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Analysis: Sotomayor backs away from 'wise Latina' remark, but says judges are not 'robots'

This article first appeared in the St. Louis Beacon, July 14, 2009 - After a rocky start Tuesday morning, Judge Sonia Sotomayor appeared to relax and gain her footing as she promised not to decide cases based on her life experiences or the emotions of the heart. Nothing emerged during the first day of questions before the Senate Judiciary Committee that would challenge her likely confirmation.

Sotomayor frequently scribbled notes on a legal pad, misspoke on occasion, pulled back from past statements and, during the morning session, did not give the kind of smooth, clear answers that Chief Justice John Roberts gave in his masterful confirmation hearing. She admitted her comment about a "wise Latina" was a mistake.

On the substantive level, Sotomayor said she would abide by the Supreme Court's decisions recognizing the right to privacy and to abortion, remarking at one point, "The health and welfare of the woman must be a compelling consideration" in any abortion case -- a more forthright statement than most nominees have given and an answer that fills in a gap in her record.

Sotomayor also said that the equal protection promised by the 14th Amendment permits some racial preferences. Asked if affirmative action should end in 25 years, as Justice Sandra Day O'Connor had said, Sotomayor didn't promise but said, "that's the hope."

Roger Goldman, a law professor at Saint Louis University, said that Sotomayor's willingness to back away from controversial statements avoided the mistake of Robert Bork. "In contrast with Bork, who didn't back down on anything he said, she wasn't looking for a fight. Obviously she learned from his experience. Certainly this was no meltdown, and this was the toughest day of questions. I predict she will do about as well as Roberts who got about 78 votes."

Tom Goldstein, a Supreme Court expert who is blogging the hearing for Scotusblog, wrote he had not learned much about Sotomayor from the hearing "because she's following the tradition of saying very little. Ideologically, I'd say the hearings so far have confirmed to me that she's on the middle left. Intellectually, she does seem quite well informed and very capable of covering a lot of complicated topics without difficulty. So, she's quite smart."

Sotomayor didn't appear to persuade Republicans on the committee when she first defended and then abandoned her statements about a "wise Latina" and the value of experience to judging.

In a difficult exchange with Sen. Jeff Sessions, R-Ala., Sotomayor said her statements about experience were intended to inspire women and Latino students that their "life experiences would enrich the legal system. ... Our life experiences do permit us to see some facts and understand them better than others," she added "I think the system is strengthened when judges don't assume they are impartial," she said. "We're not robots." Judges need to be sure they are "not letting those experiences determine the outcome."

But Sessions was not buying Sotomayor's explanation that judges need to consider their personal experiences in order to guard against those experiences influencing the outcome of cases. Sotomayor eventually fell back and acknowledged that her comment about "a wise Latina" making better judicial decisions was "a rhetorical flourish that fell flat... It was bad. It left an impression that I believed that life experiences commanded a result in a case. But that's clearly not what I do as a judge."

She said she would not "stand by" the way her statements about life experiences had been "understood." "I do not permit my sympathies, personal views or prejudices to influences the outcome of cases," she said. "I do not believe that any ethnic, racial, or gender group has an advantage in sound judging."

Later, Sotomayor said she didn't agree with President Barack Obama's view that the law sometimes doesn't give the answer in difficult cases.

"I wouldn't approach the issue of judging in the same way the president does," she said. "Judges cannot rely on what's in their heart. . . .The job of the judge is to apply the law. It's not the heart that compels conclusions in cases, it's the law....I have a record for 17 years, decision after decision, it is very clear I don't base by decisions on my biases."

Sen. Charles E. Schumer, D-N.Y., reinforced Sotomayor's point by noting that Republicans had not pointed out cases where Sotomayor had allowed her feelings to influence the outcome of a case. He then led her through a series of cases in which she had not taken the side of sympathetic parties, such as the victims of the TWA air crash off New York.

Sotomayor was effective in defending a statement she had made about appeals court judges making policy, a statement that critics say indicates she will legislate from the bench. Sotomayor said she wasn't talking about the policy that Congress makes, but rather the policy implications of precedents established by appeals courts.

Sens. Sessions and Orrin Hatch, R-Utah, suggested that Sotomayor had not given sufficient consideration to the complaint of white firefighters that New Haven, Ct. had discriminated against them by throwing out a promotions exam on which they had performed well and African-Americans had done poorly. A three-judge panel that included Sotomayor dismissed the white firefighter's complaint in a short decision that did not address the legal issues in detail.

