Midway through her opinion in the New Haven firefighters case, Judge Janet Bond Arterton wrote plaintively about the principal issue in the case: why white firefighters scored higher on the promotions exam in 2003 than their Hispanic or African-American colleagues. “The reasons for the testing disparities,” the federal judge wrote, “remain elusive.”
Thanks to the Supreme Court’s decision in the case, the reasons will remain elusive. Just as in Bush v. Gore nine years ago, the court’s conservative majority short-circuited normal appellate practice by deciding on its own how to apply a brand-new legal standard in a sharply disputed factual context.
Now, only three weeks after the Supreme Court decision in Ricci v. DeStefano, comes new evidence of the importance of the testing question not only for New Haven but for fire departments throughout the country, many of them still disproportionately white. Ruling in a suit brought by the Bush administration, a federal judge in New York City has found that the city’s fire department used racially discriminatory tests for entry-level hires from 1999 through 2007. Judge Nicholas Garaufis, appointed to the bench by President Bill Clinton in 2000, blamed the tests for the stark underrepresentation of Hispanics and African-Americans in the department.
As Garaufis set out in a 93-page opinion, available here, the city admitted entry-level candidates to the fire department academy for that period based solely on written tests. The exam had no elements that tested practical performance on the job, he found, even though the city’s expert acknowledged at trial the importance of “non-cognitive abilities” for entry-level firefighters.
The pass rate on the two exams used was substantially higher for white applicants than for African-Americans: 90 percent and 97 percent for whites compared to 60 percent and 85 percent for blacks. For both exams, Garaufis noted, the pass rate was based solely on the number of openings at the academy, not on some job-related measurement of the knowledge or abilities needed for new recruits. The upshot, the judge concluded, was that the city had no defense for the racially disparate impact on fire department hiring.
The city says it has changed its procedures and is hiring more black firefighters. The city’s law department told the New York Times that African-Americans comprised one-third of the most recent graduating class of probationary firefighters. Still, the law department said that as of May, blacks comprised about 3 percent and Hispanics about 6 percent of the total force of 11,529 firefighters in a city where Hispanics and blacks each comprise about 27 percent of the total population.
Garaufis notes that New York City is a repeat offender in its firefighter hiring practices. A federal judge found the department guilty of racial discrimination in hiring in 1973; the decision prompted the city to contract with a firm to develop new written and physical exams, but the initiative was scrapped for budgetary reasons. In developing the tests used until 2007, Garaufis says, the city took no special steps to validate the procedures as racially neutral.
Garaufis distinguishes the Supreme Court’s ruling in Ricci by contrasting New York’s disregard of the racial-neutrality issue with the conscious effort in that regard by the firm that New Haven hired to develop the exams used in late 2003 to select firefighters for possible promotion to lieutenant and captain. Writing for the majority in Ricci, Justice Anthony M. Kennedy cited the steps the firm took to include African-Americans in developing the New Haven tests as the main reason for concluding there was no “objective, strong basis in evidence” for the New Haven civil service board to refuse to certify the results of the exam despite the racial disparity between white and black firefighters.
As Justice Ruth Bader Ginsburg pointed out in dissent, however, the main reason to question the tests’ validity was the decision to give 60 percent weight to the written portion of the exam and 40 percent to the oral. That decision was not based on modern testing methodology but on a collective bargaining agreement between New Haven and the firefighters union negotiated in 1989, when the fire department was — even more than today — overwhelmingly white.
Admittedly, the New Haven test was better designed than those in New York City that consisted exclusively of written questions. In his opinion, Kennedy said New Haven failed to show why a 30/70 formula would have been valid. At the time, the city thought that the applicable precedent permitted — and perhaps required — it to change hiring or promotion procedures based on a prima facie showing of disparate racial impact. In any event, as Ginsburg said, there was “strong reason” to think that the 60/40 formula was not likely to identify the most officer-worthy candidates.
Ginsburg and the other dissenters wanted to send the case back for more evidence under the court’s new standard; the majority decided otherwise. Despite the disagreement, the law is clear that employers, both private and government, must have hiring and promotion policies that are racially neutral in form and in practice. Perhaps the ruling will help employers focus on that obligation, but civil rights groups reasonably fear that the ruling hinders rather than helps the goal of true equal opportunity in the country’s fire halls and elsewhere.
Thursday, July 23, 2009
Sunday, July 19, 2009
Confirmation Hearings: Poor Reviews, but Show Must Go On
The Founding Fathers did not decide that the Supreme Court would have nine justices. That goes back to 1869. They did not decide that the court would begin each term on the first Monday in October. That goes back to 1917.
The Framers also did not decide that Supreme Court nominees would appear in front of a Senate committee before a vote on their confirmation. That practice goes back only to 1925. And only since the 1960s have senators made extensive use of the procedure to try to learn the nominee’s legal views and to air their own views on the hot legal issues of the day.
So the constitutional design does not depend on the Supreme Court confirmation hearing. We would not break faith with the Framers to dispense with a practice with so much evasion and circumlocution by the nominee and so much political posturing by the senators.
Despite the bad reviews, however — and the reviews for Judge Sonia Sotomayor’s four days on the witness stand were poor at best — the show must go on. President Obama and his advisers took all the time they needed to explore the nominee’s record and views before making a selection. Both the Senate and the public were entitled to their chance to see and hear the nominee for themselves before entrusting her with lifetime appointment to the Supreme Court.
There’s no denying that, despite her impressive academic and professional qualifications, Judge Sotomayor was less than stellar on the Broadway of the political stage. She may have been “disciplined and good humored” (Jeffrey Rosen of The New Republic in The New York Times), but to many she appeared to be “over rehearsed” (David Broder, Washington Post)
Perhaps Sotomayor “accomplished her goals” (attorney Andrew Pincus in The Wall Street Journal, emphasis added). But “it is not at all clear what all this accomplished” (law dean Erwin Chemerinsky, also in the Journal). “A kabuki dance,” (Mark Shields, PBS NewsHour).
Sotomayor and her White House handlers bear principal responsibility for this lifeless performance. It was a decision born of politics, not judicial ethics, to present herself as a legal automaton who simply follows precedent as long as stare decisis says to. No wonder that one senator asked her whether judging amounts to nothing more than following a recipe in a cookbook.
Sotomayor rightly began with and returned often to her life story: a good one, to be sure. But again it was nothing but politics that led her to emphasize her early years as a prosecutor and then to claim all but complete ignorance of the legal positions that the Puerto Rican Legal Defense and Education Fund took during her 12 years with the organization, including service as chair of the litigation committee.
Senators on both sides of the dais, however, must share in the responsibility for the unedifying spectacle. Veteran Democrats Herb Kohl of Wisconsin and California’s Dianne Feinstein opened by complaining about the limited information from the most recent nominees: John Roberts and Samuel Alito. But among all the Democrats only Feinstein succeeded in eliciting a nugget of useful information: Sotomayor’s agreement that the woman’s health remains a “compelling consideration” in testing the validity of abortion regulations.
For their part, Republicans went on and on and on about the “wise Latina woman” speeches, well after the questions were yielding any useful information or perspective. One longed for Judiciary Committee Chairman Patrick Leahy to bang the gavel and say, “Asked and answered. Let’s move on.”
