GOP Unable to Pin Sotomayor Down

Washington Post Analysis: Supreme Court Nominee Evades Republican Attempts to Define Her as a Liberal Activist

(Washington Post)  This story was written by Robert Barnes.

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Sen. Lindsey O. Graham (R-S.C.) tried to place Supreme Court nominee Sonia Sotomayor in some school of constitutional interpretation. 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 justice, Sotomayor declined.

"I don't use labels to describe what I do," she said.

And the problem for the outnumbered Republicans on the Senate 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 Sotomayor would protect.

When Republicans complained about President Obama's "empathy" standard, she agreed, and politely 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 reconcile 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 questions about the handful of cases Republicans have highlighted, and Sotomayor's sometimes evasive responses, have made the decisions seem more like close calls than the judicial activism Republicans say they represent.

Sotomayor's role in Ricci v. DeStefano would seem to offer the best opportunity for Republicans. Polls have shown that the public finds it unfair that city officials in New Haven, Conn., threw out the promotions 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 because of their fear that they would be sued by the black firefighters under federal law. The Supreme Court recently reviewed the decision and voted 5 to 4 to reverse it.

The action by the panel on which Sotomayor served -- a one-paragraph order affirming a lower court's decision -- seems curiously scant in light of the issues raised in the case.

But the Republicans' repeated return to the case -- often raising legalistic points about disparate impact 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 majority 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 individual's right to own a firearm -- applies only to the federal government, not to states and cities that might want to restrict gun ownership.

Republicans on the committee have tried their best to inflate the importance of the decision, which involved New York's ban of a martial 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 Sotomayor yesterday.

"I'm not familiar enough with the regulations in all 50 states to know whether there's an absolute prohibition 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 applied to the states, and has allowed Sotomayor to note that conservative 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 Supreme Court, by the 2nd Circuit Court of Appeals, by the Congress or by our state legislature that's going to change one way or another the ownership that I have of the guns I now have."

More coverage of the Sotomayor confirmation hearings:

Live Video of the Hearings

Sotomayor Dodges Gun Rights Questions

Sotomayor Still Standing After Two Days

Sotomayor Pressed on Gun Rights

Republicans Aren't Sold on "Wise Latina" Explanation

Sotomayor Goes to Rope-a-Dope Strategy

Analysis: Sotomayor Has Been Very Cautious

Sotomayor: Abortion Law Is "Settled"

Sotomayor Promises "Fidelity to the Law"

[red-roses]

Still, judge Sotoymayor is a vast improvement to the always-disgusting Clarence (pubic hair on coke can and long dong silver) Thomas. bye

[mjlewis6]

If there was anything wrong with SotoMayor, I am sure the Minority Party would gladly substitute Sotomayor's 17 years Judicial Experience on the Federal Appellate Bench with the qualifications of Bush's personal attorney, Harriet Meiers, ZERO years of experience on the Federal Bench ....and Meiers' unwillingness to come before the Senate bordering on Contempt Charges being filed on other matters as......GREAT QUALIFICATIONS.

The Republican model is based upon WHO you know rather than WHAT you know and your experience...Anyone remember the Bush appointee of FEMA who did such a great job on preparation and recovery following Hurricane KATRINA hitting New Orleans?????

[rewrite31]

Look at her dismeaner, she's sitting therelaughing at everyone knowing full well that she will be pushed into the Supreme Court. That will be anther Big Mistake. But, the Supreme Court is already bought and paid for when Obama met with Justice Roberts in his Chambers the day before the Inaugaration. Thanks to George Soros and the $ !B dollars that Soros was willing to spend to Own OUR Government

[brianbwb-2009]

As it has been for every other president who has ever appointed a justice, so you may as well accept it, because there isn't anything you are going to do about it.

[earlysaid]

She has shown how intelligent she is, and how ignorant the republicans acted with their words and tone of voice. Judge Sotomayer has more experience than any of the republican jokers who acted like morons over things she said in speeches. Nothing could be criticised for her 17 years of work as a judge and prosecutor.

[earlysaid]

The Supreme Court has five republicans who have never been fair and have never wavered from their republican thinking. They have always put their opinions ahead of caring about the laws of this land. That will not change until we have more honest people like Judge Sotomayer on the Supreme Court.

[CommonSense4Liberty]

just taking Ricci v. New Haven and 'wise latina statement' alone, justice is not blind. Sotomayer definitely uses personal expierences and "empathy" when considering decisions on the court. There is no reason for it. Common sense says read the law as it is. If someone breaks it, there will be consequences. Race, gender should have nothing to do with a decision. If it's right it's right. If it's wrong it's wrong. Simple. Why not start here to clean up the courts. Get the best justices there are. Just weed out the bad ones.

[brianbwb-2009]

Had the SC been so inclined to read the law as written, Bush would never have become president, our children would never have wasted their lives in Iraq, and we would be some 4 trillion less indebted to China, but hey, them's the breaks...

[im_watching]

HEY !!
WHITE GUYS NEED Affirmative Action !!
Right Mr Ricci ??
The 'Poster Boy' for 'Reverse Racism' (sic) got HIS JOB through set asides !!!!
Just another Dumb White guy with a chip on his shoulder and a deep sense of ENTITLEMENT
'...Ricci originally got his job on the New Haven force through his own discrimination complaint under the Americans with Disabilities Act. He claimed he was denied employment on the basis of his dyslexia...'

OH ! THAT test ?
THAT Test was BIASED Against the Dyslexic !!
I DEMAND a PASSING SCORE !!

He has sued and wants it both ways

THAT test is INVALID because I DIDN'T PASS

THIS TEST is Valid Because I DID PASS !!

[brianbwb-2009]

But we just had a dyslexic president, who couldn't even say nuclear correctly, and even worse, was also only semi literate, and there was a recent VP candidate who also showed signs of mental impairment, who said she read newspapers, but couldn't remember the names of them, so that shouldn't have disqualified him.

[gunownerdan]

"The principle of self-defense, even involving weapons and bloodshed, has never been condemned, even by Gandhi..."
- Martin Luther King, Jr.

Self Defense...
A-HUMAN-RIGHT . com

[beaumuff]

if white guys are so dumb you would not be eating lunch or typing on your keyboard right now. You would be pounding your message out on a rock with a chisel.

[brianbwb-2009]

To beaumuff

Your assumption is incorrect, the binary numerical system used in computing was invented by the Chinese, the algorithms used to calculate mathematics were developed by Arabs, and the decimal numbers used to represent data were developed by the Hindus, and the Arabs. Even your LCD monitor was developed by Japanese. The letters you see evolved from Sanskrit, which was born in Africa, and the words you type evolved from the same source.

All the "white" folks did was to put the label "Mac" or PC on it, and charge you to "own" it, not so smart after all.

[carlyt1]

Cornyn "or will you pursue a -- some other agenda, personal, political, ideological, that is something other than enforcing the law?"
the Republicans would do well to let it go. she will be confirmed and it could only hurt them to keep re-hashing the same things. There is a related post at http://iamsoannoyed.com/?page_id=588