By Alexander Bolton - 07/13/09 07:46 AM EDT
Sen. Charles Schumer (N.Y.), a member of the Democratic leadership as well as the Judiciary Committee, predicted Sunday that Sotomayor will win as many votes — 78 — as Chief Justice John Roberts did on the Senate floor in 2005.
But Sen. Jeff Sessions (Ala.), the senior ranking Republican on Judiciary, seems much less impressed with Sotomayor.
Sessions slammed Sotomayor’s judicial philosophy during a television appearance Sunday.
“I am really flabbergasted by the depth and consistency of her philosophical critique of the ideal of impartial justice,” Sessions said on CBS’s “Face the Nation.”
Unlike Roberts, Sotomayor has a reputation for being fiery, and Republicans have tried to play that up as well as cast other doubts on her character.
After meeting with Sotomayor last month, Sen. Lindsey Graham (R-S.C.), a member of the Judiciary Committee, declared: “I believe she does have the intellectual capacity, but there is a character problem; there is a temperament problem.”
Republicans have pointed to some negative anonymous reviews Sotomayor received from lawyers who rated her in the Almanac of the Federal Judiciary. Some characterized her as “bright” but others said she “is a terror on the bench” and “abuses lawyers.”
Some Republicans may hope to provoke an angry response from Sotomayor that critics can then use to characterize her as an angry Latina with an ax to grind.
Her White House handlers, however, will have constantly reminded the nominee to smile, appear pleasant and act deferentially during the hearing.
The hearing’s biggest drama revolves around the question of how Sotomayor will appear to television viewers across the nation after fielding hours of challenging and, at times, unfriendly questions from Republicans. One terse, sarcastic or snappish reply is enough to make a sound bite that conservative television and radio shows can whip into an uproar. It would also fuel the running Republican criticism that Sotomayor has a character problem.
So far the nominee has remained a mystery to the American public as she has followed the tradition of past Supreme Court nominees by withholding public comment until the start of confirmation hearings.
Aside from her character, Republicans will focus on the question of whether Sotomayor will act impartially as a justice, a question raised by controversial comments in past speeches.
Democrats will argue that Sotomayor is an experienced, well-qualified and centrist judge, reminding colleagues that she graduated summa cum laude from Princeton University and later from Yale Law School.
They will highlight the number of times during her judicial career she sided with Republican-appointed judges and prosecutors.
Democrats will also emphasize Sotomayor’s ethnicity and the grounding-breaking nature of her nomination to become the first Hispanic member of the high court. This will put political pressure on Republicans, who have struggled in recent elections to attract Hispanic voters, a growing electoral bloc.
Sessions launched the first salvo of the week by claiming Sunday that Sotomayor has “advocated a view that suggests that your personal experiences, even prejudices” will influence a judge’s decisions.
This criticism stems from a 2001 speech at the University of California at Berkeley School of Law in which Sotomayor stated her hope that a “wise Latina woman with the richness of her experiences … would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
Even White House spokesman Robert Gibbs characterized her words as poorly chosen.
Republicans will ask Sotomayor to explain her comments and may even ask her to apologize, which would create a moment of high drama in the hearing room.
It will be difficult for the nominee to dismiss her comments as a momentary slip, however, because she has expressed nearly identical sentiments in several other speeches.
These past comments will fuel the central Republican attack against Sotomayor: that she cannot be counted on to decide fairly between rich and poor, white and minority.
The centerpiece of that argument will be Ricci v. DeStefano, a case in which Sotomayor upheld a lower court’s rejection of a lawsuit filed by white firefighters alleging bias against New Haven, Conn., after the city threw out a promotional test on which blacks had scored poorly. The Supreme Court reversed Sotomayor last month, ruling 5-4 that the white firefighters were the victims of discrimination.
Republicans will attempt to make political hay out of the ruling by inviting Frank Ricci, the lead plaintiff in the case, to testify before the committee.
Sotomayor has issued controversial rulings on gun rights, including in Maloney v. Cuomo, where she held that a Supreme Court decision protecting an individual’s right to keep a gun does not apply to state and local governments.
Republicans, led by Sen. Tom Coburn (R-Okla.), a member of the panel, will grill Sotomayor on her views of gun owners' rights. This is potentially dangerous territory for Sotomayor because the National Rifle Association, one of the most powerful lobbies in Washington, has warned that it would actively oppose her nomination if she is hostile to senators who press her on gun rights.
The NRA is influential with Democrats from conservative-leaning states and the wrong answer could make it difficult for these centrists to support her.
“The hearings are critical in the sense that if she can answer those questions she deserves to be confirmed, but if, at the end of the hearing ... there are still those questions or maybe even more questions, then her nomination is in real trouble,” said Curt Levey, president of the Committee for Justice, a conservative-leaning group.
Liberals predict that Sotomayor will turn in a smooth performance.
"I think she is going to be a very thoughtful and engaging witness," said Margery Baker, executive vice president for policy at People for the American Way, a liberal-leaning group. "It seems the goal has been to paint her as a liberal activist. Her record doesn't reflect liberal activism.
"She will come across as the very smart and competent jurist that she is," said Baker.
The Judiciary panel will begin its confirmation hearing at 10 a.m. Monday in room 216 of the Hart Senate Office Building. The first day will be dedicated to opening statements, with Sotomayor expected to speak at around 1:30 p.m.
Senators will press Sotomayor on her legal views and judicial philosophy during the question-and-answer sessions, set for Tuesday and Wednesday. The committee will complete its questioning of the nominee on Thursday morning, if extra time is necessary. Outside witnesses such as Ricci are scheduled to testify before the panel on Thursday afternoon and Friday morning.