If you knew absolutely nothing about Sonia Sotomayor before Tuesday’s confirmation hearing and judged her entirely on her answers, you could easily come to the conclusion that she had been nominated by Pres. George W. Bush and was likely to sail through confirmation with the strong support of conservatives in the legal community.
Of course, she was nominated by President Obama, and conservative legal eagles are doing their best to lay out the case against her confirmation. But in her first day of questioning before the Senate Judiciary Committee, Sotomayor sounded nothing like the judge who caused controversy via her remarks about the superior legal judgment of a “wise Latina,” her comments about judges’ role in setting policy, and her rulings about the Second Amendment.
If you asked Americans which two words they most closely associate with Sotomayor, those words would probably be “wise Latina.” The phrase was included in multiple speeches she delivered between 1994 and 2003 and was most often expressed in the line, “I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion.” This line was often delivered as a response to a remark often attributed (possibly falsely) to Sandra Day O’Connor. In one instance, Sotomayor put her disagreement with the O’Connor quote pretty clearly: “Justice O’Connor has often been cited as saying that ‘a wise old man and a wise old woman reach the same conclusion’ in deciding cases. . . . I am . . . not so sure that I agree with the statement.”
But Tuesday, Sotomayor argued that she meant the precise opposite — that she agreed with O’Connor, and the words just came out wrong. Horribly wrong. Again and again, and sometimes in written texts, they just came out wrong.
“I also, as I explained, was using a rhetorical flourish that fell flat,” Sotomayor said Tuesday. “I knew that Justice O’Connor couldn’t have meant that if judges reached different conclusions, legal conclusions, that one of them wasn’t wise.” (The excuse misses the meaning of the O’Connor statement, which is that neither gender has cornered the market on judicial wisdom. Sotomayor’s repeated disagreement, meanwhile, suggested that white male judges were incapable of equaling the prudence of those wise Latinas.)
Later, under questioning from Sen. Jon Kyl (R., Ariz.), she repeated, “The rhetorical flourish? It was a bad idea,” raising her eyebrows for emphasis.
Also, early in the hearing, Sotomayor emphasized, “It’s important to remember that as a judge, I don’t make law.” Ordinarily, that sort of line would prompt nods of approval from Republicans. But the statement doesn’t square with her Feb. 25, 2005, remarks at Duke University Law School: “All of the legal-defense funds out there . . . are looking for people with Court of Appeals experience. Because it is — Court of Appeals is where policy is made. And I know, I know this is on tape. And I should never say that because we don’t make law, I know. I’m not promoting it. And I’m not advocating it, you know.”
And Second Amendment advocates, including the NRA, greeted Sotomayor’s nomination with great wariness and suspicion. A key factor in their reaction was a 2004 opinion she joined, which cited as precedent a previous ruling that “the right to possess a gun is clearly not a fundamental right.”
Some of the first exchanges she had on Tuesday appeared to be aimed at addressing those objections:
Committee Chair 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?”
Sotomayor: “Yes, sir.”
Leahy: “Thank you. And in the Second Circuit decision, 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 restrictions. Is that correct?”
Sotomayor: “It is.”
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