Sotomayor Dodges Abortion QuestionsSupreme Court Nominee Maintains That Obama Did Not Ask About Her Abortion Views
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Sotomayor hearing live analysis: Day 3
Sonia Sotomayor continues her testimony Wednesday before the Senate Judiciary Committee
(Win McNamee/Getty Images)
by James Oliphant
We're back at Hart 216 for the third day of the Sotomayor Supreme Court hearings.
Stay here for real time analysis during the day.
(2:30 p.m. ET) Specter pushes for answers on court workload
Sen. Arlen Specter, a newly minted Democrat from Pennsylvania, opened the afternoon session. As he mentioned in his opening statement on Monday, Specter said he wanted to talk about the productivity of the court, which, over the decades, if not the centuries, has seriously reduced the number of cases it hears.
"During his confirmation hearings, Chief Justice Roberts said, quote, 'The court could contribute to the clarity and uniformity of the law by taking more cases.' Judge Sotomayor, do you agree with that statement?"
Sotomayor barely got her answer out: "What Chief Justice Robers is saying is the court needs to think about its processes."
"Judge Sotomayor," Specter interrupted. "What about more cases?"
"I don't like making statements about what the court can do until I've experienced the process."
Specter changed the subject, as he would do often when Sotomayor seemed to indicate she would not be answering a question as fully as he wished.
As a former chairman of the Senate Judiciary Committee, he indicated he was miffed that the Bush administration had not informed him -- as he believed was required by law -- about certain surveillance programs that were disclosed by the New York Times. A federal district court in Detroit, he said, found the terrorist surveillance program unconstitutional, but the Supreme Court refused to take up the case.
"I wrote you letters about this and gave you advance notice that I would ask about this case," said Specter. "I am not asking how you would decide this case, but wouldn't you agree" the Supreme Court should have taken up the case?
Sotomayor tried to placate a clearly irritated elder statesman: "I know it must be very frustrating to you."
"It sure is," interjected Specter. "I was the chairman who wasn't notified."
"I can understand your frustration," said Sotomayor, but she said she wouldn't answer his question because it's an issue that could come before her as a Supreme Court justice. "I am not asking you to prejudge," said Specter. "I am asking you what your standards are for taking a case. How can it possibly be justified not to take that case?"
She did mull over the issue, said Sotomayor, but ...
"I can tell you are not gonna answer, so let me move on."
-- Robin Abcarian, Los Angeles Times
(2:15) Specter tries to defuse "Wise Latina" controversy
Arlen Specter, the five-term Senate veteran, just did his best to try to put the "wise Latina" business to rest. He said Republicans (and remember, until this April, Specter was one) have made "a mountain out of a molehill." Specter, a former chair of the Senate Judiciary Committee, said that all Supreme Court justices are products of their background and experience, specifically listing Sandra Day O'Connor, Samuel Alito, Clarence Thomas and Antonin Scalia.
Specter, who has served in the Senate since 1980, said that Alito, during his confirmation hearings, talked about the discrimination his Italian immigrant parents faced in America and that Scalia talked of being "in a racial minority." He quoted Oliver Wendell Holmes, who wrote "the life of the law has not been logic, it has been experience."
Of course, if Specter were still a Republican, his calling out his colleagues on this matter would be more newsworthy. And few expect Jeff Sessions and the other GOP members of the panel to take their cues from a defector.
-- James Oliphant
(12:30 pm ET) Morning press conferences
Before the hearings began, Republicans were more concerned about Sonia Sotomayor's speeches and advocacy with the Puerto Rican Defense and Education Fund and less focused on her record as a judge.Three days along, and that's where we still are.
At a press conference minutes ago, Sens. Jeff Sessions (R-Ala.) and John Cornyn (R-Texas) suggested that Sotomayor isn't giving an honest account of herself. "You can't say one thing in Berkeley and another in Washington," Sessions said. He also said that Sotomayor had not been as "clear or consistent" as nominees John Roberts and Samuel Alito had been during their hearings. And they complained that is remains unclear where Sotomayor stands on abortion and gun rights.
