Highlights From Sotomayor's Confirmation Hearing

Judge Sonia Sotomayor is expected to wrap up her confirmation hearing testimony Thursday. We'll hear audio excerpts of highlights from the day's discussions, and talk with Dahlia Lithwick, senior editor of Slate.com, about Sotomayor's performance and why she argues that senators on both sides dropped the ball.

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NEAL CONAN, host:

As the Senate Judiciary Committee wraps up hearings for Judge Sonia Sotomayor, the ranking Republican on the panel said today that he looks forward to a confirmation vote on the Senate floor before the August recess. And that makes it all but certain that Sonia Sotomayor will be approved as the next associate justice of the United States Supreme Court.

Today, senators took 20 minutes each to ask Judge Sotomayor follow-up questions. This afternoon, witnesses for and against are testifying. We're going to listen to some excerpts from questions and answers and get analysis from Dahlia Litwick of Slate.com. What did you learn from these hearings? What conditions have been established for the next nominee? 800-989-8255, email us: talk@npr.org.

Dahlia Litwick is a senior editor at Slate and a contributing editor for Newsweek, and joins us from a studio on the campus of the University of Virginia in Charlottesville. Dahlia Litwick, nice to have you back on the program.

Ms. DAHLIA LITWICK (Senior Editor, Slate.com; Contributing Editor, Newsweek): Thank you for having me, Neal.

CONAN: And we'll talk about the testimony today, specifically there were more some more probing attacks, some efforts from Republicans to press on some issues. But this day seemed mostly valedictory, no?

Ms. LITWICK: Yeah. I think a lot of what we saw was the second and third verse of the first chorus that we heard in the first round of questioning. I think one of the things that was interesting was it was as though the Republicans were really narrowing the focus, you know, really honing it down to the wise Latina speech, her gun case, the Ricci case. That was about all there was.

And I think that the Democrats to the extent they questioned her today, it was just sort of these very open-ended - tell us about being a role model, tell us why you want this job. So I think there was a sense that one side was boring down, the other side was opening the throttle. And I think that everybody has known almost from day one that this was a forgone conclusion. I think today was just going through the motions one more time.

CONAN: Senator John Cornyn of Texas, a Republican, was the first senator up today. And he asked the nominee a series of questions about affirmative action.

(Soundbite of archived recording)

Senator JOHN CORNYN (Republican, Texas): Do you agree with Chief Justice John Roberts when he says the best way to stop discriminating based on race is to stop discriminating based on race?

Judge SONIA SOTOMAYOR (Court of Appeals, 2nd District): The best way to live in our society is to follow the command of the Constitution, provide equal opportunity for all. And I follow what the Constitution says, that is how the law should be structured and how it should be applied to whatever individual circumstances come before the court.

Sen. CORNYN: With respect, Judge, my question was do you agree with Chief Justice John Roberts' statement or do you disagree?

Judge SOTOMAYOR: The question of agreeing or disagreeing suggests an opinion on what the ruling was in the case he used it in. And I accept the court's ruling in that case. And that was a very recent case. There is no quarrel that I have, no disagreement. I don't accept that in that situation that statement, the court found applied. I just said the issue is a constitutional one, equal opportunity for all under the law.

Sen. CORNYN: I understand that you might not want to comment on what Chief Justice John Roberts wrote in an opinion, even though I don't think he was speaking of a specific case but rather an approach to the law which would treat us all as individuals with equal dignity and equal rights. But let me ask you whether you agree with Martin Luther King when he said he dreamed of a day when his children would be judged not by the color of their skin but by the content of their character. Do you agree with that?

Judge SOTOMAYOR: I think every American agrees with that.

Sen. CORNYN: Amen.

CONAN: And if you ever wondered what tap dancing sounded like on the radio, I think, Dahlia Litwick, you just heard it.

Ms. LITWICK: I think so. Listening to that clip, it's funny. I think she may have hit for the cycle and gotten all the dodges that you usually see. You know, only one or two of these are usually deployed at a time. But it may become before me as a judge dodge. We heard a flick of that. It's precedent of the court dodge, so I have no quarrel with it. But to get them all into one answer is pretty deft. I give her points for that.

CONAN: And there were a lot of similar kinds of answers today. I think it was John Kyl, a Republican of Arizona, at one point says, you're not answering my question. And clearly, she had been carefully prepared not to answer questions.

Ms. LITHWICK: That's right. I mean, I think we need to be very blunt here. Pretty much after Robert Bork, we don't answer questions. No one answers questions. And we are getting better and better at coaching our nominees to look as though they're answering questions when they're not in fact saying anything.

And I will give Sotomayor this. She's very, very good at answering the same question that, you know, she would receive the same question eight, nine, 10 times. She was good at answering each of them differently but still not answering them. So she's been - she's really been well-prepared.

