Sonia Sotomayor Supreme Court nomination

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This article documents a current event. Information may change rapidly as the event progresses.

On May 26, 2009, President Barack Obama announced his selection of Judge Sonia Sotomayor for Associate Justice of the Supreme Court of the United States, to replace retiring Justice David Souter. Sotomayor's nomination was formally submitted to the United States Senate on June 1, 2009, when the 111th Congress reconvened after its Memorial Day recess.

Sotomayor is a sitting judge of the United States Court of Appeals for the Second Circuit, to which she had been appointed by Bill Clinton, and had previously served on the United States District Court for the Southern District of New York, to which she was appointed by George H. W. Bush.

Contents 1 Speculation regarding the nomination of Sotomayor 2 Senate response 2.1 Democratic members of the Senate Judiciary Committee 2.2 Republican members of the Senate Judiciary Committee 2.3 Other Democratic Senators 2.4 Other Republican Senators 3 Confirmation hearings 3.1 Day 1 (Jul. 13) 3.2 Day 2 (Jul. 14) 3.3 Day 3 (Jul. 15) 3.4 Day 4 (Jul. 16) 3.4.1 Witness testimony 3.5 Senate reactions to Sotomayor's testimony 4 Senate voting 5 Other reactions to nomination 5.1 Elected officials and political figures 5.2 Commentators and interest groups 5.3 Quotes on impartiality and life experience 6 See also 7 References 8 External links

[edit] Speculation regarding the nomination of Sotomayor

Prior to her reported selection as President Obama's nominee, Sotomayor had been appointed as a judge by both Republican and Democratic presidents.^[1][2] In July 2005, a number of Senate Democrats suggested Sotomayor, among others, to President George W. Bush as a nominee acceptable to them to fill the seat of retiring Supreme Court Justice Sandra Day O'Connor. The seat was eventually filled by Judge Samuel A. Alito, Jr. of the Third Circuit.

Since Barack Obama's election, there had been speculation that Sotomayor could be a leading candidate for the Supreme Court seat of Justice David Souter, or for any opening on the Court during Obama's term.^{[1][2][3][4][5][6][7]} On April 9, 2009, Senators Charles Schumer and Kirsten Gillibrand wrote a joint letter to President Obama urging him to appoint Sotomayor, or alternatively Interior Secretary Ken Salazar, to the Supreme Court if a vacancy should arise on the Court during his term.^[8] On April 30, 2009, David Souter's retirement plans were leaked to the media, and Sonia Sotomayor received early attention as a possible nominee for the seat to be vacated in June 2009.^[7] On May 13, 2009, the Associated Press reported that President Obama was considering Sotomayor, among others, for possible appointment to the United States Supreme Court.^[9] On May 26, 2009, Obama announced that he would nominate Sotomayor to the court,^[10] with her formal nomination following on June 1. If confirmed, this would make her the Supreme Court's first Hispanic American justice.^{[8][11][12][13]}

The replacement of Justice Souter (an Episcopalian) by Sotomayor (a Catholic) would change the religious demographic of the Court to six Catholics, two Jews, and one Protestant.^[14]

[edit] Senate response

The United States Senate must confirm the nomination for Sotomayor to join the Supreme Court. As of July 2009, the Senate has 58 Democrats, 2 independents who caucus with the Democrats, and 40 Republicans. In order to block the nomination, Republicans must either vote unanimously against Sotomayor and persuade eleven non-Republican Senators to follow suit, or they must prevent a vote from taking place at all through a filibuster, which means the Democrats would need 60 senators to vote for cloture.

Before the Senate vote takes place, Sotomayor will be questioned by the Senate Judiciary Committee, which will vote out a recommendation to the full Senate.

[edit] Democratic members of the Senate Judiciary Committee

Chairman Democrat Patrick Leahy of Vermont said he expected Sotomayor to be in the "mold of Justice Souter, who understands the real-world impact of the Court's decisions, rather than the mold of conservative activists who second-guess Congress."^[15]

Arlen Specter of Pennsylvania said, "Her confirmation would add needed diversity in two ways: the first Hispanic and the third woman to serve on the high court."^[15]

Russ Feingold of Wisconsin said that "from all accounts, she is a highly qualified and very experienced judge."^[16]

[edit] Republican members of the Senate Judiciary Committee

Orrin Hatch of Utah said he "will focus on determining whether Judge Sotomayor is committed to deciding cases based only on the law as made by the people and their elected representatives, not on personal feelings or politics. I look forward to a fair and thorough process."^[17]

John Cornyn of Texas said Sotomayor must "prove her commitment to impartially deciding cases based on the law, rather than based on her own personal politics, feelings, and preferences."^[16]

On June 10, 2009, all seven Republican members of the Judiciary committee (Tom Coburn, John Cornyn, Lindsey Graham, Jon Kyl, Charles E. Grassley, Orrin G. Hatch, and Jeff Sessions) by letter sent a detailed four page request that Sotomayor amend, supplement and expand upon the materials and answers supplied in response to the committee's original questionnaire for the candidate.^[18][19][20]

