JIM LEHRER: U.S. Supreme Court nominee Sonia Sotomayor defended her record and her speeches today. It was day two of her confirmation hearings before the Senate Judiciary Committee.
NewsHour congressional correspondent Kwame Holman has our lead story report.
KWAME HOLMAN: Right from the start, Judge Sotomayor was called to defend past statements, and she flatly denied any racial bias. Committee Chair Patrick Leahy moved to pre-empt Republican criticism in his opening questions.
He asked Sotomayor about her much-debated 2001 remark that “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 has not lived that life.”
SEN. PATRICK LEAHY (D), Vermont: So tell us. You’ve heard all these charges and countercharges, the “wise Latina,” and on and on. Here’s your chance. You tell us — you tell us what’s going on here, Judge.
JUDGE SONIA SOTOMAYOR, Supreme Court Justice Nominee: Thank you for giving me an opportunity to explain my remarks. No words I have ever spoken or written have received so much attention.
As my speech made clear, in one of the quotes that you referenced, I was trying to inspire them to believe that their life experiences would enrich the legal system, because different life experiences and backgrounds always do. I don’t think that there is a quarrel with that in our society.
I was also trying to inspire them to believe that they could become anything they wanted to become, just as I had.
The context of the words that I spoke have created a misunderstanding. And I want — and misunderstanding — and to give everyone assurances, I want to state upfront, unequivocally and without doubt, I do not believe that any ethnic, racial, or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge, regardless of their background or life experiences.
Sen. Sessions presses Sotomayor
KWAME HOLMAN: But the explanation did not satisfy Alabama's Jeff Sessions, the committee's ranking Republican. When he pressed the point, Sotomayor said she had tried a rhetorical flourish that fell flat.
JUDGE SONIA SOTOMAYOR: It was bad, because it left an impression that I believed that life experiences commanded a result in a case, but that's clearly not what I do as a judge. It's clearly not what I intended.
In the context of my broader speech, which was attempting to inspire young Hispanic, Latino students and lawyers to believe that their life experiences added value to the process.
SEN. JEFF SESSIONS (R), Alabama: Well, I can see that, perhaps, as a layperson's approach to it, but as a judge who's taken this oath, I'm very troubled that you would repeatedly, over a decade or more, make statements that consistently -- any fair reading of these speeches consistently argues that this ideal and commitment -- I believe every judge is committed -- must be -- to put aside their personal experiences and biases and make sure that that person before them gets a fair day in court.
KWAME HOLMAN: Sessions also challenged Sotomayor's vow in her opening statement yesterday of "simple fidelity to the law." He raised her 2005 statement at Duke University that the court of appeals is where policy is made.
SEN. JEFF SESSIONS: You on said on another occasion, "The law that lawyers practice and judges declare is not a definitive -- capital L -- Law that many would like to think exists," closed quote.
So I guess I'm asking today, what do you really believe on those subjects, that there is no real law and that judges do not make law, or that there is no real law and the court of appeals is where policy is made? Discuss that with us, please.
JUDGE SONIA SOTOMAYOR: I believe my record of 17 years demonstrates fully that I do believe that law -- that judges must apply the law and not make the law. Whether I've agreed with a party or not, found them sympathetic or not, in every case I have decided, I have done what the law requires.
With respect to judges making policy, I assume, Senator, that you are referring to a remark that I made in a Duke law student dialogue. That remark in context made very clear that I wasn't talking about the policy reflected in the law that Congress makes; that's the job of Congress to decide what the policy should be for society.
In that conversation with the students, I was focusing on what district court judges do and what circuit court judges do. And I noted that district court judges find the facts and they apply the facts to the individual case. And when they do that, their holding, their finding doesn't bind anybody else.
Appellate judges, however, establish precedent. They decide what the law says in a particular situation. That precedent has policy ramifications, because it binds not just the litigants in that case; it binds all litigants in similar cases and cases that may be influenced by that precedent.
