By Amy Goldstein, Robert Barnes and Paul Kane
Washington Post Staff Writers
Wednesday, July 15, 2009
Supreme Court nominee Sonia Sotomayor sought yesterday to reframe critics' portrayal of her as a judge swayed by her gender and ethnicity. On the second day of her confirmation hearings, she stressed the primacy of legal precedents and distanced herself from her most controversial public remark, saying her line that a "wise Latina" judge might reach better decisions than a white man was "a rhetorical flourish that fell flat."
Throughout the long day of questioning by the Senate Judiciary Committee, Sotomayor proclaimed her neutrality and objectivity, even suggesting at points that she does not share the view of President Obama, who chose her to fill his first vacancy on the nation's highest court, that empathy is an essential trait for a judge.
"It is very clear that I don't base my judgments on my personal experiences -- or my feelings or my biases," she said. At another point, she said that judges should "test themselves to identify when their emotions are driving a result, or their experiences are driving a result, and the law is not."
With the hearings expected to last much of the week, yesterday's eight-hour session underscored the strategy of each political party -- and the nominee herself. In a practice polished by other Supreme Court candidates in recent decades, Sotomayor answered questions without disclosing many of her views, saying repeatedly that she was constrained because the issues involved settled law or matters on which she might be called to rule in the future.
Republican senators spent the day boring in on a handful of cases from Sotomayor's nearly 11 years on the U.S. Court of Appeals for the 2nd Circuit that raised issues the GOP believes are her greater vulnerabilities -- and the greatest assets with the party's political base. They grilled her closely but politely about gun ownership, property rights, abortion, interrogation policy and a discrimination case involving Connecticut firefighters that the Supreme Court overturned last month.
Responding to pointed questions from Republicans and gentler ones from Democrats, Sotomayor betrayed little hint of what kind of justice she would be if, as both parties predict, she is confirmed to the Supreme Court. At one point, asked by a Democratic senator to name the sitting justice with whom she most identifies and is most likely to agree, Sotomayor dodged, citing Benjamin N. Cardozo, who died more than 70 years ago.
As she faced the senators' horseshoe-shaped dais in the paneled hearing room of the Hart Senate Office Building, with a chorus of cameras clicking each time she made broad gestures, Sotomayor, 55, took frequent notes and revealed scant emotion beyond a smile or a flash of humor. Democrats seemed eager to counteract any vestige of a reputation -- disputed by many who know her -- that she can be testy on the bench.
"I must say that, if there's a test for judicial temperament," Sen. Dianne Feinstein (D-Calif.) told the nominee at midday, "you pass it with an A-plus-plus."
Committee Republicans appeared careful not to be too caustic in questioning Sotomayor, who would be the court's first Hispanic member -- and is part of the nation's fastest-growing ethnic group. Democrats, for their part, appeared sensitive at times not to seem too sympathetic.
"We hold you in great regard, but I believe we have a right to know what we're getting before we give you a lifetime appointment to the highest court in the land," said Sen. Herb Kohl (Wis.), the committee's second-ranking Democrat.
No Senate Republicans have said whether they will support Sotomayor's nomination. And yesterday, some GOP committee members said her testimony -- that her experiences play no role in her judging -- was inconsistent with past public remarks. "That's what we're trying to figure out," said Sen. Lindsey O. Graham (S.C). "Who are we getting here?"
Sotomayor gave her fullest explanation to date of her 2001 speech at the University of California at Berkeley, which contained the "wise Latina" remark that has become a lightning rod for her conservative critics. She told the senators that the line had been an attempt to play off a famous observation by former justice Sandra Day O'Connor and others that, all other things being equal, a wise old man should reach the same decision as a wise old woman.
"I knew that Justice O'Connor couldn't have meant that if judges reached different conclusions -- legal conclusions -- that one of them wasn't wise," Sotomayor said yesterday. "That couldn't have been her meaning, because reasonable judges disagree on legal conclusions in some cases."
Sotomayor said her comment "was bad, because it left an impression that I believed that life experiences commanded a result in a case." She said she had been trying to make a subtler point: "to inspire young Hispanics, Latino students and lawyers to believe that their life experiences added value to the process."
Pressed by Sen. Jon Kyl (R-Ariz.) about statements Obama has made that empathy is a necessary ingredient for a judge, Sotomayor said she has her own view. "I wouldn't approach the issue of judging in the way the president does," she said. "He has to explain what he meant by 'judging.' I can only explain what I think judges should do, which is judges can't rely on what's in their heart. . . . The job of a judge is to apply the law."
At times, Sotomayor skirted questions from Democrats and Republicans alike.
Feinstein raised the issue of the proper bounds of executive branch power, asking Sotomayor what she thought of President George W. Bush's use of "signing statements" that reshaped hundreds of bills he signed into law.
"It's a very broad question," the nominee replied.
"It's one that we are grappling with," Feinstein countered.
"And that's why," the nominee said, "I have to be very cautious in answering it."
Sotomayor was similarly reticent when another Democrat, Sen. Russell Feingold (Wis.), asked her about the Bush administration's policies on interrogations, focusing on a famous pair of memos. Noting that she has never been an adviser to a president, she said: "I don't want to comment on what was done or not done by those advisers in that case. And it's likely that some question -- and I know some are pending before the court in one existing case, so I can't comment."
On abortion, an issue on which she does not have an extensive record of rulings, Sotomayor said she views the Roe v. Wade decision legalizing abortion nationwide as settled precedent, and she noted that subsequent court rulings have reaffirmed it.
But she said that Gonzales v. Carhart, the Supreme Court's decision upholding the federal Partial Birth-Abortion Ban Act, is also settled law.
On the issue of gun control, Sotomayor defended her appellate panel's decision that a Supreme Court ruling that had overturned the District's gun-control law does not apply to states that want to restrict gun ownership. She said the panel's decision simply followed what the Supreme Court said. Because the court might decide several pending cases on the reach of the Second Amendment, Sotomayor said she could not express an opinion.
Both Democrats and Republicans asked about her role in Ricci v. DeStefano, the case recently reversed by the Supreme Court in which she had ruled that the city of New Haven, Conn., was justified in dropping a promotions test for firefighters after no blacks qualified for advancement. White firefighters said that amounted to discrimination against them, and the high court agreed.
Sotomayor said she and two fellow judges on an appellate panel "decided that case on the basis of a very thorough 78-page decision by the district court and on the basis of established precedent." She added that judges "are obligated on a panel to follow . . . precedent."