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ANALYSIS

Republicans Have Failed to Pin Down Sotomayor

"I don't use labels to describe what I do," Sonia Sotomayor has said during her Supreme Court confirmation hearings.
"I don't use labels to describe what I do," Sonia Sotomayor has said during her Supreme Court confirmation hearings. (By Melina Mara -- The Washington Post)
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By Robert Barnes
Washington Post Staff Writer
Thursday, July 16, 2009

Sen. Lindsey O. Graham (R-S.C.) tried to place Supreme Court nominee Sonia Sotomayor in some school of constitutional interpretation. Legal realist? Originalist? Strict constructionist, perhaps?

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In the slow, deep and patient voice she has employed over three days of hearings on her nomination to be the next Supreme Court justice, Sotomayor declined.

"I don't use labels to describe what I do," she said.

And the problem for the outnumbered Republicans on the Senate Judiciary Committee is that they have been unable to affix one.

For every speech they cited that seemed to indicate a liberal activist, Democrats countered, pulling out a decision that ruled against the kind of interest Republicans said Sotomayor would protect.

When Republicans complained about President Obama's "empathy" standard, she agreed, and politely suggested that they ask the president what he means by it. "We apply law to facts, we don't apply feelings to facts," she said.

When they wondered how they could square her speeches around the country with her testimony in the Hart Senate Office Building, she directed them to her 17 years on the federal bench.

"I need your help trying to reconcile those two pictures," Sen. Jon Cornyn (R-Tex.) told Sotomayor yesterday, "because I think a lot of people have wondered about that."

Sotomayor was not inclined to help. And her nearly two-decade record has yielded few decisions that Republicans can exploit.

If anything, the repeated questions about the handful of cases Republicans have highlighted, and Sotomayor's sometimes evasive responses, have made the decisions seem more like close calls than the judicial activism Republicans say they represent.

Sotomayor's role in Ricci v. DeStefano would seem to offer the best opportunity for Republicans. Polls have shown that the public finds it unfair that city officials in New Haven, Conn., threw out the promotions test on which a mostly white group of firefighters qualified for advancement, while no blacks scored high enough.

Sotomayor was on a panel of the U.S. Court of Appeals for the 2nd Circuit that agreed the city officials were justified in their actions because of their fear that they would be sued by the black firefighters under federal law. The Supreme Court recently reviewed the decision and voted 5 to 4 to reverse it.


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