KWAME HOLMAN: That led to an exchange over the nominee's broader view of how a judge's background could influence decisions.
SEN. JEFF SESSIONS: But you have previously said this: "I am willing to accept that we who judge must not deny differences resulting from experiences and heritage, but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."
So, first, I'd like to know, do you think there's any circumstance in which a judge should allow their prejudices to impact their decision-making?
JUDGE SONIA SOTOMAYOR: Never their prejudices. I was talking about the very important goal of the justice system is to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case.
What I was talking about was the obligation of judges to examine what they're feeling as they're adjudicating a case and to ensure that that's not influencing the outcome.
Life experiences have to influence you. We're not robots who listen to evidence and don't have feelings. We have to recognize those feelings and put them aside. That's what my speech was saying...
SEN. JEFF SESSIONS: Well, Judge...
JUDGE SONIA SOTOMAYOR: ... that's our job.
SEN. JEFF SESSIONS: But the statement was, "I willingly accept that we who judge must not deny the differences resulting from experience and heritage, but continuously to judge when those opinions, sympathies and prejudices are appropriate." That's exactly opposite of what you're saying, is it not?
JUDGE SONIA SOTOMAYOR: I don't believe so, Senator, because all I was saying is, because we have feelings and different experiences, we can be led to believe that our experiences are appropriate. We have to be open-minded to accept that they may not be and that we have to judge always that we're not letting those things determine the outcome.
But there are situations in which some experiences are important in the process of judging, because the law asks us to use those experiences...
SEN. JEFF SESSIONS: Well...
Delving into past decisions
KWAME HOLMAN: Several cases from Sotomayor's own experience as an appeals judge came in for close attention today. In the so-called Ricci case, white firefighters in New Haven, Connecticut, claimed they were denied promotions based on race. Last month, the U.S. Supreme Court ruled for the group and reversed an appeals court panel that included Sotomayor.
JUDGE SONIA SOTOMAYOR: This was not a quota case. This was not an affirmative action case. This was a challenge to a test that everybody agreed had a very wide difference between the pass rate of a variety of different groups.
The city here, after a number of days of hearings and a variety of different witnesses, decided that it wouldn't certify the test, and it wouldn't certify it in an attempt to determine whether they could develop a test that was of equal value in measuring qualifications, but which didn't have a disparate impact.
And so the question before the panel was, was the decision a -- of the city based on race or based on its understanding of what the law required it to do?
Given Second Circuit precedent, Bushey v. New York state, New York State Civil Services Commission, the panel concluded that the city's decision in that particular situation was lawful under established law.
The Supreme Court, in looking and reviewing that case, applied a new standard. In fact, it announced that it was applying a standard from a different area of law and explaining to employers and the courts below how to look at this question in the future.
KWAME HOLMAN: Sotomayor also drew questions about gun rights, another traditional topic of Supreme Court confirmations.
SEN. PATRICK LEAHY: Is it safe to say that you accept the Supreme Court's decision as establishing that the Second Amendment right is an individual right? Is that correct?
JUDGE SONIA SOTOMAYOR: Yes, sir.
SEN. PATRICK LEAHY: Thank you. And in the Second Circuit decision in Maloney v. Cuomo, you, in fact, recognized the Supreme Court decided in Heller that the personal right to bear arms is guaranteed by the Second Amendment of the Constitution against federal law restriction. Is that correct?
JUDGE SONIA SOTOMAYOR: It is.
KWAME HOLMAN: The hearing turned to property rights when it was Chuck Grassley's turn. The Republican of Iowa asked if the Supreme Court went too far in 2005 when it expanded the power to seize private property for public use.
JUDGE SONIA SOTOMAYOR: The question of whether the Supreme Court overstepped the Constitution, as I've indicated, the court -- at least my understanding of the majority's opinion -- believed and explained why it thought not.
I have to accept, because it is precedent, that as precedent, and so I can't comment further than to say that I understand the questions and I understand what state legislatures have done and would have to await another situation -- or the court would -- to apply the holding in that case.
