A sort of weird moment transpired towards the end of Sen. Jeff Sessions questioning of Judge Sonia Sotomayor on Tuesday. Arguing that the Supreme Court nominee was not, in fact, upholding precedent in the controversial Ricci v. DeStefano decision, the Alabama Republican made a suggestion vague enough to leave the impression that Sotomayor should have ruled a specific way because of her Puerto Rican ancestry.
Sotomayor had been part of a three-judge panel that voted to uphold the city of New Haven's right to throw out a test it gave to its firefighters because no African-Americans had passed. The entire Second District Appellate Court would subsequently vote on whether to reconsider the case out of concern that the initial decision was too "perfunctory." That effort, led by fellow Hispanic judge Jose Cabranes, would be defeated by a seven-to-six vote.
Sessions used that latter vote to make the case that Sotomayor was not arguing in favor of precedent in her initial ruling. But he also added a somewhat curious line about Cabranes' heritage in the context of asking why the Obama Court nominee didn't support a rehearing of the case.
"It appears, according to a respected legal writer, that one judge was concerned about the outcome of the case and was not aware of it because it was a per curiam unpublished opinion. But it began to raise the question of whether a rehearing should be granted. You say you are bound by the superior authority, but the fact is when the question of rehearing that Second Circuit authority that you say covered the case -- some say it didn't cover so clearly -- but that was up for debate. And the circuit voted and you voted not to reconsider the prior case. You voted to stay with the decision of the circuit. And, in fact, your vote was the key vote. Had you voted with Judge Cabranas, himself of Puerto Rican ancestry, had you voted with him, you could have changed that case. So in truth, you weren't bound by that case ... You must have agreed with it, and agreed with the opinion, and stayed with it until it was reversed by the Court."
Sessions is already getting hit hard for a history of provocative comments in regards to race. And at another point during Tuesday's hearings he tread lightly when he discussed Sotomayor's work for the Puerto Rican Legal Defense Fund, calling it "a fine organization."
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