Sotomayor Hearings (VIDEO, UPDATES): Day 3

08/15/2009 05:12 am ET | Updated May 25, 2011
  • Huffington Post/AP

Judge Sonia Sotomayor appeared Wednesday before the Senate Judiciary Committee for the third day of her Supreme Court confirmation hearings. Our full liveblog of the day's events is below.

Read updates and watch video from the first day of the hearing here, and from the second day here. The full schedule of the hearings is here.

*****

Wise Latinas say Sotomayor need not apologize: They are Latinas, women of accomplishment, experience - and what might even be called wisdom. And they say there is no reason for Sonia Sotomayor to apologize for suggesting that they might bring special insight to the pursuit of justice.

"Her background will only strengthen the court," said Teresa Puente, an assistant journalism professor at Columbia College in Chicago and the editor and founder of Latina Voices. "She's had to apologize for her statements, and I don't think she should have to."

Puente and other Hispanic women interviewed around the country said they were troubled by the underlying themes of the questions from white, male senators at hearings on Sotomayor's nomination to the Supreme Court.

The judge's speeches - for example, when she said a "wise Latina" might reach a better decision than a white man - have been grist for Republican criticisms. Senators have repeatedly questioned her impartiality and whether she would allow ethnic identification to trump the law.

The novelist and poet Julia Alvarez said in an e-mail that a white man with impeccable credentials like Sotomayor's doesn't have to cite his background because it's the "default" experience, which society has always assumed is the right and impartial one.

"So, if someone like Sotomayor makes a claim for her own background and gender and ethnicity and age and endurance as 'credentials' that allow her to access certain ways of seeing a legal issue, everyone raises the outcry of BIAS BIAS BIAS!" said Alvarez, whose parents were born in the Dominican Republic.

"There is a presumption that if you're white and if you're male, neither of these things inform your life, but if you are of color or a woman, somehow that is your defining trait," said Lisa Garcia Bedolla, a professor of social and cultural studies at the University of California-Berkeley.

"What I find troubling is people of color and women are the only ones being asked those questions," said Garcia Bedolla, who was born in the United States to Cuban parents.
Story continues below

Justice may be blind, but justices are human, each with their own experiences, virtues and philosophies. "We're not robots," Sotomayor told the senators.

Said Puente: "She's trying to say she's coming from a different background, and that gives you different insights and can help the group as a whole come up with different conclusions because you have more viewpoints to consider."

The experience of growing up in a poor Puerto Rican family in the Bronx will inevitably shape Sotomayor's work, the Latinas agreed.

Elizabeth Quintero, owner of a Philadelphia school that teaches Spanish, was born in Columbia. She put herself in Sotomayor's shoes: "I can see things in the most fair way, because I know what the struggles of people are like.

"That doesn't mean I'll be unfair to the other. It means I know all the sides, the good sides and the bad sides, and it will make me see them both more fairly."

"Somehow in the America of 2009 it would not look right or be right to have nine Supreme Court justices who have the same background," said Ana Navarro, a Nicaraguan-American who served as a senior adviser to John McCain's presidential campaign.

"You'd like to think that having diversity in the court makes it a better entity but at the same time does not in any way affect the delivery of justice," she said. "Would we want to see nine white men debating abortion? Probably not. I think most women feel better knowing there's going to be a couple of women on there hearing those issues. I think in a country as diverse as ours, where we live in a democracy, it is important."

Rossana Rosado, publisher and CEO of the Spanish-language newspaper El Diario La Prensa in New York, said the senators seem to be stumbling over something that is obvious to her.

"When you walk into the room and you're a white male, you get a different reaction than if you're a Latina woman or a black woman," said Rosado.

"You have all these Southern senators having to deal with an incredibly wise Latina, and it's amusing to see them bringing up this issue in all these different ways, and what they seem to be saying is, 'Is she going to be impartial?'

"Judges aren't machines. Sonia Sotomayor is wearing pink under her black jacket. She wears hoops as well as well as pearls," Rosado said, referring to fashion choices that are often popular among Latina women.

"She's quite elegant in saying that we bring all that, but in the moment, 'I will do what the law will demand.'"

If Sotomayor is confirmed, as is widely expected, she'll be bringing something else to the Supreme Court.

"There's something very compelling about Sonia Sotomayor," said Navarro, the consultant. "When she was hobbling around on crutches, her (toenails) were painted bright orange red. That's not Judge Ginsberg. You know no Latina worth her salt would be caught dead with unpedicured feet."

Franken, Leahy switch chairs over mic malfunction: Al Franken is chairman of the Senate Judiciary Committee -- only a week into office?

