it is set forth."

Sessions also challenged Sotomayor on whether she had applauded or remained sitting -- as some of her colleagues had -- when Thomas came to speak to the 2nd Circuit conference. Sotomayor had declined to say what she had done when asked later by a newspaper reporter. This demurral, she told Sessions, was only because she wanted to avoid making a "political statement." Sessions pressed further: Did she applaud or not? "He was my Supreme Court justice of my circuit. I stood up," she said.

Then-Sen. John D. Ashcroft (R-Mo.) engaged Sotomayor over a case in which an inmate had sued prison officials who had removed him from his food service job because he was openly gay, a move that, as Ashcroft put it, would "prevent disciplinary problems that could arise from having open homosexuals prepare food."

Ashcroft moved to a broader question: "Do you believe that there is a constitutional right to homosexual conduct by prisoners?" Sotomayor answered: "No, sir, there is not. . . . The only constitutional right that homosexuals have is the same constitutional right every citizen of the United States has, which is not to have government action taken against them arbitrarily and capriciously."

Ashcroft pressed on. "Are there any rights that are not protected by the Constitution that . . . you would like to see protected?"

"I have not thought about that in a while, sir. No," Sotomayor said.

Ashcroft was dissatisfied. "My time is not up," he said.

But Sotomayor held firm. "I think I answered," she said.

Sotomayor also came up short for then-Sen. Mike DeWine (R-Ohio), who asked her about a 1993 drug-trafficking case in which DeWine quoted her as telling the defendant, "We understand that you were in part a victim of the economic necessities of our society, but unfortunately, there are laws that I must impose." She said she could not recall the case.

The committee confirmed her five months later, with Ashcroft and Sen. Jon Kyl (R-Ariz.) voting no.

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