I think that the problem is there's nothing to be gained by answering questions. If you answer a question that one side likes, the other side seizes on it. So this whole thing really - I mean, the word Kabuki has been so over used about confirmation hearings, but really it's the only word to describe the sort of absolutely empty political theater. There are 100 ways to not answer questions, and she deployed all of them.

CONAN: We're wondering - if you listened to the hearings, what did you learn? 800-989-8255, email us talk@npr.org. Rica(ph) with us. Rica calling from Grand Rapids.

RICA (Caller): Hi. I just learned that our elected officials are just so hypocritical and I think that their opinions, or if they are real opinions, are not representative of the general public. I'm a 30-year-old white female. I have a graduate education in social work and public administration. And I tell you, you know, we were taught to embrace our differences and we're taught that through self-awareness, we'll understand that we see the world through the lenses of our experience.

And how could we look at this wonderful individual who has worked so hard to get where she's at and call her out on making comments that just are so childish. And I, really, I just think it's unfair and not representative of all of us.

CONAN: And since it's the last day of the hearings, I will reference this quote - I hope for the last time. I think she's referring to the quote, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who has not lived that life." And Dahlia Lithwick, was it silly to go back and forth on that all the time?

Ms. LITHWICK: I mean, definitely I think it was silly. She answered it - after she had answered it the first seven times, there wasn't much point in probing further. But I also think it probably ultimately wasn't smart for exactly the reason that Rica flags.

I think that certainly it was not a smart word choice. No one would dispute that it can be read many, many ways. But I think in the context of this is a Latina judge who gets sent out to speak to young minority students, to speak to Hispanic groups, and the topic of the speech is always, how does being a Latina affect your judging?

(Soundbite of laughter)

Ms. LITHWICK: And so, I mean, we've all given speeches to groups that are about identity and trying to tease out what it is about our identity that makes us tick. And so, to - I think in some profound way to penalize her for giving those speeches when those are the speeches she's invited to give. And as Rica points out, it's actually - I think if you read the speech, and I said this on the show the other day…

CONAN: On Monday, yeah.

Ms. LITHWICK: I think if you read the speech, she's clearly saying, these are hard cases. I'm only talking about a slim margin of cases about discrimination. I don't know if my identity affects them, but I struggle to temp down my prejudices. It's such a complicated speech that's been reduced to, I think, a very pernicious sound bite.

CONAN: Rica, thanks very much for the phone call.

RICA: Thank you.

CONAN: The words continue to concern Lindsey Graham, the Republican from South Carolina who is of course himself, well, he's - I know he's a judge, JAG, a Judge Advocate General in the Air Force Reserve so he's a skilled lawyer himself. And we hear some of that in the remarks that he made.

Senator LINDSEY GRAHAM (Republican, South Carolina): Have you ever known a low-income Latina woman who is devoutly pro-life?

Judge SONIA SOTOMAYOR (2nd Circuit Court, U.S. Court of Appeals): Yes.

Sen. GRAHAM: Have you ever known a low-income Latino family who supported the death penalty?

Judge SOTOMAYOR: Yes.

Sen. GRAHAM: So, the point is there are many points of view within groups based on income. You have, I think consistently as an advocate, took a point of view that was left of center. You have, as a judge, been generally in the mainstream. The Ricci case - you missed one of the biggest issues in the country or you took a pass. I don't know what it is. But I am going to say this that as Senator Feinstein said, you have come a long way. You have worked very hard. You have earned the respect of Ken Starr, and I would like to put his statement in the record.

Mr. KENNETH STAR (Dean, Pepperdine University School of Law): No objection.

Sen. GRAHAM: And you have said some things that just bugged the hell out of me. Last question on the wise Latino woman comment: To those who may be bothered by that, what do you say?

Judge SOTOMAYOR: I regret that I have offended some people. I believe that my life demonstrates that that was not my intent to leave the impression that some have taken from my words.

Sen. GRAHAM: You know what, Judge, I agree with you. Good luck.

CONAN: And while extracting one more apology, Lindsey Graham - that sounded close to an endorsement.

Ms. LITHWICK: I think so. I think that that was - the pundit certainly took that to me he's going to vote for her. He's a little bit of a master of hugging you with one hand while clubbing you over the head with the other. So it's always hard to understand exactly where he's going with these things.

But I think that one of the things that that little clip highlights is the big overarching scene. And it really, I think, increased a momentum over the last couple of days, which is Republicans saying, I'm going to seed to you that your record, your 17-year judicial record is exemplary, with the exception of Ricci, the New Haven firefighter's case.

There's just not a lot of case, a lot to fight about. They want to fight about a gun case. They want to fight about some takings cases, some imminent domain cases. For the most part, they grant her that her record is really not worth fighting about. And so the tension that comes up is they keep saying who's the real Sonia Sotomayor - is it your record, which we have no problem with, or is it these wacky, crazy things you say when you take off the robes?

