Sotomayor hearing examines nominee’s ability to be impartial

Questions about impartiality and previous rulings have been at the forefront of the confirmation hearing for Supreme Court nominee Sonia Sotomayor, which began Monday.

Major issues U.S. senators on the Judiciary Committee have been grilling Sotomayor about include her stance on particular policy issues and her judging methods, said Bernadette Meyler, a law professor at Cornell Law School.

Sotomayor declined to elaborate on many of the questions regarding hot-button issues to avoid appearing biased should similar cases come before her down the road, Meyler said.

“Judge Sotomayor has made it clear that she won’t be able to answer in a way that will predict the outcome in future cases,” she said.

Asking questions about issues might be part of the Republican strategy to show that Sotomayor’s “judicial philosophy is tainted by empathy,” said Steven Schwinn, an associate professor at The John Marshall Law School in Chicago.

“The reason she’s not answering is it’s long ago been established that nominees for any federal position will not answer substantive questions on committee,” he said. “In theory, cases may come before (the justices), like the Second Amendment and gun control. There’s a case in the Second Circuit that is almost certain to go to court when she is on the court so she doesn’t want to appear biased.”

Sotomayor isn’t alone in not commenting on issues that could come before her should she be confirmed — previous nominees have also declined, Meyler said.

Frank S. Ravitch, an MSU law professor and Supreme Court expert, said these types of questions reflect the senator’s “political grandstanding.”

“I think there (are) three things going on: some senators are playing to their constituents, some are maybe hoping she’ll say something that will be big, and three, it reflects a fundamental misunderstanding of such relevant issues,” Ravitch said. “Everyone has empathy, her consistent answer is just that it isn’t part of the judicial standard.”

Brian Kalt, an MSU law professor and constitutional law expert, said by repeating the same types of questions, the senators might be hoping to get Sotomayor to slip up.

“Who knows, maybe she’ll say something,” he said. “Mainly it’s because they’re not looking at that part of the process as an opportunity to learn anything — they’re viewing it as a chance to get on TV and to sound good to their constituents.”

Howard Wasserman, an associate professor of law at Florida International University, said two of the cases Sotomayor participated in are of particular interest to the senators: Ricci v. DeStefano and Maloney v. Cuomo.

The Ricci case involved the New Haven Fire Department of Connecticut’s testing methods for promotions. They were contested on the grounds of employment discrimination based on race. In Maloney, the ruling said infringement on Second Amendment rights only applied to the federal government, not state. Sotomayor didn’t write the opinion in either case, Wasserman said.

“Every question has come back to those comments and those cases and how much she lets her personal experience and biases affect her judgement,” Wasserman said.

Sotomayor said Wednesday afternoon that although life experience helps understanding and argument, the law should always direct the judge.

“A judge always has to guard against those things affecting the outcome of a case,” she said during the hearing.

The feeling is that barring a “meltdown,” Sotomayor will be confirmed, the professors said.

“I think everybody agrees she’s going to be confirmed — she’s already answered the difficult questions, she’s of the temperament — anybody must agree — that is consistent with what we would expect from a Supreme Court justice,” Schwinn said.

On May 26, President Barack Obama nominated Sotomayor to fill Justice David Souter’s place. She has served on the U.S. Court of Appeals for the Second Circuit since 1998.

Schwinn predicted the confirmation might be wrapped up by the end of July or by the beginning of August.

If the committee votes for Sotomayor, the confirmation will then go to the full Senate for a vote.