July 13, 2009 -- After weeks of public silence, Judge Sonia Sotomayor used the opening statement of her Supreme Court confirmation hearing today to tell members of the Senate Judiciary committee and some skeptical Republicans that she will not let her personal beliefs get in the way of her impartiality.
"In the past month," she said, "senators have asked me about my judicial philosophy. Simple: fidelity to the law. The task of a judge is not to make the law -- it is to apply the law."
Sotomayor referenced her upbringing in a Bronx, N.Y., housing project and her mother's commitment to education.
"My father, a factory worker with a third grade education, passed away when I was nine years old," she said. "My mother raised my brother and me. She taught us that the key to success in America is a good education."
In a steady and confident voice she talked about her early days working as an assistant district attorney in Manhattan. "I saw children exploited and abused. I felt the suffering of victim's families torn apart by a loved one's needless death. And I learned the tough job law enforcement has protecting the public safety."
But to quell criticism that some have voiced about her becoming an "activist judge," she added forcefully, "My personal and professional experiences help me listen and understand, with the law always commanding the result in every case."
The first day of the confirmation hearing also included the opening statements of all 19 members of the Senate Judiciary committee, who drew sharp distinctions in their opinions regarding her record.
Sen. Patrick Leahy, D-Vt., chairman of the Judiciary Committee, praised Sotomayor for her life story saying, "Hers is a success story in which all, all Americans can take pride" but he took aim at "ideological groups" which he says have lead to unfair attacks on the nominee.
"Let no one demean this extraordinary woman," he said.
Sen. Jeff Sessions, R-Ala., the leading Republican member of the Committee, came out swinging. Referencing comments made by President Obama that he wanted to nominate a candidate with "empathy." Sessions said, "I fear this empathy standard." Sessions said, "I fear this empathy standard."
Sessions said that he was "troubled" by some of Sotomayor's rulings and he worried that she might be a nominee whose "personal background" or "sympathies" might affect her neutrality as a judge.
"Call it empathy" he said, "call it prejudice, call it sympathy, but whatever it is it is not law."
Confirmation Unless Sotomayor Has 'A Complete Meltdown'
Although Republicans are spoiling for a fight, they're also facing the reality that Sotomayor comes with 17 years of experience as a federal judge and will be supported by a solid Democratic majority in the Senate.
Barring a poor performance at her confirmation hearing or a last-minute revelation shedding new light on her record, court watchers believe her confirmation is all but certain.
"This is a slam dunk," says Thomas Goldstein a lawyer who often appears before the high court and runs the popular blog Scotusblog.
At today's hearing, Republican Sen. Lindsey Graham even noted, "Now, unless you have a complete meltdown, you're going to get confirmed," to which Sotomayor laughed.
Democrats have highlighted Sotomayor's compelling life story, from New York housing projects to the most elite universities in the nation.
"I strive never to forget the real world consequences of my decisions on individuals, businesses and government," Sotomayor said when she was nominated May 26.
But Republicans will try to use some of the praise against her.
"She has said her own background in feelings, sympathies, even prejudices are naturally going to have an impact on how she rules in cases," Sen. Jeff Sessions, R-Ala., ranking member of Senate Judiciary Committee, said Sunday. "That's directly contrary to the American ideal that every judge must put aside their personal feelings, backgrounds, prejudices and render justice to each party in that case."
As part of that argument, they point to comments she made in 2005 at a panel at Duke Law School, when she suggested that appeals courts make policy instead of merely interpreting and applying the law. She quickly added, "I know, and I know this is on tape, and I should never say that, because we don't make law I know."
Leahy dismissed the concerns on Sunday, saying, "There's been no evidence whatsoever that she's allowed partiality to creep into her judgments as a judge."
But there are several issues that will come up during Sotomayor's Supreme Court confirmation hearings.
The sharpest questions for Sotomayor could well be on the issue of race and affirmative action, with senators delving into Sotomayor's own words on the subject.
In a 2002 speech, she said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
Obama attempted to diffuse the issue, telling NBC News, "I am sure she would have restated" the statement. But, in fact, Sotomayor had repeated a similar sentiment in several speeches.
