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Senators have their say, then Sotomayor speaks at confirmation hearing

This article first appeared in the St. Louis Beacon, July 13, 2009 - Republicans focused their criticism on President Barack Obama more than Judge Sonia Sotomayor during the opening day of confirmation hearings for the first Hispanic named to the U.S. Supreme Court.

That focus reflects the reality that Sotomayor is almost certain to be confirmed. As Sen. Lindsey Graham, R-S.C., quipped to Sotomayor, "unless you have a complete meltdown, you're going to get confirmed."

So Republicans hammered over and over at Obama's statement that he wanted a justice with "empathy." To Sen. Chuck Grassley, R-Iowa, calling on a judge to show empathy is nothing more than "legislating from the bench."

Bringing the argument back to Sotomayor, the Republican senators tied Obama's call for empathy to Sotomayor's public statement that a "wise Latina woman" could make better decisions and her comment that judges make policy.

Sen. Jeff Sessions, R-Ala., said that Sotomayor's decision against white firefighters in New Haven - since overturned by the Supreme Court - had shown how empathy for one group of firefighters could prejudice others.

"Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is not law. In truth it is more akin to politics. And politics has no place in the courtroom," Sessions said.

Sotomayor countered the criticism in a brief opening statement in which she said of her judicial philosophy, "It's simple: fidelity to the law. The task of a judge is not to make law, it is to apply the law."

She said she interprets the Constitution and laws according to their terms, hews to precedent and explores the facts, "with the law always commanding the result in every case."

Sotomayor will have to give more detailed answers to the Republican criticisms of her speeches and her New Haven decision in the days to come. But it is noteworthy that the Republicans have focused on statements that were known on the day that Sotomayor was named in May. No new information detrimental to Sotomayor has surfaced since then.

The comment about a wise Latina judge was made during a lecture Sotomayor gave in 2001 at the law school at the University of California at Berkeley. Read the New York Times article on that speech, click here .) During that speech, she said she aspired to fair and impartial judging. She added, "...one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage."

Sotomayor's supporters argue that, taken in context, Sotomayor's comments state the obvious - that a judge's experiences affect his or her judging.

Republicans and Democrats used competing symbols of justice and competing notions of equal justice in their opening speeches on Monday. Democrats referred to the "Equal Justice Under Law" inscription above the entrance to the U.S. Supreme Court building, citing Sotomayor's nomination as another step toward fulfillment of that ideal of equality. But Republicans cited the Lady Justice, blindfolded to dispense fair and impartial justice, treating every litigant equally.

Theories of justice aside, the Republicans don't have the votes to stop Sotomayor. Roger Goldman, a law professor at Saint Louis University, said that 12 Republicans remain in the Senate from 1998 when Sotomayor was confirmed for the court of appeals on a 67-29 vote. Six of the 12 voted for Sotomayor - Sens. Thad Cochran, Miss., Susan Collins, Me., Orrin Hatch, Utah, Richard Lugar, Ind., Olympia Snowe, Me. and Arlen Specter, Pa., who now is a Democrat.

Voting no were Sens. Sam Brownback, Ks., Grassley, Mitch McConnell, Ky. Sessions, Jon Kyl, Az. and John McCain, Az.

A smattering of Republican support along with united Democratic support could put Sotomayor in the neighborhood of 70 votes for confirmation.

William H. Freivogel heads the School of Journalism at Southern Illinois University Carbondale.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.