Politics & Policy

The Nominee’s Evil Twin

Why does the Sonia Sotomayor of 2009 sound so different from that of previous years?

If you knew absolutely nothing about Sonia Sotomayor before Tuesday’s confirmation hearing and judged her entirely on her answers, you could easily come to the conclusion that she had been nominated by Pres. George W. Bush and was likely to sail through confirmation with the strong support of conservatives in the legal community.

Of course, she was nominated by President Obama, and conservative legal eagles are doing their best to lay out the case against her confirmation. But in her first day of questioning before the Senate Judiciary Committee, Sotomayor sounded nothing like the judge who caused controversy via her remarks about the superior legal judgment of a “wise Latina,” her comments about judges’ role in setting policy, and her rulings about the Second Amendment.

If you asked Americans which two words they most closely associate with Sotomayor, those words would probably be “wise Latina.” The phrase was included in multiple speeches she delivered between 1994 and 2003 and was most often expressed in the line, “I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion.” This line was often delivered as a response to a remark often attributed (possibly falsely) to Sandra Day O’Connor. In one instance, Sotomayor put her disagreement with the O’Connor quote pretty clearly: “Justice O’Connor has often been cited as saying that ‘a wise old man and a wise old woman reach the same conclusion’ in deciding cases. . . . I am . . . not so sure that I agree with the statement.”

#ad#But Tuesday, Sotomayor argued that she meant the precise opposite — that she agreed with O’Connor, and the words just came out wrong. Horribly wrong. Again and again, and sometimes in written texts, they just came out wrong.

“I also, as I explained, was using a rhetorical flourish that fell flat,” Sotomayor said Tuesday. “I knew that Justice O’Connor couldn’t have meant that if judges reached different conclusions, legal conclusions, that one of them wasn’t wise.” (The excuse misses the meaning of the O’Connor statement, which is that neither gender has cornered the market on judicial wisdom. Sotomayor’s repeated disagreement, meanwhile, suggested that white male judges were incapable of equaling the prudence of those wise Latinas.)

Later, under questioning from Sen. Jon Kyl (R., Ariz.), she repeated, “The rhetorical flourish? It was a bad idea,” raising her eyebrows for emphasis.

Also, early in the hearing, Sotomayor emphasized, “It’s important to remember that as a judge, I don’t make law.” Ordinarily, that sort of line would prompt nods of approval from Republicans. But the statement doesn’t square with her Feb. 25, 2005, remarks at Duke University Law School: “All of the legal-defense funds out there . . . are looking for people with Court of Appeals experience. Because it is — Court of Appeals is where policy is made. And I know, I know this is on tape. And I should never say that because we don’t make law, I know. I’m not promoting it. And I’m not advocating it, you know.”

And Second Amendment advocates, including the NRA, greeted Sotomayor’s nomination with great wariness and suspicion. A key factor in their reaction was a 2004 opinion she joined, which cited as precedent a previous ruling that “the right to possess a gun is clearly not a fundamental right.”

Some of the first exchanges she had on Tuesday appeared to be aimed at addressing those objections:

Committee Chair Patrick Leahy: “Is it safe to say that you accept the Supreme Court’s decision as establishing that the Second Amendment right is an individual right? Is that correct?”

Sotomayor: “Yes, sir.”

Leahy: “Thank you. And in the Second Circuit decision, Maloney v. Cuomo, you, in fact, recognized the Supreme Court decided in Heller that the personal right to bear arms is guaranteed by the Second Amendment of the Constitution against federal law restrictions. Is that correct?”

Sotomayor: “It is.”

#page#

Leahy: “And you accept and applied the Heller decision when you decided Maloney?”

Sotomayor: “Completely, sir. I accepted and applied established Supreme Court precedent that the Supreme Court in its own opinion in Heller acknowledged, answered the — a different question.”

From the exchange, a casual Second Amendment advocate might think that the Heller precedent forced Sotomayor to accept that the right to own a firearm is indeed a fundamental right. But in Maloney v. Cuomo, Sotomayor joined an unsigned opinion holding that the Second Amendment right to bear arms applies only to the federal government, and not to the states — meaning that state and local governments can ban guns if they want to. Another appeals court has ruled the opposite.

The Sonia who appeared this week even found a moment to express a fairly fundamental disagreement with the man who nominated her. Kyl asked Sotomayor about Obama’s statement that legal decisions are marathons, and that while the first 25 miles are determined by the law, the final mile is determined by a judge’s heart. Sotomayor responded, “I wouldn’t approach the issues of judging in the way the president does.”

#ad#“She said things that I wish she had been saying for decades,” observed the panel’s ranking member, Sen. Jeff Sessions (R., Ala.), during a recess.

It’s easy to imagine some fanciful explanations for why the Sotomayor of today sounds so different from the Sotomayor of not too long ago. Perhaps she has a split personality, or an evil twin. But most likely, her rhetoric suggests a concession on the part of the Obama administration that the attitudes exhibited in her previous statements and speeches just won’t sell. If the controversial, outspoken judge of past years were appearing before the Judiciary Committee this week, several Senate Democrats would have to sweat the confirmation vote. Instead, Democrats from conservative states can explain that her testimony eliminated any stray doubts.

Tuesday also brought word that a new Rasmussen Reports national telephone survey finds that 38 percent of U.S. voters now favor Sotomayor’s confirmation, while 44 percent are opposed. With numbers like that, ordinarily a nominee would be in trouble. But with 60 Democrats in the Senate (and probably a few Republicans eager to appear bipartisan), Sotomayor can attempt to sell her metamorphosis with audacity, if not plausibility, and know that a confirming majority will probably greet either the Old Sonia or the New Sonia. Lindsey Graham (R., S.C.) said on the first day of hearings that “my inclination is that elections matter.” If she is sworn in later this year, perhaps the institution most responsible will be the Democratic Senatorial Campaign Committee.

Jim Geraghty writes the Campaign Spot for NRO.

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