WASHINGTON, D.C. – The first day of U.S. Supreme Court nominee Judge Sonia Sotomayor’s weeklong confirmation hearings unfolded much as expected today. Democratic senators, including Minnesota’s Amy Klobuchar and Al Franken, lauded her extensive legal background and her up-by-your-bootstraps personal narrative, while Republican senators portrayed her as an activist judge whose opinions have been guided more by her “empathy” for certain groups than by precedent.
In prepared opening remarks, Klobuchar — one of two women who sit on the Senate Judiciary Committee — praised Sotomayor’s work as a prosecutor and the “inspiring journey” of her life from a kid in the Bronx, to Princeton University and Yale Law School, to a lengthy career as both a prosecutor and judge to eventually becoming “only the third woman in history to come before [the Senate Judiciary] Committee as a Supreme Court nominee.”
“I’m looking for a Justice who appreciates the awesome responsibility that she will be given, if confirmed,” Klobuchar said. “A Justice who understands the gravity of the office and who respects the very different roles that the Constitution provides for each of the three branches of government.”
Franken, in his first committee hearing since taking office last week, also focused part of his opening statement on the importance of the different branches of government, saying that “there are ominous signs that judicial activism is on the rise.”
“I may not be a lawyer, but neither are the overwhelming majority of Americans,” Franken said in a prepared statement that was momentarily interrupted by Norma McCorvey, or “Jane Roe,” from the famous Roe v. Wade case. She started yelling, along with another anti-abortion protester, part-way through Franken’s statement. The pair were immediately taken out of the courtroom by police and arrested, making them the third and fourth such arrests that the police had to make during the more than five-hour proceeding.
Franken continued his statement without comment.
“Yet all of us, regardless of our backgrounds or professions, have a huge stake in who sits on the Supreme Court and are profoundly affected by its decisions,” Franken said.
“As I said before, Judge, I’m here to learn from you.” Franken continued. “I want to learn what you think is the proper relationship between Congress and the Courts, between Congress and the Executive.”
Questioning begins Tuesday
But, the learning will have to wait at least until Tuesday, when the first round of questions will officially begin. Today’s hearing was solely dedicated to opening statements — essentially an extended public introduction between Sotomayor and her 19 questioners.
Currently, Sotomayor, 55, is a judge on the U.S. Court of Appeals for the 2nd Circuit. She is the first nominee to the Supreme Court by a Democratic president in 15 years. If nominated, she will be the first Hispanic justice in U.S. history.
“She is the first nominee in well over a century to be nominated to three different federal judgeships by three different presidents,” said Judiciary Chairman Sen. Patrick Leahy, D-Vt., who later told reporters that Sotomayor “will be confirmed.”
“Those who break barriers often face the added burden of overcoming prejudice,” Leahy continued in his opening statement.
“Let no one demean this extraordinary woman, her success or her understanding of the constitutional duties she has faithfully performed for the last 17 years.”
GOP members still skeptical
But, Republicans remained skeptical.
Jeff Sessions R-Ala., the highest-ranking Republican on the committee, focused on Sotomayor’s much-publicized comments about a “wise Latina” woman being able to reach “a better conclusion than a white male who hasn’t lived that life.”
“I will not vote for — no senator should vote for — an individual nominated by any president who believes it is acceptable for a judge to allow their personal background, gender, prejudices or sympathies to sway their decision in favor of, or against, parties before the court,” Sessions said in his opening statement.
Sen. Chuck Grassley, R-Iowa, praised Sotomayor’s legal accomplishments. “However, an impressive legal record and a superior intellect are not the only criteria we consider,” Grassley said in his opening statement.
