- The Washington Times - Sunday, May 31, 2009

To those who followed Judge Sonia Sotomayor through her 1991 and 1997 appearances before the Senate Judiciary Committee, she did not appear very controversial, nor even particularly a judicial activist.

She sailed through in her first go-round, when President George H.W. Bush nominated her in 1991 to a federal district court in New York, winning committee approval and full Senate confirmation unanimously.

But six years later, Judge Sotomayor faced a few pointed questions about her judicial demeanor, and more than a year’s delay as she awaited confirmation to the U.S. 2nd Circuit Court of Appeals. She was finally confirmed in 1998 by the Senate, 67-29 — and the 29 “no” votes came despite not a single senator speaking out publicly against her in either the committee or on the floor.

It’s safe to say she will hear from her opponents this time around.

Already, critics have forced Judge Sotomayor to signal that she regrets saying in 2001 she hoped that a Hispanic woman, with her experiences, would make better decisions than a white man without those experiences.

See related story: Cardin set for battle on court pick

That admission came from White House press secretary Robert Gibbs on Friday, who said her choice of words was “poor.” He said he had spoken with administration officials handling Judge Sotomayor’s confirmation who relayed her regret over her words.

Still, in his weekly radio address Saturday, Mr. Obama warned opponents against “pulling a few comments out of context to paint a distorted picture of Judge Sotomayor’s record.”

“I am confident that these efforts will fail,” Mr. Obama said.

For Judge Sotomayor to win confirmation, she must survive a series of procedural hurdles, each of which she’s been through before: returning the official questionnaire about judicial rulings, personal finances and legal experience to the Senate Judiciary Committee; facing a grilling before the committee; being voted on by the committee; and being confirmed on a vote by the full Senate.

The White House says Judge Sotomayor will return her questionnaire to the Judiciary Committee sometime this week — but judging by her responses in her 1992 and 1998 questionnaires, there won’t be much to argue over.

In those first two go-rounds, Judge Sotomayor’s answers suggested someone who took judicial limits seriously.

“Our Constitution vests the right to make and administer laws in the legislative and executive branches of our government. Judges impermissibly encroach upon that right by rendering decisions that loosen jurisdictional requirements outside of the scope of established precedents and by fashioning remedies aimed at including parties not before the court to resolve broad societal problems,” Judge Sotomayor wrote in 1992.

Six years later, Judge Sotomayor said her time on the district court had only deepened her convictions on the issue, though it had shown her just how tough it was to maintain that balance: “Finding and maintaining a proper balance in protecting the constitutional and statutory rights of individuals versus protecting the interest of government, financial and otherwise, is very difficult. Judges must be extraordinarily sensitive to the impact of their decisions, and function within, and be respectful of, the constraints of the Constitution.”

No hearing date has been set, but Judge Sotomayor has been through those, too. Still, Jamie Brown, a former Bush administration official who helped prepare both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. for their confirmations, said getting ready for Supreme Court hearings is more intense than preparing for other nomination hearings.

She said that in the other levels of hearings, when a nominee is asked about privacy or another thorny issue, “the standard answer for a circuit nominee is if they were confirmed, they would look to Supreme Court precedent and apply the law.”

But since the Supreme Court makes precedent, that answer is tougher to stick by for high-court nominees.

Carl Tobias, a professor at the University of Richmond School of Law, said there will be many times when Judge Sotomayor will decline to answer questions, citing the possibility that a pertinent case could come before her on the court and saying she wouldn’t want to compromise her impartiality.

Legal experts say there are instances when bad hearings probably helped scuttle nominations, but they said that’s unlikely in this case, particularly with Democrats enjoying such large margins and with nominees being so reluctant to get into many details.

“The caution with which all nominees answer these questions — it’s very rare there would be something so damning or so important it would totally undermine the confirmation process,” Mr. Tobias said.

“She would need to have a complete meltdown,” Ms. Brown said.

In terms of preparing, one difference for Judge Sotomayor is she likely will participate in so-called “murder board” sessions — prep sessions in which lawyers role-play the adversarial nature of the hearings.

“It’s not about changing the substance of their answers, it’s about tone and style,” said Ms. Brown.

When it comes to preparation, Mr. Tobias said, Judge Sotomayor would be hard-pressed to find a better team. Ron Klain, chief of staff to the vice president, helped prepare President Clinton’s nominees in the 1990s. Vice President Joseph R. Biden Jr. himself was chairman of the Judiciary Committee through some very big battles, such as those involving Judge Robert Bork of the U.S. Court of Appeals for the D.C. Circuit and Supreme Court Associate Justice Clarence Thomas.

Mr. Biden was also the chairman in 1992, when Judge Sotomayor first came before his committee as one of several nominees to be considered on June 4.

Under the gentle questioning of Sen. Edward M. Kennedy, the Massachusetts Democrat who ran the hearing, Judge Sotomayor discussed how to get more lawyers to do pro bono work and gave her thoughts on improving trademark law.

In 1998, Sen. Jeff Sessions, Alabama Republican, questioned Judge Sotomayor closely on why she had from the bench called a mandatory minimum sentencing in a case “an abomination.”

Judge Sotomayor acknowledged that she probably should not have used that word, but said she did apply the required sentencing, proving she can put her own feelings aside and apply the law.

Judge Sotomayor also fielded questions about federal courts’ jurisdiction and on whether she had stood when Justice Thomas spoke at a judicial conference. Judge Sotomayor said she did in fact stand when Justice Thomas appeared.

Given that small amount of fire, what came next was curious. Her nomination languished for five months before being approved with little fanfare by the committee, then was delayed another eight months before the full Senate voted.

The sole reason given for opposing Judge Sotomayor’s elevation came from a Senate Republican aide, speaking on the condition of anonymity, who told the New York Times that year that they were worried about confirming her for an appeals court slot because it “puts her in the batter’s box to be nominated to the Supreme Court.”

None of the 29 senators who voted against her on the Senate floor spoke out. Of the 20 minutes allotted for floor debate, Republicans yielded back all 10 of their minutes without using any of them.

In contrast with the silent treatment she received, members were far more outspoken in opposing other nominees confirmed about the same time.

When Judge Merrick B. Garland was confirmed to the U.S. Circuit Court of Appeals for the D.C. Circuit in 1997, 23 Republicans voted against him, and at least a half-dozen spoke on the Senate floor in opposition to him, arguing that the court didn’t need the extra judge. And in 1999, when Raymond C. Fisher was confirmed to the U.S. 9th Circuit Court of Appeals, 29 Republicans voted against him — the same number that opposed Judge Sotomayor a year earlier — but at least three of them spoke out against him on the Senate floor over several days.

After that 1998 experience, Judge Sotomayor was angry, reported the New York Daily News, which said she objected to the questions she faced.

“That series of questions, I think, were symbolic of a set of expectations that some people had [that] I must be liberal,” she told the newspaper. “It is stereotyping, and stereotyping is perhaps the most insidious of all problems in our society today.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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