Supreme Court nominee Sonia Sotomayor’s second full day of reaffirming her commitment to objectivity while giving few clues about her views on disputed legal issues drew sharp criticism from Republican senators Wednesday but no complaints from Democrats.
Judiciary Committee Republicans made their sharpest criticism to date of Sotomayor after questioning her again about the “wise Latina” speech and unsuccessfully trying to pin her down on abortion and gun rights. Sen. Jeff Sessions of Alabama, the committee’s ranking Republican, told reporters that the veteran federal judge had been “muddled, confusing, backtracking on issue after issue.”
Sen. John Cornyn, R-Texas, was similarly critical after using most of his allotted time to dissecting the now infamous 2001 campus speech comparing potential decisions by a “wise Latina judge” to those of a white man. “We’re asking about speeches,” Cornyn told reporters, “and we’re not getting very good answers.”
To Cornyn, Sotomayor again backed away from her comments, insisting that they had been misunderstood. “My words failed,” Sotomayor said. “They didn’t work.” She reaffirmed her description of the remark on Tuesday as “a rhetorical flourish that fell flat.”
Both Cornyn and Sen. Tom Coburn, R-Okla., also pressed Sotomayor for views on abortion issues, but got little by way of new information. To Cornyn, Sotomayor denied telling the White House anything about her views on abortion before President Obama nominated her for the high court in late May. “I was asked no questions by anyone including the president about my views on any specific issue,” Sotomayor said.
Cornyn cited a post-nomination Washington Post story describing unidentified White House advisers as assuring advocacy groups that Sotomayor will support abortion rights on the court. The story also quoted a former partner of Sotomayor in private law practice as saying she supports abortion rights.
Sotomayor answered that she had never discussed her personal views about abortion with the colleague. She also noted that she had joined in a ruling to uphold the Bush administration’s so-called “Mexico City” policy, which denied federal funding to groups that provide abortion services overseas.
To Coburn, Sotomayor repeated a summary of the Supreme Court’s Planned Parenthood v. Casey decision as protecting a woman’s “constitutional right to terminate a pregnancy in certain circumstances” with state regulations permitted if they did not impose an “undue burden” on that right. But she declined to give a specific answer to Coburn’s question whether a woman could have an abortion in the 38th week of pregnancy if the fetus was determined to have spinal bifida. “I can’t answer that question in the abstract,” Sotomayor said.
Coburn, an obstetrician, also got no direct answer when he asked whether the definition of viability in abortion decisions should change as technology enables survival of fetuses as early as the twenty-first week of pregnancy. “That’s not a question that a court reaches out to answer,” Sotomayor said.
Sotomayor also declined to give a direct answer to Coburn’s question whether a citizen has a constitutional right to self-defense. And she again defended her part in a recent decision declining to extend the Supreme Court’s gun-rights decision, District of Columbia v. Heller, to state and local governments.
“I was applying both Supreme Court precedent and Second Circuit precedent that has said it’s not incorporated,” Sotomayor said. “It’s not what I believe,” she added. “It’s what the law has said about it.”
Outside the hearing, Sessions said he was “troubled” by the answer. “She flatly stated that [the right to bear arms] is not a fundamental right,” Sessions said.
Later, Sessions also pressed Sotomayor on her role before appointment to the bench as a board member with the group now known as LatinoJustice PRLDEF. For a second day, Sotomayor generally minimized her direct knowledge of the group’s litigation, including one case seeking to compel the state of New York to provide Medicaid funding for abortion for poor women.
Sessions was openly incredulous, telling Sotomayor that it appeared she was “more active than you suggested” in the previous day’s answer. At day’s end, Sessions said, “I remain baffled.”
Under questioning from Republican Charles Grassley of Iowa, Sotomayor cited judicial ethics rules to avoid any answer about same-sex marriage or the constitutionality of the federal Defense of Marriage Act. Grassley pointed to a 1972 Supreme Court decision, Baker v. Nelson, dismissing a same-sex marriage suit for “lack of a substantial federal question.”
When Sotomayor declined to give a view, Grassley noted that the judge had pledged support for precedent on many other issues. “Why are you hedging on this?” he asked. Sotomayor refused to budge.
Democratic senators also got no direct answers on their, friendlier questions, which covered topics ranging from privacy and criminal law to environmental and financial regulation. At the lunch break, committee chairman Patrick Leahy of Vermont acknowledged that his mind was “periodically” drifting as the junior-most of the panel’s 12 Democrats were getting their turn to question Sotomayor.
But Leahy, who has participated in confirmation hearings since Justice John Paul Stevens’ questioning in 1975, forcefully disagreed with the Republican critique of Sotomayor’s testimony. “I can’t think of any woman who has answered more questions in depth,” Leahy said.
The hearing resumes at 9:30 a.m. Thursday. “There are a lot of questions still to be asked,” Sessions told reporters.