Sotomayor insisted that no one, not even President Barack Obama, had asked her about her views on abortion, suggesting that no one should assume what those views are. She even threw Obama overboard in her zeal to cast appellate judging as a bloodless, fact-bound endeavor. Sen. Jon Kyl, R-Ariz., read Obama's statement that in some tough cases, what's in a judge's heart, rather than the law, leads to the answer. "I wouldn't approach the issue of judging in the way the president does," Sotomayor said. "Judges can't rely on what's in their heart. They don't determine the law. Congress makes the law. The job of a judge is to apply the law."
At the White House, press secretary Robert Gibbs said of Sotomayor's remarks, "The president is not troubled."
Nor, it seemed, were liberal constituencies that hope Sotomayor will carry forward their issues on abortion, civil rights and limiting executive power.
Marcia Greenberger of the National Women's Law Center said Sotomayor didn't have to be as circumspect as she was in her answers about abortion rights. "She was very constrained," Greenberger said, and might be that way in her early years on the high court as well. "I'm OK with that," Greenberger said.
But that's because, tucked away in parts of Sotomayor's testimony, Greenberger heard the words she needed to hear to be reassured that Sotomayor will approach abortion with a protective view of women's rights. Sotomayor said the Constitution protects privacy -- as did Roberts and Alito during their confirmation hearings. And in an exchange with Sen. Dianne Feinstein, D-Calif., Sotomayor said her view of the Court's abortion precedents is that "the health and welfare of a woman must be a compelling consideration." Her interpretation sets a high barrier against restrictions on abortion rights.
As for Sotomayor's seeming endorsement of originalism, Doug Kendall of the progressive Constitutional Accountability Center said he was happy with her statement. That's because Kendall founded the center on the premise that the words of the Constitution, far from supporting conservative doctrines, actually point in a rights-embracing, liberal direction.
LIBERAL WORRY
Still, some liberals privately worried about how often Sotomayor distanced herself from cherished doctrines. One liberal legal scholar, Louis Michael Seidman of Georgetown University Law Center, went public with a rant against her constant refrain that judges only apply the law to the facts. "I was completely disgusted by Judge Sotomayor's testimony," Seidman wrote on a Federalist Society blog. "How could someone who has been on the bench for 17 years possibly believe that judging in hard cases involves no more than applying the law to the facts?"
Whether or not she believes it, Sotomayor needed to stick to that story, said Southern Methodist University political scientist Joseph Kobylka, author of a forthcoming biography of Justice Harry Blackmun. "She had to explain the narrowness of the appellate task," said Kobylka. "There's a certain amount of 'hide the ball' to it, but she had to do it."
But by downplaying the discretion that appellate judges have, Sotomayor invited what Kobylka called the "Trojan horse" argument that Republicans made against Sotomayor last week -- that once she is on the high court, her long-suppressed activist self will emerge. Do Republicans have grounds for concern?
Northwestern University School of Law professor Lee Epstein, a longtime researcher on the Supreme Court, says there is empirical evidence to show that a justice's prejudicial ideology becomes more evident on the Supreme Court than on an appeals court. "There's just very little dissent on an appeal court," she says. Epstein recently studied the justices of the last half-century who had been appeals court judges and found a "high correlation" between their ideology and their Supreme Court positions, but much less so with their appeals court votes. Both justices Ruth Bader Ginsburg on the left and Scalia on the right, she asserted, were more moderate when they sat on the U.S. Court of Appeals for the D.C. Circuit than they are on the high court.
"Will she be the same Sotomayor that she was on the appeals court? Probably not," said Epstein. "We're not talking [liberals] William Brennan or Thurgood Marshall, but we're not talking [centrist] Sandra Day O'Connor either."
Epstein speculated that "somewhere in the back or front of her mind," Sotomayor has known for years that she might be considered as a Supreme Court nominee, and may have ruled accordingly. Timothy Johnson of the University of Minnesota, another prominent Supreme Court researcher, disagreed. "The idea that for the last 17 years she has been setting herself up for the Supreme Court -- that would take a lot of planning."
Johnson also believes that Supreme Court justices are not as liberated and unrestrained as they've been made out to be during the Sotomayor hearings. "They defer to Congress, they worry about public opinion, and they have eight colleagues," said Johnson. "Justice Sotomayor is not going to do wacky things, because the other justices will stop her."
Visit 'The Choice' for The National Law Journal's ongoing coverage of the confirmation process of Sonia Sotomayor as U.S. Supreme Court Justice.
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