Most lawyers (and any one who’s seen Legally Blonde) know well Aristotle’s famous phrase: The law is reason free from passion.
Thus far Sonia Sotomayor’s confirmation hearings have been reasonably free of passion. There have been no silver bullets, no arguments, no gaffes, no slip ups and given her metered, dulcet tones the words hot blooded Latina do not come to mind. “I must say that, if there’s a test for judicial temperament, you pass it with an A-plus-plus,” Senator Dianne Feinstein, a California Democrat remarks to laughs. “I want you to know that, because I wanted to respond, and my adrenaline was moving along. And you have just sat there, very quietly, and responded to questions that, in their very nature, are quite provocative. So I want to congratulate you about that.”
The crux of the debate remains Aristotle’s premise: that judges should rule not from passion but with reason and precedent. To that end Jeff Sessions, the top Republican on the Senate Judiciary Committee, grilled Sotomayor on her now-infamous “wise-Latina” comments. Sotomayor responded that she was trying to make a play on former Supreme Court Justice Sandra Day O’Connor’s famous statement that a wise man and a wise woman would inevitably come to the same conclusion. “So I was trying to play on her words. My play was — fell flat,” Sotomayor said. “It was bad, because it left an impression that I believed that life experiences commanded a result in a case, but that’s clearly not what I do as a judge. It’s clearly not what I intended in the context of my broader speech, which was attempting to inspire young Hispanic, Latino students and lawyers to believe that their life experiences added value to the process.”
Democrats have gone on the offensive today, actively criticizing the conservative nature of the Roberts court and its recent decisions. Feinstein, for example, spent much of her 30 minute Q&A with Sotomayor mulling over the court’s recent upholding of a ban on partial birth abortion – in her view bypassing the Roe v. Wade precedent. “I’d also like to ask you your thoughts on how a precedent should be overruled,” Feinstein said. “In a rare rebuke of his colleagues, Justice Scalia has sharply criticized Chief Justice Roberts and Justice Alito for effectively overruling the court’s precedents without acknowledging that they were doing so.” Sotomayor responded that, while there are times when precedent should be reexamined, those should be done “very, very cautiously.”
Republicans have focused their fire on a handful of Sotomayor’s comments and cases, including the Ricci v. Destefano case, Maloney v. Cuomo and her comments about foreign law. Members from both sides bought up controversial cases, including Roe v. Wade, Kelo v. New London and Heller v. District of Columbia, looking for clues at how she would vote on similar issues. In every case she simply cited precedent law and would not speculate on how she’d rule in the future. “Few judges could claim they love baseball more than I do,” Sotomayor, an avid Yankees fan who famously ended the 1995 baseball strike, said to laughter. “But analogies are always imperfect. And I prefer to describe what judges do, like umpires, is to be impartial and bring an open mind to every case before them. And by an open mind, I mean a judge who looks at the facts of each case, listens and understands the arguments of the parties, and applies the law as the law commands. It’s a refrain I keep repeating because that is my philosophy of judging — applying the law to the facts at hand. And that’s my description of judging.”
Her answers to the hot button questions have had the well-worn texture of practice. But it has been her answers to Democratic probes intended to illuminate other corners of her resume that have provided tiny glimpses of her passions. We now know one of her godchildren is a member of the National Rifle Association and that she prefers to stay with friends when traveling instead of in hotels. One of her first responses concerned the Tarzan murder case she prosecuted while working under Robert Morgenthau in the New York District Attorney’s office. She described movingly the impact of the case on one family that lost a child at the hands of a burglar. “That family was destroyed. They scattered to the four winds, and only one brother remained in New York who could testify,” she said. “That case taught me that prosecutors, as all participants in the justice system, must be sensitive to the price that crime imposes on our entire society.” But these moments have been rare. The bulk of the hearings have been, if not full of reason, lacking any passion.