More substantively, no Republican senator recognized the patent inconsistency in stressing the power of elected legislators, not courts, to make laws but at the same time pressing Sotomayor to interpret the Second Amendment to limit gun control laws enacted by elected state and local governments. And no Republican senator gave Sotomayor credit for her decision in the New Haven firefighters case to follow the apparent precedent and to uphold the decision by local officials in the case.
Of course, the show lacked drama from the outset. Sotomayor’s nomination by a still popular president was assured of confirmation in a Senate with a 60-vote Democratic majority. Republicans found no smoking guns in her record apart from the “wise Latina” speeches. By the end, even her critics were conceding her to be a mainstream judge with no evident problems of temperament in this setting at least.
What kind of justice will Sonia Sotomayor be? Democrats hope and Republicans expect that she will fit in comfortably with the court’s liberal bloc — still only four strong in most instances. Perhaps. But University of Texas law professor Sanford Levinson may be quite right in his end-of-show prediction to the New York Times that Sotomayor will be the same “basically cautious person” on the bench that she was on the stand. The hearings may not have told us what we wanted to know, but they quite possibly told us all there is to know about Justice Sonia Sotomayor.
The Framers also did not decide that Supreme Court nominees would appear in front of a Senate committee before a vote on their confirmation. That practice goes back only to 1925. And only since the 1960s have senators made extensive use of the procedure to try to learn the nominee’s legal views and to air their own views on the hot legal issues of the day.
So the constitutional design does not depend on the Supreme Court confirmation hearing. We would not break faith with the Framers to dispense with a practice with so much evasion and circumlocution by the nominee and so much political posturing by the senators.
Despite the bad reviews, however — and the reviews for Judge Sonia Sotomayor’s four days on the witness stand were poor at best — the show must go on. President Obama and his advisers took all the time they needed to explore the nominee’s record and views before making a selection. Both the Senate and the public were entitled to their chance to see and hear the nominee for themselves before entrusting her with lifetime appointment to the Supreme Court.
There’s no denying that, despite her impressive academic and professional qualifications, Judge Sotomayor was less than stellar on the Broadway of the political stage. She may have been “disciplined and good humored” (Jeffrey Rosen of The New Republic in The New York Times), but to many she appeared to be “over rehearsed” (David Broder, Washington Post)
Perhaps Sotomayor “accomplished her goals” (attorney Andrew Pincus in The Wall Street Journal, emphasis added). But “it is not at all clear what all this accomplished” (law dean Erwin Chemerinsky, also in the Journal). “A kabuki dance,” (Mark Shields, PBS NewsHour).
Sotomayor and her White House handlers bear principal responsibility for this lifeless performance. It was a decision born of politics, not judicial ethics, to present herself as a legal automaton who simply follows precedent as long as stare decisis says to. No wonder that one senator asked her whether judging amounts to nothing more than following a recipe in a cookbook.
Sotomayor rightly began with and returned often to her life story: a good one, to be sure. But again it was nothing but politics that led her to emphasize her early years as a prosecutor and then to claim all but complete ignorance of the legal positions that the Puerto Rican Legal Defense and Education Fund took during her 12 years with the organization, including service as chair of the litigation committee.
Senators on both sides of the dais, however, must share in the responsibility for the unedifying spectacle. Veteran Democrats Herb Kohl of Wisconsin and California’s Dianne Feinstein opened by complaining about the limited information from the most recent nominees: John Roberts and Samuel Alito. But among all the Democrats only Feinstein succeeded in eliciting a nugget of useful information: Sotomayor’s agreement that the woman’s health remains a “compelling consideration” in testing the validity of abortion regulations.
For their part, Republicans went on and on and on about the “wise Latina woman” speeches, well after the questions were yielding any useful information or perspective. One longed for Judiciary Committee Chairman Patrick Leahy to bang the gavel and say, “Asked and answered. Let’s move on.”
More substantively, no Republican senator recognized the patent inconsistency in stressing the power of elected legislators, not courts, to make laws but at the same time pressing Sotomayor to interpret the Second Amendment to limit gun control laws enacted by elected state and local governments. And no Republican senator gave Sotomayor credit for her decision in the New Haven firefighters case to follow the apparent precedent and to uphold the decision by local officials in the case.
Of course, the show lacked drama from the outset. Sotomayor’s nomination by a still popular president was assured of confirmation in a Senate with a 60-vote Democratic majority. Republicans found no smoking guns in her record apart from the “wise Latina” speeches. By the end, even her critics were conceding her to be a mainstream judge with no evident problems of temperament in this setting at least.
What kind of justice will Sonia Sotomayor be? Democrats hope and Republicans expect that she will fit in comfortably with the court’s liberal bloc — still only four strong in most instances. Perhaps. But University of Texas law professor Sanford Levinson may be quite right in his end-of-show prediction to the New York Times that Sotomayor will be the same “basically cautious person” on the bench that she was on the stand. The hearings may not have told us what we wanted to know, but they quite possibly told us all there is to know about Justice Sonia Sotomayor.
Thursday, July 16, 2009
With Hearing Over, Sotomayor Assured of Early Confirmation
Supreme Court nominee Sonia Sotomayor now appears assured of confirmation by early August after surviving four days of Senate hearings with her qualifications acknowledged, her judicial record mostly unscathed and her personal character complimented even by Republican critics.
The Democratic-controlled Judiciary Committee scheduled a meeting on Sotomayor’s confirmation for Tuesday (July 21) some seven hours after the panel’s ranking Republican, Alabama’s Jeff Sessions, declared he would oppose any delaying tactics by the GOP and hoped for a floor vote before the Senate breaks for its August recess. Republicans may still ask for a week's delay in the committee vote, however, to allow time to review Sotomayor's written answers to questions submitted during the hearing.
With Democrats holding a 60-vote majority, Sotomayor’s confirmation has been a foregone conclusion almost since Obama chose her in late May to succeed retiring Justice David H. Souter. But Sessions’ assurance now means that Sotomayor will join the court in time for the Sept. 9 reargument of an important campaign finance case testing the constitutionality of laws restricting corporate and union expenditures on political campaigns.
Sotomayor ended more than 15 hours on the witness stand around 1 o’clock on Thursday after gaining qualified endorsements of her judicial record from two GOP senators. South Carolina’s Lindsey Graham and Texas’s John Cornyn both repeated criticisms of Sotomayor’s speeches discussing the role of race and gender in judicial decision-making, but expressly stepped away from any broad criticism of her record in 17 years on the bench, including the past decade on the Second U.S. Circuit Court of Appeals.
“Your record as a judge has not been radical,” Graham said. Later, he added, “You have as a judge been generally in the mainstream.” In his turn, Cornyn also described Sotomayor’s opinions as “mainstream.”
To a man, the committee’s seven Republicans also had nothing but praise for Sotomayor’s patience and self-control under their generally critical questioning on, among other issues, unfavorable evaluations of her temperament on the bench.
Only once did Sotomayor appear visibly to be disturbed by a question. The exchange came on Thursday when Sessions asked whether she had displayed “a lack of courage” in ruling on the New Haven firefighters’ reverse discrimination suit in a summary decision without a full written opinion by the three-judge panel.
