Many legal issues left out of hearings

For the first time in more than a quarter-century of Supreme Court confirmation hearings, no one asked the nominee about the court's principal test for disputes over the separation of church and state. No one asked about an enduringly controversial decision that allows government to regulate campaign contributions.

In the end, Sonia Sotomayor's reference to TV's Perry Mason spurred more questions than her reference to Marbury v. Madison, the case that established the court's power of judicial review.

News reports last week emphasized how much Sotomayor did not tell. The equal reality is that senators did not ask. The 12 Democrats of the Senate Judiciary Committee appeared to have little interest in hard questions for President Obama's first nominee. The seven Republicans, who seemed to have no chance of derailing the 17-year veteran of the U.S. bench who would be the first Hispanic justice, focused more on Sotomayor's off-bench speeches than the substance of cases.

Sunday, Senate Judiciary Chairman Patrick Leahy, D-Vt., and leading committee Republican Jeff Sessions, R-Ala., made clear that Sotomayor was headed toward confirmation, and they defended their approach in the hearings.

Sessions said it was fair to focus on her off-bench activities, which he deemed "troubling." He told CNN's John King that "people did not press her to answer … about future rulings (because) that would have been improper. … I think we can always learn and do better."

When King speculated that the White House urged Democratic senators not to push the nominee "because if the Democrats start pressing, it opens the door for Republicans to press," Leahy said, "No one in the White House suggested to me what questions I should ask, or I shouldn't ask. … Nobody had any restrictions on what to ask."

For decades, nominees have been reluctant to lay out their views, seeking to appear impartial for future cases and to avoid opposition from senators. The Sotomayor hearing was notable for a lack of meat from the nominee and her questioners.

Notre Dame law professor Richard Garnett, a former law clerk to Chief Justice William Rehnquist, said he would have wanted Republicans to spend more time on cases. "I was dumbstruck by the fact that the GOP senators spent so little time trying to pin her down."

He said he wanted to know Sotomayor's views on religion, including on a 2002 case that allows publicly financed "vouchers" for parents who want to send their children to religious schools.

Some liberal advocates, such as Nancy Northup of the Center for Reproductive Rights, wanted a more substantive discussion on abortion or equality rights.

Other liberals were simply happy to have Sotomayor, the first nominee of a Democratic president in 15 years, take another step toward confirmation. "She got the job done," Nan Aron of the Alliance for Justice said.

Sotomayor would succeed liberal retired Justice David Souter, and it is unlikely she would shift the bench in a significant way. That fact probably helped lower the temperature in contrast to hearings in 1987 when conservative Robert Bork would have succeeded centrist Lewis Powell, or in 2006 when conservative Samuel Alito was replacing the more moderate Sandra Day O'Connor.

In one question related to campaign-finance law, Sen. Russ Feingold, D-Wis., emphasized the value of federal limits on contributions as he tried to draw out Sotomayor's view. Campaign-finance regulation is a longtime interest of Feingold, and he said he was concerned about the contemporary court's moves to curtail regulation.

When Sotomayor declined to answer, Feingold said, "I probably would say the same thing, if I were in your shoes."

Then, showing that what might be a forum for constitutional debate was more a forum for senators to talk about their interests, Feingold added, "I appreciate the opportunity to express what I wanted to say about that."

Sessions said the GOP would seek to delay the committee vote until July 28.

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