[edit] Other Democratic Senators

Ted Kennedy of Massachusetts said, "I strongly support President Obama's historic nomination. Judge Sotomayor's remarkable life story is an inspiring example of the American dream, and she has a highly distinguished legal background. She'll bring intelligence, insight, and experience to the vital work of protecting the fundamental rights and liberties of all Americans. She is eminently qualified for the Supreme Court, and I look forward to her prompt confirmation by the Senate."^[21]

[edit] Other Republican Senators

Senate Republican Leader Mitch McConnell of Kentucky said "Senate Republicans will treat Judge Sotomayor fairly, but we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences."^[22]

Olympia Snowe of Maine said of the nomination, "I commend President Obama for nominating a well-qualified woman, as I urged him to do during a one-on-one meeting on a variety of issues in the Oval Office earlier this month".^[23]

Pat Roberts of Kansas was the first Senator to officially come out against the nomination: "With all due respect to the nominee and nothing personal, I do not plan to vote for her. I did not feel she was appropriate on the appeals court. Since that time, she has made statements on the role of the appeals court I think is improper and incorrect."^[24]

Sens. Mel Martinez (FL)^[25], Richard Lugar (IN)^[26], Susan Collins (ME)^[27] and Olympia Snowe (ME)^[28] have all announced that they will vote to confirm Sotomayor.

[edit] Confirmation hearings

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President Obama has indicated that he would like to see Sotomayor confirmed by the beginning of the Senate recess on August 7, 2009. ^[29] On June 9, 2009, Patrick Leahy announced that Judiciary Committee hearings on Sotomayor's nomination would begin on Monday, July 13, 2009.

[edit] Day 1 (Jul. 13)

The Senate Judiciary Committee convened for the first day of Confirmation hearings on July 13, where Senator Charles Schumer proclaimed that the opportunity that Sotomayor has could not have happened "anywhere else in the world", saying that America is "God's noble experiement". ^[30] Out the many notable speakers, the Committee also welcomed newly sworn in Senator Al Franken (D-MN), who marked his first Judiciary hearing on the committee since he was sworn in five days earlier. Two senators' statements were disrupted by hecklers. An unidentified man hollered, "What about the unborn?" during Dianne Feinstein's (D-CA) speech.^[31] Norma McCorvey, the "Jane Roe" in the Roe v. Wade Supreme Court case about abortion rights, and Francis Mahoney, both yelled during Franken's opening statement.^[32] McCorvey and Mahoney were arrested, along with Robert James and Andrew Beacham. Leahy warned spectators to behave themselves and not to express any outbursts for or against Sotomayor or senators.^[31]

While committee Democrats generally praised Sotomayor, Republicans expressed skepticism about Sotomayor's ability to be judicially impartial. Senator Jeff Sessions (R-AL) brought up Sotomayor's membership in the Puerto Rican Legal Defense and Education Fund as concern over Sotomayor's decision in the district court case Ricci v. DeStefano. In that case, a three-judge panel that included Sotomayor ruled that a promotion test for firefighters in New Haven, Connecticut was discriminatory and thus void.^[33] A few weeks prior to the Sotomayor confirmation hearings, the Supreme Court reversed the decision.

Sotomayor began to speak at 2:54pm EST and thanked the 87 senators she "has the pleasure" of meeting and her family, including her mother, who joined her in the hearing. Sotomayor also said she was "very humbled" to be nominated, noting also she had seen the American judiciary system from many different perspectives. During her speech, she commented that "The task of a judge is not to make the law, it is to apply the law".^[33] Alexander Bolton of The Hill attributed such a pledge to George W. Bush-nominated Justices John G. Roberts and Samuel Alito. During her speech, Sotomayor also narrated her life story from her high school years while she lived in the projects, praising her mother: "She set the example, studying alongside my brother and me at our kitchen table so that she could become a registered nurse."^[33]

[edit] Day 2 (Jul. 14)

On July 14, 2009, the first round of questioning began. Committee Chairman Patrick Leahy (D-VT) began the session, and largely focused on Sotomayor's judicial record. The nominee took the opportunity to explain her ideals, and described herself as impartial and deferential to precedent, noting "It's important to remember that, as a job, I don't make law." Leahy then concentrated on the "Tarzan burglar" case, which Sotomayor prosecuted as assistant district attorney in Manhattan during the early 1980s. Sotomayor tied a series of incidents together and persuaded the trial judge to let her try the burglar on a number of crimes in one case. Leahy also gave Sotomayor the opportunity to explain her ruling in the Ricci v. New Haven case, which the Supreme Court overturned after a ruling by a panel of which she was a member. Sotomayor stated that the ruling was based on precedent, and that it would have come out differently in light of the standard subsequently established by the Supreme Court on appeal.^[34]

Ranking Republican Jeff Sessions (R-AL) then began questioning, and notably referenced her "wise Latina" remark. Sotomayor stated that it was "meant to inspire" young people of Latino ancestry, and that she "was trying to play on Sandra Day O'Connor's words. My play fell flat. It was bad."^[35]

Sotomayor was then questioned by Senator Herb Kohl (D-WI), who questioned her stance on abortion. She responded by noting that "there is a right to privacy," and that Roe v. Wade is "settled law."^[35] Kohl also inquired about her stance on the Bush v. Gore case, which stopped the recount during the 2000 election.

