Supreme Court nominee Sonia Sotomayor now appears assured of confirmation by early August after surviving four days of Senate hearings with her qualifications acknowledged, her judicial record mostly unscathed and her personal character complimented even by Republican critics.
The Democratic-controlled Judiciary Committee scheduled a meeting on Sotomayor’s confirmation for Tuesday (July 21) some seven hours after the panel’s ranking Republican, Alabama’s Jeff Sessions, declared he would oppose any delaying tactics by the GOP and hoped for a floor vote before the Senate breaks for its August recess. Republicans may still ask for a week's delay in the committee vote, however, to allow time to review Sotomayor's written answers to questions submitted during the hearing.
With Democrats holding a 60-vote majority, Sotomayor’s confirmation has been a foregone conclusion almost since Obama chose her in late May to succeed retiring Justice David H. Souter. But Sessions’ assurance now means that Sotomayor will join the court in time for the Sept. 9 reargument of an important campaign finance case testing the constitutionality of laws restricting corporate and union expenditures on political campaigns.
Sotomayor ended more than 15 hours on the witness stand around 1 o’clock on Thursday after gaining qualified endorsements of her judicial record from two GOP senators. South Carolina’s Lindsey Graham and Texas’s John Cornyn both repeated criticisms of Sotomayor’s speeches discussing the role of race and gender in judicial decision-making, but expressly stepped away from any broad criticism of her record in 17 years on the bench, including the past decade on the Second U.S. Circuit Court of Appeals.
“Your record as a judge has not been radical,” Graham said. Later, he added, “You have as a judge been generally in the mainstream.” In his turn, Cornyn also described Sotomayor’s opinions as “mainstream.”
To a man, the committee’s seven Republicans also had nothing but praise for Sotomayor’s patience and self-control under their generally critical questioning on, among other issues, unfavorable evaluations of her temperament on the bench.
Only once did Sotomayor appear visibly to be disturbed by a question. The exchange came on Thursday when Sessions asked whether she had displayed “a lack of courage” in ruling on the New Haven firefighters’ reverse discrimination suit in a summary decision without a full written opinion by the three-judge panel.
“No, I didn’t show a lack of courage,” Sotomayor said, her voice firm and her visage stern. She called the appeals court’s decision, a one-paragraph adoption of the district court’s opinion, “a thorough, complete discussion” and then repeated: “No, I did not lack courage.”
After Sotomayor ended her testimony and left the hearing room, two of the plaintiffs in the case, Ricci v. DeStefano, criticized the appeals court’s decision as well as the procedure. Ben Vargas, the only Hispanic among the 18 white plaintiffs, said the group was “devastated” by the one-paragraph decision.
The firefighters went to court after the civil service board scrapped the results of a promotions exam because no African Americans scored high enough to qualify for immediate appointments. The suit, Frank Ricci explained, was aimed at ensuring “our right to advance in our profession based on merit regardless of race.”
The Supreme Court sustained the firefighters’ suit in a 5-4 decision on June 29. Sotomayor repeatedly told senators the appeals court’s decision was dictated by Second Circuit precedent. Republican senators continued on Thursday to challenge the point.
GOP senators also tried again, but again without success, to press Sotomayor for more specific views on abortion, gun rights and gay marriage. But Sotomayor was more emphatic than she had been on Wednesday in promising that she has an open mind on two of those issues, gun rights and gay marriage, that are likely to come before the Supreme Court in the near future.
The court is currently being asked to review a decision by the Seventh Circuit Court of Appeals that declined to apply the Second Amendment to state and local gun control laws. The Supreme Court’s 2008 decision in District of Columbia v. Heller recognized an individual right to possession of a handgun in the home, but the ruling applied only to the federal government.
Sotomayor joined a Second Circuit ruling that, like the Seventh Circuit in a Chicago case, said the issue of “incorporating” the Second Amendment right to the states was for the high court to decide. Despite the ruling, Sotomayor said she has “a completely open mind” on the question. “I understand the importance of the right,” she added, “and all I can say is I keep an open mind on the incorporation doctrine.”
Sotomayor gave similar assurance when asked about recognizing a constitutional right to marriage for same-sex couples. “I would come to that issue with a completely open mind,” she said.
More than 30 public witnesses testified before the panel, quickly marched through the paces over less than seven hours with only a few senators present at any time. The leadoff witness was Mary Boies, representing the American Bar Association’s Standing Committee on the Federal Judiciary, which voted unanimously to rate Sotomayor as “well qualified” for the Supreme Court. The committee said it found no substance to criticisms of her temperament and dismissed criticism of her opinions as “lengthy” and “less than imaginative” as focused on “writing style, not substance.”
Among other witnesses, representatives of minority bar groups, traditional civil rights organizations, and law enforcement praised Sotomayor. Critics included gun rights and victim rights advocates, an anti-abortion leader, and several opponents of racial preferences.