Sotomayor Faces Questions On Firefighters Case

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At her confirmation hearing Tuesday, Supreme Court nominee Sonya Sotomayor answered questions about her ruling in a racial discrimination case and her comments on the influence that a judge's life experiences have on her view of a case.

ROBERT SIEGEL, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

MADELEINE BRAND, host:

And I'm Madeleine Brand.

Today, Supreme Court nominee Sonia Sotomayor was back in front of the TV cameras and back in front of the Senate Judiciary Committee. This time she faced questions from the senators. NPR's legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: Sotomayor answered questions for hours today, but gave little information and little ground. If Republican senators hoped to provoke her into an intemperate remark, they were disappointed. If they hoped to find out more about her judicial philosophy for the most part, they failed in that too.

Committee Chairman Patrick Leahy opened the questioning, taking Sotomayor through the subject she's been most criticized about, starting with the New Haven firefighters case, Ricci versus DeStefano. Sotomayor sat on an appeals court panel that unanimously rejected a claim by white firefighters that they were the victims of racial discrimination when the city of New Haven tossed out a promotion test on which they had done well and minorities had not. The Supreme Court subsequently overturned that decision.

Judge SONIA SOTOMAYOR (Supreme Court Nominee): The issue in Ricci was what the city did or could do when it was presented with a challenge to one of its tests, that - for promotion, this was not a quota case, this was not an affirmative action case, this was a challenge to a test.

TOTENBERG: Sotomayor maintained that she and her colleagues were following the established precedent in her circuit at the time and that the Supreme Court last month ruling on a question it had not previously resolved, changed the law for all circuits.

Judge SOTOMAYOR: The Supreme Court, in looking and reviewing that case, applied a new standard. In fact, it announced that it was applying a standard from a different area of law and explaining to employers and the courts below how to look at this question in the future.

TOTENBERG: Leahy then asked her about her statement in several speeches that a wise Latino woman can often reach better conclusions than a white male judge. Sotomayor replied ruefully.

Judge SOTOMAYOR: No words I have ever spoken or written have received so much attention.

(Soundbite of laughter)

TOTENBERG: Sotomayor went on to say that when she made that statement, she was talking to groups of women and minority students.

Judge SOTOMAYOR: I was trying to inspire them to believe that their life and experiences would enrich the legal system, because different life experiences and backgrounds always do. I don't think that there is a quarrel with that in our society.

TOTENBERG: But, she continued…

Judge SOTOMAYOR: I want to state up front, unequivocally and without doubt, I do not believe that any ethnic, racial or any gender group has an advantage in sound judging.

TOTENBERG: Following Senator Leahy's friendly questioning, there was a different tone from the committee's ranking Republican, Alabama's Jeff Sessions. He first asked Sotomayor about her statement at a Duke University conference that courts of appeal make policy.

Senator JEFF SESSIONS (Republican, Alabama): What do you really believe on those subjects that there is no real law and that judges do not make law or that the - there is no real law and the court of appeals is where policy is made.

TOTENBERG: Sotomayor said she was speaking about the role of federal trial courts versus the role of a federal appeals court. And that trial courts deal with factual findings that bind no other court, while appeals courts make rulings that set binding legal precedent throughout the circuit.

Judge SOTOMAYOR: I think if my speech is heard outside of the minute and a half that YouTube presents and its full context examined, that it's very clear that I was talking about the policy ramification of precedent and never talking about appellate judges or courts making the policy that Congress makes.

Sen. SESSIONS: Judge, I want to just say I don't think it's that clear. I looked at that on tape several times and I think a person could reasonably believe it meant more than that.

TOTENBERG: Sessions then asked her about a speech she gave in which she said the judges must not deny differences resulting from their different experiences, but must measure those opinions, sympathies and experiences and whether they're appropriate.

Judge SOTOMAYOR: Life experiences have to influence you. We're not robots to listen to evidence and don't have feelings.

Sen. SESSIONS: I understand that, but isn't it true this statement suggests that you accept that there may be sympathies, prejudices and opinions that legitimately can influence a judge's decision?

Judge SOTOMAYOR: I think the system is strengthened when judges don't assume they're impartial, but when judges test themselves to identify when their emotions are driving a result or their experiences are driving a result and the law is not.

TOTENBERG: Senator Sessions pressed the point further.

Sen. SESSIONS: Would you stand by your statement that my experiences affect the facts I choose to see?

Judge SOTOMAYOR: No sir, I don't stand by the understanding of that statement that I will ignore other facts or other experiences because I haven't had them. I do believe that life experiences are important to the process of judging, they help you to understand and listen, but that the law requires a result and it will command you to the facts that are relevant to the disposition of the case.

TOTENBERG: And finally, Senator Sessions asked her about her wise Latina remark, noting that in her speech she contrasted her view with that of Justice Sandra Day O'Connor, who often says that a wise old woman and a wise old man will reach the same conclusion.

Judge SOTOMAYOR: I was using a rhetorical flourish that fell flat. I was trying to play on her words. My play was - fell flat. It was bad because it left an impression that I believe that life experiences commanded a result in a case, but that's clearly not what I do as a judge.

TOTENBERG: Republicans also questioned Sotomayor closely today on her views about the Second Amendment, right to bear arms. She said she's bound by the Supreme Court's recent decision that the Constitution guarantees an individual right to bear arms. But she said that as a lower court judge, she was constrained in a recent ruling about how far to apply that decision. She said that since the Supreme Court specifically did not rule on whether the individual right extends to state laws, she, as a lower court judge, could not go further.

Should her panel's decision be appealed to the Supreme Court as widely expected, she said she would recuse herself, but she would not commit to recusing herself from cases involving the same question, but different cases from different states. The hearings continue tomorrow.

Nina Totenberg, NPR News, Washington.

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