WASHINGTON – White House officials spent hours last week preparing Supreme Court nominee Sonia Sotomayor for what they anticipate will be a concerted Republican effort to portray her as an “activist” jurist and will counter that her 17 years on the bench are a display of judicial restraint.
Slated to become the country’s first Hispanic justice, Sotomayor has holed up in a cramped conference room on the third floor of the Old Executive Office Building, her fractured ankle propped on a trash can as lawyers take turns peppering her with questions.
Outnumbered Senate Republicans have found the 55-year-old Sotomayor an elusive target in the six weeks since President Barack Obama made her his first nominee for the court and are hard-pressed to offer a scenario that would lead to her defeat in a chamber where their party claims only 40 members.
But Republican lawmakers and conservative strategists say the seven GOP members of the Judiciary Committee will press Sotomayor on issues that appeal to their conservative base – such as gun ownership rights, property rights and the use of international law in deciding cases – while trying to build a case that Sotomayor’s political views influence her decision-making on the bench.
Republicans will not launch “a personal attack,” Sen. Jeff Sessions, R-Ala., the ranking minority member of the committee, told reporters Friday. “It will be focused on her views and writings. I will ask her if she agrees with the opinions of the organizations she supported.”
He said the judge will be challenged to defend remarks she has made in speeches and her leadership role with the Puerto Rican Legal Defense and Education Fund. She resigned from that group’s board when she became a federal judge in 1992.
Susan Davies and Cassandra Butts, two senior lawyers in the White House counsel’s office, have led much of the questioning during lengthy preparation sessions that will continue into the weekend. Ron Klain, Vice President Joe Biden’s chief of staff, and Gregory Craig, Obama’s counsel, were in and out of the room, sources said.
The goal of the briefings, according to several Democratic and administration sources, is to ready Sotomayor for her first public response to Republican charges of bias in her legal philosophy and to defend the president’s vision of a judiciary that leavens the rule of law with an empathy for real-life consequences.
“She’s approached judging from the real world, not ivory towers,” said one Democratic source, describing how Democrats intend to steer the theme of the hearings. “Instead of big theories, she’s applied the rule of law.”
White House officials who are shepherding Sotomayor through the process said they have paid close attention to the questions she received during meetings with 89 senators, including each of the members of the judiciary committee. They have also watched the public comments and floor speeches by Republican senators in an attempt to divine GOP strategy.
One theory among congressional Democrats is that Republican senators will “run out of gas” very quickly and have little appetite for a continued attack on her qualifications as the week wears on. Others believe Republicans will try to portray Sotomayor as a judge whose writings and court decisions suggest a bias. Either way, one congressional source said, Democrats are “preparing for the worst case.”
Republican questions will be aimed primarily at Sotomayor. But the hearings may also be used to debate Obama’s intention for reshaping a court that may well see more vacancies during his tenure.
Sessions said he expected his Republican colleagues to offer questions on specifics, such as her decision in the Ricci v. DeStefano case involving discrimination against a group of white firefighters, but also said she would be probed about her view on the proper role of judges. He hinted that this nomination would set the framework for how Republicans would view other judges nominated by Obama.
Obama’s remarks about judicial empathy – in nominating Sotomayor, he mentioned as a “necessary ingredient” for a judge “experience that can give a person a common touch and a sense of compassion” – has been controversial with conservatives, and even worrisome for some liberals who believe it is a phrase too easily misconstrued by the public.
The White House and Sotomayor’s supporters in the Senate and elsewhere say charges that she has let her feelings influence her rulings have not registered with the public in an environment roiled by the still-faltering economy and a showdown on health care reform.
The allegation has also been refuted by a series of studies that show Sotomayor’s decisions in 17 years as a district judge and on the U.S. Court of Appeals for the 2nd Circuit fit comfortably in the mainstream, if on the liberal edge of it. One recent study said that on matters of constitutional interpretation, she has sided with the majority 98 percent of the time.
Sotomayor received the highest rating from the American Bar Association, and even an endorsement from former Clinton special prosecutor Kenneth W. Starr, a favorite among conservative legal activists. She would also be only the third woman among the 111 justices who have served on the court, in addition to being its first Hispanic.
Republicans say the hearings still hold potential peril for the nominee, as they will mark the first time the public will hear Sotomayor speak at length and respond to tough questions.