Democrats too are sticking to their message. Sen. Benjamin L. Cardin (D-Md.) said that Sotomayor hasn't shown herself to be a judicial activist, which he defines as judges such as the aforementioned Roberts and Alito, saying "we don't want an activist judge who will turn the clock back" on voting rights and environmental policy. "I think she's been clear. I think she's been consistent," said Sen. Sheldon Whitehouse (D-R.I.). "She has grounded her answers firmly in case law and existing precedent."
Whitehouse praised Sotomayor for not getting drawn into answering questions about her views on abortion and gun rights, saying it "was very appropriate for her not to answer those questions" because cases involving those issues frequently come before the Supreme Court.
-- James Oliphant
(12 pm ET) Senator meets Sotomayor's mother--in the bathroom
As the Judiciary Committee resumed the questioning of Sonia Sotomayor, Sen. Amy Klobuchar (D-Minn.) said she'd been impressed watching not just Sotomayor, but also her mother, Celina, who was watching the sometimes-tough questioning from the front row.
Sotomayor has repeatedly said she rose to where she is today because of the sacrifices made by her mother. Klobuchar said she chatted with Celina Sotomayor in the restroom during a morning break. "She has a lot she'd like to say," Klobuchar said.
"Senator, don't give her the chance," said Sotomayor, laughing.
Klobuchar then mentioned her own mother, citing a comment she made about Sen. Dianne Feinstein (D-Calif.), who questioned the judge Tuesday: "I watched Sen. Feinstein and she was brilliant. What are you going to do?"
-- Steve Padilla, Los Angeles Times
(11:30 pm ET) Sotomayor and guns
In a prickly exchange over gun control, Sen. Tom Coburn tried hard to get Sonia Sotomayor to explain what she actually thinks about the right to bear arms. "As a citizen of this country do you believe ... I have a right to personal self-defense?" he asked her.
Sotomayor said she couldn't think of a Supreme Court case that had addressed the issue in that language. "Is there a constitutional right to self-defense?" she asked. " I can't think of one. I could be wrong."
The Oklahoma Republican said he didn't want to know if there was a legal precedent that would answer his question -- he wanted to know Sotomayor's personal opinion.
She paused. "That is sort of an abstract question," she said. "I don't --"
"Well that's what the American people want to hear," Coburn said. Americans don't want legalese from "bright legal minds," he said. "They want to know if they can defend themselves in their homes."
Sotomayor paused and then apologized. "I know it's difficult to deal with someone who is a judge," she said. "Let me try to address what you're saying in the context that I can, OK?"
She went on to explain a hypothetical caseand the way she'd interpret it under New York law (the state whose law she knows best). The state allows someone to defend themselves if they fear an imminent threat. Let's say, she told the senator, that Coburn threatened her and then she went home, got a gun and shot him.
"You'd have a lot of explaining to do!" Coburn said.
"I'd be in a lot of trouble then," she said, laughing, before explaining that the scenario would not fall under the definition of self-defense in New York state. Why? If she had time to go home and get a gun, the threat was not imminent.
Before moving on to a question about Supreme Court Justice Samuel Alito, Coburn excused Sotomayor's reluctance to offer up her personal opinion.
"Doctors think like doctors, lawyers think like lawyers," he said. "And judges think like judges."
-- Kate Linthicum, Los Angeles Times
(11:30 p.m. ET) The question of viability
Sonia Sotomayor's exchange on abortion got the reporters who cover the Supreme Court buzzing. Why wouldn't the judge simply go along with Sen. Tom Coburn's assertion that the viability of a fetus is a legal consideration when abortion restrictions are concerned?
After all, that legal concept was at the core of Justice Harry Blackmun's opinion in Roe vs. Wade, the opinon that established abortion as a constitutionally protected right, in which the high court defined viability as the point at which the fetus is "potentially able to live outside the mother's womb, albeit with artificial aid." The court placed that moment at 28 weeks.
But it's possible that Sotomayor views viability as a loaded term, especially when a stringent anti-abortion politician such as Coburn is doing the questioning. There long have been efforts in several states to redefine that term legislatively, especially involving the use of life-support machinery. And anti-abortion advocates such as Coburn maintain that modern medical technology has shown that viability occurs much earlier -- hence his "21 weeks" hypothetical.
