Jul 16, 2009 2 Comments ›› Pat Dollard
The confirmation hearing of Sonia Sotomayor opened this morning for its fourth — and perhaps final — day, with Republicans reprising their criticism of her role in a discrimination case involving Connecticut firefighters that was recently overruled by the Supreme Court.
As Republicans and Democrats on the Senate Judiciary Committee took turns in a second round of questioning the nominee, Sen. John Kyl (R-Ariz) challenged Sotomayor’s assertion that she and fellow judges on an appeals court panel had been bound by legal precedent in their ruling in Ricci v. DeStefano.
The case has been one of the GOP’s central lines of attack on the nominee all week. In it, the Supreme Court disagreed with Sotomayor and two colleagues on the U.S. Court of Appeals for the 2nd Circuit, who had held that the city of New Haven had been justified when it dropped a promotions test for firefighters after white candidates outscored their minority counterparts.
Kyl’s quick return to the case this morning also served as a prelude to a moment of drama this afternoon, when Frank Ricci himself is to appear before the committee as one of the public witnesses invited by the GOP.
The first Democrat of the day to question the nominee, Sen. Dianne Feinstein (D-Calif.), swiftly sought to put Ricci in a different light, asserting that Sotomayor’s view of the law in the case was “not starkly out of the mainstream.”
As the judge entered the room and sat down at the witness table just before 9:30 a.m., she smiled and talked with senators, including the committee’s chairman, Sen. Patrick J. Leahy (D-Vt.), who showed her that he was sporting a wrist cast — matching the walking cast she has been wearing as her fractured ankle heals.
Sen. Lindsey Graham (R-S.C.) all but acknowledged that her confirmation is assured, saying that Sotomayor’s future appears “pretty bright.”
Yesterday, President Obama’s nominee sidestepped senators’ efforts to plumb her views on matters from campaign finance law to the workload of the court she is likely to join. Republicans and Democrats alike have been unable to elicit specific legal opinions from Sotomayor for the past two days.
Sotomayor, who would be the first Hispanic Supreme Court justice if confirmed, said Obama did not ask her about abortion rights or any other “specific legal issue” before nominating her. Like nominees of both parties before her, she declined to be forthcoming about a host of legal issues.
By midafternoon yesterday, even two Democrats on the panel sounded frustrated by her long, legally detailed and often evasive replies.
During his turn to question her, new Democrat Sen. Arlen Specter (Pa.) repeatedly cut her off midsentence as he sensed she was skirting topic after topic. “I think your record is exemplary, Judge Sotomayor, exemplary,” he said. “I’m not commenting about your answers.”
Sen. Al Franken (D-Minn.), who was sworn in to the chamber last week, was more direct. “So that means you’re not going to tell us?” he asked the nominee after struggling to elicit her position on a recent Supreme Court decision involving voting rights.
Four Republican senators and eight Democrats are slated to ask questions today. But Democrats have been briefly recapping their praise of Sotomayor or asking short questions about their own favored issues, so committee members hope to conclude the questioning before lunch. If that schedule holds, the final phase of the hearing — public witnesses — will begin this afternoon.
Witnesses testifying for the majority Democrats are scheduled to include New York City Mayor Michael Bloomberg, former Federal Bureau of Investigations Director Louis Freeh and former New York Yankee pitcher David Cone, who may recall Sotomayor’s famous ruling that essentially ended the Major League Baseball strike in the mid-1990s. Republicans will bring forward several law professors and attorneys, along with Charmaine Yoest, president of Americans United for Life and a high-profile opponent of Sotomayor on the abortion issue.
As they did yesterday, Democratic senators are expected to again try to protect Sotomayor from Republican efforts to dent her credibility and assertions of neutrality. The Democrats pointed out that two of the main pieces of political artillery the GOP has wielded against her — her public remarks that a Latina might make the best judge and her dozen years on the board of the Puerto Rican Legal Defense and Education Fund — are not new. Both were known, they said, when the Senate confirmed her twice in the 1990s, first as a federal trial judge and then as a member of the U.S. Court of Appeals for the 2nd Circuit.
“So this is nothing new to the Senate. Is that correct?” Sen. Sheldon Whitehouse (D-R.I.) asked Sotomayor about her membership on the advocacy group’s board before she joined the bench.
“That’s correct,” she replied.
Although Democrats said the fund was not raised in either hearing, it did come up during Sotomayor’s 1992 hearing for a U.S. District judgeship in New York, according to a transcript. Asked about her pro bono activities by Sen. Edward M. Kennedy (D-Mass.), Sotomayor briefly discussed her time on the board and praised the fund’s “important work in promoting the civil and human rights of Hispanics, particularly of Puerto Rican background.” Republican senators did not raise the subject.
No Republicans have said whether they will join Democrats in supporting Sotomayor’s Supreme Court confirmation. Graham said his decision could hinge on follow-up questions he plans to ask about her most controversial public remarks.
In not allowing senators to pin her down on concrete matters of law, Sotomayor, 55, borrowed an approach that has been used by most nominees to the nation’s highest court since the failed nomination two decades ago of Robert H. Bork, a conservative jurist and scholar. Like her, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., at their confirmation hearings in 2005 and 2006, respectively, said they could not address many of the questions senators raised because they involved areas of the law that were settled — or on which they might be asked to rule in the future.
Sotomayor also sought to tamp down comments about her ideological leanings, focusing in particular on remarks by the senior partner at Pavia & Harcourt, a New York law firm where she worked between serving as an assistant district attorney and becoming a judge. Noting that George Pavia has been quoted lately as saying, “I can guarantee she’ll be for abortion rights,” Sen. John Cornyn (R-Tex.) asked the nominee: “On what basis would Mr. Pavia say that, if you know?”
“I have no idea why he’s drawing that conclusion,” Sotomayor replied. “If he was talking about the fact that I served on a particular board that promoted equal opportunity for people, the Puerto Rican Legal Defense and Education Fund, then you could talk about that being a liberal instinct, in the sense that I promote equal opportunity in America and the attempts to ensure that. But he has not read my jurisprudence for 17 years, I can assure you. He’s a corporate litigator. And my experience with corporate litigators is that they only look at the law when it affects the case before them.”
Sotomayor also skirted a series of pointed questions from Cornyn and Sen. Tom Coburn (R-Okla.) about her views on abortion rights. Coburn, one of the Senate’s leading abortion opponents and a physician who has delivered hundreds of babies, asked how she would handle a case involving a woman seeking to abort a fetus at 38 weeks after learning the baby had spina bifida.
“I can’t answer that question in the abstract because I would have to look at what the state of the state’s law was on that question,” Sotomayor said. She recited portions of the 1992 ruling in Planned Parenthood v. Casey, which upheld a right to an abortion but allowed some restrictions so long as they do not place an “undue burden” on the woman’s rights. “The question is: Is the state regulation regulating what a woman does an undue burden?” she said.