By Robert Barnes
Washington Post Staff Writer
Thursday, May 28, 2009
On the day after Judge Sonia Sotomayor's nomination to the Supreme Court, both sides in the fight over her confirmation moved quickly to try to define the woman who may become the court's first Hispanic justice.
The White House enlisted lawyers and constitutional experts to say that in Sotomayor's 17 years on the federal bench, she has been a cautious jurist who respects precedent. But conservative legal groups countered that her remarks in speeches and symposiums bolster their claims that she is a liberal activist waiting to flower on the high court. One prominent conservative accused her of "reverse" racism, and another called her a "wild-eyed judicial activist."
Curt Levey, executive director of the conservative legal group Committee for Justice, said her judicial record would probably not be enough to stop Sotomayor's confirmation, given the Democratic dominance in the Senate, but her speeches are another matter. "The best predictor of whether a controversial nominee can be stopped is whether the case against her is based on more than just her legal analysis," he said.
A perennial subject -- abortion -- surfaced again as a question mark and an emblem of other controversial topics, worrying some traditionally liberal groups that the White House may be too intent on portraying Sotomayor as an independent moderate.
Several interest groups called on the Senate to try to discern Sotomayor's views on a woman's right to have an abortion vs. the government's right to restrict the procedure.
"I don't know what her position is on the core constitutional protections of Roe v. Wade," said Nancy Northup, president of the Center for Reproductive Rights, adding: "I will be nervous if the Senate doesn't get answers to the question."
Meanwhile, conservatives have seized upon Sotomayor's unscripted moments to make the case that she is outside the mainstream. The two most often quoted are a statement she made about how appellate judges make policy and her observation about how being a Latina affects her role as a judge: "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."
The White House has said the remarks are being taken out of context and reflect only the obvious point that Sotomayor's life experiences affect her outlook. Press secretary Robert Gibbs reacted sharply to a Twitter post from former House speaker Newt Gingrich that said, "Imagine a judicial nominee said 'my experience as a white man makes me better than a Latina woman' new racism is no better than old racism."
Gibbs said Americans will make up their minds about Sotomayor based on "more than just the blog of a former lawmaker" and added: "I think it is probably important for anyone involved in this debate to be exceedingly careful with the way in which they decided to describe certain aspects of this impending confirmation."
But more is at stake for conservative activists than Sotomayor's confirmation. Some say privately that the larger goal is portraying Obama as having abandoned the moderate persona of the campaign for a liberal governing style as president.
Although Levey acknowledged that his description of Sotomayor as a "wild-eyed judicial activist" would be hard to extract from her record on the bench, he said that "her words are the best indication" of how she would see her role as a justice.
Likewise, Charmaine Yoest, president of Americans United for Life, described Sotomayor as a "radical pick." But Yoest acknowledged that Sotomayor's most notable ruling on abortion was on the conservative side. In the ruling, she said the Bush administration had the right to prohibit abortions by overseas organizations receiving U.S. funding, as well as the right to prohibit the groups from speaking out against the restrictions.
Yoest said Sotomayor was following the court's precedents, something she might not do if she were on the Supreme Court. "There is no doubt that Judge Sotomayor's philosophy is that she is not only a practitioner of activism, but a defender of it," she said.
On the other side of the debate, Northup's concern is just the opposite. "That decision certainly doesn't suggest she's a judicial activist," Northup said, adding that her organization knows of no instance in which Sotomayor has talked about Roe or expressed support for abortion rights. "We don't want any Souters, either," she said. The reference was to retiring Justice David H. Souter, whose jurisprudence surprised his advocates once he joined the court.
Northup joked that her organization and the National Right to Life Committee had reached rare agreement -- both think the Senate needs to probe Sotomayor's position on abortion, although previous nominees have found it easy to dodge the question.
Northup takes heart that Obama is a "pro-choice president who said he'd put a pro-choice justice on the court."
But Gibbs said yesterday that Obama did not ask Sotomayor her views on the issue.
Meanwhile, the lawyers recruited by the White House to talk about Sotomayor as a judge offered assessments such as "lawyer's lawyer" and "one who cares a lot about craft."
Kevin Russell, a Washington lawyer who practices before the Supreme Court and has analyzed some of Sotomayor's work, was part of the group.
He said in an interview that Sotomayor "looks an awful lot like Justice Souter" and would be left of center on the court. "The left is probably on solid ground to think she will vote on their side," he said.
At this early stage, little has been discovered that would shed light on Sotomayor's stands on other controversial issues, such as gay rights, the death penalty or presidential power.
Sotomayor stayed out of public view yesterday but began contacting Democratic and Republican members of the Senate leadership and the Judiciary Committee, which will be the first to decide her fate.
While Sotomayor works through her list of introductions, Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and ranking Republican Jeff Sessions (Ala.) must negotiate a hearing schedule that aims to give Republicans the ample time they are seeking to review the nominee's extensive legal record while meeting Obama's Aug. 7 target for confirmation.
At the moment, Democratic officials who are participating in the process view the week of July 13 as the earliest date that hearings could start, with the nomination heading to the Senate floor about two weeks later.
Sessions was noncommittal about the timing of proceedings in a Fox News interview yesterday morning.
"She should be ready by . . . October 1st, if she's confirmed," he said, a reference to the start of the court's fall term.