Sotomayor, either of her own accord or on the advice of the White House, may not have wanted to be drawn into a debate as to when viability occurs -- and by implication, the very contentious legal and moral question about when life begins -- and how medical technology can influence that determination. But given Coburn's passionate views on the subject (he's an OB/GYN), Sotomayor may have to engage in the debate again during the second round of questions.
-- James Oliphant
(11:00 p.m. ET) Coburn tries to corner Sotomayor in abortion
Tom Coburn, the Oklahoma Republican, apologized for the anti-abortion outbursts of various spectators in the last two days and complimented the judge on her poise. But he immediately turned his attention to abortion and Roe vs. Wade and her opinion about what, exactly, the phrase "settled law" means.
Sotomayor said that Planned Parenthood vs. Casey "reaffirmed the core holding of Roe vs. Wade that a woman has a constitutional right to terminate her pregnancy in certain circumstances."
Coburn, a physician, then offered up a theoretical problem faced by a pregnant woman who learns partway into her pregnancy that her fetus has spina bifida. Should she be able to have an abortion?
"I can't answer your hypothetical," said Sotomayor.
Coburn wondered whether the technology that allows a 21-week fetus born prematurely to grown into a healthy child should have any bearing on the law. But Sotomayor refused to get into that debate. The law, she said, "has answered a different question. It has talked about the constitutional rights of women in certain circumstances."
When he kept pressing, Sotomayor demurred: "I can't answer that in the abstract because the question, if it comes before me, wouldn't come in the way you form it as a citizen. It would come to me as judge, in the context of some action that someone is taking, the state, a private citizen being controlled by the state challenging that action."
"All I am asking is should viability be considered as we discuss these delicate issues?"
A third time, Sotomayor refused to be drawn into the debate. "I can't because that's not a question that the court reaches out to answer. That is a question that gets created by a state regulation of some sort, or an action by the state, that may or may not, according to some plaintiff, place an undue burden on her. We don't make policy ...in the court.
Coburn, in a moment of genteel snarkiness, said he was reminded of her infamous quote that appellate courts do make policy (which she instantly disavowed and has been trying to explain ever since). But he didn't dwell on that and turned his attention to the definition of death.
"Does a state legislature have the right to define the definition of death," he asked. "Is it within the realm of the Constitution that states can do that?" That, said Sotomayor, "depends." The actions of states, she said, are "looked at in the context of what the state is trying to do and what the state is imposing." Coburn returned to the influence of technological advances on the discussions around abortion, life and death.
"As recently as six months ago, we recorded fetal heart beat at 14 days post-conception and fetal brain waves at 40 days. We have this schizophrenic rule of the law, we define death as the absence of those, but we refuse to define life as the dependence of those. It concerns me that we are so inaccurate, inconsistent in terms of our application of the logic."
-- Robin Abcarian, Los Angeles Times
EARLIER WEDNESDAY
Sotomayor hearings: Playing softball
Cardin2 As expected, Democratic senators on the Judiciary Committee have been pitching softball questions to Sonia Sotomayor. (The committee seems unable to conduct proceedings without invoking baseball metaphors, so the Ticket will follow its lead.)
The first big softball of the day came from Sen. Benjamin Cardin (D-Md.), who asked her her view on public service.
Sotomayor said if you look at her speeches, public service and pro bono work are the main topics she addresses, whether speaking to students, new citizens or community groups. She added that public involvement doesn't have to be political. She encouraged Americans to get involved somehow, perhaps in their churches and communities.
Public service, she said, "is a core responsibility" for lawyers. Democrats outnumber Republicans on the panel 12 to 7. There's only one Republican left to quiz Sotomayor, so expect more softballs -- at least as the first round of questioning continues.
-- Steve Padilla, Los Angeles Times
Sotomayor hearings: Judicial temperament -- or temperamental?
Cardin Benjamin Cardin, trying to counter comments made Tuesday about Sonia Sotomayor's behavior and demeanor on the bench, quoted surveys of lawyers praising her work as a judge.
A sampling: "She is good.... She is bright.... She is smart...frighteningly smart.... An exceptional judge overall."
Cardin, a Maryland Democrat, was clearly trying to deflect remarks by Republican Sen. Lindsey Graham of South Carolina, who on Tuesday cited other comments by lawyers, who took a drastically different view of Sotomayor. Those lawyers characterized her as hot tempered, impatient and a bully. Graham even suggested the remarks might prompt Sotomayor to reflect on her behavior on the bench.
