By J. Taylor Rushing - 07/14/09 06:14 PM EDT
GOP senators pressed Sotomayor in their sharpest, most direct manner since she was nominated in May, repeatedly implying that the New York judge is biased toward minorities.
Republicans did land some political body blows, eliciting two expressions of regret from Sotomayor for remarking in a 2001 speech that a “wise Latina” would have a superior judicial mindset to that of a white male.
However, Sotomayor’s backtracking on the controversial remark made it difficult for Republicans to dwell on it. Sotomayor twice called the remark “bad,” saying it was a “rhetorical flourish … that fell flat.”
Despite some sharp elbows, Republicans are saying that their most powerful political weapon — the filibuster — will not be employed.
Sens. Chuck Grassley of Iowa, John Cornyn of Texas and former Judiciary Committee Chairman Orrin Hatch of Utah all said there was no talk of any GOP filibuster on the nomination.
“There’s never been any discussion of that. No Republican that I know of has raised the issue of filibustering her,” said Hatch. “She’s doing fine.”
“She’ll receive an up-or-down vote on the Senate floor,” Cornyn told The Hill. “I don’t think there’s any doubt of that.”
But that didn’t stop Republicans from launching salvos. Judiciary Committee ranking member Jeff Sessions of Alabama described Sotomayor’s judicial intent as inconsistent and biased. Hatch alluded to potential bias in the New Haven, Conn., firefighters case, which was recently overturned by the Supreme Court.
GOP Whip Jon Kyl of Arizona questioned her closely on the concept of “empathy.” And Sen. Lindsey Graham (R-S.C.) was one of several to claim that her speeches — more than her rulings — are far more alarming for the activism they suggest.
“Don’t become a speechwriter if this law thing doesn’t work out,” Graham told Sotomayor.
Yet during an interview on Fox News on Monday night, Graham said Sotomayor is “within the mainstream.”
Wearing a dark red suit, Sotomayor took occasional notes as she fielded questions and sipped from two glasses of water. She spoke calmly and confidently, if cautiously, still wearing an orthopedic brace on her lower right leg from a month-old ankle injury, and gesturing often as she spoke. Her hand movements frequently caused a wave of cameras to go off from about two dozen photographers kneeling a few feet in front of her.
Senators questioned Sotomayor for 30 minutes each, with small red electronic timers counting down their allotment. Sotomayor had a similar timer in front of her at the witness table, which was restarted with each round of questioning.
Sessions led the early GOP charge, zeroing in on the “wise Latina” remark and noting it has been a running theme of her speeches for several years.
“It’s not just a sentence ... It’s a body of thought over years and years that gives us problems,” Sessions said. “And I’m just very concerned that what you’re saying today is inconsistent.”
Sotomayor repeatedly insisted Tuesday that it is possible for judges to rule impartially by simply identifying cases in which their life experiences risk influencing their decisions.
“I want to state up front that I do not believe any ethnic group has an advantage in sound judgment,” she said. “But I think the system is strengthened when judges don’t assume they’re impartial, but seek to identify when their experiences are driving a result.”
Sotomayor pointed out to Kyl that the concept of experience is valued throughout society, from the American Bar Association to the Senate’s own committee structure.
“I was talking about the value that life experiences have,” she said.
Predictably, Democrats treated Sotomayor far more gently. Judiciary Committee Chairman Patrick Leahy (Vt.) led her through a soft round of opening questions, while Sen. Herb Kohl (D-Wis.) touted the low reversal rate of Sotomayor’s decisions and Dianne Feinstein of California praised the nominee for keeping her cool despite the criticism from Republicans.
Sotomayor fielded a score of controversial topics — gun control, property rights, affirmative action, the impact of the Sept. 11, 2001 terrorist attacks — as well as flashpoint court rulings such as the 1973 Roe v. Wade decision, the 2000 Bush v. Gore ruling and the reach of executive power during the Bush administration.
Sotomayor stated that she accepted both the Roe v. Wade and Bush v. Gore decisions as accepted legal precedent, and sidestepped a question about executive power.
U.S. Capitol Police arrested five protesters who had disrupted Monday’s hearing, but there was only one disturbance during Tuesday’s session when officers ejected a loud abortion protester shortly after lunch. Grassley used the opportunity to deadpan, “People always say I have the ability to turn people on.”
Wednesday’s witness list includes officials from the American Bar Association, New York City Mayor Michael Bloomberg, Manhattan District Attorney Robert Morgenthau, Arkansas Attorney General Dustin McDaniel, former FBI Director Louis Freeh and former New York Yankees pitcher David Cone.
The fireworks on Wednesday could come from the minority witness list, which includes Frank Ricci and Lt. Ben Vargas of the New Haven Fire Department.