Sotomayor Dodges Abortion Questions

Supreme Court nominee Sonia Sotomayor testifies on Capitol Hill in Washington, Wednesday July 15, 2009, before the Senate Judiciary Committee. (AP Photo/Charles Dharapak)
AP Photo/Charles Dharapak
Updated 5:17 p.m. ET

Supreme Court nominee Sonia Sotomayor declined repeatedly at Senate confirmation hearings Wednesday to talk about her views on abortion rights, and said President Obama never asked her about the issue before he chose her for the bench.

"I can't answer ... because I can't look at it in the abstract," she told Republican Sen. Tom Coburn as he sought to draw her out with questions about hypothetical cases.

Even if she knew more about the specifics of a case, she added, "I probably couldn't opine because I'm sure that situation might well arise before the court."

"Would you think that Roe might be a super-duper precedent?" probed Sen. Arlen Specter, D-Pa, pointing out that the landmark 1973 case that established the right to an abortion has been upheld in 38 cases. She did not answer directly, saying instead it was a settled precedent, a phrase she first used on Tuesday.

Coburn also asked whether technological improvements that help premature babies survive might "have any bearing on how we look at Roe v. Wade," the 1973 court ruling that first established abortion rights.

"I can't answer that in the abstract," Sotomayor said. "The question as it would it come before me wouldn't be in the way that you form it as a citizen, it would come to me as a judge."

Earlier, Sen. John Cornyn, R-Texas, asked about a published report that administration officials had sought to elicit her views on abortion.

"I was asked no question by anyone including the president about my views on any specific legal issue," she said.

Cornyn specifically queried the judge about quotes in the news from George Pavia, a senior partner at the private firm Pavia & Harcourt, where Sotomayor as an associate and then partner from 1984 to 1992. Pavia said support for abortion rights would be in line with Sotomayor's "generally liberal instincts."

"I never spoke to him on my views on abortion," Sotomayor said in response. "I have no idea why he's drawing that conclusion."

She said all of her legal decisions pertaining to abortion issues were ruled according to the law. She pointed out that she upheld the "Mexico City policy," which prohibited foreign organizations receiving U.S. funds from performing or supporting abortions.

As on Tuesday, Republicans on the Senate Judiciary Committee are using Sotomayor's confirmation hearing to raise doubts about her fairness, while Democrats are portraying the 55-year-old New Yorker as a model jurist.

Sotomayor, tapped as the first Hispanic on the Supreme Court, also sidestepped when asked whether the Second Amendment right to bear arms applies to state laws as well as the federal government.

And she avoided being drawn into a discussion about Congress' authority under the Constitution to regulate financial markets.

Her reticence reflected a traditional concern among high court nominees about straying into areas where they may soon have to rule - gun rights and abortion among them in Sotomayor's case.

But it also appeared to reflect a calculation by Sotomayor and administration officials in charge of shepherding her nomination that she was well on her way toward confirmation and thus had nothing to gain by providing detailed answers that her critics could use.

"She took their best shots and at the end of two days was left standing, or left sitting anyway, leaving many of the senators of both parties frustrated with her failure or refusal to answer substantively on legitimate questions," said CBS News chief legal analyst Andrew Cohen. "But we learned from Roberts and Alito and Ginsburg and Breyer that that's the pass to confirmation." (Read more.)

The Judiciary Committee hearings are expected to conclude Thursday.

A vote by the full Senate to confirm Sotomayor is expected in early August, allowing her to don the robes of a justice before a scheduled hearing on Sept. 9 on a case involving federal campaign finance law.

Obama nominated her to succeed retired Justice David Souter. Because Souter generally sided with justices who favor abortion rights and affirmative action, her confirmation is not expected to alter the court's balance.

The cavernous Senate hearing room was filled for the third straight day, and tourists waited in line outside for their few moments as witnesses to history.

Inside, the audience included a small group of New Haven, Conn., firefighters, including Frank Ricci, whose reverse discrimination claim was rejected by Sotomayor's appeals court panel. The Supreme Court subsequently reversed that panel's ruling.

Though there was little suspense about the ultimate outcome of the confirmation hearings, senators still pressed Sotomayor closely in their 30-minute turns questioning her about her rulings and her views.

There also were periodic references to baseball - Sotomayor is a Yankees' fan - as well as other light moments.

Coburn observed at one point that the 55-year-old appeals court judge would have "lots of splainin" to do if she were to get a gun and shoot him - words that evoked memories of the 1950s TV show "I Love Lucy" featuring a Cuban-American bandleader and his madcap wife.

Sotomayor had just spoken humorously and hypothetically about doing just that, part of a response to a question about the constitutional right to self-defense.

Under questioning Tuesday, Sotomayor tried to take away one line of Republican attack when she distanced herself from the man who nominated her, President Barack Obama.

Asked whether she shared Mr. Obama's view - stated when he was a senator - that in some cases, the key determinant is "what is in the judge's heart," Sotomayor said she does not.

"I wouldn't approach the issue of judging in the way the president does," she said. "Judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law."

Time and again, she put her record on display to answer charges of bias.

Sotomayor backed away from perhaps the most damaging words that had been brought up since Mr. Obama nominated her seven weeks ago - a comment she made on several occasions suggesting that a "wise Latina" judge would usually reach better conclusions than a white man. She called the remark "a rhetorical flourish that fell flat."

"It was bad because it left an impression that I believed that life experiences commanded a result in a case, but that's clearly not what I do as a judge," Sotomayor said.

Republicans were not satisfied with her answers.

Sen. Lindsey Graham, R-S.C., said he could end up voting for Sotomayor but wants to make sure she is the judge with what he called a moderately liberal record, not a liberal activist.

"That's what we're trying to figure out - who are we getting here?" he said.

Despite the Republican attacks, Cohen says, "you get the sense that even they don't really have a ton of ammunition to use against her - remember she was twice confirmed by this same Committee in the 1990s."

More coverage of the Sotomayor confirmation hearings:

Live Video and Analysis

Senator Loves Lucy, Evokes Ricky Ricardo

Sotomayor Defends Speeches

Sotomayor Pressed on Gun Rights

Sotomayor Goes to Rope-a-Dope Strategy

Republicans Aren't Sold on "Wise Latina" Explanation

Analysis: Sotomayor Has Been Very Cautious

Sotomayor: Abortion Law Is "Settled"

Sotomayor Promises "Fidelity to the Law"