And that started to map out on Monday - we heard that on some of the openings. I think by the end of today, we were really hearing people say - Graham, which was saying, which is, I have absolutely no problem with your record. There is nothing - with the exception of Ricci - which even I concede you may have ducked. But there's nothing in here to suggest that you are an activist with an agenda, but these speeches still trouble me.

So it's been interesting, backing away from her record over the last couple of days. But the more they do that, I think the more they had to focus on that speech. And as I said, I'm not sure at the end of the day going back to that well over and over and over again netted them real gains.

CONAN: Dahlia Lithwick of Slate.com and Newsweek. You're listening to TALK OF THE NATION from NPR News.

And let's go to Larry. Larry with us from Rochester, New York.

LARRY (Caller): Well, you know, observing the confirmation hearing saddens me because we're just afraid to address any real issues and it's safer just to not answer or not address any important issues that might come in to the public fray. That's what I received from the confirmation proceedings.

CONAN: And Dahlia Lithwick, a lot of us who use to think of these opportunities as teachable moments, we would learn so much about the great Constitutional issues of the day and about the character and thoughts of the nominee. But as you say, since Robert Bork went before the committee and his nomination was lost, the stakes have become too high almost for that.

Ms. LITHWICK: That's right. And Larry, it makes me sad too. I wrote my column the other day. My first line was, it's a real sign that this is just political theater when the only people who are really saying what they mean are the abortion protesters, and they're getting dragged screaming from the room. You know, everybody else is talking in code and talking in, you know, very crabbed, cramped ways, and they've been coached, and everyone else in the room is playing a part.

I think, you know, one thing I will say is - and this is just in response to your point, Neal, about the teachable moment - I think this was a huge lost opportunity for both sides, because I think Republicans had an opportunity to say something bigger than the race thing. They had an opportunity to really say something profound about this party that seems to be in disarray that's trying to decide how much of the Rush Limbaugh party it is.

I think Democrats also really lost an opportunity to say to America this is what doesn't work about the Roberts court. This is what progressive jurisprudence is. They didn't do it either. At the end of the day, I think they came out - all of them - not having taught anything other than, as Larry said, this is just kind of a show.

LARRY: What - but what does it say about a candidate, who obviously is very intelligent and very experienced, who's willing to tolerate this kind of hand-holding and sculpting to - complete this process?

Ms. LITHWICK: Well, I think it says that the candidate wants the job. I think that if this is what you…

LARRY: Yeah. That's exactly my point. I mean, it's a sad commentary on where we are.

CONAN: I think Robert Bork - if going back in retrospect - would have answered differently, too, because he wanted the job.

LARRY: Well, so be it.

(Soundbite of laughter)

CONAN: Larry, thanks very much for the call.

Let's see if we can go quickly to Lisa(ph). Lisa with us from Cortland in New York.

LISA (Caller): Yes, I am. All right. You know what, look, this woman is brilliant. While saying nothing, she says everything. Her record speaks for itself. The fact that these people were asking the most ridiculous of questions that I won't (unintelligible) grand offensiveness because everyone else seems to be.

But let's - this woman is brilliant. Her cases stand for her record. It's ridiculous to have to defend herself as a Latina woman in the face of everything she's accomplished in her life. Saying nothing, she said everything. She's smart. She's insightful. She's brilliant. That's who we want on our Supreme Court for life.

CONAN: Well, let's give her another opportunity to speak on this program. And Lisa, thanks very much for the call.

This is - first, we'll hear Democratic Senator Amy Klobuchar of Minnesota, who ends up quoting a colleague on the Senate Judiciary Committee.

Senator AMY KLOBUCHAR (Democrat, Minnesota): I just like to ask one last question, and it's the exact question that my friend and colleague Senator Graham asked Chief Justice Roberts at his confirmation hearing. And he asked, what would you like history to say about you when all is said and done?

Judge SOTOMAYOR: I can't live my life to write history story. That will be the job of historians long after I'm gone. Some of them start now, but long after I'm gone. In the end, I hope it will say I'm a fair judge, that I was a caring person, and that I lived my life serving my country.

CONAN: And at the conclusion of Sonia Sotomayor's testimony, Jeff Sessions, the ranking Republican on the Senate Judiciary Committee said he saw - he would not block a vote next week on the committee, and looked forward to a vote on the Senate floor in time to have that before the August recess.

It appears absolutely a done deal that Sonia Sotomayor's vote will go ahead next week, and then perhaps early next month on the Senate floor and that she will be next associate justice of United States Supreme Court.

Dahlia Lithwick, thank you so much for your time today.

Ms. LITHWICK: Thank you very much for inviting me.

CONAN: Dahlia Lithwick, a senior editor for Slate, a contributing editor to Newsweek, with us today from a studio on the University of Virginia campus in Charlottesville.

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