Another Day Of Questions For Sotomayor
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Sonia Sotomayor is back in the Senate today. The Supreme Court nominee spent hours yesterday being quizzed by senators, with Democrats posing helpful questions and Republicans armed with challenges.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: Republicans prodded, poked, offered skeptical evaluations of her answers, but Sonia Sotomayor never flagged and rarely offered any real insight into what Republicans wanted most: a peek at what kind of a Supreme Court justice she'll be if confirmed. They asked her about a decision she joined on gun rights, but she said the decision was based on the Supreme Court's most recent ruling on the subject and that she could go no further. They asked her about a property rights opinion that's drawn conservative ire. But she said the issue in the case was not property rights; rather, it was whether the property owner had filed his lawsuit before the deadline.
And they asked her about the New Haven firefighters decision she joined, in which her appeals court panel rejected the claim of reverse discrimination by white firefighters, and upheld the right of the city to throw out a firefighter promotion test on which whites did well and minorities did not. She was following precedent, she said, and the Supreme Court, when it took up the issue, laid down new rules.
Judge SONIA SOTOMAYOR (Supreme Court Nominee): This was not a quota case; this was not an affirmative action case. This was a challenge to a test. The Supreme Court, in looking and reviewing that case, applied a new standard and - explaining to employers and the courts below how to look at this question in the future.
TOTENBERG: Unable to make points on her legal decisions, frustrated Republicans moved onto her speeches and to President Obama's speeches. Arizona Senator Jon Kyl asked Sotomayor about a speech that Senator Obama gave in opposing President Bush's nominees to the Supreme Court.
Senator JON KYL (Republican, Arizona): Do you agree with him that the law only takes you the first 25 miles of the marathon, and that that last mile has to be decided by what's in the judge's heart?
Judge SOTOMAYOR: No, sir. That's - I don't, wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do. It's not the heart that compels conclusions in cases, it's the law.
TOTENBERG: As for Sotomayor's speeches, Republicans made clear they viewed them as troubling, a matter of concern, a tip-off to liberalism that will flower once she's on the Supreme Court. They asked her repeatedly about her comment that a wise Latina woman would, in many cases, reach a better conclusion than a white, male judge. The wise Latina statement, she said, was a failed attempt to play on Justice Sandra Day O'Connor's statement that a wise old woman and 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: Pressed by Alabama Senator Jeff Sessions about another speech, Sotomayor responded that she clearly had said appeals courts set policy only in that they establish precedent for other courts.
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 ramifications of precedent, and never talking about appellate judges or courts making the policy that Congress makes.
Senator JEFF SESSIONS (Republican, Alabama): Judge, I would 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: South Carolina Senator Lindsey Graham pointed to the most recent lawyer evaluations published in the Almanac of the Federal Judiciary. Although Sotomayor has always gotten rave reviews from lawyers, in this most recent rating some called her nasty, a bully, a terror on the bench.
Senator LINDSEY GRAHAM (Republican, South Carolina): When you look at the evaluation of the judges on the Second Circuit, you stand out like a sore thumb in terms of your temperament. What is your answer to these criticisms?
Judge SOTOMAYOR: I do ask tough questions at oral argument.
Senator GRAHAM: Are you the only one that asks tough questions in oral argument?
Judge SOTOMAYOR: No - no, not at all.
Senator GRAHAM: If I may interject, Judge, they find you difficult and challenging more than your colleagues.
TOTENBERG: Said Graham, maybe you should use these hearings as a time for self-reflection. Many of Sotomayor's fellow judges, though, including Republican appointees, have spoken up for her on this score, saying they've never seen her be abusive, and some of her defenders have suggested the bully charge is one that would never be made about a top-flight male judge.
Nina Totenberg, NPR News, Washington.
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