Judging the judge: Senate committee to question Sotomayor this week

When Judge Sonia Sotomayor goes before a Senate committee this week, she will be pressed to answer a question that has lingered since President Obama nominated her for the Supreme Court.

If given a lifetime appointment, will she be a justice who views the law through a liberal lens shaped by her Latino heritage? Or will she follow her long track record as a moderate judge who sticks to the facts and the law regardless of the outcome?

Despite speeches in which Sotomayor has said that “gender and national origins . . . will make a difference in our judging” and that she hoped a “wise Latina” would “more often than not reach a better conclusion than a white male,” liberal groups and the White House point to analyses of her more than 400 decisions as proof that she is a judge first, not an activist.

As a New York City prosecutor, corporate lawyer, trial judge and appeals court judge, Sotomayor has an “extraordinary record of following, defending and upholding the rule of the law,” Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said.

Many Republicans, however, are not convinced.

They assert that as a justice, Sotomayor probably would follow Obama’s call for “empathy” -- and show it for some litigants more than others. “Whatever this empathy standard is . . . it is more akin to politics than law,” Sen. Jeff Sessions (R-Ala.) said.

With her up-from-the-projects life story, Sotomayor looks to be a sure bet to win confirmation by the Democrat-controlled Senate. If so, she would be the second woman among the nine justices, its third Democratic appointee and its sixth Roman Catholic.

The historic nature of Sotomayor’s nomination -- the Bronx-born child of Puerto Rican parents would be the first Latina to join the high court -- could pose a political problem for Republicans who vote against her. The party lost support among Latino voters during the last presidential election, and two of the seven Republicans on the 19-member Judiciary Committee represent states with large Latino populations: Sens. John Cornyn of Texas and Jon Kyl of Arizona.

Since her nomination May 26, Sotomayor has avoided stumbles -- other than a fall in New York’s LaGuardia Airport that left her with a broken ankle and a cast. She made the rounds of the Senate offices and described her “wise Latina” comment as a verbal misstep.

Her supporters say she was speaking of the virtues of a judge having a diverse set of experiences, not asserting that one ethnic background was superior to another.

Rachel F. Moran, a law professor at UC Irvine, has known Sotomayor since their days as students at Yale Law School. She invited the judge to speak at UC Berkeley in 2001, at a conference on the shortage of Latinos on the bench. It was there that Sotomayor spoke of her hope that a wise Latina would make better decisions as a judge.

“I was caught off guard by all the attention this has received,” Moran said recently. “People are affected by their background and experience. Her claim was not that your individual perspective is better or worse, but that you reach better outcomes when multiple perspectives are represented. That’s why we have nine people [on the Supreme Court] reviewing decisions.”

But Sessions, the ranking Republican on the Judiciary Committee, has linked that speech to Obama’s comment about empathy and Sotomayor’s decision last year to reject a discrimination claim from white firefighters in Connecticut. And the lawmaker has questioned whether Sotomayor would be an impartial judge.

“Empathy is great, perhaps, if you’re the beneficiary of it,” he said in a Senate speech last week. “But it is not good if you are the litigant on the wrong side of the case, if you don’t catch the judge’s fancy, or if you fail to appeal to a shared personal experience.”

Sotomayor has described herself as an “affirmative action baby,” and she has spoken in favor of strict limits on campaign spending. Both stands should put her with the court’s liberal bloc. However, she twice has ruled in favor of using police evidence that was obtained through faulty searches, a stand that could put her with Chief Justice John G. Roberts Jr. and his fellow conservatives.

Law professors who have examined her decisions as a judge say they see few signs that she is a liberal activist.

“I think she will be a moderate liberal who favors narrow decisions, not all that different from [Justices Ruth Bader] Ginsburg or [Stephen G.] Breyer,” said Amanda Frost, a law professor at American University. “Her opinions reveal her to be someone who respects the limits of the judicial role.”

Frost and others predict Sotomayor would prove to be more like moderately liberal David H. Souter, the retiring New Hampshire jurist she would replace, than Justice William J. Brennan, the liberal whom Souter replaced in 1990.

