Sotomayor Hearings Begin a New Judicial Era

By Joan Biskupic, USA Today - July 13, 2009

For U.S. appeals court Judge Sotomayor, there will also be Ricci, as in Ricci v. DeStefano, the case in which she voted to uphold New Haven, Conn., officials' cancellation of the results of a firefighter promotion test because whites outscored blacks and Hispanics.

That case, along with the enduringly controversial Roe v. Wade, which made abortion legal nationwide in 1973, will be among those cited repeatedly by senators trying to discern what kind of justice Sotomayor would be.

LIVE: Video from Sotomayor hearing SOTOMAYOR: Her life in pictures

The hearings that begin at 10 a.m. ET Monday will focus on a woman who grew up in a Bronx, N.Y., housing project and climbed to the top rungs of the U.S. judiciary — and who now represents the first high-court nomination by a Democratic president in 15 years, a period in which Republican appointees made the bench more conservative.

Sotomayor, President Obama's first pick for a lifetime appointment to the court, essentially represents the start of a new era of judicial confirmations.

Senators in both parties will use her hearings not just to make points about their views of the law, but also to establish the tone for any future nominations by Obama.

Sotomayor, whose voting record probably will be similar to newly retired liberal justice David Souter, is not likely to change the conservative tilt on the Supreme Court. But, with more retirements likely in coming years, Obama eventually may be able to tip the ideological balance of the bench.

As a result, the Q & A that plays out before audiences tuned in via TV, radio and online video will give senators a chance to convey their priorities for this opening and others to come. The sessions will signal how Democrats, now holding a strong Senate majority, and Republicans, playing defense, expect to use their positions of influence.

Nomination hearings also can reflect those of the past, and some of the partisanship from the last two Supreme Court nominees — conservatives appointed by George W. Bush— is in the air. Samuel Alito was approved in 2006 by a 58-42 vote; 40 of the opponents were Democrats. Chief Justice John Roberts won a 78-22 vote in 2005; all 22 "nays" came from Democrats.

The hearings also will provide the first, and maybe last, chance to see the nominee on a national stage before she would retreat to the cloister of the high court, where justices speak largely through their written opinions. In an era of predictable questions and scripted answers, however, Sotomayor may not reveal much about how she would rule.

"There is certainly a highly ritualistic quality to confirmation hearings," says University of Texas law professor Sanford Levinson. "The wise nominee will decline to say anything interesting about any such issues on the grounds that they might come before her as a justice."

Some GOP lawmakers say Sotomayor's confirmation is not assured, but it would take a dramatic turn of events to knock her nomination off track. The American Bar Association has deemed the 17-year veteran of the federal bench "well-qualified," the highest rating possible by the national group that has reviewed nominees for more than a half-century. Democrats control 60 of the 100 votes in the Senate, and polls show support for Obama's first nominee.

First, the pageantry

Since she appeared with President Obama on May 26 for the nomination announcement, Sotomayor has been largely out of public view. She traveled with an entourage from the White House as she made the rounds on Capitol Hill to meet privately with senators. Starting today, she will sit alone before the 19-member Senate Judiciary Committee, with cameras rolling, Internet bloggers going live and commentators dissecting every word.

Aside from opening statements by the senators and the nominee, the first day of the hearings is usually dominated more by pageantry than substance. Judge Sotomayor will be accompanied by her mother, Celina Sotomayor, of whom she has said, "I am all I am because of her, and I am only half the woman she is." Also attending will be her brother, Juan, and his twin 15-year-old sons and 21-year-old daughter. Sotomayor's father died when she was 9.

Committee Chairman Patrick Leahy, D-Vt., will open the hearings emphasizing Sotomayor's life story. He is likely to focus on her career choices in public service, starting as a Manhattan prosecutor from 1979 to 1984. A Yale law graduate, Sotomayor then worked in private practice, was appointed to the federal trial bench by the first President Bush in 1992 and then elevated to the appeals court for the New York-based 2nd Circuit by President Clinton in 1998. On CBS' Face the Nation on Sunday, Leahy stressed her deep judicial experience.

Leahy, leading committee Republican Jeff Sessions of Alabama and other senators then will focus on recurring themes (such as abortion and affirmative action) and issues that are more a part of contemporary legal debate (such as the right to bear arms and the use of international law in interpreting U.S. law).