“No, I didn’t show a lack of courage,” Sotomayor said, her voice firm and her visage stern. She called the appeals court’s decision, a one-paragraph adoption of the district court’s opinion, “a thorough, complete discussion” and then repeated: “No, I did not lack courage.”
After Sotomayor ended her testimony and left the hearing room, two of the plaintiffs in the case, Ricci v. DeStefano, criticized the appeals court’s decision as well as the procedure. Ben Vargas, the only Hispanic among the 18 white plaintiffs, said the group was “devastated” by the one-paragraph decision.
The firefighters went to court after the civil service board scrapped the results of a promotions exam because no African Americans scored high enough to qualify for immediate appointments. The suit, Frank Ricci explained, was aimed at ensuring “our right to advance in our profession based on merit regardless of race.”
The Supreme Court sustained the firefighters’ suit in a 5-4 decision on June 29. Sotomayor repeatedly told senators the appeals court’s decision was dictated by Second Circuit precedent. Republican senators continued on Thursday to challenge the point.
GOP senators also tried again, but again without success, to press Sotomayor for more specific views on abortion, gun rights and gay marriage. But Sotomayor was more emphatic than she had been on Wednesday in promising that she has an open mind on two of those issues, gun rights and gay marriage, that are likely to come before the Supreme Court in the near future.
The court is currently being asked to review a decision by the Seventh Circuit Court of Appeals that declined to apply the Second Amendment to state and local gun control laws. The Supreme Court’s 2008 decision in District of Columbia v. Heller recognized an individual right to possession of a handgun in the home, but the ruling applied only to the federal government.
Sotomayor joined a Second Circuit ruling that, like the Seventh Circuit in a Chicago case, said the issue of “incorporating” the Second Amendment right to the states was for the high court to decide. Despite the ruling, Sotomayor said she has “a completely open mind” on the question. “I understand the importance of the right,” she added, “and all I can say is I keep an open mind on the incorporation doctrine.”
Sotomayor gave similar assurance when asked about recognizing a constitutional right to marriage for same-sex couples. “I would come to that issue with a completely open mind,” she said.
More than 30 public witnesses testified before the panel, quickly marched through the paces over less than seven hours with only a few senators present at any time. The leadoff witness was Mary Boies, representing the American Bar Association’s Standing Committee on the Federal Judiciary, which voted unanimously to rate Sotomayor as “well qualified” for the Supreme Court. The committee said it found no substance to criticisms of her temperament and dismissed criticism of her opinions as “lengthy” and “less than imaginative” as focused on “writing style, not substance.”
Among other witnesses, representatives of minority bar groups, traditional civil rights organizations, and law enforcement praised Sotomayor. Critics included gun rights and victim rights advocates, an anti-abortion leader, and several opponents of racial preferences.
The Democratic-controlled Judiciary Committee scheduled a meeting on Sotomayor’s confirmation for Tuesday (July 21) some seven hours after the panel’s ranking Republican, Alabama’s Jeff Sessions, declared he would oppose any delaying tactics by the GOP and hoped for a floor vote before the Senate breaks for its August recess. Republicans may still ask for a week's delay in the committee vote, however, to allow time to review Sotomayor's written answers to questions submitted during the hearing.
With Democrats holding a 60-vote majority, Sotomayor’s confirmation has been a foregone conclusion almost since Obama chose her in late May to succeed retiring Justice David H. Souter. But Sessions’ assurance now means that Sotomayor will join the court in time for the Sept. 9 reargument of an important campaign finance case testing the constitutionality of laws restricting corporate and union expenditures on political campaigns.
Sotomayor ended more than 15 hours on the witness stand around 1 o’clock on Thursday after gaining qualified endorsements of her judicial record from two GOP senators. South Carolina’s Lindsey Graham and Texas’s John Cornyn both repeated criticisms of Sotomayor’s speeches discussing the role of race and gender in judicial decision-making, but expressly stepped away from any broad criticism of her record in 17 years on the bench, including the past decade on the Second U.S. Circuit Court of Appeals.
“Your record as a judge has not been radical,” Graham said. Later, he added, “You have as a judge been generally in the mainstream.” In his turn, Cornyn also described Sotomayor’s opinions as “mainstream.”
To a man, the committee’s seven Republicans also had nothing but praise for Sotomayor’s patience and self-control under their generally critical questioning on, among other issues, unfavorable evaluations of her temperament on the bench.
Only once did Sotomayor appear visibly to be disturbed by a question. The exchange came on Thursday when Sessions asked whether she had displayed “a lack of courage” in ruling on the New Haven firefighters’ reverse discrimination suit in a summary decision without a full written opinion by the three-judge panel.
“No, I didn’t show a lack of courage,” Sotomayor said, her voice firm and her visage stern. She called the appeals court’s decision, a one-paragraph adoption of the district court’s opinion, “a thorough, complete discussion” and then repeated: “No, I did not lack courage.”
After Sotomayor ended her testimony and left the hearing room, two of the plaintiffs in the case, Ricci v. DeStefano, criticized the appeals court’s decision as well as the procedure. Ben Vargas, the only Hispanic among the 18 white plaintiffs, said the group was “devastated” by the one-paragraph decision.
The firefighters went to court after the civil service board scrapped the results of a promotions exam because no African Americans scored high enough to qualify for immediate appointments. The suit, Frank Ricci explained, was aimed at ensuring “our right to advance in our profession based on merit regardless of race.”
The Supreme Court sustained the firefighters’ suit in a 5-4 decision on June 29. Sotomayor repeatedly told senators the appeals court’s decision was dictated by Second Circuit precedent. Republican senators continued on Thursday to challenge the point.
GOP senators also tried again, but again without success, to press Sotomayor for more specific views on abortion, gun rights and gay marriage. But Sotomayor was more emphatic than she had been on Wednesday in promising that she has an open mind on two of those issues, gun rights and gay marriage, that are likely to come before the Supreme Court in the near future.
The court is currently being asked to review a decision by the Seventh Circuit Court of Appeals that declined to apply the Second Amendment to state and local gun control laws. The Supreme Court’s 2008 decision in District of Columbia v. Heller recognized an individual right to possession of a handgun in the home, but the ruling applied only to the federal government.
Sotomayor joined a Second Circuit ruling that, like the Seventh Circuit in a Chicago case, said the issue of “incorporating” the Second Amendment right to the states was for the high court to decide. Despite the ruling, Sotomayor said she has “a completely open mind” on the question. “I understand the importance of the right,” she added, “and all I can say is I keep an open mind on the incorporation doctrine.”
Sotomayor gave similar assurance when asked about recognizing a constitutional right to marriage for same-sex couples. “I would come to that issue with a completely open mind,” she said.
More than 30 public witnesses testified before the panel, quickly marched through the paces over less than seven hours with only a few senators present at any time. The leadoff witness was Mary Boies, representing the American Bar Association’s Standing Committee on the Federal Judiciary, which voted unanimously to rate Sotomayor as “well qualified” for the Supreme Court. The committee said it found no substance to criticisms of her temperament and dismissed criticism of her opinions as “lengthy” and “less than imaginative” as focused on “writing style, not substance.”
