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GOP aims to paint Sotomayor as biased

The Supreme Court nominee's confirmation hearing opens. Republicans acknowledge that she's almost certain to win confirmation, but they hope to shape the public's perception of her.

July 14, 2009|David G. Savage and James Oliphant

WASHINGTON — The question dominating the hearing today and Wednesday for Supreme Court nominee Sonia Sotomayor will not be whether she will win confirmation, but whether Senate Republicans can fix her in the public's mind as a biased judge unlikely to follow the law.

The possibility of lively exchanges became clear Monday with the opening of the Sotomayor hearing, even as Republican members of the Senate Judiciary Committee acknowledged that President Obama's nominee was almost certain to win confirmation.

But Sotomayor, who sits on the U.S. 2nd Circuit Court of Appeals, gave no sign that she was anxious to play along.

In a short, low-key statement, she described her now-famous journey from a Bronx housing project to academic success at Princeton and Yale universities and eventually to a federal judgeship in New York.

Sotomayor, who would become the first Latino on the high court if confirmed, said her judicial philosophy was simple: "fidelity to the law."

Although the hearing is unlikely to slow Sotomayor's march toward confirmation, it could shape the public's perception of her and Obama's decision to nominate her. As the hearing got underway, a CBS News poll found that 62% of the respondents said they were undecided about Sotomayor. Of those who had an opinion, 23% were favorable and 15% were unfavorable.

Sen. Jeff Sessions (R-Ala.) said Sotomayor's mostly uncontroversial judicial opinions were "not a good test because those cases were necessarily restrained by precedent and the threat of reversal. . . . On the Supreme Court, those checks on judicial power will be removed and [her] philosophy will be allowed to reach full bloom."

Sessions said her speeches, in which she talked about how a "wise Latina" would reach a "better conclusion than a white male," were "shocking and offensive."

"I will not vote for -- no senator should vote for -- an individual . . . who believes it is acceptable for a judge to allow their own personal background, gender, prejudices or sympathies to sway their decision," he said.

Sen. Jon Kyl (R-Ariz.) said Sotomayor's speeches caused him to doubt her.

"Judge Sotomayor clearly rejected the notion that judges should strive for an impartial brand of justice," he said. She "endorses the view that a judge should allow her gender, ethnic and experience-based biases to guide her when rendering judicial opinions."

Several Democrats took up the challenge from the right. They noted that Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. had pledged to be modest judges who would abide by precedent.

Instead, the Democrats said, the two have lined up with conservative Justices Antonin Scalia and Clarence Thomas and pressed to overturn precedents on school integration, abortion, campaign finance and job discrimination.

"It showed me that Supreme Court justices are much more than umpires calling balls and strikes," said Sen. Dianne Feinstein (D-Calif.), in a rebuke to Roberts, who had described his job as being like an umpire.

Sen. Lindsey Graham (R-S.C.) removed the suspense early on. "Unless you have a complete meltdown, you are going to be confirmed," he told Sotomayor.

But he said he was troubled by her speeches, including the "wise Latina" reference. "If I had said anything remotely like that, my career would have been over," Graham said.

If there is a precedent for the Republican strategy of critiquing a well-qualified high court nominee, it would be the Democrats' attacks on President George W. Bush's nominees Roberts and Alito.

Republicans controlled the Senate then, assuring that the two would be confirmed. But Democrats were determined to brand the Republican nominees as conservative activists.

Republican aides said they understood that the odds were in Sotomayor's favor. But at the very least, the party hopes to use the hearing as a "teaching opportunity" to broadcast the GOP's conservative message to viewers. Republican senators want to highlight the differences between their view of the courts and the Democratic view -- and perhaps paint Sotomayor as a product of identity politics.

That is why Republicans will bring up some bread-and-butter issues such as gun rights, abortion and the use of foreign law by judges. All of it will be an attempt to frame Sotomayor as not being in the American mainstream.

But some legal and political experts questioned the Republican strategy.

"I am somewhat at a loss to understand what they are doing," said University of Texas professor Lucas A. "Scot" Powe Jr., a historian of the Supreme Court. "Her decisions are so middle of the road. Maybe they are trying to make the case that unless you agree with Roberts, Scalia, Thomas and Alito, you are necessarily biased."

Don Sipple, a Republican political strategist based in California, said he found the attacks puzzling.

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