Sotomayor stands up to GOP grilling

Supreme Court nominee Sonia Sotomayor proclaimed Tuesday that she would not let ethnic or gender biases influence her decisions on the court, during a grueling round of questioning from skeptical Republicans who vowed to pursue their tough examination of her record today.

After watching Sotomayor fend off their best questions, opposing senators on the Judiciary Committee all but conceded that her confirmation was certain.

The appellate court judge backed away from her “wise Latina” speeches and the suggestion that ethnic identity might sway her decisions. “Our life experiences do permit us to see some facts and understand them more easily than others,” she said. But the “law is what commands the result,” she noted.

Otherwise she held her ground, explaining some of her controversial decisions -- like those on gun rights and employment discrimination -- as having been dictated by precedent, and refusing to take a stand on other issues, like abortion or property rights.

Some of the most riveting exchanges came when Sen. Lindsey Graham (R-S.C.) questioned Sotomayor in the afternoon.

“Now, let’s talk about you. I like you,” he said, to laughter from the audience. He then read anonymous comments from lawyers in New York who called Sotomayor overly “aggressive” and a “terror on the bench.”

Looking a bit chastened, the judge explained that she liked to ask questions as a way to help lawyers and herself. “It’s to give them an opportunity to explain their positions . . . and to persuade me that they’re right,” she said.

Graham also pressed Sotomayor to defend the Puerto Rican Legal Defense and Education Fund, which in legal briefs had argued in favor of taxpayer-funded abortions for low-income women.

“I wasn’t aware of what was said in those briefs,” Sotomayor said.

She emphasized that she had been a board member, not a lawyer for the group, and noted that she “never reviewed those briefs.”

Graham said he planned to revisit the issue in another round of questions today.

Sen. Jon Kyl (R-Ariz.) asked whether Sotomayor would agree with President Obama’s statement that suggested there was space in judicial decision-making for “empathy” for certain disadvantaged groups. But Sotomayor flatly rejected that approach.

“We apply law to facts,” Sotomayor said. “We don’t apply feelings.”

But then Kyl, a lawyer, read aloud several passages from a speech Sotomayor delivered at Seton Hall University in 2003. “ ‘To judge is an exercise of power,’ and . . . ‘There is no objective stance. . . . No neutrality. No escape from choice,’ ” Kyl quoted Sotomayor as saying.

Sotomayor’s response was plain. “I have a record for 17 years, decision after decision, decision after decision,” she said. “It is very clear that I don’t base my judgments on my personal experiences or my feelings or my biases. All of my decisions show my respect for the rule of law.”

Sotomayor also kept her cool as one of her sharpest critics, Sen. Jeff Sessions (R-Ala.), pressed her on the statement she made to a group of students at Duke University that appellate court judges make policy.

It’s “the job of Congress to decide what policy should be for society,” Sotomayor said. “. . . I was focusing on what district court judges do and what circuit court judges do.”

“If my speech is heard outside the minute and a half that YouTube presents . . . it is very clear that I was talking about the policy ramifications of precedent.”

Sessions was not buying it. “Judge . . . I don’t think it’s that clear,” he said.

Sotomayor’s performance as a witness has resembled that of Justice Samuel A. Alito Jr. in 2006. Both have long records as appellate judges, and when pressed they could patiently explain the bases for their past rulings without voicing broad views on the law.

Where Chief Justice John G. Roberts Jr. dazzled the Judiciary Committee in 2005 with his deft command of the law, Alito succeeded, and now Sotomayor appears to be as well, by proving they are smart, careful and capable, if not flashy.

Like Alito, Sotomayor has the advantage of a partisan majority in her favor, meaning that she can win confirmation without winning over opposition lawmakers.

Sen. Dianne Feinstein (D-Calif.) gave Sotomayor high marks for her judicial manner. “If there’s a test for judicial temperament, you pass it with an A-plus-plus,” she said.

But conservatives said Sotomayor had failed to answer her critics.

“She was really backpedaling as fast as she could on a lot of what she said in her speech, particularly the themes in her ‘wise Latina’ speech. This is a classic confirmation conversion,” said Roger Clegg, a former Reagan administration lawyer and president of the Center for Equal Opportunity.

Sotomayor sought to explain two of her rulings that drew sharp criticism from conservatives.

On the Ricci case involving white firefighters from Connecticut, Sotomayor said she followed the legal precedent that protected employers who feared being sued by minorities over a discriminatory promotion test. After the New Haven Fire Department gave a promotional test in 2003 that determined no blacks would be promoted, the city scrapped the results.

The Supreme Court disagreed last month in a 5-4 decision, and said the city did not have a “strong basis” for fearing a lawsuit.

Sotomayor also said she was following a high court precedent earlier this year when she and other judges on the U.S. 2nd Circuit Court of Appeals rejected a 2nd Amendment challenge to a New York law involving chukka sticks, a weapon often used by gang members.

Sotomayor’s court, like the U.S. 7th Circuit Court of Appeals in Chicago, said this year that the Supreme Court would have to decide whether the 2nd Amendment’s right to bear arms restricts state and municipal laws.

Eleven of the 19 members of the Judiciary Committee had time to ask questions Tuesday. The other eight will be heard from today. Then the committee will begin a second round of questioning.

The committee chairman, Sen. Patrick J. Leahy (D-Vt.), said he hoped to have the questioning finished Thursday.

--

david.savage@latimes.com

joliphant@latimes.com

--

(BEGIN TEXT OF INFOBOX)

In her

own words

On the second day of her confirmation hearing, Judge Sonia Sotomayor was asked about her views on a range of subjects. Some of her responses:

On the ‘wise Latina’ comment

“I want to state up front, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences.”

On a judge’s role

“I prefer to describe what judges do, like umpires, is to be impartial and bring an open mind to every case before them. And by an open mind, I mean a judge who looks at the facts of each case, listens and understands the arguments of the parties, and applies the law as the law commands.”

On personal prejudices

“I have a record for 17 years. Decision after decision, decision after decision. It is very clear that I don’t base my judgments on my personal experiences or my feelings or my biases.”

On affirmative action

“The Constitution promotes and requires the equal protection of law of all citizens in its 14th Amendment. To ensure that protection, there are situations in which race in some form must be considered; the courts have recognized that.”

On property rights

“I understand the concern that many citizens have expressed about whether [Kelo vs. City of New London] did or did not honor the importance of property rights, but the question in Kelo was a complicated one about what constituted public use. And there, the court held that a taking to develop an economically blighted area was appropriate.”

On the 2nd Amendment

“I understand how important the right to bear arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA. And I have friends who hunt.”

On abortion

“The court’s decision in Planned Parenthood vs. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled.”

On the New Haven, Conn., firefighters

“This was not a quota case; this was not an affirmative action case. This was a challenge to a test that everybody agreed had a very wide difference between the pass rate of a variety of different groups.”

On national security

“There is, in all of these cases, a balance and deference that’s needed to be given to the executive and to Congress in certain situations, but we [the U.S. 2nd Circuit Court of Appeals] are a court that protects the Constitution and the rights of individuals under it, and we must ensure and act with caution whenever reviewing a claim before us.”

On foreign law

“American law does not permit the use of foreign law or international law to interpret the Constitution. That’s a given. . . . There is no debate on that question; there’s no issue about that question.”