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Firefighters Case A "Red Hot" Issue For Sotomayor

Arizona Senator Jon Kyl, a Republican member of the Judiciary Committee, told Bob Schieffer that the New Haven firefighter case is a "red hot issue" in the confirmation of Supreme Court nominee Sonia Sotomayor, and the most telling element will be if the high court reverses Sotomayor's ruling.

Not just the decision will be looked at, Kyl said, but also "the basis for the decision."

The case of the white firefighters denied a promotion because no African American firefighters passed the same test administered by New Haven, Conn., will be front and center in Sotomayor's confirmation hearings.

When reviewing the case, Sotomayor allowed the ruling to stand.

"Part of the criticism of her in that case was that the initial decision was not explained in any way, but that it begged an explanation," Kyl said.

The Republican senator said part of the committee's job is to dissect her reasoning in the decision.

Senator Dianne Feinstein, D-Calif., argued that the appellate court accepted the long decision offered by the district court in rejecting the test, and that no further explanation was needed.

On the issue of whether judges should make policy or not, Feinstein admitted that the "traditional rejoinder is that judges do not make policy."

However, she believes, as viewed through her 16 years' experience on the Judiciary Committee, "That's not true. If there is no precedent, judges do make policy. If there is no precedent, an appellate court judge will, in effect, by their opinion make policy. The Supreme Court will have a case shortly on a youngster that was strip-searched by a teacher because that youngster had Ibuprofen on them. Now, there's no precedent. The Supreme Court will be making policy in that regard. So I think that has to be clearly understood by people."

More from Face The Nation (5.31.09):

  • Senators On Sotomayor And Racism
  • Political Theater In Critics v. Sotomayor
  • Schieffer: Back On Planet Earth
  • Read The Complete Transcript> (pdf)

    To watch Jon Kyl and Dianne Feinstein discuss the Sotomayor nomination click on the video player below.