Among other witnesses, representatives of minority bar groups, traditional civil rights organizations, and law enforcement praised Sotomayor. Critics included gun rights and victim rights advocates, an anti-abortion leader, and several opponents of racial preferences.
Wednesday, July 15, 2009
GOP Senators Step Up Criticism of Sotomayor Testimony
Supreme Court nominee Sonia Sotomayor’s second full day of reaffirming her commitment to objectivity while giving few clues about her views on disputed legal issues drew sharp criticism from Republican senators Wednesday but no complaints from Democrats.
Judiciary Committee Republicans made their sharpest criticism to date of Sotomayor after questioning her again about the “wise Latina” speech and unsuccessfully trying to pin her down on abortion and gun rights. Sen. Jeff Sessions of Alabama, the committee’s ranking Republican, told reporters that the veteran federal judge had been “muddled, confusing, backtracking on issue after issue.”
Sen. John Cornyn, R-Texas, was similarly critical after using most of his allotted time to dissecting the now infamous 2001 campus speech comparing potential decisions by a “wise Latina judge” to those of a white man. “We’re asking about speeches,” Cornyn told reporters, “and we’re not getting very good answers.”
To Cornyn, Sotomayor again backed away from her comments, insisting that they had been misunderstood. “My words failed,” Sotomayor said. “They didn’t work.” She reaffirmed her description of the remark on Tuesday as “a rhetorical flourish that fell flat.”
Both Cornyn and Sen. Tom Coburn, R-Okla., also pressed Sotomayor for views on abortion issues, but got little by way of new information. To Cornyn, Sotomayor denied telling the White House anything about her views on abortion before President Obama nominated her for the high court in late May. “I was asked no questions by anyone including the president about my views on any specific issue,” Sotomayor said.
Cornyn cited a post-nomination Washington Post story describing unidentified White House advisers as assuring advocacy groups that Sotomayor will support abortion rights on the court. The story also quoted a former partner of Sotomayor in private law practice as saying she supports abortion rights.
Sotomayor answered that she had never discussed her personal views about abortion with the colleague. She also noted that she had joined in a ruling to uphold the Bush administration’s so-called “Mexico City” policy, which denied federal funding to groups that provide abortion services overseas.
To Coburn, Sotomayor repeated a summary of the Supreme Court’s Planned Parenthood v. Casey decision as protecting a woman’s “constitutional right to terminate a pregnancy in certain circumstances” with state regulations permitted if they did not impose an “undue burden” on that right. But she declined to give a specific answer to Coburn’s question whether a woman could have an abortion in the 38th week of pregnancy if the fetus was determined to have spinal bifida. “I can’t answer that question in the abstract,” Sotomayor said.
Coburn, an obstetrician, also got no direct answer when he asked whether the definition of viability in abortion decisions should change as technology enables survival of fetuses as early as the twenty-first week of pregnancy. “That’s not a question that a court reaches out to answer,” Sotomayor said.
Sotomayor also declined to give a direct answer to Coburn’s question whether a citizen has a constitutional right to self-defense. And she again defended her part in a recent decision declining to extend the Supreme Court’s gun-rights decision, District of Columbia v. Heller, to state and local governments.
“I was applying both Supreme Court precedent and Second Circuit precedent that has said it’s not incorporated,” Sotomayor said. “It’s not what I believe,” she added. “It’s what the law has said about it.”
Outside the hearing, Sessions said he was “troubled” by the answer. “She flatly stated that [the right to bear arms] is not a fundamental right,” Sessions said.
Later, Sessions also pressed Sotomayor on her role before appointment to the bench as a board member with the group now known as LatinoJustice PRLDEF. For a second day, Sotomayor generally minimized her direct knowledge of the group’s litigation, including one case seeking to compel the state of New York to provide Medicaid funding for abortion for poor women.
Sessions was openly incredulous, telling Sotomayor that it appeared she was “more active than you suggested” in the previous day’s answer. At day’s end, Sessions said, “I remain baffled.”
Under questioning from Republican Charles Grassley of Iowa, Sotomayor cited judicial ethics rules to avoid any answer about same-sex marriage or the constitutionality of the federal Defense of Marriage Act. Grassley pointed to a 1972 Supreme Court decision, Baker v. Nelson, dismissing a same-sex marriage suit for “lack of a substantial federal question.”
When Sotomayor declined to give a view, Grassley noted that the judge had pledged support for precedent on many other issues. “Why are you hedging on this?” he asked. Sotomayor refused to budge.
Democratic senators also got no direct answers on their, friendlier questions, which covered topics ranging from privacy and criminal law to environmental and financial regulation. At the lunch break, committee chairman Patrick Leahy of Vermont acknowledged that his mind was “periodically” drifting as the junior-most of the panel’s 12 Democrats were getting their turn to question Sotomayor.
But Leahy, who has participated in confirmation hearings since Justice John Paul Stevens’ questioning in 1975, forcefully disagreed with the Republican critique of Sotomayor’s testimony. “I can’t think of any woman who has answered more questions in depth,” Leahy said.
The hearing resumes at 9:30 a.m. Thursday. “There are a lot of questions still to be asked,” Sessions told reporters.
Judiciary Committee Republicans made their sharpest criticism to date of Sotomayor after questioning her again about the “wise Latina” speech and unsuccessfully trying to pin her down on abortion and gun rights. Sen. Jeff Sessions of Alabama, the committee’s ranking Republican, told reporters that the veteran federal judge had been “muddled, confusing, backtracking on issue after issue.”
Sen. John Cornyn, R-Texas, was similarly critical after using most of his allotted time to dissecting the now infamous 2001 campus speech comparing potential decisions by a “wise Latina judge” to those of a white man. “We’re asking about speeches,” Cornyn told reporters, “and we’re not getting very good answers.”
To Cornyn, Sotomayor again backed away from her comments, insisting that they had been misunderstood. “My words failed,” Sotomayor said. “They didn’t work.” She reaffirmed her description of the remark on Tuesday as “a rhetorical flourish that fell flat.”
Both Cornyn and Sen. Tom Coburn, R-Okla., also pressed Sotomayor for views on abortion issues, but got little by way of new information. To Cornyn, Sotomayor denied telling the White House anything about her views on abortion before President Obama nominated her for the high court in late May. “I was asked no questions by anyone including the president about my views on any specific issue,” Sotomayor said.
Cornyn cited a post-nomination Washington Post story describing unidentified White House advisers as assuring advocacy groups that Sotomayor will support abortion rights on the court. The story also quoted a former partner of Sotomayor in private law practice as saying she supports abortion rights.
Sotomayor answered that she had never discussed her personal views about abortion with the colleague. She also noted that she had joined in a ruling to uphold the Bush administration’s so-called “Mexico City” policy, which denied federal funding to groups that provide abortion services overseas.
To Coburn, Sotomayor repeated a summary of the Supreme Court’s Planned Parenthood v. Casey decision as protecting a woman’s “constitutional right to terminate a pregnancy in certain circumstances” with state regulations permitted if they did not impose an “undue burden” on that right. But she declined to give a specific answer to Coburn’s question whether a woman could have an abortion in the 38th week of pregnancy if the fetus was determined to have spinal bifida. “I can’t answer that question in the abstract,” Sotomayor said.