"The quickest rise of any senator in history," reports the lead Republican, Sen. Jeff Sessions of Alabama.

Well, Franken was, briefly.

The Minnesota Democrat got to sit in the chairman's seat when the real chairman's microphone went out. What followed was a classic confirmation hearing absurdity worthy of Franken's alma mater, "Saturday Night Live."

Leahy called the hearing back to order after a break Wednesday. From his chair at the head of the dais, he began reading an opening statement -- into a dead microphone. Here's what the TV audience could not hear.

Leahy: "It's off? It says 'on.' Jeff, does yours work?"

"One, two three," Sessions said into his microphone ... also dead.

Sen. Herb Kohl, who rarely uses his microphone anyway, batted away at the useless instrument on his desk.

Then, suddenly, a familiar voice seemed to boom over the sound system:

"I think mine works."

It was Franken, who then offered to switch places - but not seniority - with the chairman.

Leahy demurred. "The chairman doesn't get paid anything extra," he said.

Then he reconsidered.

"Al, I'll use yours," Leahy said, walking to the junior end of the dais.

He sat. He spoke. And Franken's microphone wouldn't work.

Meanwhile, Franken was reconsidering his seat at the helm of the panel.

"I shouldn't do this," Franken said, getting up.

"No, stay right there," Leahy ordered.

Franken defied him and sought out another seat until the microphones were fixed.

Specter defends empathy, activism and wise Latina-ism: Sen. Arlen Specter, who just months ago was poised to lead the Republican opposition to President Obama's Supreme Court picks, is now, as a Democrat, making some of the most eloquent defenses of Judge Sonia Sotomayor.

"There has been a lot of talk about a 'wise Latina woman' and I think this proceeding has tended to make a mountain out of a molehill," Specter said.

Franken, Sotomayor talk Perry Mason: It turns out Supreme Court nominee Sonia Sotomayor and Sen. Al Franken were both Perry Mason fans as kids.

The two reminisced at Senate confirmation hearings Wednesday, after the Minnesota Democrat noted that he and his family and Sotomayor and her family tuned in to the weekly television drama.

Mason was a fictitious defense lawyer, whom Franken noted won all his cases except one. He asked Sotomayor to name it, and she said she couldn't.

"Didn't the White House prepare you for that," the comedian-turned-politician asked, laughter filling the hearing room.

More seriously, Franken questioned Sotomayor on abortion and the right to privacy. From Doug Kendall, Founder and President of Constitutional Accountability Center:

Franken seems to be moving a bit from his textualism in making the point that the word "privacy" does not appear in the Constitution, yet the Court has long recognized that protection for privacy. He concludes by suggesting it's not "relevant" whether words are in the Constitution, which may be going too far. But it is certainly true that words that express bedrock constitutional principles including federalism, checks and balances, and separation of powers never appear in the Constitution, yet have long appropriately guided the Supreme Court's jurisprudence.

Sotomayor: precedent protects right to abortion:

Sotomayor acknowledged during Wednesday's afternoon session that there is an established precedent that protects abortion rights and that such a precedent will be considered as part of any future hearing on the issue by the Supreme Court.

Pressed by Sen. Arlen Specter, (D-Penn.), as to whether Casey v. Planned Parenthood had affirmed the stare decisis of Roe v. Wade, which itself provided the right of women to choose an abortion, Sotomayor replied that, legally speaking, it was true.

"That is one of the factors that I believe courts have used to consider the issue whether or not a new direction should be taken in the law," she said. "There is a variety of different factors, not just one."

The answer was vague; but for abortion rights advocates it was likely welcome. To overturn Roe v. Wade, the argument goes, would be to reverse judicial precedent. Sotomayor, to a certain extent, took this line of reasoning.

Hoping to pin her down on abortion rights a bit further, Specter went on to note that there had been 38 cases argued before the Supreme Court pertaining to Roe v. Wade. None had overturned the law. Was this too an acknowledgment that he law was now established?

"The history of a particular holding of the court and how the court has dealt with it in subsequent cases would be among one of the factors among many a court would likely consider," Sotomayor responded. "The court has considered in other cases the number of times the issue has arisen and what actions the court has or has not taken with respect to that. Casey did reaffirm the core holding of Roe and so my understanding would be the issue would be addressed in light of Casey." --Sam Stein

Sotomayor repeatedly pressed on abortion: After saying she hadn't discussed the topic with President Obama, Sotomayor declined repeatedly at Senate confirmation hearings Wednesday to disclose her views on abortioC rights.

"I can't answer ... because I can't look at it in the abstract," she told Sen. Tom Coburn, (R-Okla.), as he sought to draw her out with questions about hypothetical cases, including one in which a woman wanted to abort a 38-week fetus with a birth defect.

