Hearings To Begin On Sotomayor Nomination

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The Senate Judiciary Committee opens confirmation hearings Monday on the nomination of judge Sonia Sotomayor to the U.S. Supreme Court. Republicans privately acknowledge that her nomination could probably only be derailed by a major blunder at this point.


This is MORNING EDITION from NPR News. Good morning. I'm Renee Montagne.


And I'm Steve Inskeep.

Senators who open hearings on a Supreme Court nominee today could be forgiven if they seem to be shifting their gaze. They will keep one eye on Judge Sonia Sotomayor and another eye on history. This would be a lifetime appointment.

MONTAGNE: Lawmakers will also have to keep an eye on their core political supporters. Ideological fighters in both parties tend to be the ones who care most passionately about Supreme Court choices.

INSKEEP: And maybe some lawmakers will also glance at a CNN survey of the broader public. It finds that Sotomayor's support has now fallen below 50 percent.

Here is NPR's legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: Call it a classic Washington drama, call it a Kabuki dance, the star is still Sonia Sotomayor and the costars - the senators - many of them longtime antagonists who've now switched sides in every sense of the word. Just a few years ago when Republicans controlled the Senate and the White House, it was the Democrats playing offense and the Republicans playing defense for their nominee. Now, the roles are reversed.

Back then the committee chairman was Republican Arlen Specter who this year defected to the Democratic Party. So now the ranking Republican is Alabama's Jeff Sessions, a rock-ribbed conservative, who two decades ago came before this very committee as a nominee for a federal district court judgeship.

Although the committee was controlled by Republicans, Session's nomination was defeated amid allegations that as a federal prosecutor he sought to suppress the black vote. He subsequently ran for the Senate, and now in his third term has repeatedly said he holds no grudge, and particularly because of his experience wants to make sure that Sonia Sotomayor is treated fairly.

Republicans have several lines of inquiry they'll stress at these hearings. They'll use the New Haven firefighters' case as an anchor for other questions about the politics of racial identity. When the city of New Haven tossed out a promotion exam that produced no African-American promotions, white firefighters brought a reverse discrimination claim that was rejected by an appeals court panel that included Sotomayor. The Supreme Court overturned that decision last month. Republican Senate leader Mitch McConnell.

Senator MITCH McCONNELL (Republican, Kentucky; Senate Minority Leader): Judge Sotomayor got the law really wrong in the Ricci case and the New Haven firefighters suffered for it.

TOTENBERG: Senator Sessions has sought to link that decision to Sotomayor's statement at a speech that a, quote, "wise Latina woman could sometimes reach better conclusions than a white male judge."

Senator JEFF SESSIONS (Republican, Alabama): The firefighters were denied promotion, and under her stated philosophy, her prior background they are left to wonder was perhaps the reason they lost in her court because she brought her background and her prejudices to bear on the case and did not give them a fair case.

TOTENBERG: Judiciary Committee Chairman Patrick Leahy has responded with a veiled warning.

Senator PATRICK LEAHY (Democrat, Vermont; Chairman, Senate Judiciary Committee): It's not just Judge Sotomayor who is being watched by the American public here, but the United States Senate.

TOTENBERG: Behind the scenes, a battle is brewing over timing with conservative groups pressing the GOP to at least drag out the confirmation process for a, quote, "great debate." Manuel Miranda who heads the Third Branch, a coalition of conservative group leaders, wants time during the August Congressional Recess to gin up opposition on radio talk shows and with grassroots groups.

Mr. MANUEL MIRANDA (Chairman, Third Branch Conference): The right never gains if you don't have this issue on the table.

TOTENBERG: Miranda is hoping that Sotomayor will not have learnt the post-Bork script of the artful dodger.

Senator, when I joined that opinion, I felt I was constrained by Supreme Court precedent and the precedent in my circuit. But because the issue could come before me again, if confirmed, I cannot tell you what my views might be in the future.

For Republicans, the Sotomayor nomination poses a particularly difficult political problem because she is the first Hispanic nominee to the court. And Latinos, the fastest growing group of voters in the country, have been deserting the Republican Party in growing numbers.

