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Liberalism Had Little Presence in Sotomayor Hearings
Leonard A. Leo, executive vice president of the conservative Federalist Society, said conservative thinking essentially defined the hearings.
Democrats made "no effort to interrogate the nominee to make sure she would expansively interpret the Constitution," he said. "She said she would apply the same basic principle of judicial restraint" articulated by the court's most recent members, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. -- both reliable conservatives.
Given that he is a popular new president and that Democrats hold their biggest majority in the Senate in three decades, Obama "could have nominated just about anybody and hoped to win confirmation," said Princeton University Provost Christopher Eisgruber, the author of a book on the Supreme Court nomination process. In Sotomayor, Eisgruber said, the president found a seasoned judge who would diversify the court -- but, in terms of her philosophy, he's "not trying to push the envelope on the court."
The president, Eisgruber said, may have decided not to spend political capital on the court while pursuing other difficult goals, including changes to the U.S. health-care system. Or "this may be a president who genuinely believes he wants to have a more moderate liberal on the court, rather than a more doctrinaire liberal. He may think it's better not to have a liberal Scalia," Eisgruber said, referring to the court's most outspoken conservative, Antonin Scalia.
Congressional liberals are divided over the White House's approach to this first vacancy.
Rep. Howard L. Berman (D-Calif.), a senior member of the House Judiciary Committee, called it "a disciplined, well-thought-out, organized effort to get the confirmation of the president's choice." Berman and Rep. Robert Wexler (D-Fla.), one of the House's most forceful liberal voices, said the contentious confirmation process leaves no room for a nominee to admit to liberal ideas. They also said Sotomayor could prove a dependable vote on the court for the left, if not an outspoken champion.
But Rep. Jerrold Nadler (D-N.Y.), who chairs the House Judiciary Committee's Constitution subcommittee, said he regrets that "you don't have anybody on the court as liberal as the conservatives are conservative."
Jeff Sessions (Ala.), the Senate Judiciary Committee's ranking Republican, said the White House and Democrats have been hobbled because, despite Democrats' strong victories in recent elections, public attitudes have not moved correspondingly. "The left's view of judges is not supported by the people," Sessions said.
Kendall said liberal legal thinkers must devise new ways to build public support for their ideas to make it easier for Obama to pick outspoken judges. "Neither the old progressive idea about the living Constitution nor the new idea of judicial empathy have polled very well," he said.
As it is, Nadler said, "it will take a president with a lot of nerve" to nominate a justice substantially further to the left.
Stone, of the University of Chicago, predicted that Sotomayor's hearings will make that task more difficult by creating "an unfortunate baseline" Republicans can use to challenge anyone more demonstrably to the left. Princeton's Eisgruber disagreed, saying that, by choosing a nominee who is female and Hispanic, Obama will be "free the next time to push harder, if he wants to, because he's satisfied some constituencies."
For their part, senior White House officials said Sotomayor will give Obama room to appoint other justices and lower-court judges who are more overtly liberal because the president is using few political chits this time. Still, one official said the president continues to want to avoid the "nomination wars" of recent years.
And Cardin, who announced on Friday that he will vote for Sotomayor, said he is encouraged by her judicial record and her private conversations before the hearings. When she came to his office, Cardin said, he told her he is concerned about civil rights issues. The nominee smiled, he recalled, and told him his concerns were "refreshing."
But at the hearings, Cardin said, "I did not expect her to directly answer my question."
Staff writers Michael D. Shear and Robert Barnes contributed to this report.