By Robert Barnes, Amy Goldstein and Paul Kane
Washington Post Staff Writers
Tuesday, July 14, 2009
Supreme Court nominee Sonia Sotomayor said yesterday that a simple "fidelity to the law" is at the heart of her judicial philosophy, as her confirmation hearings began with Senate Republicans delivering a surprisingly strong critique of her fairness and President Obama's reliance on ephemeral qualities of life experience and "empathy" in nominating her.
The first day of hearings was a pageant of prepared statements and carefully choreographed strategy, but the contours of the week's proceedings became clear:
Democrats portrayed Sotomayor as a role model "for all Americans," a seasoned jurist with a modest and restrained approach who, if anything, might balance a court that has swung too far to the right. Republicans sought to cast doubt on Sotomayor's impartiality, saying her statements and rulings have forecast the activist approach she would take when freed of having to follow precedent.
Never far from the surface was the historic nature of the day, and the fact that of the 12 Democrats and seven Republicans on the Senate Judiciary Committee, all but two of those who will question the first Hispanic woman nominated to the nation's highest court are white men.
Signs of the change were easy to find: bits of Spanish spoken by those who stood in line amid the stark marble of the modern Hart Senate Office Building; a family in the front-row seats behind the nominee unlike that of any of the 110 justices who have come before; and an acknowledgment from both Democrats and Republicans of what Sotomayor called the only-in-America nature of her nomination.
Silent for seven weeks after Obama nominated her, the 55-year-old judge reared in the public housing projects of the South Bronx read a careful seven-minute statement designed to be noncontroversial.
"The task of a judge is not to make law. It is to apply the law," Sotomayor said. "And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms, interpreting statutes according to their terms and Congress's intent, and hewing faithfully to precedents established by the Supreme Court and by my circuit court."
Sotomayor said that in 17 years as a district judge and then on the U.S. Court of Appeals for the 2nd Circuit in New York, she has sought to "strengthen both the rule of law and faith in the impartiality of our justice system."
Sen. Jeff Sessions (Ala.), the committee's ranking Republican, praised Sotomayor's statement as "from the heart and direct," but earlier he had made clear that Republicans will challenge her speeches about how life experiences can form a judge's view of the law, and Obama's statement that understanding the real-life consequences of a decision is a necessary tool for a judge.
"I will not vote for, and no senator should vote for, anyone who will not render justice impartially," Sessions said. "Call it empathy, call it prejudice or call it sympathy, but whatever it is, it's not law," he said. "In truth, it's more akin to politics, and politics has no place in the courtroom."
Sotomayor delivered what seemed like an understated response: "My personal and professional experiences help me to listen and understand, with the law always commanding the result in every case."
While the hearings may become contentious, Sen. Lindsey O. Graham (R-S.C.) was upfront about the likely outcome: "Unless you have a complete meltdown," he told the nominee, "you are going to get confirmed."
He added that he did not expect a meltdown to occur, and said he may end up voting for her. Sotomayor would replace David H. Souter, who is retiring.
Sotomayor, dressed in black with a royal blue jacket and casting aside the crutches she has used for weeks because of a fractured ankle, was incidental to much of the action yesterday. After Sessions and the committee chairman, Patrick J. Leahy (D-Vt.), escorted her to the witness table, she listened for hours as the senators discussed her, the president and the court, each with a seemingly different pronunciation of her name (it is "Soto-my-yore," according to the White House).
Leahy said Sotomayor has an uncommonly extensive judicial résumé. "She is the first nominee in well over a century to be nominated to three different federal judgeships by three different presidents," he said.
And he compared Sotomayor to Thurgood Marshall, the court's first African American justice, and Sandra Day O'Connor, its first female member.
Conservatives and some Republicans have attempted to "twist her words and her record," Leahy said. ". . . Ideological pressure groups have attacked her before the president had even made his selection. They then stepped up their attacks by threatening Republican senators who do not oppose her."
Leahy added: "In truth, 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."
Sessions was careful not to strike too barbed a tone in his opening statement, saying that the hearing would be "respectful" and would consist of "a thoughtful dialogue and maybe some disagreements."
Sen. Charles E. Schumer (D-N.Y.), Sotomayor's home-state senator, said that "judicial modesty" marked the judge's time on the bench, and defied Republicans to point to anything in her decisions that would dispute the characterization.
"Judge Sotomayor puts rule of law above everything else," Schumer said. "Given her extensive and even-handed record, I'm not sure how any member of this panel can sit here today and seriously suggest that she comes to the bench with a personal agenda."
But Republicans said that Sotomayor has been bound by precedent, and that her true feelings are more apparent from the speeches she has given, including what several called her now famous remarks that a "wise Latina" because of her life experiences would "hopefully" make better decisions than a white man. The White House has said the remarks have been taken out of context, and Sotomayor will surely be pressed about them today.
Sen. John Cornyn (Tex.), who leads the National Republican Senatorial Committee, the party's campaign arm, thanked Sotomayor for the "candor."
"Not every judicial nominee is so open about their judicial philosophy," he said. "Yet many Americans wonder what these various statements mean -- and what you're trying to get at with these remarks. And many more wonder whether you are the kind of judge who will uphold the written Constitution -- or the kind of judge who will veer us even further off course -- and towards new rights invented by judges rather than ratified by the people."
If Republicans repeatedly jabbed at Obama and tried to make the case that Sotomayor would be an activist judge, Democrats strayed from praising her only to criticize the court's most recent additions, Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr. If Roberts wowed the committee four years ago during his confirmation hearings with his image of a judge as an impartial baseball umpire calling balls and strikes, it was clear that the bloom was gone for Democrats.
Sen. Dianne Feinstein (D-Calif.) said that despite pledges from nominees to respect precedent, the conservative court is overturning decisions on issues such as campaign finance and abortion rights.
"It showed me that Supreme Court justices are much more than umpires calling balls and strikes and that the word 'activist' is often used only to describe opinions of one side," she said.
Sen. Richard J. Durbin (D-Ill.) picked up the theme: "It's hard to see home plate from right field."
And Sen. Herb Kohl (D-Wis.) reminded Republicans that they have not always been so skeptical of nominees who talked about empathy.
"As Justice [Clarence] Thomas told us at his confirmation hearing, it is important that a justice, quote, 'Can walk in the shoes of the people who are affected by what the court does,' " Kohl said. "I believe this comment embodies what President Obama intended when he said he wanted a nominee with an understanding of how the world works and how ordinary people live."