“President Obama said that he would nominate judges based on their ability to ‘empathize’ in general with certain groups in particular,” Grassley said. “This ‘empathy’ standard is troubling to me. In fact, I’m concerned that judging based on ‘empathy’ is really just legislating from the bench … I’ve reviewed your record and have concerns about your judicial philosophy. For example, in one speech, you doubted that a judge could ever be truly impartial. In another speech, you argued it’d be a ‘disservice both to the law and society’ for judges to disregard personal views shaped by one’s ‘differences as women or men of color.’ ”
But, Klobuchar argued that the justices who have preceded Sotomayor have also had their life experiences shape the work they did on the Supreme Court.
“This should be unremarkable. And, in fact it’s completely appropriate,” said Klobuchar in her opening statement. “After all, our own Committee demonstrates the value that comes from members who have different backgrounds and perspectives.”
Klobuchar lauds diversity on committee and court
Klobuchar went on to give the following interesting list of evidence: Sen. Sheldon Whitehouse, D-R.I., grew up in Laos and Cambodia during the Vietnam War, Sen. Orrin Hatch, R-Utah, is a famed gospel music songwriter, while Leahy, apparently, “is such a devoted fan of the Grateful Dead that he once had trouble taking a call from the President of the United States because in fact the Chairman was onstage at a Grateful Dead concert.”
“We’ve been tremendously blessed on this Committee with the gift of having members with different backgrounds,” Klobuchar said. “Just as different experiences are a gift for any court in this land.”
In a more fiery response to the Republicans insinuations, Sen. Russ Feingold, D-Wis., called “shocking” the very suggestion that Sotomayor would be “biased against some litigants because of her racial and ethnic heritage.”
“This charge is not based on anything in her judicial record because there is absolutely nothing in the hundreds of opinions she has written to support it,” Feingold said in opening comments.
In comments in The Washington Post, Supreme Court expert Tom Goldstein, who is a partner in the law firm Akin & Gump and a co-founder of SCOTUSblog, called “very dangerous territory” the Republicans’ principal theme, which he described as worries about Sotomayor’s alleged racial bias.
“Republican Senators have been very respectful and tried to walk a very thin tightrope,” Goldstein wrote. “So far, they are doing a good job of it. But their principal theme looks like it’s going to be worries about her racial bias, which is certainly very dangerous territory.”
The big hazard, or course, is that Republicans could risk alienating Hispanic voters by going after Sotomayor too aggressively, especially over racial issues.
But, despite the early Republican charge against Sotomayor’s “empathy” and “activism,” Sen. Lindsey Graham, R-S.C., put her chances of being confirmed in blunt terms.
“Now, unless you have a complete meltdown, you are going to get confirmed,” Graham said. He quickly added that he did not think Sotomayor was going to have a meltdown.
Sotomayor outlines life, judicial philosophy
And, at least on Day One, Sotomayor did not. In quick introductory comments, which ended the hearing, the judge succinctly reiterated the progression of her life while forcefully addressing her judicial philosophy.
“Throughout my 17 years on the bench, I have witnessed the human consequences of my decisions,” Sotomayor said. “Those decisions have not been made to serve the interests of any one litigant, but always to serve the larger interest of impartial justice. In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law.”
Tomorrow’s hearing will begin at 9:30 a.m. Eastern Time with the first round of questions. Based on her opening statements, Klobuchar has said that she will focus on opinions that Sotomayor has “authored and work [Sotomayor] has done in the criminal area.”
“As a prosecutor, you don’t just have to know the law … you have to know the people,” Klobuchar said. “So, Judge, I’m interested in talking to you more about what you learned from that job, and how that job shaped your legal career and your approach to judging. I’m also interested in learning more about your views on some criminal issues. I want to explore your views on the Fourth Amendment, the meaning of the Confrontation Clause, and sentencing law and policy.”
Franken, meanwhile, said that he wants “to learn how you go about weighing the rights of the individual, the small consumer or business-owner, and more powerful interests. And I want to hear your views on judicial restraint and activism in the context of important issues like voting rights, open access to the Internet, and campaign finance reform.”
Cynthia Dizikes covers Minnesota’s congressional delegation and reports on issues and developments in Washington, D.C. She can be reached at cdizikes[at]minnpost[dot]com.