Federal Courts and Nominations

Sotomayor avoids firm answers on key issues

Supreme Court nominee Sonia Sotomayor and senators who will vote on her confirmation are engaged in a careful conversation about where she stands on hot-button issues like abortion and gun rights. You probably won’t hear any of it, though, since the exchange is taking place in code.

Sotomayor is simply following a time-honored tradition: High court nominees work mightily to reassure senators that they won’t be radicals seeking to impose an agenda, without revealing how they might rule on key issues that could come before the court.

Senators, in turn, are doing their utmost to get assurances from Sotomayor that she’ll protect certain precedents and eschew others, so they can defend a vote for or against her with constituents and supporters.

It’s a key part of Sotomayor’s audition for a job on the nation’s highest court, and a major determinant of how broad Senate support will be for President Barack Obama’s first Supreme Court nominee.

Much of the code involves legalese that means little to most people but plenty to the interest groups and activists who closely track even the subtlest nuance on their pet issues.

“There’s always a bit of a parlor game that develops in terms of what precisely words said by nominees mean,” said Doug Kendall of the Constitutional Accountability Center.

Take abortion rights, for instance. Foes and supporters alike are wary of Sotomayor’s stance on the issue, since during her years as a judge she’s never ruled directly on the key questions of Roe v. Wade, the 1973 ruling that established a woman’s right to end her pregnancy.

Senators on both sides of the issue have asked her about it. Democratic Sens. Dianne Feinstein of California and Benjamin Cardin of Maryland, both abortion-rights backers, said they spoke with Sotomayor about Roe during private meetings, and both said they came away encouraged by her answers.

Why? “I think she’s a woman who is well-steeped in the law and well-steeped in precedent, and I believe that she has a real respect for precedent,” Feinstein said.

Translation: Sotomayor wouldn’t be quick to overturn Roe, which backers consider “settled law,” the kind of super-precedent that has survived long enough without major challenge that it shouldn’t be reconsidered.

That sounded a lot like what the White House said when trying to explain to reporters how Obama, who supports abortion rights but whose aides insist has never asked the judge her views on Roe, was nonetheless comfortable with Sotomayor’s stance.

Robert Gibbs, the White House spokesman, said the two discussed Sotomayor’s “views on unenumerated rights in the Constitution and the theory of settled law.” Both of those are buzz-phrases for backers of the 1973 decision. In Roe, the court recognized a right to privacy even though it’s not spelled out in the Constitution.

The answer evidently wasn’t enough for Republican Sen. Jim DeMint of South Carolina, who opposes abortion rights. He tried asking Sotomayor during their closed-door chat whether she believed an unborn child had any rights. The judge sidestepped the question entirely, saying she’d never thought about it, according to a statement DeMint released later.

It wasn’t always this way. Legal scholars note that it wasn’t until the latter half of the 20th century that the Senate even held hearings on Supreme Court nominees, much less had the chance to press them on specific cases or legal issues. The probing questions first came in response to the Brown v. Board of Education ruling that ended school segregation, after which Southern senators made it a point to press would-be justices on the subject.

Since then, it’s become the norm for high court nominees to cram extensively for their public grilling before the Senate. Sotomayor’s hearings begin July 13.

“We know as little about nominees as we did before 1955, but now we put enormous pressure on them to either lie, or sink themselves or dance,” said Benjamin Wittes of the Brookings Institution, whose book “Confirmation Wars” argues that Senate hearings should be scrapped.

Sotomayor, like her predecessors, is undergoing weeks of so-called “murder boards,” where White House aides act out the roles of senators peppering her with difficult questions on issues, cases and precedents, and she rehearses how she’ll answer them — or in some cases dodge them with codespeak.

In the past, “murder boards and preparation really created a kind of false dynamic of phrases that were thrown as answers to questions. I think we’re onto that” this time, Feinstein said recently. “We’re ready for the hearing.”

Chief Justice John Roberts’ 2005 confirmation hearings were a prime example. He called Roe “settled law,” said there was a right to privacy and called cases that reaffirmed the right to abortion a “precedent of the court, entitled to respect.” Abortion rights groups at the time shrugged, saying the response didn’t reassure them that Roberts wouldn’t turn around and try to dismantle the landmark decision.

Sotomayor reportedly took a similar approach last week to a question on gun rights. Sen. Mark Udall, D-Colo., said he asked the judge what her views were of the Second Amendment that protects Americans’ right to bear arms. She told Udall she would follow a 2008 Supreme Court ruling that affirmed Americans’ right to own guns for self-defense.

Gun rights activists were unimpressed. They said they still were concerned about an appellate court ruling Sotomayor joined last year which held the amendment applied only to the federal government, not to states.

DeMint said he tried to press Sotomayor to go further during their meeting, asking whether the Second Amendment “protects a fundamental right that applies to all Americans.”

His words were carefully chosen, since the Supreme Court has applied to state and local laws only those constitutional rights it views as “fundamental.” Sotomayor knew the code — and she didn’t take the bait.

“You’re still guessing at the end of the day” about how a would-be justice would rule, Wittes said. “We shouldn’t kid ourselves that we have more information because we’ve gone through this dance with them. We don’t.”

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