Firefighter Case, 'Wise Latina' Comment Dominate GOP Grilling of Sotomayor

Peppered with questions ranging from the right to bear arms, the use of nunchucks and her controversial "wise Latina" comment, Supreme Court nominee Sonia Sotomayor carefully responded Tuesday to Republican scrutiny of her judicial record, as Democrats sprang to her defense.

Sotomayor, who if confirmed would be the first Hispanic justice on the high court, appeared to step back from her earlier comment that she hoped a "wise Latina" would reach a better conclusion than a white man, saying no one has an advantage in finding judicial wisdom.

"I do not believe that any racial, ethnic or gendered group has an advantage in sound judgment," Sotomayor told the Senate Judiciary Committee on Tuesday, the second day of her confirmation hearing. "I do believe that every person has an equal opportunity to be a good and wise judge."

Sotomayor told students in 2001 that "Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases." She followed that by saying, "I am not sure I agree with that statement."

"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," Sotomayor had said in her 2001 remarks.

But on Tuesday, the federal appellate judge said her remarks to students at the University of California, Berkeley, were meant only to to "inspire them to believe that their life experiences would enrich the legal system" and not to suggest that any one group was more likely to reach a better conclusion.

The turnaround led Republicans to accuse the judge of changing her position. Sen. Jeff Sessions, the top Republican on the panel, asked how Sotomayor could be "agreeing" with then-Supreme Court Justice Sandra Day O'Connor when she specifically said at the she wasn't sure she agreed.

"My play on those words fell flat. It was bad," Sotomayor said.

Sotomayor said she disagreed with President Obama's assertion that in certain cases "the legal process alone will not lead you to a rule of decision....The critical ingredient is supplied by what is in the judge's heart" -- a central point of contention among Republicans on the panel.  The judge told Sen. Jon Kyl, R-Arizona, during testimony that she "wouldn't approach the issue of judging in the way the president does."

The President "has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart," she said. 

Sotomayor also responded to criticisms Tuesday over her ruling in the reverse discrimination case -- Ricci vs. DeStefano -- that was later overturned in a 5-4 ruling by the U.S. Supreme Court. Sotomayor said the case was about an examination for firefighter promotions -- "not about quotas, not about affirmative action." She said she and other judges based their ruling on well-established legal precedent.

"The issue was not what we would do or not do, because we were following precedent," Sotomayor said, referring to her panel on the 2nd Circuit.

When Sen. Orrin Hatch, R-Utah, condemned the liberal group People for The American Way for its criticism of a New Haven, Conn., firefighter -- one of 20 plaintiffs in the case -- Sotomayor called such action "reprehensible" and said it was nothing she would tolerate. Hatch said he was not suggesting Sotomayor was supportive of the group's "smears" of Ricci.

Sen. Dianne Feinstein, D-Calif., quickly jumped to Sotomayor's defense, saying the judge had been unfairly labeled "an activist" for her ruling in the firefighter case.

"So what's happening here, ladies and gentlemen and members, is that this very reserved and very factual and very considered nominee is being characterized as being an activist when she is anything but," Feinstein told the panel. "And I have a problem with this, because some of it is getting across out there. Calls began to come into my office, 'Wow, she's an activist.'"

"In my view, because you have agreed with your Republican colleagues on constitutional issues some 98 percent of the time, I don't see how you can possibly be construed to be an activist," Feinstein continued.

Sessions countered that claim, citing a Washington Post study that he said showed Sotomayor's votes "came out liberal 59 percent of the time compared with 52 percent for other judges who, like her, were appointed by Democratic presidents and that the Democratic appointees were 13 percent more liberal than Republican appointees."

Sen. Herb Kohl, D-Wis., noted that in Sotomayor's 17 years as a trial and appeals court judge, she has rarely been overturned by the Supreme Court.

"No colleague has pointed to a single case in which you've said the court should change existing law, in which you've attempted to change existing law explicitly or otherwise, and I've never seen such a case anywhere in your long and extensive record," Sen. Chuck Schumer, D-N.Y., said in Sotomayor's defense.

Sotomayor also responded to criticisms over her highly publicized 2005 remarks at Duke University -- in which she said the Court of Appeals is where "policy is made [and] where ... the law is percolating" -- arguing those comments have been taken out of context by critics.

"As a judge, I do not make law," Sotomayor told Judiciary chairman Patrick Leahy, D-Vt., during opening testimony. She said her remarks in question "made very clear that I wasn't talking about the policy reflected in the law that Congress makes."

The judge sat calmly as senators took 30-minute turns to grill her on a range of issues from gun rights to abortion. Sotomayor said she supports the Second Amendment right to bear arms and believes abortion rights under Roe versus Wade were "settled law." She added that the Constitution contains a right to privacy, a forerunner of the right to abortion that the high court first outlined in its 1973 Roe v. Wade ruling.  

On the question of executive power and the protection of civil liberties in the wake of Sept. 11, Sotomayor said "in the end, the Constitution by its terms protects certain individual rights."  Sotomayor said individual rights guaranteed by the Constitution were not affected after the attacks.

The "Constitution is a timeless document," she said in response to a question from Sen. Russ Feingold, D-Wisc.  

Sotomayor was also put on the hot seat about allegations from lawyers that the judge had a fiery temperament on the bench.

"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," said Sen. Lindsay Graham, R-S.C.  Sotomayor responded to reports calling her a "terror on the bench," saying, "I believe that my reputation is such that I ask the hard questions, but I do it evenly for both sides."

The federal appellate judge's confirmation hearing Tuesday was briefly interrupted when a man shouted "baby killer...the GOP will lose the pro-life vote" before being hauled out of the gallery -- the fourth interruption from anti-abortion protesters in two days.  

The opening of Sotomayor's confirmation hearing Monday was pure Washington political theater: a nationwide television audience, anti-abortion protesters disrupting proceedings and racially tinged comments. Democrats lauded Sotomayor's rise from humble origins, Republicans worried that she would make decisions based on her personal views, not the law.

The only thing lacking was mystery. With 12 Democrats dominating the 19-member committee, which will cast the first votes, as well as the full Senate chamber, Sotomayor appeared headed for confirmation -- barring a last-minute blunder at this week's hearing.

"Unless you have a complete meltdown, you're going to get confirmed," Graham said Monday.

"And I don't think you will" have a meltdown, Graham added quickly as Sotomayor sat listening, her face in a half-smile.

Democrats and Republicans alike spoke glowingly Monday about the 55-year-old judge's rise from public housing in the Bronx to her nomination to be only the third woman on the Supreme Court.

"I would hope every American is proud that a Hispanic woman has been nominated to sit on the Supreme Court," said Arizona Republican Sen. Jon Kyl.

But the Republican senators made clear, despite the Democrats' Senate majority, they will not let Sotomayor's hearings pass without raising questions about her impartiality. By extension Republicans also are attacking Obama for what they see as a double standard in calling for her quick confirmation after voting against President George W. Bush's two high-court appointees -- John Roberts and Samuel Alito.

If confirmed, Sotomayor would be on the powerful nine-member court for life, the first justice appointed by a Democratic president in 15 years. But she is not expected to shift the court's ideological makeup, since she would replace Souter, part of the court's four-member liberal minority.

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The Associated Press contributed to this report.