This week the nation's two leading Spanish language TV networks have beefed up their coverage of these hearings, and Latino groups have live streaming coverage on their Web sites. Conservative activist like Mr. Miranda acknowledged they have little chance of defeating Sotomayor. They console themselves that Democrats in 2005 divided equally on the nomination of John Roberts to be chief justice, freeing up all but four Democrats to risk appearing partisan by opposing the next Bush nominee to the court, Samuel Alito.

Nina Totenberg, NPR News, Washington.

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Identity Politics Central To Sotomayor Hearings

President Obama walks with Judge Sonia Sotomayor and Vice President Biden. i

Judge Sonia Sotomayor, seen here walking with President Obama and Vice President Biden in May, is poised to march into history next week. Senate confirmation hearings for the Supreme Court nominee begin Monday; barring some surprise, her ascent to the high court is seen as inevitable. Saul Loeb/Getty Images hide caption

toggle caption Saul Loeb/Getty Images
President Obama walks with Judge Sonia Sotomayor and Vice President Biden.

Judge Sonia Sotomayor, seen here walking with President Obama and Vice President Biden in May, is poised to march into history next week. Senate confirmation hearings for the Supreme Court nominee begin Monday; barring some surprise, her ascent to the high court is seen as inevitable.

Saul Loeb/Getty Images

Sonia Sotomayor is a Yankees baseball-loving product of a Bronx housing project. Her widowed mother squirreled away money from a nursing job to buy her children an encyclopedia — a rarity in their neighborhood.

The daughter of Puerto Rican-born parents, Sotomayor loved Nancy Drew mysteries. And the long-running television courtroom drama Perry Mason opened her eyes to the power of the bench and, perhaps, her own potential.

Now, Sotomayor, 55, a federal appeals court judge for the past decade, is on the verge of cementing her place in U.S. history on the nation's mightiest bench.

On Monday, the Senate Judiciary Committee will open hearings on President Obama's nomination of Sotomayor to be the first Hispanic, and just the third woman, to serve on the U.S. Supreme Court.

Her singular life story is studded with 17 years of judicial opinions and identification with the equal rights struggles of Latinos in the U.S. That biography will provide plenty of fodder for questioning by the 19 members of the Senate Judiciary Committee — 12 of them Democrats — over the next few days.

'Recognition For Latinos'

Since it first convened in 1790, the Supreme Court has had 110 justices. Two of them have been women; two others have been African-American.

Considered a moderate liberal with a reputation for meticulous research and active questioning from the bench, Sotomayor's nomination to replace retiring Justice David Souter has resonated in the Hispanic community — even as her advocacy in the past for Latino rights has rankled conservative critics.

"This is history — this is important," says former Rep. Herman Badillo, 79, the first native Puerto Rican elected to Congress, where he represented the Bronx.

"This means recognition for the Latino community," says Badillo, a Democrat turned Republican. "And this is a group — a growing group — that deserves recognition."

Potent Life Story

The power of Sotomayor's determined journey from thoroughly modest means to the high court is acknowledged even by her detractors.

From the Bronx, Sotomayor graduated summa cum laude from Princeton and earned her law degree from Yale. From there, she worked as an assistant Manhattan district attorney, was in private practice for eight years, and, nominated by President George H.W. Bush, was named a U.S. district court judge in 1992.

In 1997, President Bill Clinton nominated Sotomayor to the 2nd Circuit Court of Appeals in New York. After Republicans delayed action for a year, she was confirmed by a 67-29 Senate vote.

Confirmation Guaranteed?

Barring some surprise, Sotomayor's ascent to the high court, where she would replace Souter on the court's four-justice liberal wing, is seen as inevitable.

Her confirmation wouldn't alter the current political balance of the court, where Justice Anthony Kennedy typically joins the opinions of the panel's four conservative members.

And the recent arrival of newly minted Minnesota Sen. Al Franken has given Democrats, joined by the Senate's two independents, a 60-vote filibuster-proof majority.

Not that conservatives have been threatening anything of the sort.

With only 40 senators, Republicans "just don't have the levers" to challenge Sotomayor on the floor, says M. Edward Whelan, president of the conservative Ethics and Public Policy Center.

Even GOP Sen. Lindsey Graham of South Carolina, a Judiciary Committee member who initially said he was "deeply troubled" by Sotomayor's nomination, told reporters last week: "I honestly think I could vote for her."