In regards to her comments about her personal experiences and sympathies when interpreting the Constitution, Senator Orrin Hatch (R-UT) questioned her ability to rule on issues such as the second amendment. Sotomayor answered by stating that she has ruled in favor of the second amendment, and that she personally has friends who use guns for hunting.^[36]

Senator Dianne Feinstein (D-CA) next highlighted key experience points that she had assessed over her sixteen years on the committee. Feinstein then argued against claims that Sotomayor was an "activist judge", referencing the Ricci v. New Haven case, in stating that conservative members of the Supreme Court have been the real activists in "discarding judicial precedents in recent years."^[37]

Senator Chuck Grassley (R-IA) again questioned his interpretation that her statements meant she was ruling by her feelings or experiences rather than by law, by stating that the "job (of Supreme Court Justice) is not to impose their own personal opinions of right and wrong." Sotomayor assured him that she did not. During one of Sotomayor's answers to Grassley, a protester notably erupted, shouting anti-abortion statements that accused Sotomayor of being a "baby killer" and to "save the babies." Grassley then joked that "people always say I have the ability to turn people on," after the heckler had been taken out of the room and arrested by police.^[38]

Senator Russ Feingold (D-WI) then questioned her on "post-9/11 policies," as well as her opinions on such cases as the Court's decisions in Rasul, Hamdi, Hamdan and Boumediene. Sotomayor responded that “the events of that day […] were sometimes used to justify policies that depart so far from what America stands for” and that "A judge should never rule from fear."^[39]

Senator Jon Kyl (R-AZ) once again raised the point of judging based on personal feelings or experiences by noting President Barack Obama's comment that judges rulings may be influenced by what's in their hearts. Sotomayor responded by saying that "[she] wouldn't approach the issue of judging in the way the president does." It was the first time that Sotomayor publicly attempted to distance herself from the president. Kyl also again referenced her "wise Latina" quote, and she again stated that it was meant to inspire young Latino students. Sotomayor also made clear that "if you look at my history on the bench, you will know that I do not believe that any ethnic, gender or race group has an advantage in sound judging." Senator Leahy defended Sotomayor in the face of ridicule by Senator Kyl.^[40]

In asking if Sotomayor felt sympathy for victims in cases that she had ruled on—specifically a case involving a TWA airliner which exploded off the coast of New York, in which the families of the victims, many poor, attempted to sue the manufacturer to recover some of their losses—Senator Charles Schumer (D-NY) noted that "empathy is the opposite of indifference." In a later statement, Schumer said that "in [Sotomayor's] courtroom the rule of law always triumphs," with which Sotomayor agreed.^[41]

Sotomayor's Latina woman statement was once again quoted up by Senator Lindsey Graham (R-SC). Graham opined that "if I had said anything like that, and my reasoning was that I was trying to inspire somebody, they would have had my head," and also "If Lindsey Graham said, I will make a better Senator than 'X' because of my experience as a caucasian male, makes me better able to represent the people of South Carolina, and my opponent was a minority ... It would make national news ... and it should." Graham claimed that he would not judge Sotomayor based on that one statement, while making it clear that "others could come nowhere close to that statement, and survive." Sotomayor agreed, but still represented that her words were taken out of context, specifically "in the context of the person's life."^[42] Graham later brought up statements that had been made by anonymous lawyers which described Sotomayor's temperament in a negative fashion.^[43] Despite the tone of Graham's points, he stated that he may still vote for her.^[44]

As the final questioner of the day, Senator Richard Durbin (D-IL) asked Sotomayor about her opinions on Justice Blackmun's quote that he will cease to tinker with the death penalty, and on his regret concerning the disparity in crack/powder cocaine sentencing for which Congress, and he, had voted. Sotomayor demurred from criticizing Congress and more or less passed on answering. Durbin followed up on his death penalty question emphasizing his concern about courts following up on assuring appeals plaintiffs about DNA evidence that may have come to light since their convictions, and he also brought up the case of Ledbetter v. Goodyear Tire & Rubber Co. in stating that "the recent decision of Ledbetter v. Goodyear Tire and Rubber is a classic example of the Supreme Court putting activism over common sense," in reference to statements made by Republican critics who had labeled her as an activist judge.^[45]

After the conclusion of Senator Durbin's statements, the committee convened.

[edit] Day 3 (Jul. 15)

On July 15, 2009, the second day of questioning began with Senator John Cornyn (R-TX), who immediately went after her "wise Latina" remark once again, in trying to further clarify the difference between that statement, and the statement that Sotomayor has compared hers to, in which former Supreme Court Justice Sandra Day O'Connor likened the decisions made by a "wise old woman" and a "wise old man." Cornyn also noted a 1996 quote made by Sotomayor, in which she stated that judges can "change law." Sotomayor went on to claim that the statement was taken out of context, and that she was explaining the process of law to the public, and that judges "can't change law. We are not lawmakers." Cornyn also asked if President Obama had asked Sotomayor's opinion on abortion rights. She responded that "[he] did not ask me about any specific legal questions [...] or any social issues."^[46] Cornyn ended asking for further explanation about her ruling in the Ricci v. New Haven case.^[47][48]

