MELISSA BLOCK, host:
This is ALL THINGS CONSIDERED from NPR News. I'm Melissa Block.
Next week, Judge Sonia Sotomayor is expected to begin making courtesy visits to Senate leaders and members of the Judiciary Committee, who will conduct hearings on her nomination to the Supreme Court. Today we're going to hear from two members of that committee, a Republican and a Democrat, on where they expect the discussion to go. Republicans have signaled they're concerned about something Sotomayor said in 2005, in a panel discussion for students at Duke Law School.
Judge SONIA SOTOMAYOR (Nominee, Supreme Court): All of the legal defense funds out there, they're looking for people with court of appeals experience, because it is - court of appeals is where policy is made. And I know - and I know this is on tape, and I should never say that, because we don't make law, I know.
(Soundbite of laughter)
Judge SOTOMAYOR: Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know…
(Soundbite of laughter)
BLOCK: Republican Senator John Cornyn of Texas is among those who've signaled they want to press Sotomayor on that. And Senator Cornyn joins us now. Welcome to the program.
Senator JOHN CORNYN (Republican, Texas): Good to be with you.
BLOCK: What concerns you in what she said there?
Sen. CORNYN: Well, I think the core question for members of the federal judiciary is how they see their role. Do they see their role as another branch of the legislature, but one that happens not to stand for election and a license, really, to impose their personal views or agenda on the American people under the guise of interpreting the law and the Constitution? So I think that comment is pretty troubling.
BLOCK: But let's listen to what Sonia Sotomayor went on to say, because the White House is saying you have to take all of these things in context. Here's a little bit more from that panel.
Judge SOTOMAYOR: The court of appeals is where, before the Supreme Court makes the final decision, the law is percolating its interpretation, its application.
BLOCK: And she goes on to say, look, in federal district court you're focused on an individual case and the facts control the case. On the court of appeals, she's telling these students, you're looking to how the law's developing. You're going to apply to a broad class of cases.
You're a former Texas Supreme Court judge yourself, doesn't that seem reasonable to you?
Sen. CORNYN: Not particularly, because it is the role of the highest court in the land, in this case, the United States Supreme Court, to say what the law is. And then it's the obligation of the lower courts to apply it.
BLOCK: Would it be fair to say that the role of a court of appeals, which she sits on now, is to interpret the laws? If you didn't have to interpret it there wouldn't be the need for the court.
Sen. CORNYN: Well, yes. That's true. They're primarily - courts of appeals are what I would call an error correction court. It is the role of the courts of appeals to correct erroneous judgments of the - and decisions of the lower courts. I think it is incorrect to say that their role is as a policymaker. It's really up to the Supreme Court to make the ultimate decision and determine what the law actually is.
BLOCK: She did go on to say, we don't make law, I know. Maybe she got a little tangled in the language.
Sen. CORNYN: I didn't - it bothers me, actually, that once she realized she was on tape that she began to joke about it and chuckle and sort of backtrack. I'm not going to prejudge her on this, but it certainly is something I intend to ask her about.
BLOCK: There's also a speech that Judge Sotomayor made at Berkeley in 2001 that's causing some uproar among conservatives. She was talking about her Latina identity and how it might influence her on the bench. And she said, 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 hasn't lived that life. What's your reaction to that, Senator Cornyn?
Sen. CORNYN: I don't really know what she means. I mean, I think the problem is that when judges begin to focus on themselves, rather than their job at hand, which is to interpret the law, I think they start to get in trouble.
BLOCK: Back in 2006, when Samuel Alito came before the committee for his confirmation hearing, he talked about his family's Italian immigrant background and how it affects his thinking. He said, when I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background, or because of religion, or because of gender. And I do take that into account. Would the same standard apply to Justice Alito?
Sen. CORNYN: Well, that's a fair point, and I had not remembered that. I mean, we're all a product of our upbringing and who we are. And I think it is a fact that people do have different backgrounds, but I don't think those backgrounds ought to determine what the law is.
BLOCK: We've heard Rush Limbaugh, the former House Speaker Newt Gingrich calling Sonia Sotomayor a racist, saying she should withdraw. What do you make of the rhetoric that's tumbling out these days?
