Judge Sonia Sotomayor

How the Republicans Will Attack Sotomayor

WASHINGTON (By Jay Newton-Small and Sophia Yan, Time) July 13, 2009 — When Sonia Sotomayor heads to Capitol Hill for the start of her Supreme Court confirmation hearings on July 13, she'll find two groups of players awaiting her: the Senate Judiciary Committee Democrats, who arguably have the easy job to flatter and protect President Obama's pick and the panel's Republicans, whose primary task is to goad her into saying something inflammatory or indiscreet.

To that end, the seven Republican Senators have prepared four lines of attack. They will express concern about Sotomayor's comments that a "wise Latina, with the richness of her experiences would, more often than not, reach a better conclusion" than a judge from a more homogeneous background. They will focus on her recent Ricci v. Destefano decision, a reverse-discrimination case overturned last month by the Supreme Court. They'll grill her on her interest in foreign law — in their eyes an un-American curiosity that could pollute U.S. laws. And they will fret over her Second Amendment decisions and imply she might want to take away some folks' guns.

The first Hispanic nominee to the nation's highest court sits alone in Room 216 of the Hart Senate Office Building — a larger room than the committee's usual room to accommodate the increased interest — but she comes with the aspirations and expectations of much of the Latino community, as well as a large swath of the Bronx. Three of the four issues on the GOP agenda carry a risk of offending a large part of the Latino community — a group of voters the Republicans have already alienated with their two attempts at immigration reform in 2005 and 2006 and desperately need if they want to one day recover Congress and the White House. It probably doesn't help that the top Republican on the panel, Jeff Sessions of Alabama, was once a federal bench nominee rejected by the same committee for indelicate remarks on civil rights. All of which makes the week as perilous for the GOP as it is for Sotomayor, who, barring a gaffe, looks set to sail past these four hurdles to an overwhelming confirmation vote.

Wise Latina

Sotomayor has used the "wise Latina" phrase repeatedly in speeches dating back to 1994. In one speech in 2001 she tagged on the line "than a white male who hasn't lived that life." Republicans, who prefer judges that claim total impartiality to the law, do not like that Sotomayor's decisions are influenced by her life experience.

"The judge has given a lot of speeches, in addition to her official actions, where she's questioned whether judges can actually be neutral, whether there is such a thing as objectivity in the law, which means that judges are affected by their biases," said Senator John Cornyn of Texas, who serves on the Judiciary Committee. "I think that's a fair area to question her about because certainly the rule of law depends on the same rules applying to each one of us no matter our color, our sex or our ethnicity." Sotomayor defenders say the issue never came up when the Senate confirmed Sotomayor to the Second Circuit Court of Appeals in 1998 and point to conservative Supreme Court Justices Samuel Alito and Antonin Scalia, both of whom cited at their confirmation hearings their backgrounds as Italian Americans as evidence they understand discrimination and the immigrant experience. (See pictures of Judge Sonia Sotomayor.)

Ricci vs. Destefano

One of those cases where Sotomayor's personal perspective may have played a role to the detriment of white defendants, the GOP argues, is the recent case of Ricci v. Destefano. The case involved the issue of promoting white firemen in the town of New Haven, Conn. The firemen had all passed a promotions test, but because not enough minorities had passed the test the promotions were turned down in accordance with city policies. The white firemen sued. Sotomayor joined with two other Second Circuit justices on the unanimous opinion in the city's favor. The Supreme Court last month overturned that decision, siding with the white firefighters. "Empathy is great perhaps if you're the beneficiary of it, if the judge is empathetic with you, your side of the argument," Sessions said on the floor of the Senate on July 7. "But it's not good if you're on the wrong side of the argument, if you don't catch a judge's fancy or fail to appeal to a shared personal experience. And this approach to judging as expressed in her speeches and writings appears to have played an important role in the New Haven firefighters case." Sessions went on to note that Sotomayor has been an active member of the Puerto Rican Defense Fund, a group that has criticized the standardized process of testing for such promotions. "And so we're left to wonder, what role did the judge's personal experience play when she heard the case?" Republican witnesses against Sotomayor include Frank Ricci, the top plaintiff in the case, and Lieut. Ben Vargas of the New Haven Fire Department.

The point of these hearings is to allow Sotomayor herself to respond to such criticisms. But hints of her potential answers are already apparent in Democratic responses. "The panel that she was on faithfully applied the Second Circuit precedent, which is what a judge is supposed to do, to follow the precedent of their circuit. And the Supreme Court decision was characterized by press reports as creating a fundamental change in the law," Senator Sheldon Whitehouse, a Rhode Island Democrat, told TIME. "So it's hard to fault her either for not anticipating the Supreme Court's fundamental change in the law or for not embarking herself on a fundamental change in the law."

This is America

Another point of criticism has been Sotomayor's stated interest in foreign laws. In an April 2009 speech to the Puerto Rican branch of the American Civil Liberties Union, Sotomayor said: "International law and foreign law will be very important in the discussion of how we think about the unsettled issues in our legal system. It is my hope that judges everywhere will continue to do so because with the American legal system we're commanded to interpret our law as best we can. And that means looking to what other, anyone has said to see if it has persuasive value."

Senator Jon Kyl, an Arizona Republican who serves on the Judiciary panel, railed against this position in a July 6 speech on the Senate floor. "The consideration of foreign law by American judges is contrary to the principles of democracy," Kyl said. "Foreign judges and legislators are not accountable to the American electorate. Using foreign law even as a thumb on the scale to help decide key constitutional issues devalues Americans' expressions through the democratic process. An analogy would be to allow noncitizens to vote in our elections."

The position, though, is more representative of the bright line between progressive and conservative judicial philosophies than an actual problem with Sotomayor herself. For example, Supreme Court Justice Ruth Bader Ginsberg has spoken about the important impact of foreign law, and her opinions did not prevent her from being confirmed to the bench.

Guns

A 2004 opinion Sotomayor joined cited as precedent that "the right to possess a gun is clearly not a fundamental right." And in January, Sotomayor joined a Second Circuit decision on Maloney v. Cuomo. In that decision the court found the Second Amendment does not apply to states and local governments — in this case New York had a right to ban various weapons such as nunchakus. "It is settled law," Sotomayor and the Second Circuit held, "that the Second Amendment applies only to limitations the federal government seeks to impose on this right." The rulings have caused alarm among gun-rights groups, and two scheduled witnesses for the Republicans are Sandra S. Froman, a former president of the National Rifle Association, and Stephen P. Halbrook, a lawyer and gun-rights advocate.

In 1987 Robert Bork forever changed the Supreme Court confirmation process when, after refusing to prep for the hearings, he made a series of verbal gaffes that brought down his nomination. Sotomayor seems determined not to repeat that mistake. She's taken the time to meet with every Senator possible — 89 of them — thus getting a clear idea of the kinds of questions that may be asked. She's also been combing over her 17 years' worth of decisions and practicing with Obama staffers in a small conference room in the Old Executive Office Building, next door to the White House. There's always the potential for unforeseen fireworks, but if Sotomayor is as well prepared as the evidence would suggest, the hearings could just as easily turn out to be anticlimactic.