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Hearings Not Just About Sotomayor
Judicial Confirmation Process Could Be a Partisan Platform and a Barometer

By Michael D. Shear
Washington Post Staff Writer
Monday, July 13, 2009

When Sonia Sotomayor takes her seat today in front of the 19 members of the Senate Judiciary Committee, she will finally add her own voice to those that have been arguing publicly for confirmation of the first Latina Supreme Court justice.

How she answers the questions of Republican panel members -- both the substance of her comments and how she handles herself in the spotlight -- will help determine whether charges from her critics persist about her ability to apply the law fairly, without a bias toward any group.

But the historic week-long exchange inside Room 216 of the Hart Senate Office Building is only partly about the fate of Sotomayor's nomination, as both sides predict she will win confirmation easily. The battle over President Obama's first court nominee is also likely to have broad and long-lasting political implications for the president and both political parties.

Democrats are betting that an overly zealous assault on Sotomayor by Republican senators could anger Latinos and accelerate the shift of Hispanic voters away from the Republican Party, particularly in the South and West.

Conservatives are hoping to use the Sotomayor hearings as a way to motivate their base if they can successfully portray her as an activist judge whose "empathy" for certain groups guides her rulings more than court precedent or the written law.

And activist groups on both sides have already prepared press releases and statements to argue that the Sotomayor outcome says something about where the country's population is on the issues of guns, abortion, affirmative action, race and gender. Liberals hope an overwhelming vote for her confirmation will encourage Obama to consider even more progressive nominees in the future.

"The stronger is the vote, the stronger is the message to the president and his team that we have some bandwidth here, or some leeway for more progressive nominees," said one activist who has been working to confirm Sotomayor. "That's why there's so much energy for a candidate that you pretty much know is going to be confirmed."

Republican and Democratic members of the Judiciary Committee took to the Sunday television talk shows yesterday to debate Sotomayor and to argue the broader implications for the country if she is elevated to the nation's highest court.

Sen. Jeff Sessions (R-Ala.), the highest-ranking Republican on the committee, accused Sotomayor of embracing a legal philosophy that is "incompatible with the American system" and said she will be asked to answer for that this week.

"She has criticized the idea that a woman and a man would reach the same result. She expects them to reach different results," Sessions said on CBS's "Face the Nation." "I think that's philosophically incompatible with the American system."

He added that he is "flabbergasted by the depth and consistency of her philosophical critique of the ideal of impartial justice."

In a preview of the exchanges that are likely during the hearings, Democrat Patrick J. Leahy of Vermont, who is chairman of the committee, called the comments from Sessions "grasping at straws" and "nitpicking."

"She has a track record. She has shown to be a mainstream judge. You don't have to guess what kind of a judge she's going to be," Leahy said. "I've asked her about her speeches. And she said ultimately and completely, the law controls."

Sen. John Cornyn (R-Tex.) promised that Sotomayor will receive a "fair hearing" and that his GOP colleagues will treat her with dignity. But he made clear the Republicans will seize on her comments that a "wise Latina" would come to a better conclusion than a white man.

"You've got to call balls and strikes as a judge," he said on "Fox News Sunday." "The ethnicity focus, the focus on sex and on race, and saying that there may be different outcomes depending on who the judge is, is antithetical to the whole idea of the rule of law -- objective and neutral justice."

Sen. Dianne Feinstein (D-Calif.) responded that "judges are not automatons" and predicted that Sotomayor will easily explain the broader meaning of her comments.

"One's experience, one's venue, one's way of looking at an issue does come into it somewhere along the line," Feinstein said.

One surprise may come late in the day, when, according to sources, several Republican senators could announce their support for Sotomayor's nomination, effectively sealing her appointment to the court and making the only question how many votes she will receive.

Among those who some court watchers say could make an early announcement are Sen. Mel Martinez of Florida, the only Latino Republican in the chamber, and Sens. Richard G. Lugar of Indiana and Susan Collins and Olympia J. Snowe of Maine.

Sotomayor is scheduled to arrive before the panel at 10 a.m. today, surrounded by her family and supporters. She will be flanked by Cynthia Hogan, the counsel to Vice President Biden who has overseen the nomination for the White House, and Susan Davies, a West Wing lawyer.

Her handlers say there will be "watch parties" in more than 30 states, with supporters gathering to hear from the woman they hope will replace retiring Justice David H. Souter.

But it will be hours before Sotomayor gets to say a word to the senators and the public. The hearing will begin with 20-minute opening statements from each of the 19 senators. Sotomayor will make her remarks late in the day, congressional sources said.

"She's been reviewing her cases. She's been reviewing questions that senators have asked in the private meetings," one senior White House official close to the process said. "We'll see a hands-on appellate judge who will be solid."

Beginning tomorrow, senators will take turns asking questions for 30 minutes each and then will start a second, shorter round of questioning, probably on Wednesday. On Thursday, each side will call witnesses to testify for or against her confirmation.

The list of Republican witnesses -- which includes a former president of the National Rifle Association, a firefighter from New Haven, Conn., and an antiabortion activist -- foreshadows the themes that GOP senators hope to cement as the hearings close by the end of the week.

Charmaine Yoest, president of Americans United for Life, wrote recently in the Washington Times that "Justice Sotomayor's lack of reflection combined with her record of abortion activism shows that, with her on the court, the unborn would be at greater risk than ever before."

The Democratic list includes David Cone, a former Major League Baseball pitcher who watched as Sotomayor helped resolve baseball's strike; Michael R. Bloomberg, the mayor of New York; and Michael J. Garcia, a former U.S. attorney appointed by President George W. Bush.

"Sonia Sotomayor's lifelong commitment to law enforcement is hard to argue with," Biden said last month as he announced support for her nomination among police and prosecutors.

Obama called Sotomayor yesterday after he returned from a three-nation overseas trip, the White House announced.

Press secretary Robert Gibbs said in a statement that Obama "complimented the Judge for making courtesy calls to 89 Senators in which she discussed her adherence to the rule of law throughout her 17 years on the federal bench" and "expressed his confidence that Judge Sotomayor would be confirmed to serve as a Justice on the Supreme Court for many years to come."

Sotomayor is expected to meet for a short time with senators in a closed-door luncheon, most likely on Thursday. The meeting is standard procedure for Supreme Court nominees.

But otherwise, the judge will be before the cameras the entire time. Veterans of the process have said that it is difficult to remain in that seat for so many hours in a row.

"The physical exhaustion factor, the mental exhaustion factor -- you can't get tired and annoyed and short," said Rachel Brand, who oversaw the confirmation process for Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. "You have to keep it together and stay focused the entire time."

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