CQ TODAY ONLINE NEWS
July 13, 2009 – 12:21 a.m.
What To Watch For At Sotomayor’s Hearing
By Keith Perine, CQ Staff
Supreme Court nominee Sonia Sotomayor will have to perform a rhetorical high-wire exercise during her Senate confirmation hearing, which begins Monday.
She will need to show the Judiciary Committee a mastery of constitutional law without being too specific on any particular legal issue. She will have to respond dispassionately to pointed questions, demonstrating a judicial temperament worthy of the high court.
The New York appeals court judge will be trying to deflect Republican efforts to portray her as ideologically extreme, and she will have to defuse attacks on her off-the-bench speeches, previous associations and extensive rulings during 17 years on the federal bench.
Barring a major stumble or a damaging revelation, Sotomayor’s Republican critics are unlikely to derail her nomination during the hearing. And if she performs competently, she may be on a glide path toward confirmation before the Senate is scheduled to begin its August vacation.
Sotomayor is expected to have the support of all 12 Democrats on the Judiciary Committee. The open question is whether she can pick up votes from the Republican side.
For GOP committee members, the hearing is as much about advancing their view of the proper role of federal courts as it is about Sotomayor’s suitability.
The hearing will begin with 10-minute opening statements by each of the committee’s 19 members. Sotomayor’s home-state senators, New York Democrats Charles E. Schumer and Kirsten Gillibrand , will then introduce her.
Sotomayor’s opening statement will be the day’s main event, providing her an opportunity to present herself — and her views about judging — for the first time publicly since President Obama announced her nomination May 26.
On Tuesday, Sotomayor will begin answering questions from the committee’s 12 Democrats and seven Republicans in at least two rounds of inquiry. Each senator will have 30 minutes in the first round of questioning and 20 minutes in the second round.
Republican Objections
The Republicans’ theme will be that the judiciary faces a “fork in the road” that requires judges to choose between hewing to the law or allowing their experiences to influence their decision-making, according to a Senate GOP aide.
“We could be reaching a legal crossroads where we would effect a different kind of judiciary,” Jeff Sessions of Alabama, the panel’s top Republican, said July 10.
Republicans are expected to question Sotomayor extensively about the high-profile case in which she and two other 2nd Circuit judges upheld the dismissal of a reverse discrimination suit brought by New Haven, Conn., firefighters. The Supreme Court ruled last month in favor of the firefighters.
Republicans will also want to know Sotomayor’s views on gun rights and on the consideration of international law by American judges. They will question her about her involvement with a Latino legal advocacy group earlier in her career.
But Republicans face the delicate task of pressing their case without being viewed as attacking Sotomayor gratuitously. GOP lawmakers can’t afford a political backlash among Hispanic voters.
“It will not be a personal attack on the nominee in any way; I certainly hope it won’t,” Sessions said. “It will be focused on her opinions, her writings.”
Sotomayor has spent weeks preparing for the hearings with administration lawyers acting as senators grilling her. She has the benefit of having been through two earlier, lower-profile Judiciary confirmation hearings: when President George H.W. Bush nominated her for a federal judgeship in 1992, and again when President Bill Clinton nominated her for a seat on the 2nd U.S. Circuit Court of Appeals in 1997.
There are several ways Sotomayor can field GOP questions without revealing too much to the committee or damaging her prospects.
Following the pattern set by other nominees, she is likely to dodge questions about specific cases and issues by saying the issue might come before her at the Supreme Court, or sidestep general inquiries as too hypothetical.
Sotomayor can expect friendly questioning from Judiciary Chairman Patrick J. Leahy , D-Vt., and other panel Democrats.
After Democratic gains in last year’s elections, the Judiciary Committee is no longer as closely divided as it was during confirmation hearings for John G. Roberts Jr. in 2005 and Samuel A. Alito Jr. in 2006. The Democrats’ numerical advantage will guarantee plenty of time for rebuttal questioning to counter points raised by GOP senators.
Democrats are likely to use at least some of their time to burnish Sotomayor’s credentials, share her life story and rebut Republican attacks.
For example, Leahy might counter Republicans with a friendly question or two about Sotomayor’s past speeches, opinions and affiliations.
“I think [the public needs] to know what a good judge this is,” Leahy said last week.
New Faces
While all seven committee Republicans have participated in a Supreme Court confirmation hearing, five of the Democrats are new to the process and two notable Democrats will be missing.
This will be the first Supreme Court confirmation hearing since Arthur Goldberg appeared before the committee in 1962 without Massachusetts Democrat Edward M. Kennedy on the dais. Kennedy, who is battling brain cancer, left the committee after the 110th Congress.
And Vice President Joseph R. Biden Jr. , a Delaware Democrat and long-serving Judiciary member who chaired the contentious Robert H. Bork and Clarence Thomas hearings, will now have to watch from his West Wing office.
After Sotomayor finishes testifying, the committee — in what has become standard procedure — will hold a closed-door session to review her FBI background check.
Later in the week, the committee will hear from 31 outside witnesses, including New Haven firefighter Frank Ricci, the lead plaintiff in the reverse-discrimination claim Sotomayor rejected, and former FBI Director Louis Freeh, who will testify in support of Sotomayor.
Seth Stern contributed to this story.
Comments
Justice Kennedy's reasoning in the New Haven Fire Fighter's case was faulty and his decision inconsistent with the evidence, precedents and law which he based it on as presented in his written opinion. Kennedy's opinion is a clear-cut example of how the rule of law is undermined by justices deciding based on their prejudices rahter than on law. Soto-Mayor has shown that she has the integrity to follow the law in her judicial decisions. No doubt she will continue to do so after she is confirmed to the Supreme Court.
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