By Amy Goldstein, Paul Kane and Robert Barnes
Washington Post Staff Writers
Thursday, July 16, 2009
Before nominating Sonia Sotomayor to the Supreme Court, President Obama did not ask her about abortion rights or any other "specific legal issue," she testified yesterday as she sidestepped senators' efforts to plumb her views on matters from campaign finance law to the workload of the court she is likely to join.
As she progressed through the third day of her confirmation hearings, with no sign of a major mishap so far that would derail her approval by a heavily Democratic Senate, Sotomayor relaxed -- yet took no chances. She joked openly with members of the Judiciary Committee while increasingly avoiding their questions.
By midafternoon, even two Democrats on the panel sounded frustrated by her long, elusive replies.
During his turn to question her, Sen. Arlen Specter (D-Pa.) repeatedly cut her off midsentence as he sensed she was skirting topic after topic. "I think your record is exemplary, Judge Sotomayor, exemplary," he said. "I'm not commenting about your answers."
Sen. Al Franken (D-Minn.), who was sworn in to the chamber last week, was more direct. "So that means you're not going to tell us?" he asked the nominee after struggling to elicit her position on a recent Supreme Court decision involving voting rights.
At the same time, several Democrats sought yesterday to protect Sotomayor from Republican efforts to dent her credibility and assertions of neutrality. The Democrats pointed out that two of the main pieces of political artillery the GOP has wielded against her -- her public remarks that a Latina might make the best judge and her dozen years on the board of the Puerto Rican Legal Defense and Education Fund -- are not new. Both were known but not raised, they said, when the Senate confirmed her twice in the 1990s, first as a federal trial judge and then as a member of the U.S. Court of Appeals for the 2nd Circuit.
"So this is nothing new to the Senate. Is that correct?" Sen. Sheldon Whitehouse (D-R.I.) asked Sotomayor about her membership on the advocacy group's board before she joined the bench. "That's correct," she replied.
No Republicans have said whether they will join Democrats in supporting Sotomayor's confirmation. Late yesterday afternoon, Sen. Lindsey O. Graham (R-S.C.), who had signaled before the hearings that he might vote for her, said: "She's doing good." Graham said his decision could hinge on follow-up questions he plans to ask about her most controversial public remarks.
Sotomayor's hearings will continue today with senators concluding a second round of questioning, then hearing testimony from witnesses who have been invited by the two political parties.
In not allowing senators to pin her down on concrete matters of law, Sotomayor, 55, borrowed an approach that has been used by most nominees to the nation's highest court since the failed nomination two decades ago of Robert H. Bork, a conservative jurist and scholar. Like her, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., at their confirmation hearings in 2005 and 2006, respectively, said they could not address many of the questions senators raised because they involved areas of the law that were settled -- or on which they might be asked to rule in the future.
Sotomayor also sought to tamp down comments about her ideological leanings, focusing in particular on remarks by the senior partner at Pavia & Harcourt, a New York law firm where she worked between serving as an assistant district attorney and becoming a judge. Noting that George Pavia has been quoted lately as saying, "I can guarantee she'll be for abortion rights," Sen. John Cornyn (R-Tex.) asked the nominee: "On what basis would Mr. Pavia say that, if you know?"
"I have no idea why he's drawing that conclusion," Sotomayor replied. "If he was talking about the fact that I served on a particular board that promoted equal opportunity for people, the Puerto Rican Legal Defense and Education Fund, then you could talk about that being a liberal instinct, in the sense that I promote equal opportunity in America and the attempts to ensure that. But he has not read my jurisprudence for 17 years, I can assure you. He's a corporate litigator. And my experience with corporate litigators is that they only look at the law when it affects the case before them."
Sotomayor also skirted a series of pointed questions from Cornyn and Sen. Tom Coburn (R-Okla.) about her views on abortion rights. Coburn, one of the Senate's leading abortion opponents and a physician who has delivered hundreds of babies, asked how she would handle a case involving a woman seeking to abort a fetus at 38 weeks after learning the baby had spina bifida.
"I can't answer that question in the abstract because I would have to look at what the state of the state's law was on that question," Sotomayor said. She recited portions of the 1992 ruling in Planned Parenthood v. Casey, which upheld a right to an abortion but allowed some restrictions so long as they do not place an "undue burden" on the woman's rights. "The question is: Is the state regulation regulating what a woman does an undue burden?" she said.
Like Coburn, many Democrats, recognizing that the nominee was reluctant to disclose her views, used their questions to draw attention to issues personally significant to them.
Asked by Sen. Russell Feingold (D-Wis.), who co-sponsored a landmark campaign finance measure, for her thoughts on that subject, Sotomayor replied that the first case she would hear, if confirmed to the Supreme Court, might be a case involving that law. "It would be inappropriate for me to say anything about that area of the law," she told Feingold.
Sen. Ted Kaufman (D-Del.) pressed for her views on Congress's authority to regulate financial markets. Noting that Congress is debating such legislation -- considered a critical question, given the nation's weak economy -- Sotomayor demurred, predicting that a case in that arena probably would come to the courts soon. "What I can say to you is that Congress has certain constitutional powers. One of them is to pass laws affecting interstate commerce," she said.
Franken asked Sotomayor about the First Amendment as it pertains to Internet access. The former comedian, whose election victory was delayed for months by court challenges, questioned her about what he called a "frightening" Supreme Court decision four years ago that enabled large Internet service companies to give preference to some content providers. Sotomayor said the question is one Congress may choose to clarify. "The role of the court is to never make the policy," she said. "It's to wait till Congress acts."
Specter urged the nominee to support a change in Supreme Court procedures to allow television cameras inside, saying the court is "unaccountable" in conducting its work away from broad public view. Sotomayor said that, if confirmed, she would share with other justices "positive experiences" she has had with televised lower-court proceedings. But she stopped short of saying she would advocate for the change, calling it "an ongoing dialogue."
Specter noted, too, that the number of cases the court decides each year has dwindled over the past century. He asked Sotomayor whether she agreed with public comments Roberts has made that it should take more cases.
"I know," she replied, "that there [are] questions here by many people . . . about this issue. Can the court take on more?"
Specter eventually cut in. "Judge Sotomayor, how about more cases?"
"Well, perhaps I need to explain to you," she replied, "that I don't like making statements about what I think the court can do until I've experienced the process."