Coburn, an obstetrician, also got no direct answer when he asked whether the definition of viability in abortion decisions should change as technology enables survival of fetuses as early as the twenty-first week of pregnancy. “That’s not a question that a court reaches out to answer,” Sotomayor said.
Sotomayor also declined to give a direct answer to Coburn’s question whether a citizen has a constitutional right to self-defense. And she again defended her part in a recent decision declining to extend the Supreme Court’s gun-rights decision, District of Columbia v. Heller, to state and local governments.
“I was applying both Supreme Court precedent and Second Circuit precedent that has said it’s not incorporated,” Sotomayor said. “It’s not what I believe,” she added. “It’s what the law has said about it.”
Outside the hearing, Sessions said he was “troubled” by the answer. “She flatly stated that [the right to bear arms] is not a fundamental right,” Sessions said.
Later, Sessions also pressed Sotomayor on her role before appointment to the bench as a board member with the group now known as LatinoJustice PRLDEF. For a second day, Sotomayor generally minimized her direct knowledge of the group’s litigation, including one case seeking to compel the state of New York to provide Medicaid funding for abortion for poor women.
Sessions was openly incredulous, telling Sotomayor that it appeared she was “more active than you suggested” in the previous day’s answer. At day’s end, Sessions said, “I remain baffled.”
Under questioning from Republican Charles Grassley of Iowa, Sotomayor cited judicial ethics rules to avoid any answer about same-sex marriage or the constitutionality of the federal Defense of Marriage Act. Grassley pointed to a 1972 Supreme Court decision, Baker v. Nelson, dismissing a same-sex marriage suit for “lack of a substantial federal question.”
When Sotomayor declined to give a view, Grassley noted that the judge had pledged support for precedent on many other issues. “Why are you hedging on this?” he asked. Sotomayor refused to budge.
Democratic senators also got no direct answers on their, friendlier questions, which covered topics ranging from privacy and criminal law to environmental and financial regulation. At the lunch break, committee chairman Patrick Leahy of Vermont acknowledged that his mind was “periodically” drifting as the junior-most of the panel’s 12 Democrats were getting their turn to question Sotomayor.
But Leahy, who has participated in confirmation hearings since Justice John Paul Stevens’ questioning in 1975, forcefully disagreed with the Republican critique of Sotomayor’s testimony. “I can’t think of any woman who has answered more questions in depth,” Leahy said.
The hearing resumes at 9:30 a.m. Thursday. “There are a lot of questions still to be asked,” Sessions told reporters.
Tuesday, July 14, 2009
Sotomayor Defends Role in Firefighters Case, Past Remarks
Supreme Court nominee Sonia Sotomayor defended her role in the New Haven firefighters case on the second day of her confirmation hearing against sharp criticism from Republican senators of the substance and the procedure of the decision.
Sotomayor said her vote as a member of an appeals court panel to reject the reverse discrimination suit by white firefighters was dictated by precedent. She also defended the three-judge panel’s decision to adopt the lower court’s opinion without an opinion of its own as in line with judicial procedure.
“We were following precedent,” Sotomayor said of the appeals court ruling under friendly questioning from Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. Sotomayor said the city faced potential liability under civil rights law because African American firefighters on a promotions exam than white applicants. “The panel concluded that the city’s decision in that particular situation was lawful under established law,” she explained.
Sotomayor said the panel decided to adopt what she called the “very thoughtful, very thorough” 78-page district court opinion in the case instead of writing its own opinion. The Supreme Court later decided to review the decision and just last month reversed it in a 5-4 ruling, Ricci v. DeStefano, that found the city’s decision to scrap the results of the test violated the federal job discrimination law, Title VII.
Republican senators Jeff Sessions of Alabama and Orrin Hatch of Utah were both critical of the panel’s handling of the case as they got turns to question Sotomayor. “It did not discuss the serious legal issues that the case did raise,” said Sessions, the committee’s ranking GOP member.
“Even the district court recognized that this was an unusual case,” said Hatch, a former Judiciary Committee chairman. “One of the questions I had is why did your own panel not do its own analysis?”
Both senators also rejected Sotomayor’s claim that the appeals court was bound by precedent in its ruling. “I just can’t understand the claim that you were just sticking to longstanding clear precedent,” Hatch said.
In his questioning, Leahy elicited Sotomayor’s agreement that she would now be bound by the Supreme Court’s ruling in the case. “That is now the statement from the Supreme Court on how employers and the courts should address that situation,” Sotomayor said. During a break, Leahy told reporters he was satisfied with Sotomayor’s answers on the topic.
Along with the firefighters case, Sotomayor’s past speeches discussing the role of ethnicity and gender in judicial decision-making predictably emerged as the major points of contention between Democratic and Republican senators in three hours of questioning before a lunchtime break. Leahy again guided Sotomayor at the outset into answering criticism of her nomination by asking her to explain her remark that a “wise Latina judge” may “often” make a better decision than a white male judge.
“The words … have created a misunderstanding,” Sotomayor said. “I want to state up front unequivocally and without doubt that I do not believe that any racial, ethnic, or gender group has an advantage in sound judgment.”
Sessions, however, stuck to the criticism of Sotomayor’s past remarks that he and other Republicans have raised since President Obama nominated Sotomayor for the courft in late May. ” What you’re saying today is quite inconsistent” with past statements, Sessions said. Outside the hearing, Leahy questioned the focus on Sotomayor’s speeches. “I’m more concerned with what she’ll do as a judge,” he said.
Sen. Jon Kyl, R-Ariz., returned to the “wise Latina” speech in the afternoon, pointedly questioning Sotomayor’s characterization of her remarks as rejecting any influence of gender or ethnicity on judicial decision-making. “You seemed to be celebrating this,” Kyl said after quoting from the speech.
Sotomayor cited her record in response. “It is very clear,” she said, “that I don’t base my judgments on my personal views, my experiences, or my feelings or my biases.”
In another tense exchange, Sen. Lindsey Graham, R-S.C., read sharply critical evaluations of Sotomayor’s temperament published in the Almanac of the Federal Judiciary. After citing such comments as “terror on the bench” and “abuses lawyers,” Graham said the evaluations differed from those of Sotomayor’s colleagues on the Second Circuit Court of Appeals. “You stand out like a sore thumb,” Graham said.
Asked directly whether she has a temperament problem, Sotomayor replied firmly, “No, sir.” She added, “I believe my reputation is such that I ask the hard questions, but I do it evenly on both sides.”
Sotomayor fended off questions about her role as a board member of the group now known as LatinoJustice PRDLEF by saying she did not directly participate in a case seeking Medicaid funding of abortions and minimizing her part in the group’s opposition to reinstatement of the death penalty in New York. She also followed the path of other recent Supreme Court nominees in avoiding direct answers on legal issues event though she acknowledged at one point that the practice “must be unsatisfying” to senators.
At the end of the day, Kyl called Sotomayor’s answers about her past speeches “unsatisfying” and also accused her of misleading answers about the firefighters case and about her views on the use of foreign or international law in decisions. “There’s a lot more that she needs to address on these subjects,” he said.
In his wrap-up, Leahy disagreed. “I did not hear anything that she did not answer and answer thoroughly,” he told reporters. The hearing resumes at 9:30 Wednesday morning.