Even if she knew more about the specifics of a case, she added, "I probably couldn't opine because I'm sure that situation might well arise before the court."

Coburn and Sen. John Cornyn, (R-Texas), two opponents of abortion, focused on that issue.

Coburn asked whether technological improvements that help premature babies survive might "have any bearing on how we look at Roe v. Wade," the 1973 court ruling that established abortion rights.

"I can't answer that in the abstract," Sotomayor said. "The question as it would it come before me wouldn't be in the way that you form it as a citizen, it would come to me as a judge."

Klobuchar talks moms: Sen. Amy Klobuchar (D-Minn.) turned the hearings maternal, saying she was impressed by the patience of Sotomayor's 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 said her own mother was impatient for her to speak, and wrote her after Tuesday's hearing: "I watched Sen. Feinstein and she was brilliant. What are you going to do?"

Coburn to Sotomayor: "You have lots of 'splainin to do": Sen. Coburn appears to be quoting "I Love Lucy" in this portion of the hearing. As Mother Jones points out, the reference "certainly comes with some ethnic baggage."

Anti-abortion senator apologizes for anti-abortion protesters: Sen. Tom Coburn (R-Okla.) told Sotomayor he was sorry about the outbursts of pro-life activists during her confirmation hearings. "Anybody who values life like I do, and is pro-life, recognizes that the way you change minds is not you yell at people," he said. "It's you love them and care about their concerns and bring them to a level of understanding, not condemnation."

New Haven firefighters come out to hearings:

Before taking the hot seat this morning, Sonia Sotomayor spent a few minutes talking with more than a dozen New Haven, Conn., firefighters who are sitting in the rows behind her. In one of the few moments that Sotomayor has had her back to the members of the Senate Judiciary Committee, she shook hands and gave an enthusiastic "thank you!" for coming to the firemen, a mix of blacks, whites and Hispanics.

Grassley justifies Sotomayor questioning by citing Dem treatment of Thomas:

Speaking before Wednesday's hearing for Judge Sonia Sotomayor, Sen. Chuck Grassley (R-Iowa) argued that Republicans didn't need to consider the background of the Obama Court nominee because of the foul treatment Democrats gave to Justice Clarence Thomas.

"I was hoping that... an African-American being nominated by a Republican president would show that we wanted to help people who came from the bottom up, had a very good Ivy League education, was a good lawyer, a good judge with experience, and that he would be welcomed as a minority on the court," the Iowa Republican told CSPAN. "I thought that that would be a no-brainer for every Republican and Democrat, but you see how much opposition among Democrats he ran into. So, you know it's the same thing with her background. She's got an outstanding background as a judge and an academic background, and a prosecutor, and come up from humble beginnings just like Clarence Thomas did, but as the Democrats ignored Clarence Thomas' humble background and all of his academic [achievements] -- the same colleges that Sotomayor has gone to, you know -- that's not the focus of this hearing with Sotomayor..."

The remarks came just minutes before the Senate Judiciary Committee, of which Grassley is a member, began its second day of questions and answers regarding Sotomayor's nomination. And they reflect the extent to which Republicans on the committee are working to avoid the image of being insensitive to the racial components of the Supreme Court nomination.

At another point in the interview, Grassley was asked why he was seemingly fine with Justice Samuel Alito's membership in an organization at Princeton University that excluded women and minorities but was up in arms with Sotomayor's comments about the unique worldview of wise Latinas. He responded by arguing that since Sotomayor was involved in an all-women organization herself, the Alito point was moot.

"I think the answer to her question on the first point is about Alito and being in an been in an organization that didn't let certain people in, Justice Sotomayor just a month ago resigned from an organization that would only take women," he replied. "So I think that answers the question better than anything else." -- Sam Stein

Sotomayor says judges not looking for popularity: Sotomayor says judges in the United States do not, and must not, base their rulings on what they think would be popular.

On the third day of her confirmation hearings before the Senate Judiciary Committee, the native of South Bronx, N.Y., was asked Wednesday to say what style or profile she thought judges should adopt from the bench.

The 55-year-old Sotomayor replied: "We don't render decisions to please the home crowd or any other crowd."

She said her point was that judges must focus on getting the law right and cannot concern themselves with how their rulings would be taken, either in the United States or around the world.

GOP waits a whole four minutes before bringing up Sotomayor's wise Latina remark:

Four minutes and seven seconds was all it took for Republicans on the Senate Judiciary Committee to bring up Sotomayor's "wise Latina" comment during the second day of questioning. And it would have been sooner if not for political formalities.

