By Robert Barnes, Michael D. Shear and Perry Bacon Jr.
Washington Post Staff Writers
Saturday, July 11, 2009
White House officials spent hours this week preparing Supreme Court nominee Sonia Sotomayor for what they anticipate will be a concerted Republican effort to portray her as an "activist" jurist and will counter that her 17 years on the bench are a display of judicial restraint.
Slated to become the country's first Hispanic justice, Sotomayor has spent long hours in a cramped conference room on the third floor of the Old Executive Office Building, her fractured ankle propped on a trash can as lawyers took turns peppering her with questions.
Outnumbered Senate Republicans have found the 55-year-old Sotomayor an elusive target in the six weeks since President Obama made her his first nominee for the court and are hard-pressed to offer a scenario that would lead to her defeat in a chamber where their party claims only 40 members.
But Republican lawmakers and conservative strategists say the seven GOP members of the Judiciary Committee will press Sotomayor on issues that appeal to their conservative base -- such as gun owners' rights, property rights, the use of international law in deciding cases -- while trying to build a case that Sotomayor's political views influence her decision-making on the bench.
Republicans will not launch "a personal attack," Sen. Jeff Sessions (R-Ala.), the ranking minority member of the committee, told reporters Friday. "It will be focused on her views and writings. I will ask her if she agrees with the opinions of the organizations she supported."
He said the judge will be challenged to defend remarks she has made in speeches and her leadership role with the Puerto Rican Legal Defense and Education Fund. She resigned from that group's board when she became a federal judge in 1992.
Susan Davies and Cassandra Butts, two senior lawyers in the White House counsel's office, have led much of the questioning during lengthy preparation sessions that will continue into the weekend. Ron Klain, Biden's chief of staff, and Gregory B. Craig, Obama's counsel, were in and out of the room, sources said.
The goal of the briefings, according to several Democratic and administration sources, is to ready Sotomayor for her first public response to Republican charges of bias in her legal philosophy and to defend the president's vision of a judiciary that leavens the rule of law with an empathy for real-life consequences.
"She's approached judging from the real world, not ivory towers," said one Democratic source, describing how Democrats intend to steer the theme of the hearings. "Instead of big theories, she's applied the rule of law."
White House officials who are shepherding Sotomayor through the process said they have paid close attention to the questions she received during meetings with 89 senators, including each of the members of the judiciary committee. They have also watched the public comments and floor speeches by Republican senators in an attempt to divine GOP strategy.
One theory among Congressional Democrats is that Republican senators will "run out of gas" very quickly and have little appetite for a continued attack on her qualifications as the week wears on. Others believe Republicans will try to portray Sotomayor as a judge whose writings and court decisions suggest a bias. Either way, one congressional source said, Democrats are "preparing for the worst case."
Republican questions will be aimed primarily at Sotomayor. But the hearings may also be used to debate Obama's intention for reshaping a court that may well see more vacancies during his tenure.
Sessions said he expected his Republican colleagues to offer questions on specifics, such as her decision in the Ricci v. DeStefano case involving discrimination against a group of white firefighters, but also said she would be probed about her view on the proper role of judges. He hinted that this nomination would set the framework for how Republicans would view other judges nominated by Obama.
"This has the potential to change the nature of the judiciary in a way that I think is wrong," he said of a Sotomayor confirmation.
Obama's remarks about judicial empathy -- in nominating Sotomayor, he mentioned as a "necessary ingredient" for a judge "experience that can give a person a common touch and a sense of compassion" -- has been controversial with conservatives, and even worrisome for some liberals who believe it is a phrase too easily misconstrued by the public.
"In a political sense, President Obama's emphasis on empathy had made the Sotomayor confirmation process harder than it needs to be," said Doug Kendall, of the liberal Constitutional Accountability Center.
The White House and Sotomayor's supporters in the Senate and elsewhere say charges that she has let her feelings influence her rulings has not registered with the public in an environment roiled by the still-faltering economy and a showdown on health-care reform.
The allegation has also been refuted by a series of studies that show Sotomayor's decisions in 17 years as a district judge and on the U.S. Court of Appeals for the 2nd Circuit fit comfortably in the mainstream, if on the liberal edge of it. One recent study said that on matters of constitutional interpretation, she has sided with the majority 98 percent of the time.
Sotomayor received the highest rating from the American Bar Association, and even an endorsement from former Clinton special prosecutor Kenneth W. Starr, a favorite among conservative legal activists. She would also be only the third woman among the 111 justices who have served on the court, in addition to being its first Hispanic.
"Judge Sotomayor understands that the law is not some dusty book in your basement, but that it has a real impact on people's lives," said Sen. Amy Klobuchar (D-Minn.), a member of the judiciary committee.
Republicans say the hearings still hold potential peril for the nominee, as they will mark the first time the public will hear Sotomayor speak at length and respond to tough questions.
"None of this matters until the nominee comes to the table," said Ed Gillespie, the strategist and former National Republican Committee chairman who played key roles in the confirmations of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
Some Republicans believe the hearings could elicit sharp retorts from Sotomayor -- who has described herself as a "bear" on the bench -- or a statement on a hot-button issue such as gun rights that could motivate the base or a powerful interest group. The National Rifle Association has said it has "serious concerns" about Sotomayor but has not yet called on the Senate to reject her.
"I was a state court judge myself, and . . . sometimes judges aren't exactly used to answering tough questions," said committee member Sen. John Cornyn (R-Tex.). "They're used to asking them, so it will be a little bit of a role reversal for Judge Sotomayor."
Cornyn worried about excessive expectations from the conservative base. "Some of them will not be happy unless Republicans filibuster Judge Sotomayor, but obviously the numbers are not there to do that even if we were so inclined," he said.
Sotomayor's injured ankle will play a bit part in the hearings, adding to the political theater. The foot remains in a cast and must be kept elevated to prevent it from swelling, particularly late in the afternoon, a White House source said. As a result, the committee is preparing a special table for the hearings that will allow her foot to be raised during the questioning.
"She's ready for this. But she's still suffering a little bit of pain for her broken foot," one White House adviser said. "She is a little uncomfortable."
Staff writer Ben Pershing contributed to this report.