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The Take: Republicans Walk Fine Line Questioning Sotomayor

Supreme Court nominee Sonia Sotomayor, with her brother Juan behind her, prepares for her first confirmation hearing before the Senate Judiciary Committee.
Supreme Court nominee Sonia Sotomayor, with her brother Juan behind her, prepares for her first confirmation hearing before the Senate Judiciary Committee. (By Bill O'leary -- The Washington Post)   |   Buy Photo

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By Dan Balz
Tuesday, July 14, 2009

Sonia Sotomayor's confirmation hearings opened yesterday against the backdrop of demographic changes that continue to alter the nation's politics. What drama exists this week is less the question of whether she will be confirmed than what the first Latina Supreme Court justice might contribute to those changing politics.

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Though the adage that the justices follow the election returns may still apply, grubby politics are not supposed to intrude on the dignified proceedings of the Supreme Court. But any barrier-shattering nomination brings with it broader political implications of which Democrats and Republicans are keenly aware.

President Obama's advisers said months ago that he hoped to find a replacement for Justice David H. Souter who could both make history and lower the temperature of what have become judicial confirmations filled with partisan fireworks. Judging from opening day, he appeared to have accomplished both goals. Every expectation is that the hearings will be civil and, as Sen. Lindsey O. Graham (R-S.C.) put it, unless she melts down starting today, she will be confirmed.

That hardly diminishes what is at stake as members of the Senate Judiciary Committee turn to questioning Sotomayor. Republicans have the greater burden this week. They must tread carefully, balancing their desire to use the hearings to frame a debate over legal philosophies that their constituents want to see with their concern that they do nothing to show insensitivity or disrespect toward the fastest-growing minority group in the country.

Judicial conflicts of the past have been used to energize political bases in both parties. Conservative Republicans around the country are itching for a robust show of strength and an articulation of principles by their leaders in Washington, and they got that yesterday, beginning with Sen. Jeff Sessions (Ala.), the new ranking Republican on the Judiciary Committee.

Sessions used his opening statement to pointedly express his reservations about Sotomayor's fitness for the high court. His doubts, shared by others in his party, include his concern over her assertion that a "wise Latina woman" would reach a better legal judgment than a white man, and disagreements over her views on affirmative action as shown in the New Haven, Conn., firefighters' case in which she and her peers on the U.S. Court of Appeals for the 2nd Circuit were recently overturned by the high court.

Sessions framed the conservative case against Sotomayor and his GOP colleagues filled out the bill of particulars they will pursue this week. They object not only to some things Sotomayor has said, but to Obama's assertion that one of the attributes he wants in a Supreme Court justice is empathy. Does that, they asked, inevitably lead to a biased rendering of the law that unfairly favors one group over another?

Republican Sens. Orrin G. Hatch (Utah) and Jon Kyl (Ariz.) raised that issue yesterday morning. How can a justice make sure he or she sets aside personal experiences and sympathies when interpreting the Constitution? Kyl wondered what will happen when Sotomayor ascends to the high court and is free from the restraints on any appeals court judge. He was blunt in questioning whether she would be an evenhanded interpreter of the law.

All of these are legitimate areas of inquiry for the Republicans. Sotomayor has been well prepped for these questions. In her opening statement, she offered a partial answer. "In the past month, many senators have asked me about my judicial philosophy," she said. "Simple: fidelity to the law. The task of a judge is not to make law. It is to apply the law."

Even before she spoke, her Democratic advocates on the Judiciary Committee began to make the case that, as Sen. Charles E. Schumer (N.Y.) put it, by any fair reading of her record she is a mainstream jurist who takes an evenhanded approach to the law. Still, the size of Sotomayor's expected margin in the Senate depends on how well she performs when she comes under more detailed questioning.

In quizzing Sotomayor, Republicans almost certainly will face questions about whether their hearing-room strategy does damage to their efforts to reverse the erosion in support they have experienced among Hispanics in the last two elections.

Simon Rosenberg, president of the Democratic-leaning think tank NDN, said in an e-mail message yesterday that his party has been far more deft at capitalizing on the nation's changing demographics. He put the Sotomayor nomination in that context, another example, he said, of the party's recognition that the United States will soon be a majority-minority nation.


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