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Sotomayor Tackles Controversies Right Off the Bat

Sen. Patrick Leahy (D-Vt.) did not wait for Republicans to raise the controversial issues that have swirled around Supreme Court nominee Sonia Sotomayor. In the first round of questioning this morning, Leahy has asked her about the New Haven firefighters case Ricci v. DeStefano, her "wise Latina" remark, and the D.C. v. Heller Second Amendment case.

On both Ricci and Heller, Sotomayor insisted that her decisions were dictated by clear precedent. In the New Haven case, she said both a 2nd Circuit ruling and the 1991 amendments to the Civil Rights Act on "disparate impact" civil rights violations compelled the decision that New Haven was justified in refusing to certify a promotion test because African-Americans had not qualified under it. "We re obligated to follow established precedent," she said.

On the Second Amendment, she said her panel's ruling in Maloney v. Cuomo applied the Heller decision which explicitly left open the question whether the right to bear arms applies against the states.

As for the "wise Latina" remark -- that a wise Latina judge would make a better decision than a white male -- Sotomayor said she was trying to be inspirational to her audience and encourage them "to become anything they wanted to become, as I did." But she went on to state "up front," that no one ethnic group or gender has "an advantage in sound judgment."  Everyone, she added, "has the equal opportunity to be a good and wise judge."

More generally, she told Leahy, "As a judge, I don't make law."  The process of judging, she said, "is a process of keeping an open mind."

The Sotomayor Hearing in Photos: Day One

Diego M. Radzinschi, photography editor for The National Law Journal, was at today's confirmation hearing for Supreme Court nominee Sonia Sotomayor. He'll be there all week as the hearing continues, and here's a sample of his work so far.

The scene, Room 216 of the Hart Senate Office Building:

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) talks to reporters:

Sen. Jeff Sessions (R-Ala.), the committee's ranking Republican, speaks as Leahy and Sen. Orrin Hatch (R-Utah) look on.

Sotomayor Pledges 'Fidelity to the Law'

Judge Sonia Sotomayor, making her first substantive public statement in seven weeks, offered a brief defense today against criticisms from conservatives that she would come to the Supreme Court with biases for particular litigants.

Sotomayor, speaking to the Senate Judiciary Committee and to a nationwide broadcast, did not entirely back away from speeches in which she has spoken about the influence of a judge's personal background. But she said that her own experiences merely allow her to listen when others would not, and that her rulings would still depend on the law, precedent, and Congress' intent.

"The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged," Sotomayor said during an eight-minute statement.

"That is why I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position, sympathetic or not, is accepted or rejected," she added. "That is how I seek to strengthen both the rule of law and faith in the impartiality of our justice system. My personal and professional experiences help me listen and understand, with the law always commanding the result in every case."

Sotomayor spoke in a much more serious tone than she used while visiting senators on Capitol Hill over the last several weeks. She smiled only occasionally – for example, while talking about her role in ending the 1994-95 Major League Baseball strike – and focused instead on reading her prepared text nearly word-for-word.

Either by design or not, her statement alluded to several questions that have circulated around her nomination: What did she mean when she said that a "wise Latina" judge could often reach a better decision than a white male judge? Does a judge's background affect his or her rulings? And why does she write her opinions in a way that some lawyers consider exceedingly cautious and detailed?

Sotomayor also noted that she has so far met with 89 of the 100 senators. Many, she said, asked about her judicial philosophy. "It is simple: fidelity to the law," she told senators. "The task of a judge is not to make the law – it is to apply the law."

Her statement came at the end of the first day of Sotomayor's confirmation hearing for the Supreme Court seat vacated by retired Justice David Souter. It followed four hours of statements from senators who were often equally vague in describing how judges should come to their decisions.

Attention will turn to specific cases Tuesday, when the committee reconvenes at 9:30 a.m. EDT to begin questioning Sotomayor.

The Hearings Thus Far: A Q&A with Tony Mauro

As the senators and Sonia Sotomayor took their lunch break, Tony Mauro, Incisive Media’s Supreme Court correspondent, had a brief discussion with David Brown, The National Law Journal’s editor in chief, about the action so far.

Brown: Tony, let me start with a simple question: Any surprises so far?

Mauro: If anything, I'm surprised that Republican senators have been so quick to go on the offensive. They wasted no time in unveiling their lines of attack against Sotomayor, focusing mainly on the controversial statements from her past, but other issues as well.

Brown: Right — empathy seems to be a very bad word today. Can you highlight some of the lines of attack that you see coming?

Mauro: Yes, and on empathy, the senators were attacking Obama as much as they were Sotomayor. It was Obama, after all, who said he was looking for that quality in a Supreme Court nominee. Senator Grassley said that judging on the basis of empathy was just another way of describing “legislating from the bench.”