Sen. CORNYN: I think it's terrible. This is not the kind of tone that any of us want to set when it comes to performing our constitutional responsibilities of advice and consent.
BLOCK: Do you worry that language like that harms the discussion, harms your party's image, especially among Hispanics where the Republican Party has been losing ground lately?
Sen. CORNYN: Neither one of these men are elected Republican officials. I just don't think it's appropriate. I certainly don't endorse it. I think it's wrong.
BLOCK: We've been talking with Republican Senator John Cornyn of Texas. Senator Cornyn, thanks very much.
Sen. CORNYN: Thank you very much.
BLOCK: And now to one of Senator Cornyn's Democratic colleagues on the Judiciary Committee, Charles Schumer of New York. As Judge Sotomayor's home state senator, he'll be sponsoring her before the committee and shepherding her on her visits to other senators. Senator Schumer, thanks for being with us.
Senator CHARLES SCHUMER (Democrat, New York): Hey, good to be with you.
BLOCK: And you just heard John Cornyn say he's troubled by Judge Sotomayor's comment about the appeals court being where policy is made. His concern is she may use her personal agenda to legislate from the bench.
Sen. SCHUMER: Well, you played the whole comment, which shows what a thin straw this is. They almost have nothing to hang their hats on. She said, I'm not promoting it and I'm not advocating it a minute later. She knew they were on tape all along.
What happened here is what the right wing often does - they will take half of the tape, show it, put it on YouTube and create an uproar. And then the person who said, well, what about the other half - is on the defensive. We're not going to let that happen. And I think the minute they brought this up, the full tape was brought out by the White House. And I think it's not going to be much.
BLOCK: When you say you're not going to let that happen, that line of questioning, I'm sure, will come up at the hearing, though.
Sen. SCHUMER: Yeah, we're just not going to let it go unanswered is what I mean to say. We're going to show the whole context of what she talked about and the tape itself.
BLOCK: Senator Schumer, what's your reaction to Senator Cornyn's view that the personal backgrounds of justices shouldn't determine what the law is. Is that a fair point?
Sen. SCHUMER: Well, rule of law has to come first, obviously. No matter what your personal background, if you're a judge, your job is to apply the rule of law. On 17 years on the bench, Judge Sotomayor has shown that she puts rule of law first. Obviously, within that context, our backgrounds influence us. You can't avoid it if you're a human being. I don't think any American wants nine people on the Supreme Court, all of whom have ice water in their veins.
BLOCK: President Obama has said he wants a vote on this nominee by August 7th, when the Senate goes into recess. The Republicans are saying don't rush us, we're going through, you know, nearly 20 years of her rulings from the bench here. Do you think that maybe this should go past August 7th and…
Sen. SCHUMER: Oh, I think they're both right. The Republicans shouldn't be rushed and should have ample opportunity to question Judge Sotomayor, both privately and at hearings. I think that can all be done by August 7th, pretty easily. Ruth Bader Ginsburg was confirmed in 50 days, Judge Roberts in 72 days.
We're in the late 60s in terms of number of days that we have. So where there's a will to do that, there's a way. And certainly they have every right, and should, do a thorough examination of her record. I don't see why that can't be done before August 7th.
BLOCK: And finally, Senator, if she is confirmed, would you think that Sonia Sotomayor would tip the balance of the Court? In other words, is she any more or less liberal than Justice Souter, whom she'd replace?
Sen. SCHUMER: Well, there are probably a few issues she's more liberal than Justice Souter. There's probably a few where she's less liberal. She's probably in about the same place overall, but that doesn't mean on each issue she's the same.
I think the effect that she is going to have - she's a very strong personality and a very persuasive personality. And if you're looking for somebody who is going to be able to sort of create a working majority in a more moderate direction, she's probably a good person to do that, because of the strength of her personality and her ability to get along with people of every different viewpoint.
BLOCK: Senator Schumer, thank you very much.
Sen. SCHUMER: Okay, nice to talk to you.
BLOCK: That's Democratic Senator Charles Schumer of New York. We also heard from Republican John Cornyn of Texas.
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