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The Sotomayor Hearings

The Nominee Avoids Questions About Her Views

SOTOMAYOR, From Page A1

judge and her dozen years on the board of the Puerto Rican Legal Defense and Education Fund — are not new. Both were known but not raised, they said, when the Senate confirmed her twice in the 1990s, first as a federal trial judge and then as a member of the U.S. Court of Appeals for the 2nd Circuit.

“So this is nothing new to the Senate. Is that correct?” Sen. Sheldon Whitehouse (D-R.I.) asked Sotomayor about her mem- bership on the advocacy group’s board before she joined the bench. “That’s correct,” she re- plied.

No Republicans have said whether they will join Democrats in supporting Sotomayor’s con- firmation. Late yesterday after- noon, Sen. Lindsey O. Graham (R-S.C.), who had signaled be- fore the hearings that he might vote for her, said: “She’s doing good.” Graham said his decision could hinge on follow-up ques- tions he plans to ask about her most controversial public re- marks.

Sotomayor’s hearings will con- tinue today with senators con- cluding a second round of ques- tioning, then hearing testimony from witnesses who have been in- vited by the two political parties. In not allowing senators to pin

her down on concrete matters of law, Sotomayor, 55, borrowed an approach that has been used by most nominees to the nation’s highest court since the failed nomination two decades ago of Robert H. Bork, a conservative jurist and scholar. Like her, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., at their confirmation hearings in 2005 and 2006, respectively, said they could not address many of the questions senators raised be- cause they involved areas of the law that were settled — or on which they might be asked to rule in the future. Sotomayor also sought to tamp

down comments about her ideo- logical leanings, focusing in par- ticular on remarks by the senior partner at Pavia & Harcourt, a New York law firm where she worked between serving as an as- sistant district attorney and be- coming a judge. Noting that George Pavia has been quoted lately as saying, “I can guarantee she’ll be for abortion rights,” Sen. John Cornyn (R-Tex.) asked the nominee: “On what basis would Mr. Pavia say that, if you know?” “I have no idea why he’s draw- ing that conclusion,” Sotomayor replied. “If he was talking about the fact that I served on a partic- ular board that promoted equal opportunity for people, the Puer- to Rican Legal Defense and Edu- cation Fund, then you could talk about that being a liberal in- stinct, in the sense that I promote equal opportunity in America and the attempts to ensure that. But he has not read my jurispru- dence for 17 years, I can assure you. He’s a corporate litigator. And my experience with corpo- rate litigators is that they only look at the law when it affects the case before them.” Sotomayor also skirted a series of pointed questions from Cornyn and Sen. Tom Coburn (R- Okla.) about her views on abor- tion rights. Coburn, one of the Senate’s leading abortion oppo- nents and a physician who has de- livered hundreds of babies, asked how she would handle a case in- volving a woman seeking to abort a fetus at 38 weeks after learning

the baby had spina bifida. “I can’t answer that question in the abstract because I would have to look at what the state of the state’s law was on that ques- tion,” Sotomayor said. She recit- ed portions of the 1992 ruling in

Planned Parenthood v. Casey,

which upheld a right to an abor- tion but allowed some restric- tions so long as they do not place an “undue burden” on the wom- an’s rights. “The question is: Is the state regulation regulating what a woman does an undue burden?” she said. Like Coburn, many Demo- crats, recognizing that the nomi- nee was reluctant to disclose her views, used their questions to draw attention to issues person- ally significant to them. Asked by Sen. Russell Fein- gold (D-Wis.), who co-spon- sored a landmark campaign fi- nance measure, for her thoughts on that subject, Sotomayor re- plied that the first case she would hear, if confirmed to the Supreme Court, might be a case involving that law. “It would be inappropriate for me to say any- thing about that area of the law,” she told Feingold. Sen. Ted Kaufman (D-Del.) pressed for her views on Con- gress’s authority to regulate fi- nancial markets. Noting that Congress is debating such legis- lation — considered a critical question, given the nation’s weak economy — Sotomayor de- murred, predicting that a case in that arena probably would come to the courts soon. “What I can say to you is that Congress has certain constitutional powers. One of them is to pass laws af- fecting interstate commerce,” she said. Franken asked Sotomayor about the First Amendment as it pertains to Internet access. The former comedian, whose elec- tion victory was delayed for months by court challenges, questioned her about what he called a “frightening” Supreme Court decision four years ago that enabled large Internet serv- ice companies to give preference to some content providers. Soto- mayor said the question is one Congress may choose to clarify. “The role of the court is to never make the policy,” she said. “It’s to wait till Congress acts.” Specter urged the nominee to support a change in Supreme Court procedures to allow televi- sion cameras inside, saying the court is “unaccountable” in con- ducting its work away from broad public view. Sotomayor said that, if confirmed, she would share with other justices “positive experiences” she has had with televised lower-court proceedings. But she stopped short of saying she would ad- vocate for the change, calling it “an ongoing dialogue.”

