Sonia Sotomayor’s opening statement at her Supreme Court confirmation hearing was, to many ears, brief and boilerplate. But to Senate Judiciary Committee Republicans listening intently just a few feet away, Sotomayor drew a map for the questioning they hope will expose the fundamental flaws in her judicial views.
The theme Republicans will stress is this: Which is the real Sonia Sotomayor? The one testifying before the committee or the one who’s been giving speeches and writing legal opinions for nearly two decades?
“If you look at her opening statement, there are places where she is attempting, on the eve of her confirmation, to do a 180 on things she has said over the years,” says one senior Republican aide. “Should we believe what she’s said repeatedly in the past — long before she was nominated to the court — or should we believe what she said on the opening day of her confirmation hearing?”
For example, Sotomayor told the committee that, “My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.”
As soon as the words came out of her mouth, GOP aides were checking back to a speech Sotomayor made at Seton Hall School of Law in October 2003. “My experiences will affect the facts I choose to see as a judge,” Sotomayor said back then. “Our experiences as woman and people of color will in some way affect our decisions.” That’s a far different Sotomayor from the nominee who appeared on Monday.
Sotomayor also told the committee that her judicial philosophy is simple: “fidelity to the law.” “The task of a judge is not to make the law,” she said, “it is to apply the law.”
As she spoke, Republicans re-read her speech at Duke University Law School in 2005 when she said the federal courts of appeals are “where policy is made.” Acknowledging that she was speaking more candidly than judges usually do, she added, “I know this is on tape. And I should never say that because we don’t make law, I know.” Her words drew laughter, because everyone knew she was plainly saying that she does, in fact, make law. Again, the Sotomayor at Duke was quite different from the Sotomayor who appeared on Monday.
Sotomayor told the committee that she seeks “to strengthen both the rule of law and faith in the impartiality of our judicial system.” At that, Republicans went back to her famous “wise Latina” speech at Berkeley in 2001, in which she said that, “The aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.” Yet again, a different Sotomayor.
Sotomayor’s professions of fidelity to the law and impartiality are the core of the argument that she has the right temperament and approach to serve on the Supreme Court. Yet her opening words just served to underscore the difference between what she says to win confirmation and what she has told friendly audiences over the years. “She wants us just to accept on its face that she has always followed the law,” the GOP aide says, “but the things she’s said outside the court run contrary to that.”
Republicans will press hard on the issue of the two Sotomayors. “By and large, our themes are pretty well established,” the GOP aide says. Their case against Sotomayor will be based on the issues we’ve been hearing about for weeks: following the law, equal treatment, gun rights, and a few other key topics. Sen. Jeff Sessions, the top Republican on the committee, says there will be no surprises from his side — just a solid and strongly argued case against Sotomayor.
“If I must one day to go court, what kind of judge would I wish to hear my case?” Sessions asked in an opening statement that managed to be both gracious and tough. “Do I want a judge that allows his or her social, political or religious views to change the outcome? Or do I want a judge that impartially applies the law to the facts and fairly rules on the merits without bias or prejudice?”
The short version of that is: Would that judge be the old Sonia Sotomayor, or the new?
Byron York, The Examiner’s chief political correspondent, can be contacted at [email protected]. His column appears on Tuesday and Friday, and his stories and blog posts appears on ExaminerPolitics.com.
