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Sotomayor answers her Senate critics in hearing

The Supreme Court nominee explains the legal bases for her past rulings, reassuring supporters if not winning over conservatives.

July 15, 2009|David G. Savage and James Oliphant

WASHINGTON — Supreme Court nominee Sonia Sotomayor proclaimed Tuesday that she would not let ethnic or gender biases influence her decisions on the court, during a grueling round of questioning from skeptical Republicans who vowed to pursue their tough examination of her record today.

After watching Sotomayor fend off their best questions, opposing senators on the Judiciary Committee all but conceded that her confirmation was certain.

The appellate court judge backed away from her "wise Latina" speeches and the suggestion that ethnic identity might sway her decisions. "Our life experiences do permit us to see some facts and understand them more easily than others," she said. But the "law is what commands the result," she noted.

Otherwise she held her ground, explaining some of her controversial decisions -- like those on gun rights and employment discrimination -- as having been dictated by precedent, and refusing to take a stand on other issues, like abortion or property rights.

Some of the most riveting exchanges came when Sen. Lindsey Graham (R-S.C.) questioned Sotomayor in the afternoon.

"Now, let's talk about you. I like you," he said, to laughter from the audience. He then read anonymous comments from lawyers in New York who called Sotomayor overly "aggressive" and a "terror on the bench."

Looking a bit chastened, the judge explained that she liked to ask questions as a way to help lawyers and herself. "It's to give them an opportunity to explain their positions . . . and to persuade me that they're right," she said.

Graham also pressed Sotomayor to defend the Puerto Rican Legal Defense and Education Fund, which in legal briefs had argued in favor of taxpayer-funded abortions for low-income women.

"I wasn't aware of what was said in those briefs," Sotomayor said.

She emphasized that she had been a board member, not a lawyer for the group, and noted that she "never reviewed those briefs."

Graham said he planned to revisit the issue in another round of questions today.

Sen. Jon Kyl (R-Ariz.) asked whether Sotomayor would agree with President Obama's statement that suggested there was space in judicial decision-making for "empathy" for certain disadvantaged groups. But Sotomayor flatly rejected that approach.

"We apply law to facts," Sotomayor said. "We don't apply feelings."

But then Kyl, a lawyer, read aloud several passages from a speech Sotomayor delivered at Seton Hall University in 2003. " 'To judge is an exercise of power,' and . . . 'There is no objective stance. . . . No neutrality. No escape from choice,' " Kyl quoted Sotomayor as saying.

Sotomayor's response was plain. "I have a record for 17 years, decision after decision, decision after decision," she said. "It is very clear that I don't base my judgments on my personal experiences or my feelings or my biases. All of my decisions show my respect for the rule of law."

Sotomayor also kept her cool as one of her sharpest critics, Sen. Jeff Sessions (R-Ala.), pressed her on the statement she made to a group of students at Duke University that appellate court judges make policy.

It's "the job of Congress to decide what policy should be for society," Sotomayor said. ". . . I was focusing on what district court judges do and what circuit court judges do."

"If my speech is heard outside the minute and a half that YouTube presents . . . it is very clear that I was talking about the policy ramifications of precedent."

Sessions was not buying it. "Judge . . . I don't think it's that clear," he said.

Sotomayor's performance as a witness has resembled that of Justice Samuel A. Alito Jr. in 2006. Both have long records as appellate judges, and when pressed they could patiently explain the bases for their past rulings without voicing broad views on the law.

Where Chief Justice John G. Roberts Jr. dazzled the Judiciary Committee in 2005 with his deft command of the law, Alito succeeded, and now Sotomayor appears to be as well, by proving they are smart, careful and capable, if not flashy.

Like Alito, Sotomayor has the advantage of a partisan majority in her favor, meaning that she can win confirmation without winning over opposition lawmakers.

Sen. Dianne Feinstein (D-Calif.) gave Sotomayor high marks for her judicial manner. "If there's a test for judicial temperament, you pass it with an A-plus-plus," she said.

But conservatives said Sotomayor had failed to answer her critics.

"She was really backpedaling as fast as she could on a lot of what she said in her speech, particularly the themes in her 'wise Latina' speech. This is a classic confirmation conversion," said Roger Clegg, a former Reagan administration lawyer and president of the Center for Equal Opportunity.

Sotomayor sought to explain two of her rulings that drew sharp criticism from conservatives.

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