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The National Law Journal
Answering criticisms that her heritage and gender will influence her judging, Supreme Court nominee Sonia Sotomayor told the Senate Judiciary Committee on Monday that her judicial philosophy is "simple: fidelity to the law." She spoke on the first day of a historic confirmation hearing that is likely to result in her becoming the first Hispanic justice -- and third woman -- on the nation's highest court.
"My personal and professional experiences help me listen and understand, with the law always commanding the result in every case," Sotomayor said after a day of listening to both praise and doubts about her record as a federal district court and appeals court judge since 1992.
She also defended the practice of considering the litigants before her, which critics say shows a level of empathy that judges should avoid. "The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged," she said. After meeting privately with 89 senators in advance of the hearing, Monday was her first chance publicly to state her views on her approach to judging.
Republican senators wasted no time in outlining their areas of concern, which they are sure to flesh out in questioning of the nominee that begins Tuesday. They focused mainly on past statements such as the one in which she said a "wise Latina judge" would more often than not make a better decision than a white male judge.
Republicans also sought pre-emptively to downplay her actual record as a judge on the U.S. District Court for the Southern District of New York and on the 2nd U.S. Circuit Court of Appeals. Many analysts have summarized that record as one of moderation and mainstream thinking. But Sen. John Cornyn, R-Texas, and others asserted that no matter how moderate her record as a judge has been so far, Sotomayor will likely turn out to be an unabashed liberal once she joins the high court and is untethered by the precedents she must follow as an appeals court judge. "A lower court judge is like the quarterback who executes the plays -- not the coach who calls the plays," said Cornyn. "That means many of your cases don't tell us much about your judicial philosophy."
Still, senators themselves, echoing most analysts, predicted that Sotomayor would be confirmed by the full Senate later this summer following this week's hearings, which could last until Thursday or Friday "Unless you have a meltdown," Sen. Lindsey Graham, R-S.C., said bluntly, Sotomayor will be confirmed. The 55-year-old Bronx native listened attentively occasionally smiled as the 19 members of the committee offered opening remarks, but seemed to share past nominees' discomfort about sitting for so long in the spotlight.
There was a sense of history being made in the Senate hearing room, especially among Hispanics who have waited for decades to see one of their own named to the high court.
"There's electricity in the air -- a very exciting day," said Carlos Ortiz of the Hispanic National Bar Association, who has fought for decades to convince Republican and Democratic presidents alike to nominate a Hispanic justice.
Committee chair Sen. Patrick Leahy, D-Vt., began the hearing by emphasizing Sotomayor's extensive experience as a judge -- with more time on the bench than any other nominee in a century -- and her background, like his, of being a former prosecutor. Leahy also spoke of the importance of her Hispanic heritage as representing a milestone in American history, akin to other firsts on the Court -- the first African-American (Thurgood Marshall), the first Jew (Louis Brandeis), the first Catholic (Roger Taney) and the first woman (Sandra Day O'Connor).
But Leahy said Sotomayor would be "a judge which all Americans can have confidence," with no fear that she will favor or disfavor any segment of the population. Leahy said opponents of Sotomayor have "sought to create a caricature" of her, adding that "unfortunately, some have sought to twist her words." Leahy admonished, "Let no one destroy this judge's record."
The hearing also marked the inquisitorial debut of new Sen. Al Franken, D-Minn., who once spoofed a Senate confirmation hearing as a comic on "Saturday Night Live."
But Franken was all business as he said "I have a lot to learn" from colleagues and from Sotomayor herself during the hearing. Franken, like other Democrats on the committee, voiced criticisms of the Roberts Court and its conservative direction. In recent years, Franken said, the Court has made it "a little bit harder" for Americans to protect their individual rights. All Americans, he said, "have a huge stake in who sits on the Supreme Court."
Sen. Jeff Sessions, R-Ala., the new ranking Republican on the committee, did not hesitate to question Sotomayor's record and her statements. He implied Sotomayor would join "liberal activists" on the Court who implemented their political agenda by ruling that "under God" should be removed from the Pledge of Allegiance and citing foreign law in overturning state death penalty laws.
The Alabama senator quickly moved to Sotomayor's controversial statements about appeals courts being the place where "policy is made," and that her experiences affect how she sees a case. Sessions argued that defenders of Sotomayor who say her record shows no bias are wrong; as a district and appeals court judge, Sessions said, she is "restrained by precedent," but as a Supreme Court justice, that restraint will be removed.
"What will you do when it comes to making policy?" asked Graham, echoing Sessions' argument. Several senators also cited a recent speech Sotomayor gave to the American Civil Liberties Union in Puerto Rico to place her in the camp of those who advocate use of foreign law and court rulings in their decision-making. "That's not the concern of a judge," said Sen. Jon Kyl, R-Ariz.
Edward Swaine, a George Washington University law professor and official of the American Society of International Law, said the issue as it was raised at the hearing Monday offers a "false choice between being a xenophobe and turning over the constitutional keys to the citizens of Luxembourg." He said Sotomayor advocated use of foreign law as one of many resources in reaching a decision, but not as a binding precedent. That, Swaine said, "is a fairly centrist, mainstream idea."
Visit 'The Choice' for The National Law Journal's ongoing coverage of the confirmation process of Sonia Sotomayor as U.S. Supreme Court Justice.