The opening gavel of Wednesday's session began at roughly 9:31 A.M. and it was followed by a welcome note and explanation of the day's schedule by Senate Judiciary Committee Chairman Patrick Leahy. By 9:35 Sen. John Cornyn (R-Texas) was speaking. And after dispensing with a line about the infallibility of the Supreme Court, it became abundantly clear where his questions were going.

"So I want to just start with the comments that you made about the wise Latina speech that, by my count, you made at least five times between 1994 and 2003," the Texas Republican said. "You indicated that this was really, and please correct me if I'm wrong, I'm trying to quote your words, a, quote, failed rhetorical flourish that fell flat. I believe at another time, you said they were, quote, words that don't make sense, closed quote. And another time, I believe you said it was, quote, a bad idea, closed quote. Am I accurately characterizing your thoughts about the use of that phrase that has been talked about so much?"

Sotomayor would stand by the comments she made on Tuesday, that the wise Latina remark was a poorly worded attempt at inspiring fellow immigrants.

"It fell flat," she told Cornyn. "And I understand that some people have understood them in a way that I never intended. I would regret that."

But the story here is as much about the GOP as the nominee. A day into question and answers, the one issue over which they are obsessing is a speech Sotomayor gave a half-dozen times in the course of a decade. -- Sam Stein

GOP candidates won't disclose how they'd vote on Sotomayor: The Hill interviewed a dozen Republicans running for Senate seats across the country and "failed to find one candidate who was willing to offer a clear position, despite the two months of public debate since President Obama picked Sotomayor for the high court."

Sotomayor: Obama didn't ask about abortion: Judge Sotomayor said Wednesday neither President Barack Obama nor anyone else in the administration asked her views on abortion rights before she was nominated for the Supreme Court.

"I was asked no question by anyone including the president about my views on any specific legal issue," she said at the outset of a second day of questioning by members of the Senate Judiciary Committee.

She made her remark after Sen. John Cornyn, (R-Texas), asked about a published report that administration officials had sought to reassure abortion rights groups concerned about her position on the issue.

Hearings set to resume at 9:30 this morning: Sonia Sotomayor is relying on her 17-year record as a federal judge to rebut criticism that she is concealing a liberal agenda that will show up if she is confirmed to the Supreme Court.

Sotomayor, the first Hispanic high court nominee, was set to return Wednesday to a cavernous Senate hearing room for another grueling day of questioning.

Republicans on the Senate Judiciary Committee are using Sotomayor's confirmation hearing to raise doubts about her fairness, while Democrats are portraying the 55-year-old New Yorker as a model jurist.

Under questioning Tuesday, Sotomayor tried to take away one line of Republican attack when she distanced herself from the man who nominated her, President Barack Obama.

Asked whether she shared Obama's view -- stated when he was a senator -- that in some cases, the key determinant is "what is in the judge's heart," Sotomayor said she does not.

"I wouldn't approach the issue of judging in the way the president does," she said. "Judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law."

Time and again, she put her record on display to answer charges of bias.

Sotomayor backed away from perhaps the most damaging words that had been brought up since Obama nominated her seven weeks ago -- a comment she made on several occasions suggesting that a "wise Latina" judge would usually reach better conclusions than a white man. She called the remark "a rhetorical flourish that fell flat."

"It was bad because 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," Sotomayor said.

Republicans were not satisfied with her answers.

Sen. Lindsey Graham, R-S.C., said he could end up voting for Sotomayor but wants to make sure she is the judge with what he called a moderately liberal record, not a liberal activist.

"That's what we're trying to figure out -- who are we getting here?" he said.

Democrats clearly enjoyed being on the other side of the confirmation process, defending a Democratic nominee.

"When we asked questions of the white male nominees of a Republican president, we were basically trying to ... make sure that they would go far enough in understanding the plight of minorities, because clearly that was not in their DNA," Sen. Dick Durbin, D-Ill., said.

"The questions being asked of you from the other side primarily are along the lines of, will you go too far in siding with minorities?" Durbin said.

Republicans focused on one case to make that point, the appeals court ruling that she joined dismissing the claim of white firefighters in New Haven, Conn., who alleged racial discrimination over the city's decision to scrap a promotions exam after too few minorities did well.

The Supreme Court reversed the ruling late last month.

Sotomayor's response was simple and oft-repeated: "We were following precedent."

When the committee finishes its first round of questioning, it will go into the customary closed session to discuss the FBI report on Sotomayor and other personal matters.

The 19 senators can then take up to an additional 20 minutes each to question Sotomayor, although Sen. Patrick Leahy, D-Vt., the committee chairman, advised his colleagues Tuesday that they don't need to use their entire allotment.

Leahy has voiced confidence that Sotomayor will be confirmed, and with some Republican support.