Supreme Court nominee Sonia Sotomayor defended her role in the New Haven firefighters case on the second day of her confirmation hearing against sharp criticism from Republican senators of the substance and the procedure of the decision.
Sotomayor said her vote as a member of an appeals court panel to reject the reverse discrimination suit by white firefighters was dictated by precedent. She also defended the three-judge panel’s decision to adopt the lower court’s opinion without an opinion of its own as in line with judicial procedure.
“We were following precedent,” Sotomayor said of the appeals court ruling under friendly questioning from Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. Sotomayor said the city faced potential liability under civil rights law because African American firefighters on a promotions exam than white applicants. “The panel concluded that the city’s decision in that particular situation was lawful under established law,” she explained.
Sotomayor said the panel decided to adopt what she called the “very thoughtful, very thorough” 78-page district court opinion in the case instead of writing its own opinion. The Supreme Court later decided to review the decision and just last month reversed it in a 5-4 ruling, Ricci v. DeStefano, that found the city’s decision to scrap the results of the test violated the federal job discrimination law, Title VII.
Republican senators Jeff Sessions of Alabama and Orrin Hatch of Utah were both critical of the panel’s handling of the case as they got turns to question Sotomayor. “It did not discuss the serious legal issues that the case did raise,” said Sessions, the committee’s ranking GOP member.
“Even the district court recognized that this was an unusual case,” said Hatch, a former Judiciary Committee chairman. “One of the questions I had is why did your own panel not do its own analysis?”
Both senators also rejected Sotomayor’s claim that the appeals court was bound by precedent in its ruling. “I just can’t understand the claim that you were just sticking to longstanding clear precedent,” Hatch said.
In his questioning, Leahy elicited Sotomayor’s agreement that she would now be bound by the Supreme Court’s ruling in the case. “That is now the statement from the Supreme Court on how employers and the courts should address that situation,” Sotomayor said. During a break, Leahy told reporters he was satisfied with Sotomayor’s answers on the topic.
Along with the firefighters case, Sotomayor’s past speeches discussing the role of ethnicity and gender in judicial decision-making predictably emerged as the major points of contention between Democratic and Republican senators in three hours of questioning before a lunchtime break. Leahy again guided Sotomayor at the outset into answering criticism of her nomination by asking her to explain her remark that a “wise Latina judge” may “often” make a better decision than a white male judge.
“The words … have created a misunderstanding,” Sotomayor said. “I want to state up front unequivocally and without doubt that I do not believe that any racial, ethnic, or gender group has an advantage in sound judgment.”
Sessions, however, stuck to the criticism of Sotomayor’s past remarks that he and other Republicans have raised since President Obama nominated Sotomayor for the courft in late May. ” What you’re saying today is quite inconsistent” with past statements, Sessions said. Outside the hearing, Leahy questioned the focus on Sotomayor’s speeches. “I’m more concerned with what she’ll do as a judge,” he said.
Sen. Jon Kyl, R-Ariz., returned to the “wise Latina” speech in the afternoon, pointedly questioning Sotomayor’s characterization of her remarks as rejecting any influence of gender or ethnicity on judicial decision-making. “You seemed to be celebrating this,” Kyl said after quoting from the speech.
Sotomayor cited her record in response. “It is very clear,” she said, “that I don’t base my judgments on my personal views, my experiences, or my feelings or my biases.”
In another tense exchange, Sen. Lindsey Graham, R-S.C., read sharply critical evaluations of Sotomayor’s temperament published in the Almanac of the Federal Judiciary. After citing such comments as “terror on the bench” and “abuses lawyers,” Graham said the evaluations differed from those of Sotomayor’s colleagues on the Second Circuit Court of Appeals. “You stand out like a sore thumb,” Graham said.
Asked directly whether she has a temperament problem, Sotomayor replied firmly, “No, sir.” She added, “I believe my reputation is such that I ask the hard questions, but I do it evenly on both sides.”
Sotomayor fended off questions about her role as a board member of the group now known as LatinoJustice PRDLEF by saying she did not directly participate in a case seeking Medicaid funding of abortions and minimizing her part in the group’s opposition to reinstatement of the death penalty in New York. She also followed the path of other recent Supreme Court nominees in avoiding direct answers on legal issues event though she acknowledged at one point that the practice “must be unsatisfying” to senators.
At the end of the day, Kyl called Sotomayor’s answers about her past speeches “unsatisfying” and also accused her of misleading answers about the firefighters case and about her views on the use of foreign or international law in decisions. “There’s a lot more that she needs to address on these subjects,” he said.
In his wrap-up, Leahy disagreed. “I did not hear anything that she did not answer and answer thoroughly,” he told reporters. The hearing resumes at 9:30 Wednesday morning.
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