Firefighter Ricci, GOP can't halt Sotomayor confirmation drive

McClatchy NewspapersJuly 16, 2009 

WASHINGTON — Outnumbered, often-frustrated Republicans launched what's likely to be a futile, last-ditch effort Thursday to heighten doubts about Supreme Court nominee Sonia Sotomayor's judicial temperament, grilling her hard on a key affirmative-action case, gun rights and other volatile issues.

In her fourth day before the Senate Judiciary Committee, however, Sotomayor continued to deflect the Republican blasts with cool, reasoned answers.

Sen. Arlen Specter, D-Pa., told the federal appellate judge who's seeking to become the court's first Hispanic justice, "Conventional wisdom is very strong for your confirmation," and not even Republicans disagreed.

Sotomayor's testimony was followed by a parade of public witnesses, notably New Haven, Conn., firefighter Frank Ricci, the lead plaintiff in a landmark case that challenged the city's refusal to promote white firefighters after African-Americans and all but one Hispanic didn't score well on a promotion test.

Republicans have brought up the Ricci case repeatedly as an example of judicial activism and overreaching. The Supreme Court ruled 5-4 in Ricci's favor last month, overturning an appellate court decision with Sotomayor in the majority.

On Thursday, Ricci protested.

"Americans have the right to go into our federal courts and have their cases judged based on the Constitution and our laws, not on politics and personal feelings," he said.

"The lower courts' belief that citizens should be reduced to racial statistics is flawed," Ricci said, "and it only divides people who don't wish to be divided along racial lines."

The Judiciary Committee, which has 12 Democrats and seven Republicans, could vote as early as Tuesday, though the GOP is likely to delay the vote for a week to study the record further. The full Senate is expected to consider President Barack Obama's first Supreme Court nomination the week of Aug. 3.

Few Republicans have said so far that they were opposing her, but they're coming close.

Sen. Orrin Hatch, R-Utah, who's never voted against a Supreme Court nominee during his 32 years in the Senate, said Sotomayor's comments and record had troubling aspects. Sen. Jeff Sessions of Alabama, the committee's top Republican, said he had serious concerns about her.

Her best chances for Republican support appeared to come from Sens. Lindsey Graham of South Carolina, who told Sotomayor that her future looked "pretty bright," and John Cornyn of Texas, who said that her judicial record was "pretty much in the mainstream" of district court decision-making.

Graham, a conservative from a Southern state, is being closely watched, because if he backs Sotomayor, other Republicans are likely to follow.

Graham hasn't said how he'll vote, but he had warm words for Sotomayor, telling her, "I think and believe, based on what I know about you so far, that you're broad-minded enough to understand America is bigger than the Bronx, it's bigger than South Carolina." Sotomayor is a Bronx native.

He continued to be disturbed by Sotomayor's nonjudicial advocacy, however, such as her speeches, which he called "consistently ... left of center," adding, "You have said some things that just bugged the hell out of me."

Democrats seemed intent Thursday on reiterating not only Sotomayor's qualifications, including 17 years as a federal district and appellate judge, but also the historical nature of the appointment.

"I think you're a walking, talking example of the best part of the United States of America," said Sen. Dianne Feinstein, D-Calif., "and I just want to say how very proud I am that you are here today, and it is my belief you are going to be a great Supreme Court justice."

Republicans asked more pointed questions and sent different messages. All week, they've questioned whether Sotomayor, as reflected in some of her speeches and writings, is too liberal and too guided by personal feelings.

"The reason these speeches matter and the reason elections matter is because people now understand the role of the court in modern society when it comes to social change," Graham said. "That's why we fight so hard to put on the court people who see the world like us. That's true from the left and that's true from the right."

He pointedly asked Sotomayor, "What binds you when it comes to a fundamental right?"

"The rule of law," Sotomayor answered.

Cornyn said there was still confusion about how much her personal views colored her legal judgment, and Sen. Jon Kyl, R-Ariz. quizzed her on the Ricci decision.

Ricci criticized the ruling against him, saying that decisions made on the basis of data and politics "where the outcome of the decision could result in injury or death is contrary to sound public policy."

His appearance, on a crowded panel of public witnesses, got scant attention from senators. Hatch praised Ricci, however, saying, "This is not some itty-bitty case. ... This is one of the most important cases in the nation's history."

Sotomayor has said this week that she doesn't write the law but relies on fact and precedent. Kyl said he was baffled about what precedent Sotomayor was using for the Ricci decision.

"The issue was whether or not employees who ... were a member of a disparately impacted group had a right under existing precedent to bring a lawsuit," she said.

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For more McClatchy Supreme Court coverage visit Suits & Sentences

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McClatchy Newspapers 2009

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