Sotomayor said her vote as a member of an appeals court panel to reject the reverse discrimination suit by white firefighters was dictated by precedent. She also defended the three-judge panel’s decision to adopt the lower court’s opinion without an opinion of its own as in line with judicial procedure.
“We were following precedent,” Sotomayor said of the appeals court ruling under friendly questioning from Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. Sotomayor said the city faced potential liability under civil rights law because African American firefighters on a promotions exam than white applicants. “The panel concluded that the city’s decision in that particular situation was lawful under established law,” she explained.
Sotomayor said the panel decided to adopt what she called the “very thoughtful, very thorough” 78-page district court opinion in the case instead of writing its own opinion. The Supreme Court later decided to review the decision and just last month reversed it in a 5-4 ruling, Ricci v. DeStefano, that found the city’s decision to scrap the results of the test violated the federal job discrimination law, Title VII.
Republican senators Jeff Sessions of Alabama and Orrin Hatch of Utah were both critical of the panel’s handling of the case as they got turns to question Sotomayor. “It did not discuss the serious legal issues that the case did raise,” said Sessions, the committee’s ranking GOP member.
“Even the district court recognized that this was an unusual case,” said Hatch, a former Judiciary Committee chairman. “One of the questions I had is why did your own panel not do its own analysis?”
Both senators also rejected Sotomayor’s claim that the appeals court was bound by precedent in its ruling. “I just can’t understand the claim that you were just sticking to longstanding clear precedent,” Hatch said.
In his questioning, Leahy elicited Sotomayor’s agreement that she would now be bound by the Supreme Court’s ruling in the case. “That is now the statement from the Supreme Court on how employers and the courts should address that situation,” Sotomayor said. During a break, Leahy told reporters he was satisfied with Sotomayor’s answers on the topic.
Along with the firefighters case, Sotomayor’s past speeches discussing the role of ethnicity and gender in judicial decision-making predictably emerged as the major points of contention between Democratic and Republican senators in three hours of questioning before a lunchtime break. Leahy again guided Sotomayor at the outset into answering criticism of her nomination by asking her to explain her remark that a “wise Latina judge” may “often” make a better decision than a white male judge.
“The words … have created a misunderstanding,” Sotomayor said. “I want to state up front unequivocally and without doubt that I do not believe that any racial, ethnic, or gender group has an advantage in sound judgment.”
Sessions, however, stuck to the criticism of Sotomayor’s past remarks that he and other Republicans have raised since President Obama nominated Sotomayor for the courft in late May. ” What you’re saying today is quite inconsistent” with past statements, Sessions said. Outside the hearing, Leahy questioned the focus on Sotomayor’s speeches. “I’m more concerned with what she’ll do as a judge,” he said.
Sen. Jon Kyl, R-Ariz., returned to the “wise Latina” speech in the afternoon, pointedly questioning Sotomayor’s characterization of her remarks as rejecting any influence of gender or ethnicity on judicial decision-making. “You seemed to be celebrating this,” Kyl said after quoting from the speech.
Sotomayor cited her record in response. “It is very clear,” she said, “that I don’t base my judgments on my personal views, my experiences, or my feelings or my biases.”
In another tense exchange, Sen. Lindsey Graham, R-S.C., read sharply critical evaluations of Sotomayor’s temperament published in the Almanac of the Federal Judiciary. After citing such comments as “terror on the bench” and “abuses lawyers,” Graham said the evaluations differed from those of Sotomayor’s colleagues on the Second Circuit Court of Appeals. “You stand out like a sore thumb,” Graham said.
Asked directly whether she has a temperament problem, Sotomayor replied firmly, “No, sir.” She added, “I believe my reputation is such that I ask the hard questions, but I do it evenly on both sides.”
Sotomayor fended off questions about her role as a board member of the group now known as LatinoJustice PRDLEF by saying she did not directly participate in a case seeking Medicaid funding of abortions and minimizing her part in the group’s opposition to reinstatement of the death penalty in New York. She also followed the path of other recent Supreme Court nominees in avoiding direct answers on legal issues event though she acknowledged at one point that the practice “must be unsatisfying” to senators.
At the end of the day, Kyl called Sotomayor’s answers about her past speeches “unsatisfying” and also accused her of misleading answers about the firefighters case and about her views on the use of foreign or international law in decisions. “There’s a lot more that she needs to address on these subjects,” he said.
In his wrap-up, Leahy disagreed. “I did not hear anything that she did not answer and answer thoroughly,” he told reporters. The hearing resumes at 9:30 Wednesday morning.
Monday, July 13, 2009
Amid Doubts, Sotomayor Vows 'Fidelity to Law'
Supreme Court nominee Sonia Sotomayor moved to blunt doubts about her fairness and impartiality on the bench on Monday even as the Senate Judiciary Committee’s ranking Republican set himself up to vote against her confirmation if he remains unconvinced.
Sotomayor used her seven-minute opening statement to insist to the Democratic-controlled committee that her decisions in 17 years on the federal bench “have been made not to serve the interests of any one litigant, but to serve the larger interest of justice.” She continued by saying that her judicial philosophy “is simple: fidelity to the law.”
“The task of a judge is not to make the law — it is to apply the law,” Sotomayor said. “And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court.”
Sotomayor’s statement followed a full two-and-a-half hours of opening statements from the committee’s members, with praise for her record and life story from 12 Democrats and questions and concerns from the seven Republicans. In the most forceful of the GOP statements, Sen. Jeff Sessions of Alabama, the ranking Republican on the panel, sharply criticized President Obama’s use of an “empathy” standard in nominating Sotomayor.
“I will not vote for — and no senator should vote for — an individual nominated by any president who is not fully committed to fairness and impartiality towards every person who appears before them,” Sessions said. “I will not for — and 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 in favor of, or against, parties before the court.”
Judiciary Committee Chairman Patrick Leahy, D-Vt., had anticipated the line of attack from Republicans as he opened the hearing. “She’ll be a justice for all Americans,” Leahy said of Sotomayor after criticizing what he called “ideological pressure groups” for opposing her confirmation shortly after Obama announced his selection in late May.
The senators used their opening statements to frame the issues for the questioning of Sotomayor, which begins on Tuesday morning and is expected to span three days. They also sparred among themselves over judicial philosophies and Supreme Court decisions.
Sessions criticized empathy as “another step down the road to a liberal activist, results-oriented, and relativistic world.” Much later, Democrat Sheldon Whitehouse of Rhode Island said there is “nothing wrong” with empathy, which he said has “a constitutionally proper place” in judicial decisionmaking.
Republican senators criticized Supreme Court decisions from earlier eras recognizing abortion rights, barring silent prayer in public schools and allowing local governments to seize private property for development by private interests. Democratic senators countered with criticism of decisions since Chief Justice John G. Roberts Jr. took office in 2005 that limited abortion rights, struck down the District of Columbia’s handgun ban and sided with business on antitrust and regulatory issues.
Sotomayor made no substantive comments on legal issues in her opening statement. Instead, she emphasized what she called her “uniquely American” life story life story from her childhood in a housing project in the Bronx to her education at Princeton and Yale Law School and then on to work as a prosecutor and corporate litigator before appointment to the bench in 1992.
