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Republicans Unable to Pin Her Down
With Democrats' Help, Sotomayor Has Blunted GOP Senators' Best Efforts

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?

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.

The action by the panel on which Sotomayor served -- a one-paragraph order affirming a lower court's decision -- seems curiously scant in light of the issues raised in the case.

But the Republicans' repeated return to the case -- often raising legalistic points about disparate impact and disparate treatment -- has shown how complicated it is. That has allowed Democrats to point out that eight of the 14 federal judges who reviewed the case sided with New Haven, and that a bare majority of the Supreme Court reversed it only by imposing a new standard on how to judge such cases.

GOP senators have also focused on the ruling by Sotomayor's circuit that the Supreme Court's decision in District of Columbia v. Heller -- which for the first time said the Second Amendment protects an individual's right to own a firearm -- applies only to the federal government, not to states and cities that might want to restrict gun ownership.

Republicans on the committee have tried their best to inflate the importance of the decision, which involved New York's ban of a martial arts weapon. "Isn't it true, Judge, that the decision that you and your panel rendered, if it were to be the law of the United States, and if it is not reversed by the U.S. Supreme Court, would say that the . . . Second Amendment does not protect the right of the people to keep and bear arms in any city, county and state in America?" Sen. Jeff Sessions (R-Ala.) asked Sotomayor yesterday.

"I'm not familiar enough with the regulations in all 50 states to know whether there's an absolute prohibition in any one city or state against the possession of firearms," she replied.

But the questioning about the case has turned into a seminar about how the Bill of Rights is applied to the states, and has allowed Sotomayor to note that conservative judges in another circuit have ruled the same way. It is a decision, she said, required by the opinion in Heller, which, she pointed out, was written by Justice Antonin Scalia.

"Justice Scalia," she said, "noted the court's holding that the Second Amendment wasn't incorporated against the states."

And the committee chairman, Patrick J. Leahy (D-Vt.), was there if any cleanup was needed.

"I've been a gun owner since I was probably 13 years old," he said. "I've seen nothing done by the Supreme Court, by the 2nd Circuit Court of Appeals, by the Congress or by our state legislature that's going to change one way or another the ownership that I have of the guns I now have."

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