Senate Judiciary Committee questioning of Supreme Court nominee Sonia Sotomayor ended Thursday on a friendly note, with Republicans joining Democrats in praising her demeanor and thoughtfulness, even as GOP senators expressed frustration that she had not fully answered their concerns.
"You've been great during this process," Sen. Orrin Hatch, R-Utah, told the 55-year-old judge from the 2nd U.S. Circuit Court of Appeals, appointed by President Barack Obama to replace retired Justice David Souter. Committee chairman Sen. Patrick Leahy, D-Vt., praised her "intelligence, grace and patience."
Whether or not the cordial ending of three days of grilling will translate into more than a handful of Republican votes for Sotomayor is unclear. But confirmation seems assured, as Republicans pledged not to filibuster her nomination and a committee vote is likely to come before the end of July. If followed soon by a vote of the full Senate, she could easily join the Court before Sept. 9, when the Court has scheduled an unusual summer argument in a key campaign finance case.
When her time before the committee had ended, witnesses for and against Sotomayor were given time to make their cases. Among her advocates were New York City Mayor Michael Bloomberg and venerable Manhattan District Attorney Robert Morgenthau, for whom Sotomayor once worked. Several law professors were on the other side, including John McGinnis of Northwestern University Law School, Nicholas Rosenkranz of Georgetown University Law Center, and Ilya Somin and Neomi Rao from George Mason University School of Law.
As with earlier questioning, Sotomayor answered calmly and slowly on Thursday, a painstaking style that often irked Republican senators who wanted to pack a range of issues into increasingly small allotments of time in second and third rounds.
Only once did Sotomayor seem to take offense at a critical question. Sen. Jeff Sessions, R-Ala., persistently asked her about the cursory opinion she joined in the controversial Ricci v. DeStefano case, the New Haven firefighter civil rights ruling that the Supreme Court overturned last month. Sessions said that by essentially adopting the lower court ruling in the case without elaboration, Sotomayor had demonstrated a lack of courage. "No sir, I didn't show a lack of courage," she said stonily. But by the end of her time answering questions, she was thanking Sessions and all the other senators for their courtesy.
Sotomayor again resisted efforts to draw her out on the controversial past statements and speeches she has given, which have been the focus of repeated Republican questions. Sen. John Cornyn, R-Texas, and others emphasized the contrast between her statements and her more moderate judicial record. "You appear to be a different person, almost," Cornyn said.
Questions about her views on other issues, including same-sex marriage, also went unanswered. The marriage issue, she said, is being "hotly debated at every level," making it inappropriate for her to answer.
Sen. Lindsey Graham, R-S.C., took a more conciliatory tone in his questioning. Sotomayor declined to tell him how she would decide whether the Second Amendment right to bear arms applies to the states. But instead of reacting with frustration, Graham said he thinks that "you are able to embrace a right that you may not want yourself. That is my hope for you."
Sotomayor also weighed in, tentatively, on an issue that has been debated inside and outside the Supreme Court for years. Under questioning from Sen. Arlen Specter, D-Pa., Sotomayor indicated she is likely to follow Justice Samuel Alito Jr.'s approach to deciding whether to join the Court's "cert pool."
The arrangement has been in place since 1972, allowing justices who participate to pool their clerks for the purpose of summarizing and recommending action on incoming petitions. Those one-clerk summaries are then distributed to all the members of the pool. The growth of the pool has led to criticism that individual clerks have too much power in the all-important gatekeeping function of deciding which cases the Court will take up and rule on.
When Alito joined the Court in 2006, he at first joined the eight-member pool but then dropped out after seeing how it operated. Sotomayor, who has clearly followed the long-running debate over the cert pool, said today, "My approach may be similar to Justice Alito's." In other words, she said, she wants to "experience the process for a while," presumably from inside the pool, and "then figure it out." As a result, she told Specter, "I can't give a definitive answer."