July 15, 2009 -- On the third day of her confirmation hearings ,Supreme Court nominee Sonia Sotomayor today declined to respond to senators' questions asking her explain her personal views on hot button social issues such as abortion and gun rights hearings.
In today's morning session, Sen. Tom Coburn, R-Okla., pressed Sotomayor on comments she made Tuesday noting that a 1992 case, Planned Parenthood v. Casey, reaffirmed Roe v. Wade, the landmark case that found that a woman has a constitutional right to an abortion.
"Where are we today? What is the settled law in America about abortion?" Coburn asked.
"I can speak to what the court has set in its precedent. In Planned Parenthood v. Casey, the court reaffirmed the core holding of Roe v. Wade that a woman has a constitutional right to terminate her pregnancy in certain circumstances," she said.
Coburn, a staunch abortion rights opponent and physician who notes on his official Web site that he's delivered "more than 4,000 babies," offered medical scenarios and posed questions about technology's bearing on interpretation of the law in an apparent attempt to clarify Sotomayor's stance on the issue.
But as she did when she faced similar lines of questions Tuesday, Sotomayor declined to answer questions presented "in the abstract" and deferred to precedent set forth in past court decisions.
"We don't make policy choices in the court," she added. "We look at the case before us with the interests that are argued by the parties, look at our precedent, and try to apply its principles to the arguments parties are raising."
Pointing out that recent technological advances allow medical personnel to record fetal heartbeats and brainwaves within weeks of conception, Coburn said, "I don't expect you to answer this, but I do expect you to pay attention to it as you contemplate these big issues is we have this schizophrenic rule of the law where we have defined death as the absence of those, but we refuse to define life as the presence of those."
Senator Has Some 'Splainin' to Do?
When Coburn turned to a discussion on the right to defend oneself, Sotomayor said the imminence of the threat is an important question for judges to consider -- and got the ball rolling on an exchange that lightened up the otherwise serious hearing.
"If the threat was in this room, 'I'm going to come get you,' and you go home and get -- or I go home -- I don't want to suggest I am, by the way," she said.
"Please, I'm not -- I don't want anybody to misunderstand what I'm trying to say," she said as laughter erupted in the hearing room. "If I go home, get a gun, come back and shoot you, that may not be legal under New York law because you would have alternative ways to defend..."
"You'll have lots of 'splainin' to do," Coburn jumped in, perhaps channeling Desi Arnaz's iconic "I Love Lucy" character ,Ricky Ricardo.
Sotomayor chuckled and acknowledged, "I'd be in a lot of trouble then."
Sonia Sotomayor Says Judges Don't 'Make Law'
Coburn sought to extract Sotomayor's position on Second Amendment rights, and again the judge pointed to precedent set by the Supreme Court.
"Where do we stand today about my statement that I have -- I claim to have a fundamental, guaranteed, spelled-out right under the Constitution that is individual and applies to me the right to own and bear arms. Am I right or am I wrong?" Coburn asked.
"I can't answer the question of incorporation other than to refer to precedent," she said.
Sotomayor earlier acknowledged the Supreme Court's 2008 decision that overturned Washington, D.C.'s restrictive handgun law, noting that "it is the law of the land right now in the sense of precedent, that there is an individual right to bear arms as it applies to government, federal government regulation," she said.
The judge reiterated her stance that judges don't "make law," but instead look at the set of facts before them and weigh them against the constitution and precedent.
She noted Justice Antonin Scalia's view in the Washington, D.C., case that states have long regulated gun possession. "He wasn't suggesting that all regulation was unconstitutional; he was holding in that case that D.C.'s particular regulation was illegal," she said before she pointed out that the federal government and many states also prohibit felons from possessing guns.
"And so it's not that we make a broad policy choice and say, 'This is what we want -- what judges do.' What we look at is what other actors in the system are doing, what their interest in doing it is, and how that fits to whatever situation they think they have to fix, what Congress or state legislature has to fix," she said. "All of that is the court's function, so I can't explain it philosophically. I can only explain it by its setting and what -- what the function of judging is about."
Sotomayor Stands by 'Wise Latina' Statement
In addition to exchanges on abortion and the Second Amendment, senators again grilled Sotomayor on her past comment that a "wise Latina" judge might arrive at a better conclusion than a white man in some cases.
Asked by Sen. John Cornyn, R-Tex., if she disavowed the comment, Sotomayor said she stands by the statement but added that her "rhetorical flourish" could not be read literally.
"It had a different meaning in the context of the entire speech," in which she also noted that nine white men decided landmark desegregation case Brown v. Board of Education, she said.
"It is clear from the attention that my words have gotten and the manner in which it has been understood by some people that my words failed. They didn't work," Sotomayor admitted.
She pointed to statements by retired Justice Sandra Day O'Connor and current Justice Samuel Alito to help explain that she didn't intend to suggest that "personal experiences compel results in any way."
"I think life experiences generally -- whether it's that I'm a Latina or was a state prosecutor or have been a commercial litigator or been a trial judge and an appellate judge -- that the mixture of all of those things, the amalgam of them help me to listen and understand."
The bottom line, Sotomayor said, is that judges "rely on the law to command the results in the case. So when one talks about life experiences, and even in the context of my speech, my message was different than I understand my words have been understood by some."
Cornyn also asked Sotomayor if she believes judges can ever change the law -- echoing the Republican concern over so-called activist judges who conservatives charge rule from the bench.
Sotomayor responded that judges "can't change the law, we're not lawmakers."
"But we change our view of how to interpret certain laws based on new facts, new developments of trial theory, considerations o f whether -- what the reliance of society may be on an old rule. We think about whether a rule of law has proven workable. We look at how often the court has affirmed a prior understanding of how to approach an issue. But in those senses there's changes by judges in the popular perception that we're changing the law."