Senator Ben Cardin (D-MD) sought to balance Senator Lindsey Graham's selected anonymous statements decrying about Sotomayor's temperament, by reading positive reviews from fellow lawyers and judges.^[49] Cardin also raised the Voting Rights Act, and inquired Sotomayor's opinion on the right of the public to participate in voting. Sotomayor stated that voting is a fundamental right, and that the Congress has done a good job in regard to protecting the right to vote. Cardin recognized Sotomayor's achievements at Princeton University, and asked of her opinion of hearing different voices in public schools, as well as steps the federal government could take to further recognize diversity. Sotomayor cited the example of the University of Michigan, which promoted "as much diversity as possible." She also referenced the Equal Protection Clause under the law. In closing his statement, Cardin finally asked about Sotomayor's opinion on privacy, in terms of technology, and how it should be interpreted under the Constitution, which was "written in the eighteenth century." Sotomayor made it clear that privacy is specifically protected under the Constitution.^[50]

In reacting to the outbursts by anti-abortion advocates, Senator Tom Coburn (R-OK) asked numerous questions in regard to abortion under the law. Sotomayor answered by stating that she would need to look at the respective states' laws in the individual cases, and that she would not be able to answer the question without being informed about the details of the specific case. She also made it clear that "[judges] do not make policy" in terms of abortion, but only apply the law as it is specified.^[51][52] Coburn then went on to inquire about the Second Amendment, and referenced District of Columbia v. Heller, in asking if it was or was not the fundamental right of Americans to bear arms. Sotomayor agreed with Coburn that there is a fundamental and individual right to bear arms under the Second Amendment. Going further, Coburn then inquired about Sotomayor's personal opinion on the right to self-defense, which Sotomayor steadfastly refused to answer according to her own opinion, answering instead by stating that under New York law, facing certain imminent threat, "you can use force to repel that, and that would be legal."^[53] Coburn then asked if there was any right to use any foreign law in a judge's rulings in the United States. Sotomayor stated that "Foreign law cannot be used ... as a precedent" unless U.S. statute so directs.^[54]

Senator Sheldon Whitehouse (D-RI) reassured Sotomayor that she was doing well in her hearing. Whitehouse then asked about Sotomayor's role in the Puerto Rican Legal Defense Fund, inquiring if there was a vetting process in deciding the board members. Sotomayor stated there was none. Whitehouse then went on to ask about the search and seizure, as well as the federal government's involvement in warrants, in terms of fighting "terrorist extremists." She stated that it was the judge's decision whether a warrant should or should not be issued, based on the evidence presented.^[55]

Senator Amy Klobuchar (D-MN) went back to previous statements made by Sotomayor, in terms of whether rulings should be based on personal feelings, or on law. Sotomayor reiterated her statements that she can only "apply the law", and not make it. Klobuchar then asked about a child pornography case, in which a warrant was not properly attained. Sotomayor described that she had sided with the panel, which had ruled that the search was unconstitutional, but the police officers had acted in "good faith." Further statements by Klobuchar were very supportive of Sotomayor,^[56] and noted her sentencings of white collar defendents.^[57]

Senator Ted Kaufman (D-DE) asked about Sotomayor's tenure as a litigator of commercial law cases. Kaufman asked numerous questions about how her commercial practice incorporates itself into her current evaluations and rulings as a judge. Kaufman then referenced a case in which she ruled legal immunity for the New York Stock Exchange, despite Sotomayor's statement that their "behavior was egregious".^[58] Kaufman also asked questions on antitrust law, and about how economic theory related to judicial decisions.^[59]

After a brief recess, Senator Arlen Specter (D-PA) first complimented Sotomayor on her handling of questions during the hearing. Specter then once again brought up the wise Latina comment, and likened them to similar statements from others currently on the Supreme Court.^[60] The terror surveillance program was then brought up, with Specter very critical of former President Bush's wiretapping of US citizens without warrants. Sotomayor largely avoided getting immersed in the controversy.^[61] Specter then made a case for allowing television cameras into the courtroom. Sotomayor stated that she personally allowed television cameras into her courtroom, but conceded that it is up to the justices on the Supreme Court whether to allow it at that level.^[62]

The newest member of the committee, Senator Al Franken (D-MN) noted that the "hearings are a way for Americans to learn about the court, and the impact on their lives." He transitioned to free speech in regards to the internet, and noted the value of such tools as Twitter to convey the facts on the ground of the recent Iranian election protests. Franken asked about the role of Internet service providers regarding the issue of net neutrality, in speeding up the service provider's own content while slowing down other providers' content. Sotomayor stated that the "role of the court is to not make the policy, it is to wait until Congress acts." Franken further pressed by asking "Isn't there a compelling, overriding, first amendment right here, for Americans to have access to the internet?" Sotomayor stated that "rights are rights, and what the court looks at is how Congress balances those rights in a particular situation, and then judge whether that balance is within constitutional boundaries [...] and then we'll look at that and see if it's constitutional."^[63][64] Franken asked the definition of "judicial activism," which Sotomayor said was neither descriptive of her nor a term she uses, averring that she does not use labels.^[65] Franken notably then pulled out his pocket Constitution, referencing the Fifteenth Amendment to the United States Constitution in noting the recent decision to uphold the Voting Rights Act, which Sotomayor declined to speak on because the case was pending a future ruling by the Supreme Court. Franken asked if the words "birth control" and "privacy" were in the Constitution, in reference to previous Senators' statements on whether or not the word "abortion" was in the Constitution. Sotomayor answered that neither of those words are in the Constitution, after which Franken asked if the Constitution was "at all relevant" in regards to certain issues, which Sotomayor argued against. Franken finally asked if privacy issues were involved in abortion rights, and Sotomayor agreed.^[66]

