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Judging the judge: Senate committee to question Sotomayor this week

The would-be Supreme Court justice will get a chance to address concerns some have about potential liberal bias or judicial activism.

July 12, 2009|David G. Savage and James Oliphant

WASHINGTON — When Judge Sonia Sotomayor goes before a Senate committee this week, she will be pressed to answer a question that has lingered since President Obama nominated her for the Supreme Court.

If given a lifetime appointment, will she be a justice who views the law through a liberal lens shaped by her Latino heritage? Or will she follow her long track record as a moderate judge who sticks to the facts and the law regardless of the outcome?

Despite speeches in which Sotomayor has said that "gender and national origins . . . will make a difference in our judging" and that she hoped a "wise Latina" would "more often than not reach a better conclusion than a white male," liberal groups and the White House point to analyses of her more than 400 decisions as proof that she is a judge first, not an activist.

As a New York City prosecutor, corporate lawyer, trial judge and appeals court judge, Sotomayor has an "extraordinary record of following, defending and upholding the rule of the law," Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said.

Many Republicans, however, are not convinced.

They assert that as a justice, Sotomayor probably would follow Obama's call for "empathy" -- and show it for some litigants more than others. "Whatever this empathy standard is . . . it is more akin to politics than law," Sen. Jeff Sessions (R-Ala.) said.

With her up-from-the-projects life story, Sotomayor looks to be a sure bet to win confirmation by the Democrat-controlled Senate. If so, she would be the second woman among the nine justices, its third Democratic appointee and its sixth Roman Catholic.

The historic nature of Sotomayor's nomination -- the Bronx-born child of Puerto Rican parents would be the first Latina to join the high court -- could pose a political problem for Republicans who vote against her. The party lost support among Latino voters during the last presidential election, and two of the seven Republicans on the 19-member Judiciary Committee represent states with large Latino populations: Sens. John Cornyn of Texas and Jon Kyl of Arizona.

Since her nomination May 26, Sotomayor has avoided stumbles -- other than a fall in New York's LaGuardia Airport that left her with a broken ankle and a cast. She made the rounds of the Senate offices and described her "wise Latina" comment as a verbal misstep.

Her supporters say she was speaking of the virtues of a judge having a diverse set of experiences, not asserting that one ethnic background was superior to another.

Rachel F. Moran, a law professor at UC Irvine, has known Sotomayor since their days as students at Yale Law School. She invited the judge to speak at UC Berkeley in 2001, at a conference on the shortage of Latinos on the bench. It was there that Sotomayor spoke of her hope that a wise Latina would make better decisions as a judge.

"I was caught off guard by all the attention this has received," Moran said recently. "People are affected by their background and experience. Her claim was not that your individual perspective is better or worse, but that you reach better outcomes when multiple perspectives are represented. That's why we have nine people [on the Supreme Court] reviewing decisions."

But Sessions, the ranking Republican on the Judiciary Committee, has linked that speech to Obama's comment about empathy and Sotomayor's decision last year to reject a discrimination claim from white firefighters in Connecticut. And the lawmaker has questioned whether Sotomayor would be an impartial judge.

"Empathy is great, perhaps, if you're the beneficiary of it," he said in a Senate speech last week. "But it is not good if you are the litigant on the wrong side of the case, if you don't catch the judge's fancy, or if you fail to appeal to a shared personal experience."

Sotomayor has described herself as an "affirmative action baby," and she has spoken in favor of strict limits on campaign spending. Both stands should put her with the court's liberal bloc. However, she twice has ruled in favor of using police evidence that was obtained through faulty searches, a stand that could put her with Chief Justice John G. Roberts Jr. and his fellow conservatives.

Law professors who have examined her decisions as a judge say they see few signs that she is a liberal activist.

"I think she will be a moderate liberal who favors narrow decisions, not all that different from [Justices Ruth Bader] Ginsburg or [Stephen G.] Breyer," said Amanda Frost, a law professor at American University. "Her opinions reveal her to be someone who respects the limits of the judicial role."

Frost and others predict Sotomayor would prove to be more like moderately liberal David H. Souter, the retiring New Hampshire jurist she would replace, than Justice William J. Brennan, the liberal whom Souter replaced in 1990.

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