By Amy Goldstein and Paul Kane
Washington Post Staff Writers
Sunday, July 19, 2009
Early on the third day of last week's confirmation hearings, one of the Senate Judiciary Committee's leading liberals leaned forward in his leather chair toward Sonia Sotomayor to explain his hopes for the next member of the nation's highest court.
"I want a justice," said Sen. Benjamin L. Cardin (D-Md.), a veteran politician taking part in his first Supreme Court confirmation, "who will continue to move the court forward in protecting . . . important civil rights. I want a justice who will fight for people like Lawrence King who, at the age of 15, was shot in a school because he was openly gay. I want a justice who will fight for women like a 28-year-old Californian who was gang-raped by four people because she was a lesbian. And I want a justice who will fight for people like James Byrd, who was beaten and dragged by a truck for two miles because he was black."
So, Cardin asked the nominee: Don't courts have to take such factors as race into account?
Sotomayor paused. "Well," she replied, "it depends on the context of the case that you're looking at."
The hearings were a moment of history that liberals had awaited for 15 years: an opportunity for a Democratic president's Supreme Court nominee to inject into the public dialogue fresh ideas about the Constitution and the law, beginning to recalibrate a court that has gravitated to the right.
Yet Sotomayor did not articulate such a vision. In answering Cardin, and in scores of other times during four intense days in the witness chair, she eluded efforts of Democrats and Republicans alike to draw out any statement of liberal thought.
Sotomayor's inscrutability last week has raised fundamental questions: about the Obama administration's approach to future nominations, the direction of the court, the way Senate Democrats are using the benefits of their majority and the influence of the American left.
At the heart of those questions is another one, which has ignited a debate among legal scholars, advocates and members of Congress. Did the hearings reveal a true absence of liberal ideas in the 55-year-old judge President Obama chose to fill his first Supreme Court vacancy? Or did they reflect sheer political pragmatism by someone, coached by White House staff members and following the model of other recent nominees, seeking to maximize support by avoiding controversy?
Either way, Sotomayor's reticence, if not her nomination, has disappointed legal thinkers on the left. The hearings "did serious damage to the cause of progressive thought in constitutional law," said Geoffrey R. Stone, a University of Chicago Law School professor who was dean there when Obama joined its faculty. Doug Kendall, president of the Constitutional Accountability Center, a liberal think tank, called them "a totally missed opportunity. . . . The progressive legal project hit rock bottom [last] week."
Little mystery remains as to whether Sotomayor will join the Supreme Court. Several Republican senators have said they will vote with Democrats to endorse her when the chamber decides on her confirmation in early August.
Sotomayor has been on the federal bench for 17 years, first as a trial judge in Manhattan and, since 1998, as a member of the U.S. Court of Appeals for the 2nd Circuit. She has a record of rulings that even Senate Republicans said fits within the judicial mainstream.
At her hearings, she distanced herself from public remarks off the bench that, according to the GOP, suggest a gender and ethnic bias. She distanced herself, too, from Obama's view that a judge should have empathy -- an idea floating within liberal legal thought. And she concealed her views on issues important to the left, including abortion, gun control and same-sex marriage, as well as the civil rights matters Cardin raised.
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.