The committee then convened to a closed session, to review a Federal Bureau of Investigation background check, which is a part of the regular vetting process.

After reconvening, Senator Jeff Sessions began his second round of questioning by bringing up the Puerto Rican Legal Defense Fund, and asked if she had been involved in fundraising. Sotomayor stated that board members serve other functions than fundraising, including "employment, public health, education, and others." Senator Leahy then interjected, and followed up on his concerns over the Second Amendment. Senator Kohl then brought up arguments mentioned by Ted Kaufman in regards to antitrust laws, and Sotomayor responded by stating that she would, at the "court's precedent, [...] apply it" to the situation. Kohl then gave a statistic stating that the Supreme Court only hears "about one percent" of the cases that are brought before the court. Senator Orrin Hatch gave further arguments about the Doctrine of Incorporation, and further reviewed Sotomayor's statement of "fidelity to the law." Hatch also brought up the right to privacy, and the fact that Sotomayor had stated that the Constitution "cannot be bent," and that courts "can apply the words of the Constitution to the facts of the case before them." Hatch next brought up once again the issue of "empathy" in judicial ruling. Sotomayor once again responded that personal experience does not trump the law.

After a recess, Senator Feinstein drew a line of support for Sotomayor. Senator Grassley then brought up the issue of gay marriage, and whether the federal government or the states' governments should decide the issue. Sotomayor described the process, but not her own personal opinion on the matter or how she would approach the case. Grassley continued to press on Sotomayor's rulings in multiple cases, with Sotomayor explaining the process of judging involved in each specific case. Senator Cardin was the final Senator to question Sotomayor, and thanked Sotomayor for her service, and for appearing before the Judiciary Committee. Cardin asked about freedom of religion, and the Separation of church and state in the United States, to which Sotomayor was supportive of the law involving freedom of religion, and restriction of the states to form their own religion. Recess was called after Senator Cardin finished questioning.

[edit] Day 4 (Jul. 16)

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On July 16, 2009, the second round of questioning continued with Senator Jon Kyl. Kyl immediately began asking about the Supreme Court's precedent in the Ricci v. DeStefano case. Sotomayor stated that the precedent involved "the city discriminating a certain race," despite stating that there was no precedent, while originally ruling on the case. Kyl then asked about her statements involving district and circuit courts, in following precedent. Sotomayor then stated that "when precedent is set [...] they have policy ramifications." Senator Dianne Feinstein then began to follow up on questions raised by Senator Kyl. Feinstein also referenced her wise Latina statement, in stating that Feinstein "would like to put it in the context of women. In asking if she felt she was an inspiration to women, Sotomayor then stated that "[her] career as a judge [...] does serve as an inspiration for others." Feinstein then noted that she thinks Sotomayor will be a great Supreme Court Justice.

Senator Lindsey Graham then began his questioning, asking about whether or not the Second Amendment was a fundamental right, which Sotomayor agreed. Graham then asked "What binds you, when it comes to a fundamental right?" Sotomayor responded by quickly saying, "The rule of law." Graham then asked about abortion rights, in regards to the Puerto Rican Legal Defense Fund. Sotomayor refused to answer the question. Next asked about the death penalty, and a statement she made in the 1980s in opposition to the death penalty. Graham then stated that her stance on the issues is "left of center." Graham then asked if Sotomayor regretted her wise Latina remark, to which Sotomayor stated that "it was not [her] intention to leave the impression, that people have gotten from [her] words" about the wise Latina comment.

Senator Amy Klobuchar, then began her questioning, and began by reading positive letters, casting Sotomayor in a positive light. Senator John Cornyn next questioned statements that she had made in speeches, and how they are "quite different" from what "[she] is saying before the committee." Sotomayor answered by stating to "look at [her] record." Next asking about gay marriage, and whether that would be making law, or interpreting the law, if the Supreme Court were to rule in favor of gay marriage, and Sotomayor largely attempted to avoid answering the question. Next asking about campaign contributions, and difference of a contribution and a bribe, and referenced President Barack Obama's large amounts of fundraising from private funds, Sotomayor agreed with the statements that Cornyn made about whether or not it was the right of individuals to contribute. Senator Arlen Specter began his questioning, and asked about the number of cases that the Supreme Court hears, to which Sotomayor responded that "it appears" the Supreme Court "has the capacity to hear more cases." Specter went on to raise specific court cases, as well as reference his previous questions about 9/11, to which Sotomayor responded in the same fashion as when she previously was asked the question.^[67] The committee recessed afterward.