One of the interesting themes expressed by several senators was the notion that Judge Sotomayor’s record on the district and appeals courts is basically irrelevant, because no matter what it shows, she will be different and unrestrained once he is on the Supreme Court. In other words, Republicans seem to be saying that if she was a moderate on the lower courts, it is because she had to follow precedent, whereas on the Supreme Court she can ignore precedent and follow her political agenda. That is probably not how most current justices would regard their own obligations toward precedent.

The question of international law also came up repeatedly — the view that liberal judges cite foreign law and court decisions in their decision-making, which Republicans view as improper if not downright unconstitutional. I thought that controversy had died down in the last few years, but it still appears to generate a lot of animosity in some quarters.

Brown: On the other side of the fence, the Democrats seemed to stick to Sotomayor’s biographical narrative – but they also took some tough shots at the Roberts Court over the Ledbetter case, the strip search case, abortion, even the chief’s much-quoted “judges are umpires” analogy. Are you taken aback at all that the Chief, and not just the usual suspects – justices Thomas and Scalia – came in for a bit of a beating from the left?

Mauro: Yes, it was interesting to hear so much talk about Chief Justice Roberts, rather than the traditional “villains” Scalia and Thomas. Maybe the Democrats are to a degree covering President Obama’s back; he voted against Roberts’ confirmation, as several Republican senators have said. The “judges as umpires” analogy has been analyzed and criticized endlessly ever since Roberts offered it during his 2005 confirmation hearings. More than 100 law review articles have picked it apart. There’s some danger in the Democrats portraying the Roberts court as so conservative politically, because it implies Sotomayor may be going on the court to provide balance — which makes the Supreme Court overall look all the more political.

Brown: What do you expect to hear from Sotomayor in her opening statement?

Mauro: I think she’ll play it safe in the opening statement, emphasizing her life story and her struggles and achievements. It might be to her advantage to address directly to some of the criticisms already made by the Republicans, so that both the attack and the response are in the same news cycle. (The questioning by senators won’t begin until tomorrow.) But I’d be surprised if she did that, and I think she’ll describe her judicial philosophy in broad, general terms, if at all.

Brown: The hearings are set to gavel back into session in a few minutes, so I’ll let you get back to it. Thanks for taking the time.

Senators Take Batting Practice With Baseball Analogy

Chief Justice John Roberts Jr. gave a performance at his confirmation hearing that is considered the modern standard for a nominee to the Supreme Court. Among his lasting imprints: the analogy of the courts to baseball. Roberts didn't invent the analogy, but he did popularize it, telling senators in 2005 that a judge should be like an umpire and simply call balls and strikes.

Today, at the confirmation hearing of Supreme Court nominee Sonia Sotomayor, senators returned to the idea repeatedly. Democrats, in particular, sought to undercut the idea that ruling on cases is as "mechanical" as the process of determining whether a baseball falls within the strike zone.

Sen. Dick Durbin (D-Ill.) argued that some Republican-appointed justices aren't even standing in the position where an umpire should be. "It's a little hard to see home plate from right field," he said.

"Some umpire," said Sen. Sheldon Whitehouse (D-R.I.), after noting that Roberts has consistently ruled in favor of prosecutors and corporate defendants.

Sen. Jeff Sessions (R-Ala.), the ranking Republican on the committee, played defense for the analogy. A judge who decides cases based on ideology, he said, "means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over the other."

Expect the analogy to continue popping up this week. Retired pitcher David Cone, a former players' union official, is scheduled to testify about Sotomayor's role in ending the baseball strike of 1994. Senators are likely to ask about the strike, too.

The revival of the umpire-judge discussion is perhaps appropriate today, the first day of Major League Baseball's annual All-Star break. Real-life professional baseball players and umpires have the day off.

Will Sotomayor Be a Justice Unleashed?

One of the recurring themes from Republican senators thus far this morning is that no matter how moderate or even-handed her record as a district and appeals judge has been, Supreme Court nominee Sonia Sotomayor will likely turn out to be an unabashed liberal once she joins the high court and is untethered by the precedents she must follow as an appeals court judge.

"What will you do when it comes to making policy?" asked Sen. Lindsey Graham (R-S.C.) after recognizing and then dismissing her record. Sen. Jon Kyl (R-Ariz.), also said when she becomes a justice, there will be "no such restraint" keeping her from following her heartfelt views instead of precedent.