KWAME HOLMAN: Sotomayor also declined to say if the high court was wrong to strike down anti-terror laws during the Bush era, but she told Democrat Russ Feingold of Wisconsin it was a mistake to uphold interning Japanese-Americans during World War II.
JUDGE SONIA SOTOMAYOR: A judge should never rule from fear. A judge should rule from law and the Constitution. It is inconceivable to me today that a decision permitting the detention and arrest of an individual solely on the basis of their race would be considered appropriate by our government.
Roe V. Wade and the Constitution
KWAME HOLMAN: The judge affirmed a right to privacy as the basis for the Roe v. Wade decision that legalized abortion in 1973, but toward the end of the day Republican Lindsey Graham of South Carolina pointedly turned to that subject and an exploration of the proper role of a judge.
SEN. LINDSEY GRAHAM (R), South Carolina: Do you think Roe v. Wade changed American society?
JUDGE SONIA SOTOMAYOR: Roe v. Wade looked at the Constitution and decided that the Constitution as applied to a claimed right applied.
SEN. LINDSEY GRAHAM: Is there anything in the Constitution that says a state legislator or the Congress cannot regulate abortion or the definition of life in the first trimester?
JUDGE SONIA SOTOMAYOR: The holding of the court as...
SEN. LINDSEY GRAHAM: I'm asking the Constitution. Does the Constitution as written prohibit a legislative body at the state or federal level from defining life or regulating the rights of the unborn or protecting the rights of the unborn in the first trimester?
JUDGE SONIA SOTOMAYOR: The Constitution in the 14th Amendment has a...
SEN. LINDSEY GRAHAM: I'm talking -- is there anything in the document written about abortion?
JUDGE SONIA SOTOMAYOR: The word "abortion" is not used in the Constitution, but the Constitution does have a broad provision concerning a liberty provision under the due process...
SEN. LINDSEY GRAHAM: And that gets us to the speeches. That broad provision of the Constitution has taken us from no written prohibition protecting the unborn, no written statement that you can't voluntarily pray in school, and on and on and on and on.And that's what drives us here, quite frankly; that's my concern. And when we talk about balls and strikes, maybe that's not the right way to talk about it, but a lot of us feel that the best way to change society is to go to the ballot box, elect someone, and if they're not doing it right, get rid of them through the electoral process.
And a lot of us are concerned, from the left and the right, that unelected judges are very quick to change society in a way that's disturbing. Can you understand how people may feel that way?
JUDGE SONIA SOTOMAYOR: Certainly, sir.
Questioning Sotomayor's temperament
KWAME HOLMAN: And Graham went on from there to raise questions about whether Sotomayor is temperamentally suited to be a judge.
SEN. LINDSEY GRAHAM: One thing that stood out about your record is that, when you look at the Almanac of the Federal Judiciary, lawyers anonymously rate judges in terms of temperament.
And here's what they said about you: She's a terror on the bench. She's temperamental, excitable. She seems angry. She's overly aggressive, not very judicial. She does not have a very good temperament. She abuses lawyers. She really lacks judicial temperament. She believes in an out-of-control -- she behaves in an out-of-control manner. She makes inappropriate outbursts. She is nasty to lawyers. She will attack lawyers for making an argument she does not like. She can be a bit of a bully.
When you look at the evaluation of the judges on the Second Circuit, you stand out like a sore thumb, in terms of your temperament. What is your answer to these criticisms?
JUDGE SONIA SOTOMAYOR: I do ask tough questions at oral argument.
SEN. LINDSEY GRAHAM: Are you the only one that asks tough questions in oral argument?
JUDGE SONIA SOTOMAYOR: No. No, not at all. I can only explain what I'm doing, which is, when I ask lawyers tough questions, it's to give them an opportunity to explain their positions on both sides and to persuade me that they're right.
KWAME HOLMAN: Sotomayor is expected back tomorrow to wind up her questioning by the committee.