“I think this is someone who will identify herself as a champion of minorities,” said David J. Garrow, a Supreme Court historian. “But it’s not going to be the return of Bill Brennan as a Latino. There’s just no evidence for that.”

Others take a longer view. “There’s a huge difference between being a court of appeals judge who is bound by precedent” and a Supreme Court justice who can rewrite those precedents, said Erwin Chemerinsky, the law dean at UC Irvine.

Harvard law professor Mark Tushnet said that a justice’s first years are not always a good indicator of what could be a 20-year career.

“She’ll start out a cautious, moderately liberal justice,” Tushnet said. “But my guess is that over time, she’ll lose her focus on factual details and start seeing the court as a place where general principles -- ‘policies,’ as she put it -- are articulated. I suspect that as she observes the court’s conservatives incrementally eating away at moderate liberal positions, she [will] become a more outspoken liberal.”

The Senate hearings begin Monday morning, but senators will use up most of the day giving their opening statements. Sotomayor also will give an opening statement, but the questioning is not due to begin until Tuesday.

Leahy and the Democrats hope to confirm Sotomayor before the Senate leaves for its August recess so that she can be on the bench in early September, when the Supreme Court considers the fate of campaign finance laws.

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david.savage@latimes.com

joliphant@tribune.com

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(BEGIN TEXT OF INFOBOX)

The lineup at the hearings

Five judiciary committee senators to watch

Jeff Sessions (R-Ala.)

All eyes will be on the Republican point man and new ranking member. A dyed-in-the-wool Southerner and conservative, he represents the sort of regionalism that has come to define his struggling party.

John Cornyn (R-Texas)

One might expect Cornyn, a former state attorney general, to take the lead in attacking Sotomayor. But Texas has a large Latino population, a group the GOP is trying to woo. He may have to step softly.

Patrick J. Leahy (D-Vt.)

Can the committee chairman meet the White House’s timetable and make sure the nomination reaches the Senate floor for a vote before the August recess -- or will he allow Republicans to stall?

Arlen Specter (D-Pa.)

The five-term senator is passionate about judicial nominations. Always independent and idiosyncratic, will the newly minted Democrat balk at voting lock-step with his party?

Al Franken (D-Minn.)

The Senate’s newest member will have a chance to exhibit his new button-down persona, although he will be the last Democrat to ask questions.

Likely lines of attack

The ‘wise Latina’

Supporters say Sotomayor was only advocating diversity in a 2001 speech, but critics say she suggested a Latina, given her life experience, would make a better judge than a white male.

‘Empathy’

Republicans fear Sotomayor views the law as a means to aid historically disadvantaged groups. Supporters say her record shows restraint in that she prefers narrow rulings that apply existing law.

The Ricci case

Sotomayor was part of a three-judge panel that ruled against white firefighters who claimed that New Haven, Conn., discriminated against them by promoting blacks with lower test scores. The Supreme Court later sided with the firefighters.

The Puerto Rican Legal Defense and Education Fund

Sotomayor was on the board of this advocacy group. Critics say she took an active role in its stances in favor of abortion rights and affirmative action and against the death penalty.

Foreign law

Conservatives take a dim view of judges who look to the law of other nations for guidance on novel legal questions. They worry that Sotomayor is favorably disposed to that end.

Witnesses of note

About 30 witnesses are expected to testify at the hearing. Among them:

Michael R. Bloomberg

Mayor of New York City, where Sotomayor grew up and site of the appeals court on which she serves.

David Cone

The former major league pitcher was a union representative during a baseball strike that Sotomayor helped settle.

Frank Ricci

The lead plaintiff in the white firefighters’ discrimination case against the city of New Haven.

Sandra S. Froman

Ex-president of the National Rifle Assn., which has “serious concerns” about the judge’s view of the 2nd Amendment.

Louis J. Freeh

The former director of the FBI was a New York federal judge at the same time as Sotomayor.

Source: Times reporting