Slate Magazine’s Dahlia Lithwick predicted Saturday what we would see today at the Sotomayor hearings in the Senate Judiciary Committee: “The judicial confirmation process is more or less the political equivalent of Dancing With the Stars, in that the senators perform complex leaps and turns while admiring their hair in the mirror, while the nominee shuffles her feet a bit and calls it the foxtrot.”
If there were any surprises today, it was that Sotomayor gave a few more inches of ground than expected in detailing her judicial policy, and the senators were a hair less long-winded. (Slate, for whatever reason, also constructed this stopwatch comparing senator-to-nominee speaking time, for your independent verification.)
Sen. Jeff Sessions set an aggressive pace for the hearing, questioning Sotomayor’s judicial impartiality and her assertion, from a 2005 panel at Duke University, that judges make policy. In response to the persistence of Sessions and senators Orrin Hatch and Lindsey Graham, Sotomayor dropped a few clues about her stance on the issue every Supreme Court nominee tries to avoid: Roe v. Wade and the constitutionality of abortion.
Hatch established Sotomayor’s belief that Roe was “settled law” (somewhat true, but so were Plessy v. Ferguson, Lochner v. New York, and dozens of others — all overruled now.) Later, Sotomayor told Sen. Feinstein that “the health and welfare of a woman must be compelling consideration” in abortion-related cases. These admissions are somewhat short of a policy brief, but noteworthy during a hearing to which the original plaintiff Roe paid a protest visit.
Sotomayor early in the day attempted to recant for all time that niggling quote from a 2001 speech about the exceptional judiciary prowess of a wise Latina woman, explaining that she was adding a “rhetorical flourish” on a quotation from a female predecessor that, in reality, said roughly the opposite: “a wise old man and a wise old woman will reach the same conclusion in deciding cases.”
Blogger William A. Jacobsen unearthed an article from the NYU Law Review that settles the quote’s origin for all time (Sotomayor attributed the words first to Sandra Day O’Connor, then to “Supreme Court Justice Coyle.”) The line belongs to Justice Jeanne Coyne of the Oklahoma Supreme Court, and the article (by Justice O’Connor) goes on to say that “asking whether women attorneys speak with a “different voice” than men do is a question that is both dangerous and unanswerable.”
So I’d guess that Sotomayor hasn’t seen the last of her “wise Latina.”
And Graham, the liveliest of the speakers yesterday, created today’s longest uncomfortable pause when, riffling through his notes to find the precise language of Sotomayor’s “wise Latina” quote, asked her to recite it for him from memory. Was his motive efficiency, or a mischievous streak? At any rate, he found the quote before she found her voice, so we’ll never know what sort of skirmish might have ensued.