After recess, Senator Tom Coburn began his questioning of Sotomayor, and began by again asking about precedent, and ruling by the law. Coburn then went on to reiterate his earlier questions about abortion, including whether or not Roe v. Wade overrided the state's positions on abortion, which Sotomayor stated that she did not know, before Coburn stated that it was. Senator Al Franken then began his questioning, and asked why Sotomayor wants to be a Supreme Court justice. Franken then stated that he would in fact be supporting Sotomayor, after she told a story from when she first began her career.

Senator Jeff Sessions next began a third round of questioning, to raise concerns that he had about some of Sotomayor's answers. Sessions then stated that he would not support a Republican filibuster. Third round questioning continued with Senators Orrin Hatch, Chuck Grassley, Jon Kyl, Lindsey Graham, John Cornyn, Tom Coburn, and Patrick Leahy briefly raising their concerns, and getting short answers from Sotomayor.

[edit] Witness testimony

Witness testimony began with Kim Askew and Mary Boies, representing the Standing Committee of the American Bar Association, who reviewed Sotomayor as 'highly qualified.'

The second series of testimonies involved the Ricci v. DeStefano case, with testimony by Attorney General of Arkansas Dustin McDaniel, Mayor of New York City Michael Bloomberg, District Attorney of New York Robert Morgenthau, Leader of the Conference of Civil Rights Professor Wade Henderson, firefighters Frank Ricci and Lieutenant Ben Vargas, in support of Sotomayor,^[68] as well as Peter Kirsanow of the U.S. Commission on Civil Rights and Lisa Chavez of the Center for Equal Opportunity in opposition of Sotomayor.

In the third series of testimonies, Louis Freeh, former associate of Sotomayor and former FBI Director, Chuck Canterbury of the Fraternal Order of Police, former MLB player David Cone, Kate Stith of Yale Law School all advocated Sotomayor's confirmation, and Charmaine Yoest of Americans United for Life, Sandy Froman former president of the National Rifle Association, David Kopel of the Independence Institute, and Ilya Somin of the George Mason University School of Law all disapproved of Sotomayor's confirmation.

In the fourth series of testimonies, Congresswoman Nydia Velasquez of New York, President of the Hispanic National Bar Association Ramona Romero, and former Sotomayor associate Theodore Shaw of the Columbia Law School, all advocated Sotomayor's confirmation, and Tim Jeffries of P7 Enterprises opposed Sotomayor's confirmation. Neomi Rao of the George Mason University School of Law, John McGinnis of the Northwestern University School of Law, and Nick Rosenkranz of the Georgetown University Law Center also gave testimonies, but stated that they neither opposed, nor advocate Sotomayor's confirmation.

In the fifth series of testimonies, Congressman José Serrano of New York, representatives of the New York Bar Association and the National Association of Women Lawyers all advocated Sotomayor's confirmation, and Stephen Holbrook of the National Rifle Association opposed Sotomayor's confirmation. While David Rivkin of the law firm Baker & Hostetler stated that he neither opposed, nor advocated Sotomayor's confirmation.

The committee then convened, after hearing all the statements made by each witness.

[edit] Senate reactions to Sotomayor's testimony

Following Sotomayor's final day of testimony, four Republican Senators announced that they would vote in favor of her confirmation, those being Richard Lugar of Indiana, Mel Martinez of Florida, Olympia Snowe of Maine^[69] and Susan Collins of Maine.^[70] Seven Republican Senators have announced that they will vote against Sotomayor's confirmation: Robert Bennett of Utah, Jim Bunning and Mitch McConnell of Kentucky, James Inhofe of Oklahoma, Pat Roberts of Kansas^[69], John Thune of South Dakota^[71] and Roger Wicker of Mississippi.^[72] No Senate Democrat has indicated that they will vote against Sotomayor's confirmation, and no Senate Republican has called for a filibuster of the vote.^[69].

[edit] Senate voting

[edit] Other reactions to nomination

[edit] Elected officials and political figures

New York Governor David Paterson applauded President Obama for the decision by saying, “Throughout her impressive life and career, Judge Sonia Sotomayor has demonstrated the integrity, leadership and intellect that make her an outstanding nominee to our nation’s highest court. I congratulate President Obama for his selection of Judge Sotomayor, a native New Yorker whose legal mind will undoubtedly benefit our entire judicial system."^[73]

Republican National Committee Chairman Michael Steele suggested that Republicans will reserve judgment on Sotomayor "until there has been a thorough and thoughtful examination of her legal views."^[17]

Former Massachusetts Governor Mitt Romney issued a statement saying, "The nomination of Judge Sonia Sotomayor to the Supreme Court is troubling. Her public statements make it clear she has an expansive view of the role of the judiciary.^[74]

Al Sharpton called the nomination "prudent, groundbreaking and the right choice at this time in our nation's history as we face serious constitutional and legal questions that will impact the lives of Americans for decades to come."^[75]

