Sotomayor Says Identity Won’t Distort Her Decisions

By MARIA NEWMAN
Published: July 12, 2009
Published: July 14, 2009
WASHINGTON — Judge Sonia Sotomayor insisted on Tuesday, in the face of sometimes skeptical questioning from Republicans, that she would never allow her background or life experiences to determine the outcome of a case if she were elevated to the Supreme Court.

Times Topics: Sonia Sotomayor

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“It’s not a question of choosing to see some facts or another,
senator,” Judge Sotomayor told Jeff Sessions of Alabama, the ranking minority member on the Senate Judiciary Committee, who
made it clear he was not persuaded that the nominee would adhere to the law as strictly as she has pledged.

“We’re not robots,” the judge said at one point, as she described judges’ personal backgrounds as sources to enrich the law rather than warp it. But she did not walk that semantic tightrope nimbly enough for Mr. Sessions, as he made clear repeatedly, despite his courtly courtesy.

Later, under sharp questioning from Senator Jon Kyl of Arizona, the Republican whip, Judge Sotomayor tried to counter accusations from her detractors that she is an “activist judge” who might indulge in policy-making and decide issues by relying on sentiment rather than law and logic if put on the high court.

“Congress makes the law,” she said. “It’s up to the judge to apply the law.” At another point, she said, “We apply laws to facts; we don’t apply feelings to facts.”

The judge was led into her day-long question-answer session by friendly queries from the committee chairman, Senator Patrick J. Leahy, Democrat of Vermont, who tried to deflate Republican arguments in advance by giving the nominee a chance to explain some of her controversial rulings and comments, including the now-famous remark that “a wise Latina woman” might see a case in a different light from a jurist of a different gender or ethnic background.

“No words I’ve ever written or spoken have received so much attention,” the judge said, with a slightly nervous laugh. At another point, she observed that she might have been guilty of “a rhetorical flourish” that “fell flat.” But some Republicans say Judge Sotomayor has used such language far more often than she acknowledges.

Repeatedly, Judge Sotomayor sought to persuade the panel that her past, rather than determining how she rules on cases, makes her more perceptive in sorting out the issues. “The process of judging is the process of keeping an open mind,” she said, explaining that her philosophy is to examine issues “case by case, applying the law as it exists.”

“I think the system is strengthened when judges don’t assume they’re impartial,” she said.

But Senator Sessions said he feared that Judge Sotomayor would let her background determine how she rules, and that she has displayed “a body of thought over the years that causes us difficulty.”

No, the judge said. She pledged that “at no point nor time” would she let her background affect how she rules. Life experiences are important in perceiving facts, she said, “but the law commands a result.”

The judge sought to dispel any notion that she dealt too perfunctorily, in her role as a member of the United States Court of Appeals for the Second Circuit, with the New Haven firefighters’ case, in which the city threw out the results of a promotional exam because black candidates did not fare well.

The case was “not a quota case, not an affirmative action case,” she said, but rather focused on possible defects in the test. The Second Circuit decided the case, although in a very short ruling, based on “a very thorough” 78-page decision by a district court, the judge said, adding that now that the Supreme Court has ruled in favor of white and Hispanic firefighters who challenged the city’s decision she, of course, would be bound by that decision.

But Senator Orrin G. Hatch, Republican of Utah, was not satisfied with that explanation and wondered, without asking a direct question, why the judge had relied on the district court’s decision “rather than doing your own analysis of the issues.”

Trying to counter suggestions from some Republicans that she is an “activist judge,” Judge Sotomayor said she does not see appeals courts as policy makers, despite once observing that “the court of appeals is where policy is made.” What she meant, she explained, is that appellate judges establish legal precedent, and “precedent has policy ramifications,” binding litigants in similar cases.

Senator Dianne Feinstein, Democrat of California, came to the nominee’s defense, asserting that an objective study of her record should convince people that “she is anything but” an activist judge. Judge Sotomayor, who often took notes as she was being questioned, responded in abstractions or careful legalese when she was asked about some of the most emotional issues that have come before the high court in recent years.

For instance, when Senator Russell D. Feingold, Democrat of Wisconsin, asked her if there were any major policy decisions that she thought the country would look back on “50 or 60 years from now with regret,” she refused to be pinned down at first.

“History permits us to look back,” she said.

But Mr. Feingold, a harsh critic of former President George W. Bush, pressed on, asking the judge if she agreed that there had been constitutional flaws with some of the Bush administration’s anti-terrorism policies, as reflected in a series of Supreme Court decisions.

“Yes,” the judge said finally.

Similarly, when she was asked by Senator Charles E. Grassley, Republican of Iowa, if she thought the Supreme Court went too far in its 2005 decision in Kelo v. New London, authorizing local government to acquire private property for business development, she replied indirectly, noting at one point that some legislatures have enacted laws to prevent what happened in New London. As for the Supreme Court’s 5-to-4 ruling in Kelo, she said, “It is the court’s holding,” and thus entitled to deference.

And she replied carefully after being asked by Senator Herb Kohl, Democrat of Wisconsin, if she believed that Roe v. Wade, the 1973 Supreme Court decision establishing a woman’s right to choose abortion, was “settled law.”

“The court’s decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe,” she replied, referring to the 1992 ruling in a Pennsylvania case. “That is the precedent of the court and settled, in terms of the holding of the court.”

There was a moment of near-comedy when Judge Sotomayor sought to alleviate any fears that she might not be sympathetic enough to the rights of gun owners. “I have friends who hunt,” she said.

There was a moment of friction between Mr. Leahy and Mr. Sessions, both former prosecutors. When Mr. Sessions went on at some length before letting the nominee respond, Mr. Leahy said sharply, “Was that a question?”

Mr. Sessions said he had to go on at some length because Mr. Leahy had “misrepresented the facts” of a certain case — an assertion Mr. Leahy hotly disputed.

Mr. Sessions has promised to give Judge Sotomayor fair consideration, with his own unpleasant experience in mind. Two decades ago, his nomination for a federal district judgeship was derailed amid accusations that he had been insensitive on racial issues — accusations that he heatedly denied, and that some black associates also disputed.

Judge Sotomayor would appear to be virtually assured of confirmation, despite the hostility of some Republicans, given the Democrats’ 12-to-7 advantage on the judiciary panel and 60-to-40 majority in the Senate.

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