Sotomayor appeared particularly emphatic in talking about her work as an assistant district attorney in New York. She said she had “felt” the suffering of crime victims’ families and “saw and learned the tough job law enforcement has protecting the public safety.” New York District Attorney Robert Morgenthau, who hired Sotomayor and has served as the city’s chief prosecutor for nearly 35 years, will be one of the public witnesses picked by Democrats to testify in favor of Sotomayor at the end of the week.
Witnesses on the Republican side include academics and advocates who have opposed racial preferences along with current or past leaders of gun rights and anti-abortion organizations. GOP senators set the stage for questioning on all three issues by tying them to Sotomayor’s record as a judge or before taking the bench.
Sessions noted that Sotomayor had served on the board of an advocacy group — referring to the former Puerto Rican Legal Defense and Educational Fund, now called LatinoJustice PRLDEF — that favored taxpayer funding of abortions. He also pointed to Sotomayor’s joining a recent opinion that declined to apply the new Second Amendment right to private possession of handguns to state and local governments. And along with several other GOP senators Sessions dwelt on Sotomayor’s part in the New Haven, Conn., firefighters case, rejecting a reverse discrimination suit that the Supreme Court sustained by a 5-4 vote on June 29.
Afterward, Sessions told reporters that Sotomayor “did a very nice job” and called her statement “a good start” at assuaging his concerns. “If that had been the theme of her speeches over the last 15 years,” he said, “we would have less trouble” with the nomination.
Sotomayor used her seven-minute opening statement to insist to the Democratic-controlled committee that her decisions in 17 years on the federal bench “have been made not to serve the interests of any one litigant, but to serve the larger interest of justice.” She continued by saying that her judicial philosophy “is simple: fidelity to the law.”
“The task of a judge is not to make the law — it is to apply the law,” Sotomayor said. “And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court.”
Sotomayor’s statement followed a full two-and-a-half hours of opening statements from the committee’s members, with praise for her record and life story from 12 Democrats and questions and concerns from the seven Republicans. In the most forceful of the GOP statements, Sen. Jeff Sessions of Alabama, the ranking Republican on the panel, sharply criticized President Obama’s use of an “empathy” standard in nominating Sotomayor.
“I will not vote for — and no senator should vote for — an individual nominated by any president who is not fully committed to fairness and impartiality towards every person who appears before them,” Sessions said. “I will not for — and 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 in favor of, or against, parties before the court.”
Judiciary Committee Chairman Patrick Leahy, D-Vt., had anticipated the line of attack from Republicans as he opened the hearing. “She’ll be a justice for all Americans,” Leahy said of Sotomayor after criticizing what he called “ideological pressure groups” for opposing her confirmation shortly after Obama announced his selection in late May.
The senators used their opening statements to frame the issues for the questioning of Sotomayor, which begins on Tuesday morning and is expected to span three days. They also sparred among themselves over judicial philosophies and Supreme Court decisions.
Sessions criticized empathy as “another step down the road to a liberal activist, results-oriented, and relativistic world.” Much later, Democrat Sheldon Whitehouse of Rhode Island said there is “nothing wrong” with empathy, which he said has “a constitutionally proper place” in judicial decisionmaking.
Republican senators criticized Supreme Court decisions from earlier eras recognizing abortion rights, barring silent prayer in public schools and allowing local governments to seize private property for development by private interests. Democratic senators countered with criticism of decisions since Chief Justice John G. Roberts Jr. took office in 2005 that limited abortion rights, struck down the District of Columbia’s handgun ban and sided with business on antitrust and regulatory issues.
Sotomayor made no substantive comments on legal issues in her opening statement. Instead, she emphasized what she called her “uniquely American” life story life story from her childhood in a housing project in the Bronx to her education at Princeton and Yale Law School and then on to work as a prosecutor and corporate litigator before appointment to the bench in 1992.
Sotomayor appeared particularly emphatic in talking about her work as an assistant district attorney in New York. She said she had “felt” the suffering of crime victims’ families and “saw and learned the tough job law enforcement has protecting the public safety.” New York District Attorney Robert Morgenthau, who hired Sotomayor and has served as the city’s chief prosecutor for nearly 35 years, will be one of the public witnesses picked by Democrats to testify in favor of Sotomayor at the end of the week.
Witnesses on the Republican side include academics and advocates who have opposed racial preferences along with current or past leaders of gun rights and anti-abortion organizations. GOP senators set the stage for questioning on all three issues by tying them to Sotomayor’s record as a judge or before taking the bench.
Sessions noted that Sotomayor had served on the board of an advocacy group — referring to the former Puerto Rican Legal Defense and Educational Fund, now called LatinoJustice PRLDEF — that favored taxpayer funding of abortions. He also pointed to Sotomayor’s joining a recent opinion that declined to apply the new Second Amendment right to private possession of handguns to state and local governments. And along with several other GOP senators Sessions dwelt on Sotomayor’s part in the New Haven, Conn., firefighters case, rejecting a reverse discrimination suit that the Supreme Court sustained by a 5-4 vote on June 29.
Afterward, Sessions told reporters that Sotomayor “did a very nice job” and called her statement “a good start” at assuaging his concerns. “If that had been the theme of her speeches over the last 15 years,” he said, “we would have less trouble” with the nomination.
Sunday, July 12, 2009
Nomination Watch: Pols, Polls Divided as Hearings Begin
On the eve of Senate confirmation hearings for Supreme Court nominee Sonia Sotomayor, Democrats are highlighting her advance from housing project to federal bench while Republicans are promising a thorough examination of her judicial decisions and legal views.
Meanwhile, public opinion polls over the past month indicate some fluidity in attitudes toward the longtime federal judge nominated by President Obama in May to be the first Latina to serve on the court. A CNN poll, available here released on Friday (July 10) showed a narrow plurality of respondents favoring Sotomayor’s confirmation: 47 percent to 40 percent.
By contrast, a Rasmussen survey completed on June 30, available here showed a narrow plurality opposing her confirmation: 37 percent to 39 percent. That telephone poll was taken immediately after the Supreme Court reversed the high-profile ruling in the New Haven, Conn., firefighters case that Sotomayor had joined as a member of the Second U.S. Circuit Court of Appeals.
Sen. Jon Kyl, an Arizona Republican said to be helping mastermind the GOP strategy on the nomination, promised that Republicans will be thorough but fair in the hearings, which are set to begin at 10 a.m. on Monday (July 13.) “The strategy is to be as thorough as we can in examining her record, what she has said, and to conduct the hearing in a fair, impartial, and thorough way and then make our decisions,” Kyl said on ABC This Week.”. He went on to cite the Rasmussen survey as an indication that the hearings will be “very important for [Sotomayor] to demonstrate that she should be confirmed to sit on the Supreme Court.”
Appearing on the same program, Senate Majority Whip Richard Durbin of Illinois voiced confidence about the outcome. “She has a compelling life story,” Durbin said. Durbin described Sotomayor as “a moderate and restrained jurist” and “an exceptional person.” “I believe she’s going to do well,” he added.
With a 60-vote Democratic majority in the Senate, Sotomayor’s confirmation is regarded as assured, even by the conservative groups who have been waging a campaign against her. To date, three Republican senators have said they will vote against confirmation: Sam Brownback and Pat Roberts, both of Kansas, and Oklahoma’s James Inhofe, according to CQ Politics’ Legal Beat.