Former Attorney General Alberto Gonzales said that the nomination "is a powerful message, a powerful message of hope and opportunity of hope through this appointment". With respect to Sotomayor, Gonzales said, "I have no questions in my mind about her qualifications in terms of education, experience. A president is not required to nominate the most qualified person to the court. I think he's obligated to nominate someone who is well qualified, and I think by any measure she is well qualified. I think there are legitimate questions about her judicial philosophy, and again, that will be something that will be examined in the confirmation process".^[76]

Former Attorney General Edwin Meese said "What we already know about Judge Sotomayor’s judicial philosophy from public statements and judicial opinions demands careful inquiry by the Senate. Senators must engage in robust advice and consent to assure that if confirmed, Judge Sotomayor would not use her seat on the Supreme Court to advance liberal policy preferences, rather than applying the Constitution as it is written."^[77]

[edit] Commentators and interest groups

• National Organization for Women President Kim Gandy said "President Obama said he wanted a justice with 'towering intellect' and a 'common touch' and he found both in Judge Sotomayor."^[78]
• Cecile Richards, president of pro-choice group Planned Parenthood, said "What our nation needs from our Supreme Court justices is a deep understanding of the law, an appreciation of the impact of the court’s decisions on everyday Americans, and a commitment to the protection of our individual liberties. Judge Sotomayor will bring this dedication and commitment with her to the bench."^[79]
• Ilya Shapiro of the Cato Institute said, "Judge Sotomayor is not one of the leading lights of the federal judiciary and would not even have been on the shortlist if she were not Hispanic."^[16]
• Pat Robertson, the founder of the Christian Coalition, said “The Republicans have got to take a stand on this one, If they don’t, they can kiss their chances of ever getting back into power away.”^[80]
• Randall Terry, founder of the pro-life group Operation Rescue, urged Republicans to block a Senate vote on Sotomayor saying, “Do GOP leaders have the courage and integrity to filibuster an activist, pro-Roe judge?”^[80]
• Larry Klayman, founder of the conservative groups Freedom Watch and Judicial Watch, offered guarded praise: "While I would have liked to see a more conservative libertarian type on the high court, President Obama's selection of New York federal appeals court Judge Sonia Sotomayer was a very prudent and wise decision from a far left liberal like Obama. Having initially been appointed to the bench by President George H. W. Bush, soon to be justice Sotomayer has previously pledged to follow the Constitution, and not legislate from the bench, and her career as a federal court judge suggests, as a whole, that this is the way she will administer to the law."^[81]
• Wendy E. Long, counsel for the Judicial Confirmation Network says "Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written. She thinks that judges should dictate policy, and that one's sex, race, and ethnicity ought to affect the decisions one renders from the bench."^[82]
• Tom Tancredo, former Colorado Republican member of the United States House of Representatives, appeared on CNN to voice his opposition to the nomination. When Rick Sanchez asked him if Sonia Sotomayor is a racist Tancredo replied “certainly her words would indicate that that is the truth”^[83][84]
• Free speech advocates have criticized Sotomayor for upholding a school's punishment of a student for criticizing her school's administrators on an off-campus blog on her own personal time. ^[85]

[edit] Quotes on impartiality and life experience

The neutrality of this section is disputed. Please see the discussion on the talk page. Please do not remove this message until the dispute is resolved. (May 2009)

Critics of Sotomayor's nomination have highlighted several quotes by Sotomayor about the roles background and life experience play in the work of a judge.

In 2001, at the annual Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California, Berkeley, Sotomayor stated in a prepared speech:

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minow has noted, there can never be a universal definition of wise. Second, I would 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.^[86][87][88]

Stuart Taylor of the National Journal criticized her speech:

[U]nless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.... Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.... It follows that the Supreme Court might well be a wiser body -- other things being equal -- if the next justice is a Hispanic woman of outstanding judgment and capability. But do we want a new justice who comes close to stereotyping white males as (on average) inferior beings? And who seems to speak with more passion about her ethnicity and gender than about the ideal of impartiality?"^[89]

Republican former Speaker of the House Newt Gingrich tweeted, "Imagine a judicial nominee said 'my experience as a white man makes me better than a Latina woman' new racism is no better than old racism. White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw." ^[90] Gingrich later retracted that statement and acknowledged that Sotomayor's judicial decisions have "shown more caution and moderation" than the quoted speeches.^[91] Republican commentator Ann Coulter stated, "It does a disservice to minorities – to women and minorities – that we are supposed to be empathizing for. Saying that someone would decide a case differently... because she's a Latina, not a white male, that statement by definition is racist...." Conservative talk show host Rush Limbaugh called Sotomayor a "horrible choice" and "a racist... or reverse racist." ^[92]

Referring to Sotomayor's paragraph-ending sentence on "a wise Latina woman," Dana Milbank of The Washington Post noted, "In her years on the bench, Sonia Sotomayor has produced millions of words. Opponents of her Supreme Court nomination are particularly interested in 32 of them."^[93]

Democratic strategist James Carville defended Sotomayor's quotes by citing Justice Clarence Thomas, whom Carville said was like Sotomayor in that he also has a rags-to-riches story, and has often discussed how his life experiences have shaped him. Carville also stated, "Experience is everything. You want richness and diversity on the Supreme Court. She has a life experience she brings." ^[94]

