Federal Courts and Nominations

The Wall Street Journal: Nominee’s Testimony Avoids Advocating Liberal Stands


WASHINGTON — Now that Judge Sonia Sotomayor has completed the bulk of her testimony before the Senate Judiciary Committee, partisans on both sides agree on one thing: The nominee has stayed away from forcefully advocating liberal positions.

What they make of that, of course, is different. Some left-leaning scholars wish she had offered more justification for liberal interpretations of the law, while conservatives think she’s being less than honest about her true beliefs.

Curt Levey, executive director of the conservative group Committee for Justice, said he was struck by the way Judge Sotomayor retreated from statements she had made in speeches.

“The strategy she took of just denying the plain meaning of things she had said about race and the proper role of a judge — I was a little surprised by that,” he said. “Not that I expected her to say, ‘You got me’ or ‘I’m a judicial activist.’ But I expected her to explain rather than just contradict.”

Doug Kendall, who is president of the liberal Constitutional Accountability Center and close to some Obama administration officials, expressed his own mild disappointment.

“From my perspective, from the perspective of a progressive legal organization, she could have been more forceful in arguing or pointing out where the Constitution itself points in a progressive direction,” he said.

Both sides also agreed that Judge Sotomayor made no major mistakes and stayed calm under pressure.

“I’d give her fair-to-middling,” said Mr. Levey. “She certainly contained her legendary temperament, and that was one of the things that could have derailed her confirmation. She gets points for that.”

“She showed astonishing grace under not just pressure, but repeated badgering by some Republican senators,” said Nan Aron, president of the liberal Alliance for Justice.

These reactions stem in part from the strategy adopted by Judge Sotomayor and other recent Supreme Court nominees: reveal as little as possible about your views and strive to avoid controversial statements. The result can be testimony that is neither dazzling nor damaging.

Mr. Kendall said he was disappointed by what he considered Judge Sotomayor’s tepid defense of the idea that American judges can cite the opinions of foreign judges. “She could have been more aggressive,” he said.

Conservatives were upset by what they perceived as contradictions with an earlier speech in which Judge Sotomayor said American courts should consider the ideas foreign law can provide. They also said Judge Sotomayor is asserting she would never let her background or biases influence her judgments, after years of speeches contending that a judge’s experience does have an effect on his or her rulings.

Gary Marx, executive director of the conservative Judicial Confirmation Network, praised Judge Sotomayor’s insistence at the hearing that she would not let feelings influence her decisions. “She has done a great job at replicating Chief Justice John Roberts in a lot of ways,” he said.

But that contradicts her past statements, he added. “That is the rub,” he said. “The two faces of Judge Sonia Sotomayor have been on display, one prior to the hearing and one now.”

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