In the run-up to the hearings, the Senate Judiciary Committee released a witness list that begins with members of the American Bar Association’s Standing Committee on the Judiciary followed by 15 witnesses selected by Democrats and 14 by Republicans. The ABA committee gave Sotomayor its highest rating of “well qualified” in an evaluation released on June 1.
The Democratic witness list is heavy with veterans of traditional civil rights and minority groups. But it also includes law enforcement representatives, including former FBI Director Louis Freeh and Sotomayor’s former boss, the veteran New York district attorney Robert Morgenthau.
The Republican list includes advocates from gun rights, anti-abortion and conservative civil rights groups as well as several well known conservative law professors. But the witness attracting the most attention in advance is Frank Ricci, the New Haven firefighter who was the first-named plaintiff in the reverse discrimination suit filed after the city’s civil service board discarded the results of a promotions exam because white applicants outperformed African American candidates on the test.
The Supreme Court’s June 29 decision in the case, Ricci v. DeStefano, upheld the suit, finding that the city’s decision to throw out the test results amounted to intentional discrimination in violation of Title VII of the Civil Rights Act of 1964. The 5-4 decision rejected the rulings by the district court and the Second Circuit panel that the city’s action was legal because it was seeking to avoid potential liability for unintentional “disparate impact” discrimination against the black applicants.
With Ricci set to be in the national spotlight, news organizations began reporting — and liberal organizations helped to publicize — that Ricci, who has dyslexia, was hired by the New Haven Fire Department in 1995 only after filing a suit claiming he had been illegally rejected because of discrimination on the basis of his learning disability. The suit had been reported by the Hartford Courant at the time, but had gone unnoticed as the firefighters’ reverse discrimination suit moved through the courts over the past five years.
The liberal news site Talking Points Memo closed a report on the information with a sharp critique, saying Ricci’s legal views “seem to begin and end with the proposition that legal protections against discrimination are great when they work in his favor, and unconscionable when they don't.” In a sharp response on National Review Online, Jonathan Adler, a conservative law professor at Case Western Reserve University, responded, “I suppose the politics of personal destruction has become part of the 'American way.' ”
In another development, the liberal Brennan Center for Social Justice at New York University School of Law released a detailed study of Sotomayor’s rulings on constitutional issues. The study concludes that Sotomayor’s decisions show her to be a “mainstream” jurist, not a judicial activist.
Separately, a study by the Transactional Records Access Clearinghouse, a group specializing in statistical compilations of government record, reported that in her six years a federal trial judge, Sotomayor was somewhat more likely than her colleagues to sentence criminal defendants to prison. The study, available here , shows the difference was most pronounced in white-collar crime cases.
Meanwhile, public opinion polls over the past month indicate some fluidity in attitudes toward the longtime federal judge nominated by President Obama in May to be the first Latina to serve on the court. A CNN poll, available here released on Friday (July 10) showed a narrow plurality of respondents favoring Sotomayor’s confirmation: 47 percent to 40 percent.
By contrast, a Rasmussen survey completed on June 30, available here showed a narrow plurality opposing her confirmation: 37 percent to 39 percent. That telephone poll was taken immediately after the Supreme Court reversed the high-profile ruling in the New Haven, Conn., firefighters case that Sotomayor had joined as a member of the Second U.S. Circuit Court of Appeals.
Sen. Jon Kyl, an Arizona Republican said to be helping mastermind the GOP strategy on the nomination, promised that Republicans will be thorough but fair in the hearings, which are set to begin at 10 a.m. on Monday (July 13.) “The strategy is to be as thorough as we can in examining her record, what she has said, and to conduct the hearing in a fair, impartial, and thorough way and then make our decisions,” Kyl said on ABC This Week.”. He went on to cite the Rasmussen survey as an indication that the hearings will be “very important for [Sotomayor] to demonstrate that she should be confirmed to sit on the Supreme Court.”
Appearing on the same program, Senate Majority Whip Richard Durbin of Illinois voiced confidence about the outcome. “She has a compelling life story,” Durbin said. Durbin described Sotomayor as “a moderate and restrained jurist” and “an exceptional person.” “I believe she’s going to do well,” he added.
With a 60-vote Democratic majority in the Senate, Sotomayor’s confirmation is regarded as assured, even by the conservative groups who have been waging a campaign against her. To date, three Republican senators have said they will vote against confirmation: Sam Brownback and Pat Roberts, both of Kansas, and Oklahoma’s James Inhofe, according to CQ Politics’ Legal Beat.
In the run-up to the hearings, the Senate Judiciary Committee released a witness list that begins with members of the American Bar Association’s Standing Committee on the Judiciary followed by 15 witnesses selected by Democrats and 14 by Republicans. The ABA committee gave Sotomayor its highest rating of “well qualified” in an evaluation released on June 1.
The Democratic witness list is heavy with veterans of traditional civil rights and minority groups. But it also includes law enforcement representatives, including former FBI Director Louis Freeh and Sotomayor’s former boss, the veteran New York district attorney Robert Morgenthau.
The Republican list includes advocates from gun rights, anti-abortion and conservative civil rights groups as well as several well known conservative law professors. But the witness attracting the most attention in advance is Frank Ricci, the New Haven firefighter who was the first-named plaintiff in the reverse discrimination suit filed after the city’s civil service board discarded the results of a promotions exam because white applicants outperformed African American candidates on the test.
The Supreme Court’s June 29 decision in the case, Ricci v. DeStefano, upheld the suit, finding that the city’s decision to throw out the test results amounted to intentional discrimination in violation of Title VII of the Civil Rights Act of 1964. The 5-4 decision rejected the rulings by the district court and the Second Circuit panel that the city’s action was legal because it was seeking to avoid potential liability for unintentional “disparate impact” discrimination against the black applicants.
With Ricci set to be in the national spotlight, news organizations began reporting — and liberal organizations helped to publicize — that Ricci, who has dyslexia, was hired by the New Haven Fire Department in 1995 only after filing a suit claiming he had been illegally rejected because of discrimination on the basis of his learning disability. The suit had been reported by the Hartford Courant at the time, but had gone unnoticed as the firefighters’ reverse discrimination suit moved through the courts over the past five years.
The liberal news site Talking Points Memo closed a report on the information with a sharp critique, saying Ricci’s legal views “seem to begin and end with the proposition that legal protections against discrimination are great when they work in his favor, and unconscionable when they don't.” In a sharp response on National Review Online, Jonathan Adler, a conservative law professor at Case Western Reserve University, responded, “I suppose the politics of personal destruction has become part of the 'American way.' ”
In another development, the liberal Brennan Center for Social Justice at New York University School of Law released a detailed study of Sotomayor’s rulings on constitutional issues. The study concludes that Sotomayor’s decisions show her to be a “mainstream” jurist, not a judicial activist.
Separately, a study by the Transactional Records Access Clearinghouse, a group specializing in statistical compilations of government record, reported that in her six years a federal trial judge, Sotomayor was somewhat more likely than her colleagues to sentence criminal defendants to prison. The study, available here , shows the difference was most pronounced in white-collar crime cases.