Partisan Flak Awaits Sotomayor

Gop Senators Concede Likely High Court Nod But Signal Intent To Paint Her As Biased

July 14, 2009|By David G. Savage and James Oliphant | David G. Savage and James Oliphant,Tribune Newspapers

WASHINGTON - - Senate Republicans, trying to make the most of a weak hand, served notice Monday that they will attack Supreme Court nominee Sonia Sotomayor over the next two days as a biased judge who cannot be fully trusted to follow the law and whose ethnic identity could sway her rulings.

They also acknowledged, however, that President Barack Obama's nominee is almost certain to win confirmation.

The Republican strategy made for an unusual opening day for the Sotomayor hearings, and it could make for lively exchanges today and Wednesday.

But Sotomayor gave no sign she is eager to play along. In a short, low-key statement, she described her now famous journey from a Bronx housing project to academic success at Princeton and Yale universities and eventually to a federal judgeship in New York. She said her judicial philosophy is "simple: fidelity to the rule of law."

While the hearings are unlikely to slow Sotomayor's march toward confirmation, they could shape the public's perception of her and Obama's decision to select her. As the hearings got under way, a CBS News poll found that 62 percent of the respondents said they were undecided about Sotomayor. Of those who had an opinion, 23 percent were favorable and 15 percent were unfavorable.

Republican Sen. Jeff Sessions of Alabama said Sotomayor's mostly uncontroversial judicial opinions "are not a good test because those cases were necessarily restrained by precedent and the threat of reversal. ... On the Supreme Court, those checks on judicial power will be removed and [her] philosophy will be allowed to reach full bloom."

But Sessions called her speeches, in which she talked about how a "wise Latina" would reach a "better conclusion than a white male," were "shocking and offensive to me."

"I will not vote for - no senator should vote for - an individual ... who believes it is acceptable for a judge to allow their own personal background, gender, prejudices or sympathies to sway their decision."

Arizona Republican Sen. Jon Kyl said her speeches caused him to doubt the nominee. "Judge Sotomayor clearly rejected the notion that judges should strive for an impartial brand of justice," he said. She "endorses the view that a judge should allow her gender-, ethnic- and experience-based biases to guide her when rendering judicial opinions," he said.

Several Democrats took up the challenge from the right. They noted that Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. pledged to be modest judges who would abide by precedent. Instead, the Democrats said they have lined up with conservative Justices Antonin Scalia and Clarence Thomas and pressed to overturn precedents on school integration, abortion, campaign finance and job discrimination.

"It showed me that Supreme Court justices are much more than umpires calling balls and strikes," said Sen. Dianne Feinstein, a California Democrat, in a slap at Roberts, who had described his job as being like an umpire.

Republican Sen. Lindsey Graham of South Carolina removed the suspense early on. "Unless you have a complete meltdown, you are going to be confirmed," he told Sotomayor. But he, too, said he was troubled by her speeches, including the "wise Latina" reference. "If I said anything remotely like that," Graham said, "my career would have been over."

If there is a precedent for the Republicans' strategy of critiquing a well-qualified high court nominee, it would be the Democrats' attacks on President George W. Bush's two nominees: Roberts and Alito. Republicans then controlled the Senate, assuring the two would be confirmed. But Democrats were determined to brand the two Republican nominees as conservative activists.

Republican aides say they understand that the odds lie in Sotomayor's favor. But at the very least, the party hopes to use the hearings as a "teaching opportunity" to broadcast the GOP conservative message to viewers. Republican senators want to highlight the differences between their view of the courts and Democrats' - and perhaps paint Sotomayor as a product of identity politics.

That is why Republicans this week will bring up such bread-and-butter issues as gun rights, abortion and the use of foreign law by judges. All of it will be an attempt to frame Sotomayor as out of the American mainstream.

But some legal and political experts questioned the Republicans' attacks on Sotomayor.

"I am somewhat at a loss to understand what they are doing," said University of Texas Professor L.A. "Scot" Powe, a historian of the Supreme Court. "Her decisions are so middle of the road. Maybe they are trying to make the case that unless you agree with Roberts, Scalia, Thomas and Alito, you are necessarily biased."

Don Sipple, a Republican political strategist based in California, said he found the attacks puzzling. "With the GOP in shambles generally and mortally wounded with Latinos specifically, the GOP would have been smarter to embrace Judge Sotomayor as a true and unique American success story," he said.

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