By Paul Kane, Robert Barnes and Amy Goldstein
Washington Post Staff Writers
Friday, July 17, 2009
Supreme Court nominee Sonia Sotomayor won virtual assurance of rapid confirmation yesterday when Senate Republicans announced that they do not intend to block a vote that would make her the first Hispanic on the nation's highest court, concluding three days of intense questioning.
Sotomayor's path to becoming President Obama's first Supreme Court appointment was enhanced by a two-pronged strategy: During more than 15 hours of questions from members of the Senate Judiciary Committee, she revealed little about the type of justice she would be, declining to disclose her views on the most significant and polarizing legal matters working their way through the courts. In addition, she deflected critics' allegations that her public speeches showed a bias based on her sex and ethnicity, assuring the committee she is a moderate jurist and not a liberal judicial activist.
By the time she stepped out of the witness chair, Sotomayor had earned the grudging respect of even conservatives on the committee who are not likely to support her. "Thank you for giving us such a cordial response, and I am mightily impressed," said Sen. Tom Coburn (R-Okla.).
For a nomination that began with conservative commentators charging that the judge had made "racist" comments, Sotomayor wrapped up her appearance with a confident smile and thanked the senators for their courtesy.
"I have received all the graciousness and fair hearing that I could have asked for," she said.
The committee has scheduled a Tuesday meeting to begin considering the nomination, with a formal vote likely the following week because Republicans expect to ask for extra time to review answers to written follow-up questions they will submit to her today. The committee's vote serves as a recommendation for the rest of the Senate, which is likely to hold its final roll call on Sotomayor by Aug. 7.
Sen. Jeff Sessions (Ala.), the panel's ranking GOP member, told the judge that he would not support any effort to filibuster her nomination, ending any possible suspense over her fate, given the 60 to 40 split in the Senate in favor of Democrats.
With the threat of a filibuster removed, Sotomayor will need just a simple majority -- 50 votes -- to win confirmation. And yesterday she edged closer to gaining Republican support after she continued to reassure members that her history as a judge is a fair barometer of her future rulings.
Sen. Lindsey O. Graham (R-S.C.), who has discussed supporting her, told Sotomayor that her "record as a judge has not been radical by any means."
"You have been very reassuring here today and throughout this hearing that you're going to try to understand the difference between judging and whatever political feelings you have about groups or gender," he said.
Charles E. Grassley (R-Iowa), who has voted in favor of every Supreme Court nominee in his 29 years in the Senate, said that Sotomayor's answers were effective but that he is trying to decide whether she was "pandering" to the committee's conservatives.
"I still got a big question mark about whether or not I really know her," Grassley said in an interview after the hearings.
Conservative activists were continuing to try to gin up opposition. Moments after Sotomayor concluded her testimony, the National Rifle Association said it was dissatisfied with her responses about the Second Amendment and said it would oppose her confirmation. Ralph Reed, a GOP strategist, issued a memo advising Republicans to vote against Sotomayor and make "her an issue in key races next year," focusing on her rulings on gun rights.
Other Republican strategists have questioned the wisdom of such a strategy, saying it could alienate Hispanic voters, an emerging bloc that tilted heavily toward Obama and Democrats last fall.
Once the outcome of the committee's pending deliberations and vote were no longer in doubt, Chairman Patrick J. Leahy (D-Vt.) allowed Republican members three rounds of questioning. The last round was more about lobbying for specific pet issues than trying to elicit new information.
Throughout the questioning, Sotomayor, like previous nominees, deflected any questions that might give clues to future rulings.
Committee members found that frustrating at times. "You know, the test is not whether Judge Sonia Sotomayor is intelligent. You are," said Sen. John Cornyn (R-Tex.). "The test is not whether we like you. I think, speaking personally, I think we all do. The test is not even whether we admire you or we respect you, although we do admire you and respect what you've accomplished.
"The test is really: What kind of justice will you be if confirmed to the Supreme Court of the United States?"
Sotomayor replied: "Look at my decisions for 17 years and note that, in every one of them, I have done what I say that I so firmly believe in. I prove my fidelity to the law, the fact that I do not permit personal views, sympathies or prejudices to influence the outcome."
In their final questioning, Republicans focused on issues important to their conservative base: same-sex marriage, gun control, campaign finance reform, abortion.
Sen. Jon Kyl (Ariz), the first Republican to question Sotomayor yesterday, renewed the GOP's criticism of her role in a discrimination case involving Connecticut firefighters. He challenged her assertion that she and two other judges on an appeals court panel had been bound by legal precedent in their ruling in Ricci v. DeStefano.
The ruling, which the Supreme Court recently reversed, has been one of the GOP's central lines of attack on the nominee all week. Sotomayor and two colleagues on the U.S. Court of Appeals for the 2nd Circuit held that the city of New Haven was justified when it dropped a promotions test for firefighters after only white candidates and a small number of Hispanics -- but no African Americans -- would be eligible for advancement.
The lower courts held that the city was justified in scuttling the test results because of past rulings that tests with disparate outcomes for minorities could be a form of unintended discrimination, and would open the city to lawsuits from minorities.
But the Supreme Court ruled 5 to 4 that the city's actions violated the portion of the same civil rights act that outlaws discrimination on the basis of race.
Kyl's quick return to the case yesterday morning also served as a prelude to a moment of drama in the afternoon, when Frank Ricci appeared before the committee as one of the public witnesses invited by the GOP.
Ricci was one of more than 30 witnesses, supporting the judge and opposing her, who testified after Sotomayor left the room. They included David Cone, a former major league baseball player who praised her role in ending a 1990s baseball strike; a leader of the antiabortion movement; and former FBI director Louis J. Freeh, who recalled helping her as a federal district judge in New York when she first joined the bench.
New York Mayor Michael R. Bloomberg (I) told the panel that he first recommended her nomination several months ago, before Justice David H. Souter announced his retirement, after a White House meeting with Obama on an unrelated subject.
"She is an independent jurist who does not fit squarely into an ideological box," Bloomberg said, echoing a refrain the nominee trumpeted all week.