Tuesday, July 14, 2009

Sotomayor calls 'wise Latina' remark a bad choice of words

WASHINGTON --Under tough questioning from Republicans, U.S. Supreme Court nominee Sonia Sotomayor conceded Tuesday she made a bad play on words in her controversial statement that a "wise Latina woman" could reach a better conclusion than a white man.

"I want to state up front, unequivocally and without doubt: I do not believe that any ethnic, racial or gender group has an advantage in sound judging," Sotomayor said on the second day of the Senate Judiciary Committee hearing on her nomination by President Obama to be the first Hispanic justice on the the nation's highest court.

Facing direct questioning for the first time, Sotomayor remained calm as Democrats and Republicans asked her about past cases and speeches that have been publicized since Obama nominated her in May to become the 111th person to sit on the Supreme Court.

She gave careful answers on two politically sensitive issues -- gun control and abortion -- saying that the 1973 Roe v. Wade abortion ruling was settled law and that she supports the Second Amendment right to bear arms. And on the issue of presidential "signing statements," she said their validity must be considered case by case.

If approved by the committee and confirmed by the full Senate, she would be the third woman to serve on the Supreme Court.

Sen. Patrick Leahy, D-Vermont, chairman of the committee, gave Sotomayor the opportunity to comment on criticism over her past statements that she hoped "a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

"No words I have ever spoken or written have received so much attention," Sotomayor said of the statement from past speeches to law students, particularly Hispanic students.


"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," she said. "I don't think that there is a quarrel with that in our society." iReport.com: Share your thoughts on the Sotomayor hearings

Sen. Jeff Sessions of Alabama, the ranking Republican on the committee, pushed further on the matter, noting that Sotomayor made the statement several times in past speeches.

Sotomayor said she did a bad job of trying to express a similar opinion as former Supreme Court Justice Sandra Day O'Connor -- the first woman on the nation's highest court -- that "both men and women were equally capable of being wise and fair judges."

Sotomayor said she knew that O'Connor wasn't commenting on the ability of men or women to make wiser decisions. Judges disagree all the time, she said, but that doesn't mean that one is necessarily wiser than another.

"I was trying to play on her words," she said. "My play fell flat. It was bad." Video Watch Sotomayor talk about the comment »

On another controversial comment -- a 2005 remark at Duke University that the Court of Appeals is where "policy is made [and] where ... the law is percolating" -- Sotomayor said her words have been taken out of context.

Shown in proper context, she said Tuesday, the comment "made very clear that I wasn't talking about the policy reflected in the law that Congress makes." She was, she said, merely focusing on the fact that appellate judges establish precedent. They decide what the law means in certain circumstances, and those decisions "can be binding."

Sotomayor said her record in 17 years as a federal judge shows she fully believes "that judges must apply the law and not make the law."

In every case, she said, "I have done what the law requires," adding that personal biases and prejudices of a judge should not affect a case. However, "life experiences have to influence you," she said.

Judges have to recognize their feelings and then "set them aside," Sotomayor said.

Also on Tuesday, Sotomayor defended her ruling in a hotly contested 2008 case in which she backed the city of New Haven, Connecticut's, decision to reject results of a firefighter promotion exam because few minorities qualified for promotions.

She said the case -- Ricci v. DeStefano -- was based strictly on well-established legal precedent. She said the case was decided on the basis of "a very thorough, 78-page decision by the district court" and followed an "established precedent." Video Watch Sotomayor comment on the New Haven case »

"This was not a quota case or [an] affirmative action case," she said. The case was a challenge to a firefighter test that had a wide range of difference between the pass and failure rate of different groups. New Haven, she noted, was at risk of being sued by employees who could show they were "disparately impacted" by the test.

After days of hearings, New Haven city officials decided they wouldn't certify the test, but would instead attempt to develop a test of equal value in measuring a candidate's qualifications without having a disparate impact, she said.

The question before the 2nd Circuit, Sotomayor said, was whether the city's decision was based on race or its understanding of what the law required it to do. The court ruled that it was based on the latter.

The hearings, which are expected to last all week, gave the committee and the nation the chance to hear Sotomayor, a federal appellate judge, speak of her experiences and address issues raised by conservatives who fear she will be an activist judge for liberal causes. Video See what a former Supreme Court nominee has to say about Sotomayor »

Asked about gun control, Sotomayor said she recognizes an individual right to bear arms as recently identified by the Supreme Court.

"I have friends who hunt" and "understand fully" the Second Amendment right identified in the ruling District of Columbia v. Heller, she said. The recent 5-4 Supreme Court ruling concluded that a sweeping handgun ban in the nation's capital violated Americans' constitutional right to "keep and bear arms." Video Watch Sotomayor talk about fundamental rights »

On abortion, Sotomayor called the constitutional right to abortion established in Roe v. Wade a matter of settled law. While refusing to offer her personal view of the decision, she noted that the core holding in Roe was reaffirmed in the 1992 ruling Planned Parenthood v. Casey.

On another controversial subject, Sotomayor gave her opinion about the legality of presidential "signing statements."

She weighed in on issue after Sen. Dianne Feinstein, D-California, criticized former President Bush's decision to sign a 2005 bill banning torture only after attaching several caveats.

Asked if the Constitution authorizes the president "to not follow parts of laws duly passed by the Congress that he is willing to sign," Sotomayor would only say that "the factual scenario before the court" must be considered in each particular situation.

She cited a framework set by Justice Robert Jackson during President Harry Truman's seizure of several steel factories during the Korean War in order to prevent a strike.

According to Jackson, Sotomayor said, "you always have to look at an assertion by the president that he or she is acting within executive power in the context of what Congress has done or not done."

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