Byron York, Washington Examiner, July 15, 2009
Republicans on the Senate Judiciary Committee are convinced that Supreme Court nominee Sonia Sotomayor has not been candid with them in under-oath testimony about her speeches and legal activism. But given the assurance that majority Democrats will vote to confirm Sotomayor no matter what, the GOP effort against her is largely an attempt to convince other Republicans that Sotomayor has not earned a vote for confirmation.
For example, in response to questioning from Republican Sen. Lindsey Graham, Sotomayor denied involvement in PRLDEF litigation which argued that the denial of taxpayer-funded abortions amounted to a form of slavery. One brief, in 1980, compared the withholding of taxpayer abortion funding to the Dred Scott decision, and another, in 1992, argued that for poor women, especially blacks, denying taxpayer-funded abortion violated “the right to privacy in matters of body and reproduction–a right that was trammeled with state sanction during centuries of slavery.”
Sotomayor testified that she “never reviewed” and “wasn’t aware of what was said” in the abortion briefs. Yet Sotomayor served on PRLDEF’s litigation committee at the time, and a report last May in the New York Times, citing several former board members, said that, among the PRLDEF board, Sotomayor “stood out, frequently meeting with the legal staff to review the status of cases.” The paper reported that for Sotomayor’s entire 12 years on the board, “she played an active role as the defense fund staked out aggressive stances on issues like police brutality, the death penalty and voting rights.”
On capital punishment, in 1981 Sotomayor signed a PRLDEF memo opposing the reinstatement of the death penalty in New York State, arguing that “capital punishment is associated with evident racism in our society.” On Tuesday, when Graham asked whether she had “challenge[d] the death penalty as being inappropriate punishment, because of the effect it has on race,” Sotomayor answered that she had “never litigated a death penalty case personally.”
“Did you ever sign a memorandum saying that?” Graham asked.
“I signed the memorandum for the board to take under consideration, what position on behalf of the Latino community the fund should take on New York State reinstating the death penalty in the state,” Sotomayor answered. “It’s hard to remember, because so much time has passed.”
On the issue of Sotomayor’s infamous 2001 “wise Latina” speech, Republicans are more skeptical now than before Sotomayor began her attempts to explain the remarks. In response to questions from Sen. Jeff Sessions, the ranking Republican on the committee, Sotomayor said that the “wise Latina” remark was “a rhetorical flourish that fell flat. . . . . It was bad, because it left the impression that I believed that life experiences commanded a result in a case, but that’s clearly not what I do as a judge.”
Republicans pointed out that Sotomayor gave versions of the “wise Latina” speech at least six times over the years. “Fell flat?” asked one senior GOP aide. “Well, it fell flat six times. If you said this one time, and it fell flat and you stopped using it, that would be one thing, but when you’ve said it repeatedly over a ten-year stretch, it’s very hard to believe that it is anything other than what it appears to be. It’s only fallen flat now that she’s been called on it.”
Democrats on the committee have not offered an extensive defense of the “wise Latina” remark, in part because they appear reluctant to acknowledge that Sotomayor actually said it. Early in Tuesday’s session, committee chairman Sen. Patrick Leahy substantially misquoted Sotomayor’s speech when he said to her, “You said that, quote, you ‘would hope that a wise Latina woman with the richness of her experiences would reach wise decisions. . . .'” In fact, Sotomayor said that, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” [Emphasis added.] If Sotomayor had said only what Leahy attributed to her, it is doubtful there would ever have been any controversy.