Republicans also face the very delicate situation of mounting opposition to a qualified Hispanic Supreme Court nominee whom many consider a mainstream jurist — without insulting the Hispanic community, the fastest-growing demographic in the nation.

"If they vote against her," Badillo says, "the Republican Party can forget about the Latino vote — and they already lost ground between the 2004 and 2008 presidential elections."

"It's going to cost them," he said.

GOP Angling For Points

Politically, many conservatives have acknowledged that Obama has put them in a box. But that doesn't mean that Republicans won't mix it up with the nominee this week.

"Obama could get virtually anyone confirmed with 60 senators," Whelan says. "I have no illusions that she won't be confirmed easily."

"The question is whether Republicans are able to wage a good battle over the proper role of courts and inflict political costs on the empathy standard," he says.

The lines of attack are expected to focus on GOP questions about whether Sotomayor has allowed her gender and ethnicity to influence her judicial deliberations.

Republicans say they will key on Sotomayor's involvement with the Puerto Rican Legal Defense and Education Fund and the cases that the rights organization pursued while she was a board member.

Questions will also involve her appeals court vote to reject a reverse discrimination claim by white firefighters in Connecticut, and comments she has made in the past about her hope that a "wise Latina" could reach a better conclusion than a white male.

Republicans have called as a hearing witness Frank Ricci, the lead plaintiff in the firefighters suit, which claimed discrimination when results of a promotion test were tossed out because no African-American scored high enough to be considered.

The Supreme Court recently reversed the appeals court decision that Sotomayor had joined, ruling in favor of the firefighters.

What is not clear is whether committee Democrats will wade into history and note that Ricci won his job with the New Haven fire department in 1997 by suing the city, claiming he was discriminated against in the hiring process because of his disability — dyslexia.

Republicans are expected to steer clear of the type of incendiary statements that marked conservative reaction to the initial rollout of Sotomayor's nomination. She was labeled a "racist" by Newt Gingrich (he apologized), an "extremist" by many, and was criticized for her alleged "temperament problems," charges her colleagues have said are rooted in sexism.

Strong Support For The Nominee

Sotomayor's supporters have pushed back hard on criticism of her as someone who engages in identity politics. And they have taken on GOP leaders like ranking Judiciary Committee member Sen. Jeff Sessions of Alabama, who characterized the Puerto Rican Legal Defense and Education Fund, now known as LatinoJustice PRLDEF, as "extremist."

"It's been very troubling," says Jenny Rivera, who was a district court clerk for Sotomayor and is now a professor at City University of New York School of Law. She was a lawyer for the Puerto Rican organization from 1988-1992.

"Our profession is encouraged to do pro bono work, to address the needs of the indigent, to expand rights and encourage access to justice," Rivera says of the work the fund engages in. "It's extremely troubling that a lawyer who did work like that should somehow be told that it is dangerous and undermines our constitutional values."

Among witnesses scheduled to testify this week on Sotomayor's behalf are New York Mayor Michael Bloomberg, who is running for a third term in a city with a large Hispanic constituency; former FBI Director Louis Freeh; and former Major League Baseball pitcher David Cone. (One of Sotomayor's district court decisions ended the 1995 baseball strike.)

Identity Matters

In a recent interview with The New York Times, Justice Ruth Bader Ginsburg said that the current makeup of the high court — where she is the only current female member — "just doesn't look right in the year 2009."

"I feel great," she said of her anticipation of Sotomayor's confirmation, "that I don't have to be the lone woman around this place."

Having Ginsburg and the now-retired Justice Sandra Day O'Connor — who broke the gender barrier in 1981 — on the court had "an immediate influence on gender discrimination cases," says Supreme Court historian Lucas Powe Jr., a University of Texas law professor and author of the recent The Supreme Court and the American Elite.

Powe dismisses the notion that a justice's identity could be left out of his or her decisions.

"It would be ridiculous," he says, "to imagine that one's identity can be stripped out. We are who we are."

But just how much identity — Sotomayor's identity — would or should play out on a high court dominated since its founding by white men will get a thorough vetting this week.

And the Hispanic community will be watching its history play out.

"This is of tremendous significance," Rivera says. "It's about all of us feeling that the court has integrity and reflects our lives and who we are."



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