Sotomayor said that she and her two colleagues had relied on precedent within their Second U.S. Circuit Court of Appeals. Then she misspoke twice in saying that a sister circuit, the 7th Circuit, had come to a similar conclusion. At first, she said Judge Frank Easterbrook had written a similar opinion, then she said it was Judge Richard Posner. Finally, she admitted she was confused. The Posner decision related to a gun case, not the discrimination case. Finally, she pointed out that it was actually the 6th Circuit Court of Appeals that had made the similar discrimination decision.

Sessions and Hatch noted that Judge Jose Cabranes, another Hispanic and a mentor of Sotomayor, had criticized Sotomayor's panel for giving the New Haven case short shrift. (Cabranes, who has himself been mentioned for the Supreme Court, is married to Kate Stith-Cabranes, a former St. Louisan who was recently acting dean of Yale Law School and is the sister of Laura Denvir Stith, a Missouri Supreme Court judge.)

Sotomayor pointed out that the U.S. Supreme Court's 5-4 decision overturning her New Haven opinion had set out a new rule of law and could not have been anticipated before her panel considered the case.

Much of the discussion of various forms of discrimination was hard for lawyers to follow and probably left most listeners befuddled. Senators sometimes didn't seem to understand.

Sotomayor effectively responded to Sessions' question about why she didn't apply in New Haven the strict 14th amendment standard against intentional discrimination. She noted that the case was decided on the basis of a statute -- the Civil Rights Act -- not the 14th amendment. The 14th amendment standard has not been applied to the Civil Rights Act's anti-discrimination provisions.

Sen. Chuck Grassley, R-Ia., whom the Scotusblog observed dozing off during the morning session, was full of vim and vigor after lunch when he challenged Sotomayor on the Supreme Court decision permitting cities to allow private developers to use eminent domain to put together property for large projects. That decision has been a lightning rod, especially among conservative supporters of strong private property rights.

Sotomayor said "private property owners should have their rights in court," but that she was bound by the Supreme Court's decision on eminent domain -- an answer that didn't satisfy Republicans.

Nor were Republicans satisfied with Sotomayor's answers on the right to bear arms. She said she accepted the Supreme Court's decision that the right to own a gun for self-protection was an individual right. But some Republicans were concerned that Sotomayor would not commit herself to the view that it is a "fundamental right" that should be protected from state restrictions. The Supreme Court recognized the individual right in a case involving the District of Columbia, not answering the question of whether the Second Amendment applied to state law.

An abortion protester shouted out "baby killer" during the middle of Grassley's questions. One of the abortion protesters escorted out of Monday's hearing was Norma McCorvey aka Jane Roe of Roe vs. Wade. McCorvey is now a strong opponent of abortion.

Asked if Sept. 11 had changed her view of the Constitution, Sotomayor was especially eloquent. "Did it change my view of the Constitution? No sir. The Constitution is a timeless document. It was intended to guide us through decades, generation after generation to everything that would face us as a country." She added, it has "protected us as a nation and guided us as a nation." She said the Supreme Court had been wrong in permitting concentration camps for Japanese-Americans during World War II, saying the court should "never act out of fear."

Sotomayor gave some hope to supporters of cameras in the courtroom. She said she had once been a "really good litigator" and suggested she might use her powers of persuasion in favor of allowing cameras in the courtroom. But she added that she wanted to put a high priority on "collegiality" and wouldn't immediately rock the boat.

Collegiality clearly was on her mind throughout the day. She obviously wanted to avoid reinforcing the criticism that she would sometimes cut off colleagues during oral orguments. At least three times, she stopped and apologized when she came close to interrupting a senator.

Sen. Lindsey Graham, R-S.C., said that based on Sotomayor's answers on Tuesday he thought he was listening to Chief Justice Roberts. Graham asked of Sotomayor believed in a "living constitution," as many liberals do. She said the Constitution "is immutable" and hasn't changed except by amendment. It "doesn't live ... It is timeless. ... What changes is society."

"Who is the real Sonia Sotomayor?' asked Goldman, the Saint Louis University law professor. "I don't really know," nor does the country.

But Goldman's educated guess, like Scotusblog's Goldstein, is that Sotomayor is middle/left, more middle-of-the-road than some of the other justices whom Obama considered.

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.