Not mentioned was that Sotomayor was recently deemed "well qualified" to serve on the Supreme Court by an American Bar Assn. panel -- the highest rating the national attorney organization bestows.
This morning, Sotomayor responded to Cardin by saying that lawyers who argue before her know "how engaged I become" in the proceedings. She allowed that her passion "can appear tough to some people."
She added some judges never ask questions. (She didn't name him, but Supreme Court Justice Clarence Thomas is famous for almost never asking questions from the bench.) Her style, she said, is different.
-- Steve Padilla, Los Angeles Times
Cornyn vs. Sotomayor
Sen. John Cornyn, citing a speech by Sonia Sotomayor, said it appeared she suggested that judges make laws. "Can you explain what you meant by those words?" the Texas Republican asked.
Sotomayor began by saying the speech aimed to inspire students and to battle the cynicism that people sometimes express about the legal system. She then said that, no, judges don't make law, although the public sometimes perceive judges as doing just that.
She did allow that judges interpret laws but added, "We're not lawmakers."
Building on her comments about interpretation, she noted that Congress changes laws all the time and that society changes and evolves. Sometimes, she said, old laws must be applied to new sets of acts. This is what requires interpretation.
"If law was always clear, we wouldn't have judges," she said.
As for judges making judgments that are viewed as radical, as in the desegregation case of Brown vs. Board of Education, Sotomayor said that courts often head into new a direction not on their own initiative, but because they are pointed in that direction by lawyers filing and arguing cases.
--Steve Padilla, Los Angeles Times
Sotomayor hearings: On abortion
Sen. John Cornyn asked Judge Sotomayor about a Washington Post story from May. The story said the White House was scrambling to assure liberal groups about her stance on abortion. He said the story quoted George Pavia, a senior partner in the law firm where Sotomayor worked from 1988 to 1992, as saying that support of abortion rights would be in line with Sotomayor's "generally liberal instincts."
Quoting Pavia, Cornyn read: "I can guarantee she'll be for abortion rights." "On what basis would the White House send a message that abortion-rights groups do not need to worry about how you might rule in a challenge to Roe vs. Wade?"
Sotomayor said she was asked no question by anyone in the White House, including the president, about any single legal issue.
"You just have to look at my record to know that, in cases I address, I follow the law," she said.
Then why would Pavia say that? asked Cornyn.
Beats me, replied the nominee.
"I never spoke with him about my views on abortion or my views on any social issue." She noted that she had voted in favor of anti-abortion groups in a case involving the "Mexico City policy," which forbids the United States from funding foreign groups that provide abortion services.
"Do you agree with his statement that you have generally liberal instincts?" asked Cornyn.
Sotomayor said that if Pavia had been talking about her serving on the board of the Puerto Rican Legal Defense and Education Fund, "a board that promoted equal opportunity for people....you could talk about that being a liberal instinct in the sense that I promote equal opportunity in America and attempts to ensure that."
But, she added, she's pretty sure that Pavia has not read a thing she's written for 17 years because "he is a corporate litigator and my experience with corporate litigators is that they only look at the law when it affects the matter before them."
Cornyn returned to a topic that dominated part of Tuesday's hearing, the New Haven, Conn., firefighters case. He wanted to know, as other Republican senators did yesterday, why she and her fellow appellate court judges upheld the ruling in that case (recently reversed by a split Supreme Court) with a brief order, rather than a full review. Sotomayor said the appellate-court panel often ruled that way, particularly when it was upholding a lower-court decision, one that had generated in this case a 78-page decision.
The workload, she said, was such that 75% of the court's decisions are decided that way.
-- Robin Abcarian and Kate Linthicum, Los Angeles Times
Sotomayor hearings: 'If law was always clear, we wouldn't have judges'
Sen. John Cornyn, citing a speech by Sonia Sotomayor, said it appeared she suggested that judges make laws. "Can you explain what you meant by those words?" the Texas Republican asked.
