Sonia Sotomayor at her confirmation hearing
Image: Diego Radzinschi/The National Law Journal
Follow The National Law Journal's live coverage of the Sotomayor Senate confirmation hearings here, via Twitter, and on The BLT: The Blog of Legal Times.
Under sharp questioning from Senate Republicans on Tuesday, Supreme Court nominee Sonia Sotomayor insisted that she brings "an open mind" to judging, while acknowledging that some of her past statements suggesting otherwise amounted to a "rhetorical flourish that fell flat."
Sotomayor acknowledged, "Life experiences are important to the process of judging," but added, "The law commands the result." She also stated firmly, "The process of judging is the process of keeping an open mind."
Late in the day she even indicated in response to a question that she disagreed with the man who appointed her to the high court. President Barack Obama has said that judges in difficult cases sometimes find the right decision based on what's in their heart.
"I don't approach the issue of judging in the same way the president does," she said matter-of-factly. "Judges cannot rely on what's in their heart."
During eight hours of questioning, the 55-year-old federal appeals judge also offered views on a range of issues, ranging from support for a right of privacy under the Constitution to "positive experiences" with cameras in her own court, the 2nd U.S. Circuit Court of Appeals. Sotomayor suggested she would be a "new voice" -- and probably a favorable one -- to the discussion over the Supreme Court's longstanding opposition to camera access.
In one poignant moment, Sotomayor was asked by Sen. Russ Feingold, D-Wis., how she was affected by the Sept. 11, 2001 terrorist attacks on the World Trade Center, not far from her Greenwich Village apartment. She called it a "terrible tragedy," but said it did not change her view of the Constitution, which she called a "timeless document" meant to guide the nation in all circumstances.
Late in the day, Sotomayor responded to anonymous charges in the Almanac of the Federal Judiciary, made by lawyers who have appeared before her, that she bullies lawyers and has a problem temperament as a judge. She denied being a bully but acknowledged she is a tough questioner. "My reputation is that I ask the hard questions and I do it for both sides." The hearing resumes Wednesday for a second day of questioning from senators.
Overall, Sotomayor's calm, painstaking response to the senators' questions seemed to take the sting and energy out of the questioning from Republicans, and, if nothing else, may have refuted claims that she has a non-judicial temperament.
At one point a noisy demonstrator interrupted the proceedings while Sen. Charles Grassley, R-Iowa, was asking a question. After the protester was removed, Grassley joked that he's been told, "I have the ability to turn people on." Sotomayor laughed heartily and at length, as if the senator's unexpected statement had broken the tension of the day.
Nonetheless, Republicans still were unsatisfied with her explanations about statements she made about the superiority of "wise Latina" judges and how her background would influence how she considers cases. Sen. Jeff Sessions, R-Ala., the ranking Republican on the Senate Judiciary Committee, said the comments constitute "a body of thought over the years that causes us difficulty."
In trying to explain her comment that a "wise Latina judge" would make a better decision than a white male, Sotomayor said she was playing off Justice Sandra Day O'Connor's oft-repeated statement that a wise woman and a wise man would reach the same decision. But her play on that comment was a "rhetorical flourish that fell flat," she said. "My play fell flat. It was bad." Sotomayor also 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 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."
In several responses Sotomayor also seemed eager to blunt the argument Republican senators made Monday: Namely, that once she becomes a justice, she'll be unbound by the shackles of precedent that she has to live with now as an appeals court judge.
Subscribe to The National Law Journal
