When the U.S. Court of Appeals for the Second Circuit judge has her confirmation hearing next month, she will have to defend the rulings and comments that have received the most vigorous attacks.
One is Ricci vs. Stefano, in which she sided with the city of New Haven against a group of white and one Latino firefighters who filed suit after the city threw out the results of a promotions exam because no black firefighters passed it.
Robert Alt, senior legal fellow and deputy director of the conservative Heritage Foundation’s Center for Legal and Judicial Studies, predicts Sotomayor will have a difficult time defending the decision and how she expressed it.
“There are often cases where judges of good faith will reach different conclusions but can point to detailed reasoning. [Justices] not only say what it is they’re ruling, they say why it is they’re ruling it,” Alt says. “In this case, she had one paragraph that didn’t address the merits. It just seems terribly dismissive and doesn’t exercise the deliberation and temperament that one would expect given the gravity of the claims.”
He’s also troubled by her comments about the wisdom of a Latina woman versus a white man, policy being made in the appellate court, and even more so, the idea of employing empathy to make judicial decisions.
Both Sessions and Leahy have said that Sotomayor told them she would always follow the rule of the law. “She said that of course one’s life experience shapes who you are, but ultimately and completely—and she used those words— ultimately and completely, as a judge has to follow the law no matter what their upbringing has been,” Leahy said.
That, charges Alt, begs the question of whether Sotomayor is being entirely truthful.
He says, “Multiple statements were made when she wasn’t up for this job that are very contrary to what she’s saying now. So, obviously, she needs to be questioned about this and they need to try to ascertain whether she’s mouthing the words and saying what she needs to in order to be confirmed or if there’s genuine contrition or a sense that what she said before was wrong.”
By the time her hearing rolls around, Sotomayer will indeed have all the right answers.
“As we get to know her judicial record more, we find an awful lot of balance in it, so trying to make her out to be something she isn’t is going to be very difficult for Republicans,” says MacKenzie. “Republicans on the judiciary committee are going to find it in their interests to go quite gently on her. They’ll ask her why she said certain things, she’ll have good answers prepared, and then they’ll move on. I won’t be surprised if she gets 70 to 75 [yes] votes.”
A recent poll conducted by the Quinnipiac University Polling Institute found that American voters approve of Sotomayor by a margin of 54 – 24%, with 22% undecided.
The confirmation hearings will be Webcast live online. The committee plans to announce details about how people can attend the hearings in the coming weeks.