Earlier Sotomayor Senate Appearances Hold Clues for Supreme Court Confirmation
Among the familiar faces: Senate Judiciary Committee chair Sen. Patrick Leahy of Vermont and Alabama Sen. Jeff Sessions, who now sits as the ranking Republican on the judiciary panel, which vets candidates for the Supreme Court, U.S. Court of Appeals and U.S. District Courts.
Sotomayor’s first foray with Senate confirmation was in 1992 when she won easy approval to become a federal judge for the Southern District of New York. That nomination came from Republican President George H.W. Bush, who chose Sotomayor at the suggestion of Democratic Sen. Daniel Moynihan of New York.
Sotomayor was back in September 1997, after she was nominated to the U.S. Court of Appeals for the 2nd Circuit by President Bill Clinton.
In the transcripts from those hearings, the late Sen. Strom Thurmond, R-S.C., questioned Sotomayor about interpreting the Constitution and federal sentencing guidelines. Former Sen. John Ashcroft, R-Mo., asked if there is “a constitutional right to homosexual conduct by prisoners,” to which she responded that they have the same rights as every U.S. citizen to “not have government action taken against them arbitrarily and capriciously.”
The Washington Post characterized her ability to handle tough lines of questioning both in 1992 and 1997 as that of a “self-confident jurist who enjoys speaking about her humble roots, discusses legal reasoning in accessible language and is adept at tactfully defending controversial positions.”
She eventually won the approval of the GOP-led judiciary panel in 1997 by a 16-2 vote — but a final Senate vote was delayed by Republicans over speculation that if she won swift confirmation, she would be in position to be nominated by President Clinton to the Supreme Court.
“The foundation for the Republicans’ strategy is based on two highly speculative theories: that Mr. Clinton is eager to name the first Hispanic person to the Supreme Court and that he will have such an opportunity when one of the current justices, perhaps John Paul Stevens, retires at the end of the current Supreme Court term next month,” New York Times reporter Neil Lewis wrote of the stalled vote in June 1998.
Among the voices predicting her possible rise to the high court at the time: conservative radio talk show host Rush Limbaugh, who said she was extremely liberal and on a “rocket ship” to the high court.
Rumors of Justice Stevens’ resignation proved false and 12 years later, at age 89, he still sits on the Supreme Court.
Leahy, then the senior Democrat on Judiciary Committee, had harsh words for the stalling: “Their reasons are stupid at best and cowardly at worst,” the Times reported. Leahy is now the chair of the committee.
Sotomayor was confirmed in a final Senate vote of 67-29 on Oct. 2, 1998, more than a year after her nomination.
In the following years, Leahy used Sotomayor’s stalled nomination as part of his case to discourage delays in the confirmation process for Hispanic, black or female nominees to circuit courts and other federal judicial positions.
“I recall how the nomination of Judge Sonia Sotomayor to the Second Circuit was stalled from Senate consideration for months by anonymous holds because Republicans were concerned that she might be nominated to the Supreme Court. Although she had received a unanimous a ‘Well Qualified’ rating from the [American Bar Association] and had first been named to the federal bench by the first President Bush, 29 Republicans voted against her confirmation,” Leahy said in Senate hearings in 2002.
Leahy and President Clinton had criticized delays in judicial confirmations in the statements they submitted to Sotomayor’s hearing in 1997.
Now in 2009, Sessions will be the leading GOP voice on the judiciary committee evaluating Sotomayor’s Supreme Court bid. In 1997, Sessions was one of her toughest questioners, asking her if the Constitution was weakened “when we try to bend it to make it fit our contemporary feelings of the moment.”
“Sir, I do not believe we should bend the Constitution under any circumstances. It says what it says. We should do honor to it,” Sotomayor responded.
Sessions recounted a case in which Sotomayor told the defendant that she was “deeply sorry” for the required sentencing. Sessions asked: “I do think a judge, would you not agree, has to be careful in conducting themselves in a way that reflects respect for the law and the system?”
Sotomayor responded that her feelings expressed in that quote were later reflected in Congress’ action to pass revised provisions of the federal sentencing guidelines.
“I do agree, however, that great respect both for the law and for the process is terribly important, and as I underscored there, I do what the law requires and I think that is the greatest respect I could show for it,” Sotomayor said.
Sessions also asked about her refusal to tell a reporter whether she stood and applauded when Supreme Court Justice Clarence Thomas, part of the court’s conservative bloc, appeared at a conference at the 2nd Circuit Court.
“I thought at that point, I was a confirmed nominee, and as a judge, that I should never be making political statements to the press or anyone else and I thought that was a politically charged question,” said Sotomayor.
Sessions continued: “Let me just ask you, did you see fit to stand and applaud when he…”
“He was my Supreme Court justice of my circuit. I stood up,” said Sotomayor, according to the hearing transcript.
Sotomayor was later confirmed by the panel with Ashcroft and Sen. John Kyl, R-Ariz., voting no.
After her confirmation, Sotomayor criticized the line of questioning from Republicans who she felt had stereotyped her as a liberal.
“That series of questions, I think, were symbolic of a set of expectations that some people had [that] I must be liberal. It is stereotyping, and stereotyping is perhaps the most insidious of all problems in our society today,” Sotomayor said in 1998, as quoted by the New York Daily News.
Sessions told Fox News’ Greta Van Susteren this year that he remembered later voting against Sotomayor in the full Senate vote but could not list the specific reasons why.
“I know a number of concerns were raised, but I do believe, Greta, that when she comes up it ought to be completely a fresh, de novo hearing, let her answers all their complaints and questions and talk about her record since that time,” Sessions said.
“I think it could to provide the kind of information we ought to seek that would allow us to vote again this time in a fair way and a complete way.”
Editor’s note: This story has been updated from its original version.