Supreme Court nominee Sonia Sotomayor weathered a third day of her Senate confirmation hearing Wednesday, frustrating Republican senators' attempts to probe her controversial past speeches and her views on abortion and other hot-button issues.
Appearing more relaxed than on Tuesday, Sotomayor also spoke about her years as a private practitioner and as a prosecutor in New York City. She revealed that she went to a small firm in 1984 after her stint in the city district attorney's office because she did not want to be "the fifth guy on the totem pole." The firm was Pavia & Harcourt, where she said she tackled civil cases for four years ranging from intellectual property disputes for Fendi and Ferrari to commodity trading issues for a client whose product was orange peels used for livestock feed.
During and after the hearing, Republican senators — as well as former Republican Sen. Arlen Specter (D-Pa.) — voiced frustration with Sotomayor's unwillingness to expand on her past remarks or to yield more than general comments about decisions of the high court.
In one exchange, Sotomayor said that no one — including President Barack Obama — had asked her to state her views on the right to abortion before her nomination, and she implied that no one should presume how she would vote on the issue in the future.
Sen. Tom Coburn (R-Okla.) repeatedly pressed her on abortion questions, including whether new medical technology should impact the Court's definition of fetal viability as a test for when states can regulate abortions. Sotomayor declined. "We don't make policy choices," she insisted. When Coburn asked for her personal view on an individual right to self-defense, Sotomayor lapsed into a discussion of various state laws and rulings on the issue. She would not budge when Coburn asked her to answer as a person, not a judge.
Sen. John Cornyn (R-Texas) tried to get Sotomayor to retract her now-famous statement in several speeches that a "wise Latina" would make better decisions than a white male judge. "My words failed," Sotomayor said, also repeating her formulation from Tuesday that "it fell flat." She said she meant the statement as an inspiration to women, especially Latina lawyers and law students.
During a break Cornyn voiced annoyance. "We have not yet heard satisfying answers," he said. Her judicial record is "fairly traditional," Cornyn said, but if she becomes a justice more in the mode of her speeches than of her rulings, "It's a problem."
Democrats threw Sotomayor a series of lifelines, asking her about the "Perry Mason" television show and the jury system. Sen. Ben Cardin (D-Md.) read anonymous comments of praise about her judicial temperament that had been published in the Almanac of the Federal Judiciary — countering the uniformly negative comments Sen. Lindsey Graham (R-S.C.) quoted from the same publication the day before.
Under questioning from Sen. Ted Kaufman (D-Del.), Sotomayor spoke in greater detail than she has before about business law issues. She said she learned the importance of predictability in business law when her partners in private practice would revise the drafts of settlement agreements she had written. The partners, she said, replaced her plain language with what she considered "gobbledygook," in order to conform the agreements to court precedent.
"In business, the predictability of law may be the most necessary," she said, "in the sense that people organize their business relationships based on how they understand the courts interpret their contracts."
Kaufman criticized the current Supreme Court, which he said "too often seems to disregard settled law and congressional policy choices." Especially in the current crisis, he said, Congress should be able to fashion a regulatory scheme that won't be upset by the Court.
Sotomayor responded, as she did in other contexts, by pledging to defer to Congress. "Policy-making — making of laws — is up to Congress," Sotomayor said. "A judge's personal views as to whether that choice is good or bad has no role in evaluating Congress' choice....In all areas, deference has to be given to that choice."
Wednesday afternoon, the Judiciary Committee went into a brief executive session to discuss the FBI report that was prepared on Sotomayor as with all other Supreme Court nominees. The committee holds such sessions for every nominee, whether or not the report includes damaging information, so that the public cannot draw any conclusion from the fact that it took place.
Tony Mauro can be contacted at tony.mauro@incisivemedia.com. David Ingram can be contacted at david.ingram@incisivemedia.com.