Sotomayor began by saying the speech aimed to inspire students and to battle the cynicism that people sometimes express about the legal system. She then said that, no, judges don't make law, although the public sometimes perceived judges as doing just that. She did allow that judges interpret laws but added, "We're not lawmakers."
Building on her comments about interpretation, she noted that Congress changes laws all the time and that society changes and evolves. Sometimes, she said, old laws must be applied to new sets of acts. This is what requires interpretation.
"If law was always clear, we wouldn't have judges," she said.
As for judges making judgments that are viewed as radical, as in the desegregation case of Brown vs. Board of Education, Sotomayor said that courts often head into new a direction not on their own initiative, but because they are pointed in that direction by lawyers filing and arguing cases.
-- Steve Padilla, Los Angeles Times
Sotomayor hearings: Remember, Sen. Cornyn, there are Latinos in Texas
Judiciary Chairman Patrick Leahy just stuck it to Sen. John Cornyn pretty good.
After Cornyn finished a tough round of questions of the nominee, Leahy stated that he was entering "into the record" a letter of support from Latino chambers of commerce across the nation. But Leahy specifically mentioned the chambers from Odessa, Dallas, Houston -- all in Texas.
It couldn't be lost on Cornyn, a Texas Republican, that Leahy was warning him that there could be a political price to pay for opposing Sotomayor. Leahy also threw in an Arizona reference, no doubt for the benefit of Sen. Jon Kyl (R-Ariz).
-- James Oliphant
Sotomayor hearings: Don't talk about the 'Marshall Effect'
Tott-thurgood_e2635ngw With Sen. John Cornyn again locking onto Judge Sotomayor's "wise Latina" remarks, the nominee has had to step back from gender and ethnic identity, which she has said many times define her. So don't expect Sotomayor -- or the Democrats defending her on the Senate Judiciary Committee -- to discuss what was considered to be a major benefit that the Latina would bring to the bench.
When Sotomayor was nominated, much was made of the "Marshall Effect," the term coined for the effect of his presence on other justices. Marshall often said he served as reminder to the white men on the court of the African American experience and the problems confronting the poor and disadvantaged.
Last week, Nan Aron, the president of the Alliance for Justice, a liberal advocacy group, wrote a letter to Sens. Patrick Leahy and Jeff Sessions saying Sotomayor could have a similar effect on this Supreme Court:
In sum, our examination of Judge Sotomayor's record demonstrates her consistency and restraint as a jurist. Importantly, her very presence on the Court may have a "Marshall effect": justices who sat with Justice Thurgood Marshall have noted that his presence in conference and on the bench changed their conversations and informed their decisions. As the Court's first Hispanic and only its third woman, Judge Sotomayor may have a similar effect on the activist justices on the Court who appear intent on weakening our core constitutional, civil rights, environmental, and labor protections.
But you aren't like to hear much about that today, as this hearing has proved that airing such issues seem to be radioactive where Sotomayor is involved.
-- James Oliphant
Coming up: Big Bad John
Judge Sotomayor is being questioned by Republican John Cornyn. The former Texas Supreme Court justice likes the idea of walking tall and carrying a big stick, Texas style, as a campaign video from last year illustrates:
But Big Bad John has a big problem. He hails from a state where Latinos make up about 36% of the population and where some might not take too kindly if he's a bit rough with the Supreme Court's first Latina nominee. And he has another (Texas-sized) headache: As chairman of the National Republican Senatorial Committee, he's charged with the unenviable task of trying to win more Senate seats for the GOP -- which won't be easy without Latino voters on board.
In his opening statement Monday, Cornyn was almost abstract in his approach to Sotomayor -- speaking at length about his concern over the state of the American judiciary writ large and not upbraiding the nominee as others on his panel have done. That's different today, however, as Republicans clearly want to paint the New York federal judge as both a beneficiary and a practitioner of identity politics. That means another healthy dose of "wise Latina" and the Connecticut firefighters case. Right now, Cornyn and Sotomayor, both lawyers, are debating the meaning of Sotomayor's words in several speeches.
To Confirm Sotomayor, Yawn. Rinse. Repeat.If Democrats on the Senate Judiciary Committee intended to finish off Supreme Court nominee Judge Sonia Sotomayor's critics by inducing boredom – and many privately suggested that was the point – consider it mission accomplished, or just about.
