The second day of Supreme Court nominee Sonia Sotomayor’s confirmation hearing proceeded as smoothly as the first, even as the judge placed herself firmly in the camp of those who say that the debate about whether women have a legally-defined right to choose has been settled.
Asked by Wisconsin Senator Herb Kohl, a ranking Democrat on the Senate Judiciary Committee, to comment on the 1973 Roe v. Wade decision that removed key barriers to reproductive rights, Judge Sotomayor said that “settled law” now affirms the right of women to terminate unwanted abortions.
Noting that the high court had upheld the Roe ruling in its 1992 Planned Parenthood v. Casey, the judge said: “Casey reaffirmed the holding in Roe. That is the Supreme Court’s settled interpretation of what the court holding is and its reaffirmance of it.”
That’s likely to be the headline from Day 2 of the Sotomayor session. As the National Journal observers note: “Over the course of her long career, Sotomayor has not ruled in an abortion-related matter. This marks her first public affirmation for support of the precedent set in the landmark case.”
But it is not exactly “news” that President Obama’s first Supreme Court pick — a woman who before her appointment to the federal bench worked with groups that supported abortion rights — would err on the side of reproductive freedom.
As such, the real “news” of the day was subtler in character but no less significant with regard to the question of whether (or, perhaps, by what margin) Judge Sotomayor will be confirmed.
The key conversation was between Judge Sotomayor and Utah Senator Orrin Hatch, the former Republican chairman of the committee.
Unlike the committee’s rabid Republican pointman, Alabama Senator Jeff Sessions, Hatch was not just respectful of Judge Sotomayor. The Utah senator seemed, genuinely, to be listening to her answers to his questions – and perhaps looking for a hook on which to hang a “yes” vote.
Hatch was firm with the nominee, especially during a pointed line of questioning about cases involving gun rights. But Judge Sotomayor matched wits with the senior senator point for point, meeting arcane questions with precise responses that referenced footnotes and comments by conservative Justice Antonin Scalia.
Hatch was impressed, telling the nominee at the close of their discourse: “I want you to know I’ve appreciated this little time we’ve had together.” Wisconsin Senator Russ Feingold, a key Democrat who led Judge Sotomayor through a line of questioning about executive powers issues, went even further, telling the committee how much he had “enjoyed” the Hatch-Sotomayor dialogue.
More significantly, Hatch borrowed a page from South Carolina Senator Lindsey Graham, who on Monday outlined what appeared to be a case for Republican votes in favor of the nomination. (On Tuesday, Graham raised real concerns about the nominee’s judicial temperament in conversational line of questioning that drew high marks from liberals and conservatives. But he also told Judge Sotomayor, “I like you,” and said that should count for something because “I might vote for you.”)
Like Graham, Hatch put more effort into attacking Obama than the president’s nominee. (Hatch also took a ridiculous potshot at People for the American Way.)
The senator from Utah went out of his way to note that as a senator from Illinois, Obama opposed former President Bush’s nominations of John Roberts and Sam Alito to the high court.
“In fact, Senator Obama never voted to confirm a Supreme Court justice,” Hatch said. “He even voted against the man who administered the oath of presidential office, Chief Justice John Roberts, another distinguished and well-qualified nominee.”
“Whether I vote for or against Judge Sotomayor,” Hatch continued, “it will be by applying the principles I have laid out, not by using such tactics and standards against these nominees in the past.”
Some observers thought “Hatch was doing more than reciting past grievances.”
The Los Angeles Times suggested the senior senator was “making the case for Republican opposition to Sotomayor on the Senate floor — suggesting that if Republicans end up opposing her en masse, it will be no different than how Democrats treated the Alito nomination.”
In fact, there is a better argument to be made that, as Graham did on Monday, Hatch was trying to frame an argument for Republicans to support a nominee they disagree with — and that their base voters have been told to fear.
At the heart of that argument is the claim that, by backing Judge Sotomayor’s nomination, Republican senators are proving themselves to be fairer and more respectful of the system of separated powers than was Senator Obama.
That may be a convoluted case for approving Judge Sotomayor. But it may just allow Hatch to vote for a nominee he acknowledges that he appreciates.