This is an interesting argument that is likely to trigger new discussion of the role of precedent in Supreme Court decision-making. Republican senators seem to be arguing that a) lower court judges are total slaves to precedent who can make no independent judgments, and b) that Supreme Court justices can throw off the shackles of following precedent the moment they join the high court. Both propositions can be disputed, but most especially the second. 

Though fealty to precedent can be an on-and-off thing, Supreme Court justices pay considerable attention to precedent, and don't usually feel they can write on a clean slate to correct errors or, as the Republicans suggest, to implement a personal agenda. Examples abound from across the spectrum of decisions in which justices follow precedent in spite of their own personal views. It will be interesting to see how Senate Democrats, and Sotomayor herself, address this argument.

Obama's Opposition to Appellate Nominees in Spotlight

President Barack Obama's opposition as a senator to two nominees for a federal appellate court could come back to haunt him if Republicans were to take the same approach to Sonia Sotomayor, a leading GOP senator warned this morning.

Sen. Orrin Hatch (R-Utah), in his opening statement at Sotomayor's confirmation hearing for the Supreme Court, cited Obama's opposition to Janice Rogers Brown and Miguel Estrada when they were nominees for the U.S. Court of Appeals for the D.C. Circuit. Hatch expressed dismay that the two nominees faced significant opposition based on their ideology, despite what he describes as otherwise sterling qualifications.

The Senate eventually confirmed Brown to the D.C. Circuit. It did not confirm Estrada, now a partner at Gibson, Dunn & Crutcher.

"If a compelling life story, academic and professional excellence, and a top ABA rating make a convincing confirmation case, Miguel Estrada would be a U.S. circuit judge today," Hatch said in his prepared remarks. "He is a brilliant, universally respected lawyer, one of the top Supreme Court practitioners in America. But he was fiercely opposed by groups, and repeatedly filibustered by Democrat senators, the ones who today say these same factors should count in Judge Sotomayor's favor.

"Whether I vote for or against Judge Sotomayor," Hatch added, "it will be by applying the principles I have laid out, not by using such tactics and standards used against these nominees in the past."

Hatch, a former chairman of the Judiciary Committee, is an influential voice on judicial nomination who crossed the aisle to support both of President Bill Clinton's nominees to the Supreme Court. He has not said how he plans to vote on Sotomayor's nomination, even as he criticized the Senate's treatment of Brown and Estrada.

Click here (pdf) for an essay Hatch wrote on judicial nominations for the most recent issue of the Harvard Journal of Law & Public Policy.

Sotomayor: Senators Set the Stage

Sens. Patrick Leahy, (D-Vt.), and Jeff Sessions, (R-Ala.), have made their opening statements before Supreme Court nominee Sonia Sotomayor, setting the stage for how this historic week will go.

Leahy began by emphasizing Sotomayor's extensive experience as  judge -- more time on the bench and any other nominee in decades -- and her background, like his, of being a former prosecutor. Leahy also spoke of the importance of her Hispanic heritage as representing a milestone in American history, akin to other firsts on the Court -- the first African-American (Thurgood Marshall) the first Jew (Louis Brandeis) the first Catholic (Roger Taney) and the first woman (Sandra Day O'Connor.) 

Somewhat preemptively, Leahy said opponents of Sotomayor have "sought to create a caricature" of her, adding that "unfortunately, some have sought to twist her words." Leahy admonished, "Let no one destroy this judge's record."

Sessions, the new ranking Republican on the committee, did not hesitate to question her record and her statements. He implied Sotomayor would join "liberal activists" on the Court who implemented their political agenda by ruling that "under God" should be removed from the Pledge of Allegiance and citing foreign law in overturning state death penalty laws.

The Alabama senator quickly moved to Sotomayor's controversial statements about appeals courts being the place where "policy is made," and that her experiences affect how she sees a case. Sessions argued that defenders of Sotomayor who say her record shows no bias are wrong; as a district and appeals court judge, Sessions said, she is "restrained by precedent," but as a Supreme Court justice, that restraint will be removed.

So the battle is joined: Leahy defending Sotomayor's record and Sessions attacking her statements and minimizing the significance of her judicial record. More later. 

A Bird's-Eye View of the Sotomayor Hearing

Photo by Diego M. Radzinschi

Our Plans for Sotomayor Hearing

We'll be reporting today and through the week from inside and outside the Senate Judiciary Committee hearing on the nomination of Sonia Sotomayor to the Supreme Court. Hill reporter David Ingram is already inside the hearing room and will be providing minute-by-minute tweets here and at our Twitter site @Legal_Times. Supreme Court correspondent Tony Mauro will be blogging periodically here, and will wrap up the day's proceedings in a story later today at nlj.com. We also plan a video recap for the site at the end of each day of hearings through the week. So please check back early and often!