There's been a lot of discussion about Supreme Court nominee Sonia Sotomayor's views on affirmative action, quotas, and the role of federal judges. But with confirmation hearings set to begin this morning, Republicans on the Senate Judiciary Committee are becoming increasingly concerned about Sotomayor's positions on gun rights.
At issue is Sotomayor's opinion in a recent Second Amendment case in New York. Sotomayor held that even though the Supreme Court has ruled the federal government cannot deny the right to bear arms, state governments are still entitled to do so in other words, that the Second Amendment does not apply to the states.
"This is a huge issue, one of monumental importance," Sen. Jeff Sessions, the top Republican on the Judiciary Committee, told me during a wide-ranging discussion previewing the issues likely to come up at the hearings. "The Second Amendment case is troubling because there's no doubt that the Supreme Court will hear another important Second Amendment case soon, and it will turn on whether the Second Amendment applies to the states."
Sessions calls it "common sense" that the Constitution protects the right to keep and bear arms. But he notes that the federal gun case was decided by a 5-to-4 margin, and a Justice Sotomayor could change the mix. The National Rifle Association says Sotomayor's position raises "very serious concerns," and Republicans on the Judiciary Committee hope some red-state Democratic senators share those concerns.
Sessions says GOP senators will also press Sotomayor on the controversial issue of quotas and her now-reversed decision in the Ricci case. Her ruling against Connecticut firefighters who had passed a race-neutral promotion test raised "a hugely important constitutional issue," Sessions says, and the Supreme Court's decision to overturn Sotomayor "was a pretty serious reversal of her approach."
Republicans will also explore whether Sotomayor's Ricci position was the product of a long and deeply held belief in racial preferences. GOP lawyers have been looking through Sotomayor's work on the board of the Puerto Rican Legal Defense and Education Fund and note that the group, with Sotomayor's help, filed a number of lawsuits challenging promotions at various public service agencies.
By the way, Sessions is still not sure whether he has gotten all the relevant material relating to Sotomayor's time at the PRLDEF. "We were told that there were 300 boxes of material, and the documents we've received amounted to about 1,000 pages, or about one box, so I'm uneasy about that," Sessions says. But with Democrats rushing to get the hearings done, there's little time to check on the rest of the material.
Beyond quotas, Republicans intend to question Sotomayor extensively about her public statements on the larger issue of bias in judging. "Her speeches are really troubling," Sessions says. "She basically says that she willingly accepts that a judge can and should allow their opinions É to be affected by their experience." Such a stance, Sessions believes, "goes contrary to the concept that a judge should set aside his personal biases and prejudices and political views and religious views and try the parties before him fairly and justly."
Sotomayor's beliefs, Sessions says, extend far beyond the "wise Latina" speech that caused controversy shortly after she was nominated. "I think because some of these matters came out early, statements like how judges set policy and the 'wise Latina' comment, that people apparently thought that was all there was to it," Sessions says. "But the speeches go very deeply into those concepts, which are very much outside the traditional American legal approach to judges."
In recent days there has been a lot of commentary to the effect that Republicans have essentially given up on any effort to oppose Sotomayor and that her hearing will likely be smooth sailing. Sessions is not convinced.
He's fully aware that Democrats have 60 votes and are determined to notch a win for President Barack Obama. But the issues guns, quotas, judicial philosophy remain. "Some people may think that because we're not participating in the politics of personal destruction and mean-spirited attacks, that these issues are not serious," Sessions concludes. "I consider them very serious. If a judge is not committed to setting aside their sympathies and prejudices and background biases when they take the bench, then they shouldn't sit on any bench."