Specter noted, too, that the number of cases the court de- cides each year has dwindled over the past century. He asked Sotomayor whether she agreed with public comments Roberts has made that it should take more cases. “I know,” she replied, “that there [are] questions here by many people . . . about this is- sue. Can the court take on more?”

Specter eventually cut in. “Judge Sotomayor, how about more cases?” “Well, perhaps I need to ex- plain to you,” she replied, “that I don’t like making statements about what I think the court can do until I’ve experienced the process.”

The Washington Post

BY MELINA MARA — THE WASHINGTON POST

“I don’t use labels to describe what I do,” Sonia Sotomayor has said during her Supreme Court confirmation hearings.

ANALYSIS

Republicans Unable to Pin Her Down

With Democrats’ Help, Sotomayor Has Blunted GOP Senators’ Best Efforts

By Robert Barnes

Washington Post Staff Writer

Sen. Lindsey O. Graham (R- S.C.) tried to place Supreme Court nominee Sonia Sotomayor in some school of constitutional interpreta- tion. Legal realist? Originalist? Strict constructionist, perhaps? In the slow, deep and patient

voice she has employed over three days of hearings on her nomination to be the next Supreme Court jus- tice, Sotomayor declined.

“I don’t use labels to describe what I do,” she said.

And the problem for the out- numbered Republicans on the Sen- ate Judiciary Committee is that they have been unable to affix one. For every speech they cited that seemed to indicate a liberal activist, Democrats countered, pulling out a decision that ruled against the kind of interest Republicans said Soto- mayor would protect.

When Republicans complained about President Obama’s “empa- thy” standard, she agreed, and po- litely suggested that they ask the president what he means by it. “We apply law to facts, we don’t apply feelings to facts,” she said. When they wondered how they could square her speeches around the country with her testimony in the Hart Senate Office Building, she directed them to her 17 years

on the federal bench. “I need your help trying to recon- cile those two pictures,” Sen. Jon Cornyn (R-Tex.) told Sotomayor yesterday, “because I think a lot of people have wondered about that.” Sotomayor was not inclined to help. And her nearly two-decade record has yielded few decisions that Republicans can exploit. If anything, the repeated ques- tions about the handful of cases Re- publicans have highlighted, and So- tomayor’s sometimes evasive re- sponses, have made the decisions seem more like close calls than the judicial activism Republicans say they represent. Sotomayor’s role in Ricci v. DeS-

tefano would seem to offer the best opportunity for Republicans. Polls have shown that the public finds it unfair that city officials in New Ha- ven, Conn., threw out the promo- tions test on which a mostly white group of firefighters qualified for advancement, while no blacks scored high enough. Sotomayor was on a panel of the U.S. Court of Appeals for the 2nd Circuit that agreed the city officials were justified in their actions be- cause of their fear that they would be sued by the black firefighters un- der federal law. The Supreme Court recently reviewed the decision and voted 5 to 4 to reverse it.

The action by the panel on which

As Questioner, Lawmaker

Is Man on Own Mission

Specter Well Prepared to Grill Sotomayor

By Ann Gerhart

Washington Post Staff Writer

Sen. Arlen Specter is 79, was a Democrat before he was a Repub- lican before he was a Democrat again, and has grilled every Supreme Court nominee since William H. Rehnquist. He has had two bouts of cancer, two brain surgeries and a heart bypass operation. In this politi- cal town,where the greatest game of all is survival, Specter plays at the level of a grandmaster. Yesterday morning, he lifted

weights for an hour. Then he was pumped to take Sonia Sotomayor to school — as well as his fellow panel- ists on the Judiciary Committee, the current Supreme Court justices, and anybody watching on television or contemplating taking Intro to Con- stitutional Law.

He pelted the nominee with ques- tions about separation of powers, and wireless wiretaps, and secret CIA programs, and voting rights, and the Americans With Disabilities Act, and abortion rights, and the En- vironmental Protection Agency, and the Clean Water Act, and televisions in court, and the Second Amend- ment — all in an economical 30 min- utes.

Specter spent hours laboriously preparing for yesterday’s question- ing, and he sent Sotomayor three letters alerting her to his interests so she could study up. When she stalled, he said, abruptly: “Well, I can tell you’re not going to answer. Let me move on.” He did this five times. The senior senator from Pennsyl-

BY MELINA MARA — THE WASHINGTON POST

Sen. Tom Coburn (R-Okla.), one of the chamber’s leading abortion opponents and a physician who has delivered hundreds of babies, questioned the nominee about her views on abortion rights.

vania chaired the confirmation hear- ings for Chief Justice John G. Rob- erts Jr. and Justice Samuel A. Alito Jr.; he interrupted them, too, when

they didn’t answer. Justice Sandra Day O’Connor “really was the last one who answered questions,” Spec- ter said later.

Roberts testified one way during his confirmation hearings, specifical- ly on the issues of deference to Con- gress and taking on a heavier court caseload, and then did something else, Specter charged. This frustration was on full dis-

play yesterday. “Is there anything the Senate or Congress can do if a nominee says one thing seated at that table and does something exact- ly the opposite once they walk across the street?” he demanded of Sotomayor.