Progressive research site Media Matters for America argues that Sotomayor was specifically discussing the importance of judicial diversity in determining race and sex discrimination cases, and that critics are omitting that context. ^[95][96]

In addition, defenders of Sotomayor pointed out that Justice Samuel Alito, in his own confirmation hearings, stated: "when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position....And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."^[97]

Sotomayor had previously made remarks nearly identical to her 2001 "richness of her experience" remarks in an earlier speech in 1994, a copy of which she included in her questionnaire she submitted to Senators during her 1998 Appeals Court confirmation process. In 1998, these remarks did not attract any comment or controversy.^[98]

National Public Radio's Frank James suggested that "Sotomayor's best bet might be to try and neutralize the issue with that tried and true Senate confirmation strategy of saying that her views on the subject have 'evolved.'"^[99]

In 2005, Sotomayor said, in unscripted remarks during a Duke University panel discussion explaining judicial clerking to law students:

The saw is that if you're going into academia, you're going to teach, or as Judge [Carlos] Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. [audience laughter] OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. [audience laughter] [Sotomayor hesitant laughter] OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating -- its interpretation, its application. And Judge Lucero is right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, "I don't care about the next step," and sometimes we do. Or sometimes we say, "We'll worry about that when we get to it" -- look at what the Supreme Court just did. But the point is that that's the differences -- the practical differences in the two experiences are the district court is controlled chaos and not so controlled most of the time. ^[100][101]

Sen. Orrin Hatch, speaking before her nomination was announced, stated that the phrase "court of appeals is where policy is made" would be problematic in a nomination hearing.^[102] Meanwhile, Stephen F. Hayes of conservative The Weekly Standard stated, "constitutionalists... would beg to differ from Sotomayor's vision of the appropriate role of the federal judiciary."^[103] In response to these arguments, the liberal Huffington Post quoted Jeffrey Segal, a professor of law at Stony Brook University, who stated, "She's not wrong. Of course they make policy... You can, on one hand, say Congress makes the law and the court interprets it. But on the other hand the law is not always clear. And in clarifying those laws, the courts make policy." Eric Freedman, a law professor at Hofstra University asserted, "She was saying something which is the absolute judicial equivalent of saying the sun rises each morning. It is not a controversial proposition at all that the overwhelming quantity of law making work in the federal system is done by the court of appeals... It is thoroughly uncontroversial to anyone other than a determined demagogue."^[104]

Conservative writer Jonah Goldberg pointed out that Supreme Court justices take an oath which states, "I, (name), do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (title) under the Constitution and laws of the United States. So help me God." Goldberg then claimed that Obama's stated desire to nominate justices who have "empathy" means that Obama "wants the justice’s oath to in effect be rewritten. Judges must administer justice with respect to persons, they must be partial to the poor, and so on." ^[105] White House Press Secretary Robert Gibbs defended Sotomayor, and said, "I think we can all move past YouTube snippets and half-sentences and actually look at her honest-to-God record... When people get a chance to look at her record, partisan politics will take a backseat to common sense and open-minded decisions based on a full examination of the record." ^[106]

Conservative writer Thomas Sowell wrote, "Nothing demonstrates the fatal dangers from judicial 'empathy' more than Sotomayor's decision in a 2008 case involving firemen who took an exam for promotion... Apparently she didn't have 'empathy' with those predominantly white males who had been cheated out of promotions they had earned." ^[107] Sowell was referring to Ricci v. DeStefano, a case in which the appellate court unanimously upheld the district court's ruling. The appellate court issued a per curiam opinion so it is impossible to say that anything from the decision was written by Sotomayor.^[108]. White House Press Secretary Robert Gibbs defended Sotomayor by declaring, "She has lived a different life than some people have based on her upbringing... I think anyone involved in this debate should probably be exceedingly careful with the way they decide to describe different aspects of this." ^[106] The Judicial Confirmation Network criticized Sotomayor for signing a 1981 memo that opposed the death penalty and said “capital punishment is associated with evident racism in our society’’.^[109] She did not disclose it to the Senate Judiciary Committee.^[110]

[edit] See also

• Demographics of the Supreme Court of the United States

[edit] References

[edit] External links

• News related to Obama nominates Sonia Sotomayor to US Supreme Court at Wikinews
• "Associate Justice of the U.S. Supreme Court - Sonia Sotomayor - Questionnaire". United States Senate Committee on the Judiciary. http://judiciary.senate.gov/nominations/SupremeCourt/Sotomayor/SoniaSotomayor-Questionnaire.cfm.  (With appendix and attachments to the questionnaire.)
• Sotomayor's Nomination Puts GOP Hispanics In A Bind by Sam Stein, The Huffington Post, May 26 2009
• Supreme Court Pick Sotomayor Faces Nomination Politics by Richard Wolf, USA Today, May 27 2009
• Sotomayor Opponents Stake Out Lines Of Attack by Liz Halloran, NPR, May 27 2009
• Think Again: Sotomayor and SCOTUS, Captured on a Carousel of Time by Eric Alterman, Center for American Progress, June 11 2009
• Judge Sonia Sotomayor: Analysis of Selected Opinions Congressional Research Service Report at Public Intelligence, June 19 2009