"We're committed to a thorough but fair hearing," says Sessions, who has been among Sotomayor's most public critics, arguing that she might decide cases based on her personal views rather than on the law and facts of a case. "We have a responsibility to be rigorous in our examination of the nominee. I don't think the outcome of this hearing is a foregone conclusion."

Sessions was once on the receiving end of senators' questions. The former federal prosecutor was rejected for a trial judgeship in 1986 after being accused of racial insensitivity. He was elected to the Senate in 1996.

Key issues to watch for

The 19 senators on the committee (12 Democrats, seven Republicans) have their special points of interest, based mainly on recent Supreme Court rulings and Sotomayor's past cases:

• Race: In June, a bitterly split Supreme Court reversed the appeals court decision Sotomayor had joined endorsing New Haven's discarding of the firefighter tests. Frank Ricci, who is dyslexic, had said he spent $1,000 on materials to prepare for the test. In siding with him and the other firefighters, the court majority raised a new hurdle for employers trying to change a test or other practice that hurts racial minorities. Senators will use the Ricci v. DeStefano case to determine where Sotomayor stands on government policies that take account of race and how seriously she views complaints from whites who say they have faced "reverse discrimination."

The terse opinion Sotomayor joined had appeared to minimize the claim brought by mostly white firefighters. Six of her colleagues on the appeals court who urged further review said the Sotomayor majority failed "to grapple with … questions of exceptional importance." On the merits of the question, Sotomayor and other judges on the 2nd Circuit panel said New Haven acted properly to avoid lawsuits from minorities who could have argued the promotion tests were flawed and had an illegal "disparate impact" based on race. When the high court reversed that decision, it said the city lacked evidence that it would be subjected to such lawsuits. In keeping with its recent pattern of trying to curb government consideration of individuals' race, the court also set a new rule for employers changing a policy out of fear of lawsuits from minorities disadvantaged by a seemingly neutral test.

• Religion: The Constitution guarantees free exercise of religion and forbids government from the "establishment of religion." Tests of religious rights have been among the most contentious areas of the law. By a 5-4 vote, the court in 2005 struck down the posting of the Ten Commandments in Kentucky courthouses, yet by a separate 5-4 vote allowed a 6-foot Commandments monument on the grounds of the Texas Capitol, largely because the stone had been there for four decades.

In the first case, Souter took the lead and was joined by liberal justices. Conservatives have prevailed in other cases, including to allow government to provide "vouchers" for parents to send their children to religious schools.

Sotomayor has ruled in only a few cases involving religion, and it is not clear whether she would be as insistent as Souter on a high wall of separation between church and state. On the separate issue of free exercise, cases involving how much religious organizations can determine who they employ are heading to the high court. In a 2006 dispute from the 2nd Circuit, Sotomayor dissented as the majority revived an age-bias claim from a Methodist minister forced to retire at 70. Sotomayor said a federal religious-rights law invoked in the case should not govern a dispute between a private entity and its clergy.

•Roe v. Wade and abortion rights: The 1973 case that made abortion legal has dominated confirmation hearings for decades. To critics, the decision stands for judicial activism; to supporters, it has meant a robust endorsement of privacy rights. A narrow court majority has affirmed Roe in recent years, yet a different majority has allowed more regulation of abortion, including to ban the procedure known by its critics as "partial birth" abortion.

Sotomayor has not ruled on Roe, and the decisions she has written touching on abortion do not reveal a particular view. She upheld a policy that forbade U.S. funds for international groups that perform abortions, writing, "The government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."

• Gun rights: In 2008, the Supreme Court ruled that the Second Amendment protects an individual's right to keep guns. The decision has spawned other lawsuits, including tests of whether the Second Amendment coverage for Washington, D.C., extends to the states.

Sotomayor joined an opinion earlier this year that rejected a challenge to a New York ban on certain weapons used in martial arts and that emphasized that the high court has not yet ruled that the Second Amendment can be applied to state regulations. Gun rights advocates, including the National Rifle Association, say the decision raises "serious concerns." Yet a conservative panel of the Chicago-based U.S. appeals court agreed with the Sotomayor panel that the justices have not decided the scope of the Second Amendment for states.

• "Wise Latina woman": Sotomayor has said she "would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." The question is whether the comment reveals a mind-set favoring one ethnic group over another. Senators who have asked her about it have said that Sotomayor was not trying to comment on her approach to judging; rather, she was trying to inspire her Hispanic audiences.

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