“That, in fact, is one of the beau- ties of our constitutional system,” she began, “which is we do have a separation of . . .”

“Beauty!” Specter nearly snorted, then chuckled. “Beauty — beauty in the eyes of the beholder.” He gave a colloquy on the limits of

executive power: “The president dis- regarded that in a secret program called the terrorist surveillance pro- gram. Didn’t even tell the chairman of the Judiciary Committee, which is the required practice, or accepted practice. Didn’t tell the intelligence committees, where the law man- dates that they be told about such programs.” Would the judge, Specter wanted

to know, agree that the Supreme Court should take up such cases? “I know it must be very frustrat-

ing to you to . . .” Sotomayor began. “It sure is,” Specter interrupted.

“I was the chairman who wasn’t noti- fied!”

What Specter also cares about,

deeply, urgently, is getting televi- sions into the Supreme Court so that

Americans can see what the robed ones are doing in there. He has in- troduced such legislation twice. “They are unaccountable,” he said

yesterday in an interview after he questioned Sotomayor. “It’s not a kingdom. You’re not King George V.”

Perry Mason? Arlen Specter is not interested in Perry Mason. He left that for Sen. Al Franken to dis- cuss. Specter is interested in secret courts and secret presidential initia- tives and the “irreparable harm” of 100 million people voting in a presi- dential election that eventually was decided by one vote, in a grand building about two blocks away from the Hart Senate Office Building, where yesterday’s session was held. “I want her to be aware of these is- sues,” Specter said when asked why he was pushing the judge to answer his questions. Wise Latina? He’s fine with that. Empathy? He’s good with that, too. Her record, he said yester- day, is “exemplary.” But that doesn’t mean he’s necessarily going to vote for her. “That’s the conventional wis- dom,” he said. “But I have not said that.” For a generation, as a Republican in a Democratic-leaning state, Spec- ter kept returning to Washington

Sotomayor served — a one-para- graph order affirming a lower court’s decision — seems curiously scant in light of the issues raised in the case.

But the Republicans’ repeated re- turn to the case — often raising le- galistic points about disparate im- pact and disparate treatment — has shown how complicated it is. That has allowed Democrats to point out that eight of the 14 federal judges who reviewed the case sided with New Haven, and that a bare major- ity of the Supreme Court reversed it only by imposing a new standard on how to judge such cases. GOP senators have also focused on the ruling by Sotomayor’s circuit that the Supreme Court’s decision

in District of Columbia v. Heller

—which for the first time said the Second Amendment protects an in- dividual’s right to own a firearm — applies only to the federal govern- ment, not to states and cities that might want to restrict gun owner- ship.

Republicans on the committee

have tried their best to inflate the importance of the decision, which involved New York’s ban of a mar- tial arts weapon. “Isn’t it true, Judge, that the decision that you and your panel rendered, if it were to be the law of the United States, and if it is not reversed by the U.S. Supreme Court, would say that the

. . . Second Amendment does not protect the right of the people to keep and bear arms in any city, county and state in America?” Sen. Jeff Sessions (R-Ala.) asked Soto- mayor yesterday.

“I’m not familiar enough with the regulations in all 50 states to know whether there’s an absolute prohi- bition in any one city or state against the possession of firearms,” she replied.

But the questioning about the case has turned into a seminar about how the Bill of Rights is ap- plied to the states, and has allowed Sotomayor to note that conserva- tive judges in another circuit have ruled the same way. It is a decision, she said, required by the opinion in Heller, which, she pointed out, was written by Justice Antonin Scalia. “Justice Scalia,” she said, “noted the court’s holding that the Second Amendment wasn’t incorporated against the states.”

And the committee chairman,

Patrick J. Leahy (D-Vt.), was there if any cleanup was needed. “I’ve been a gun owner since I

was probably 13 years old,” he said. “I’ve seen nothing done by the Su- preme Court, by the 2nd Circuit Court of Appeals, by the Congress or by our state legislature that’s go- ing to change one way or another the ownership that I have of the guns I now have.”

BY MELINA MARA — THE WASHINGTON POST

Sen. Arlen Specter (D-Pa.) spent hours preparing for yesterday’s questioning.

with a combination of mainstream Republican votes, some union sup- port, black votes in Philadelphia and the backing of women’s organiza- tions, including NARAL, and other abortion-rights voters. This became an increasingly difficult feat to pull off, and the moment he realized it would no longer work, facing a tough primary fight from the right, Specter called his old buddies Ed Rendell and Joe Biden this spring and accepted their longtime sugges- tion that he shape-shift back into a Democrat.

When he made his move, he lost his place as ranking Republican on the Judiciary Committee and most of his staff. He would be the most junior member, had Franken (D- Minn.) not come along last week. While he stormed through his ques- tioning yesterday, only six other pan- el members were even in the room. While his fellow Democrats have divvied up their tasks — one asked about Sotomayor’s prosecutorial days, another covered her role as a commercial litigator — no one tried to rein in Specter.

“No, no one said anything to me,” he said, with some satisfaction. His eyes brightened. “And I have more questions for her tomorrow.” Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66
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