Supreme Court Nominee Judge Sonia Sotomayor during her confirmation hearings.
Photo: Diego M. Radzinschi / National Law Journal
At least three Sonia Sotomayors were portrayed before the Senate Judiciary Committee at its four-day confirmation hearing last week.
One was the shackled Sonia Sotomayor, a virtual slave to precedent who, as an appeals court judge, has no leeway to advance a personal agenda, even if she had one.
Then there was the activist Sonia Sotomayor painted by Republicans: the speechifying, empathy-exuding Latina with radical roots reaching back before she donned the judicial robe 17 years ago.
Finally, and for Republicans the scariest of all, was the soon-to-be-unleashed Sonia Sotomayor who will reveal her long-hidden liberal stripes once she joins a Supreme Court that can do absolutely anything it wants.
Ranking minority member Sen. Jeff Sessions, R-Ala., told Sotomayor at one point that her philosophy is "much more likely to reach full flower if you sit on the Supreme Court" than on the more circumscribed 2nd U.S. Circuit Court of Appeals. Texas Republican Sen. John Cornyn, for his part, contrasted the obsessively cautious judge before him with the risk-taking woman of her speeches and her past. "You appear to be a different person, almost," Cornyn said, also expressing worry about what she will turn into when, on the Supreme Court, she is untethered by precedent. Wendy Long of the conservative Judicial Confirmation Network said during the hearings that Sotomayor "stuck to her John Roberts imitation," referring to the conservative chief justice.
During her debut on the national stage, Sotomayor left each of the portrayals plausible yet incomplete. So which Sotomayor will slide into the end seat of the Court reserved for junior justices after her near-certain confirmation this summer? And what do the different portraits say about her and about the craft of judging?
All three versions of Sotomayor are caricatures born of the political dynamics of modern-day confirmation hearings, which seem to require nominees to disavow all emotions and opinions. The resulting void sends critics hunting for other evidence in the nominee's past, or speculating about her future, for ammunition. That, in part, explains why liberals focused on Reagan-era Justice Department documents in critiquing John Roberts Jr. and Samuel Alito Jr.
Sotomayor in particular needed to scrub her image because of the most prominent early perception of her before the hearings: the Duke University speech captured on YouTube in which she said appeals courts set policy. It was a "legislate from the bench" perception that she had to smother. And so she did, early and often, through her four days of testimony. "It is very clear that I was talking about the policy ramifications of precedent, and never talking about appellate judges or courts making the policy that Congress makes," she said in one exchange. Her oft-stated deference to Congress was broad and deep.
KEEPING SECRETS
At times she sounded like more of an originalist than Justice Antonin Scalia, and more opposed to the use of foreign law and court rulings in decision-making than either Scalia or Justice Clarence Thomas. The exact text of the Constitution, she told the Senate, is "the most important aspect of judging. You follow what they said in their words, and you apply it to the facts you're looking at."
When told by Cornyn that her onetime private practice partner George Pavia has said she is a guaranteed vote for abortion rights, Sotomayor said dismissively, "He has not read my jurisprudence for 17 years, I can assure you. He's a corporate litigator. And my experience with corporate litigators is that they only look at the law when it affects the case before them."
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