Limbaugh: Sotomayor a 'Reverse Racist'
The comment caused conservative commentator Rush Limbaugh to call her a "reverse racist." Other Republicans distanced themselves from such characterizations, saying they would focus on her record.
The only sitting female Supreme Court Justice, Ruth Bader Ginsburg, said attention paid to the issue was "ridiculous." She told the New York Times: "Think of how many times you've said something that you didn't get out quite right, and you would edit your statement if you could."
Sotomayor has often brought up her Latina heritage and humble roots. "I am a product of affirmative action," she told one panel in the early '90s. "I am a perfect affirmative action baby."
Senators also will ask about Sotomayor's decision as a lower court judge in a controversial race discrimination case. Sotomayor sat on a three-judge panel that ruled against white and Hispanic firefighters who claimed the city of New Haven, Conn., had denied them promotions based on their race. A sharply divided Supreme Court reversed that decision last month, finding in favor of the white and Hispanic firefighters. Republican senators have invited two of those firefighters to testify against Sotomayor.
As a federal judge, Sotomayor has never ruled directly on the core issue of a woman's right to an abortion. Senators will press, likely without much luck, to determine her take on the hot-button social issue. Although some of her critics believe her views on abortion would be consistent with that of the Obama administration, in one case she did side with the Bush administration on banning government funding to international groups that provided abortion. The decision was a disappointment to abortion rights activists.
"We simply don't know where Judge Sotomayor is on core constitutional protections in Roe v. Wade," said Nancy Northrup, president of the Center for Reproductive Rights.
Gun Rights advocates are critical of a 2009 appeals court decision, which Sotomayor joined, that held the 2nd Amendment's right to bear arms only applies to the federal government and not to state governments that may be implementing gun restrictions. However, criticism of her decision in the case was dampened when conservative judges in a different circuit ultimately came to the same conclusion, finding that a recent Supreme Court case striking down Washington, D.C.'s gun ban did not apply to states.
In 1981, while serving on the board of directors for the Puerto Rican Legal Defense and Education Fund, Sotomayor signed a document explaining whether the group should support a bill to restore the death penalty in New York State. The memo read: "Capitol Punishment is associated with evident racism in our society. The number of minorities and the poor executed or awaiting execution is out of proportion to their numbers in the population."
Other Issues for Sonia Sotomayor's Confirmation Hearings
One of the first cases the Supreme Court will hear in the fall concerns campaign finance and Sotomayor, unlike other recent nominees, has some experience with the issue. From 1988 to 1992, Sotomayor served on the New York City Campaign Finance board, an agency that regulates campaign funds. In a 1996 law review article, she questioned the role of private money in campaigns.
Earlier in her career, Sotomayor spent five years working as an assistant district attorney in New York City. Democrats of the Senate Judiciary Committee have asked Sotomayor's former boss, Robert Morgenthau, the district attorney from New York County since 1975, former FBI director Louis Freeh and Michael Garcia, former U.S. Attorney for the Southern District of New York, to testify on her behalf. Over the weekend, a White House spokesman released a statement saying, "Judge Sotomayor now has the support of every major law enforcement organization in the United States representing nearly all of law enforcement."
The committee has read through the over 230 opinions Sotomayor authored on the appellate court, and White House counsel Greg Craig has taken the lead in preparing Sotomayor for the hearings.
Committee staffers have also read through boxes of documents from the Puerto Rican Legal Defense and Education Fund, now known as LatinoJustice PRLDEF. Sotomayor served in various capacities on the group's board from 1980 to 1992. Republicans have called PRLDEF a "controversial organization" that has taken "a number of positions that are well outside the mainstream of America."
But in early July, Craig wrote a letter to Alabama Sen. Sessions saying that PRLDEF is a "highly respected civil rights legal fund" that has worked with groups such as the NAACP Legal Defense Fund and the Mexican American Legal Defense Fund for equal opportunity.
A spokesperson for LatinoJustice says that in her role serving in a voluntary capacity Sotomayor never directed which legal issues the group would target.
The White House issued a statement saying the committee should not link Sotomayor with every document produced during her time serving on the board: "Documents that Judge Sotomayor did not write, review, or approve -- many of them more than two decades old -- are irrelevant to her nomination. The Senate should judge her on her own record -- especially her judicial record -- not on briefs that other lawyers wrote 20 years ago."