- The Washington Times - Saturday, July 11, 2009

The Senate Judiciary Committee’s top Republican cautioned Friday that Supreme Court nominee Sonia Sotomayor’s confirmation “is not a foregone conclusion” amid what he said was growing concern on both sides of the aisle.

Sen. Jeff Sessions, who will lead the committee’s Republicans in questioning Judge Sotomayor at confirmation hearings that begin Monday, told The Washington Times that her new-age judicial philosophy - unless she recants - threatens to disqualify her for the bench.

He pointed to a 2001 speech in which the judge said she hoped “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.” The White House says she regrets the statement.

But it “could be disqualifying,” Mr. Sessions said in an interview Friday in his Capitol Hill office. He said he needed to hear her explanation for the remark before deciding how to cast his vote.

“I strongly believe today that too many judges are allowing their personal views to affect their decisions,” Mr. Sessions said. “I wouldn’t want to put another one on the Supreme Court if that’s what she means by these words.”

The Alabama Republican stressed that her ascent to the top court is not a done deal, and several Democrats have expressed reservations with her stance on the Second Amendment, potentially shattering the chances Democrats could use their supermajority to ram through her confirmation.

“They’re not a guaranteed vote for the nominee,” Mr. Sessions said.

A number of gun rights groups have opposed Judge Sotomayor’s nomination, though the National Rifle Association - whose support has been critical for so-called red- and purple-state Democrats - has not come out against the nominee.

Judge Sotomayor, who would be the first Hispanic to sit on the nation’s high court, also must calm Republican fears that her judicial philosophy, as several of her speeches seemed to suggest, favors ruling with “sympathy” and “empathy” rather than from a dispassionate legal perspective.

Mr. Sessions recited from a 2001 speech Judge Sotomayor delivered in Berkeley Calif.: “Personal experiences affect the facts that judges choose to see. … I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

She has run into trouble for other statements she has made highlighting her Puerto Rican heritage and how gender and ethnicity influence jurists.

Conservative pundits and activists have pounced on Judge Sotomayor’s statements - including her assertion that a “wise Latina woman” would make better decisions than a “white male who hasn’t lived that life.” But Republican lawmakers have mostly kept their powder dry in anticipation of confirmation hearings.

Mr. Sessions said the most important question to ask is how she would rule if freed of lower court constraints.

“When you’re unconstrained on the Supreme Court, Judge Sotomayor, you’re going to feel more empowered to allow your personal beliefs to infect your decision than you have as a lower court judge?” he said he would ask the nominee.

“This could be a crossroads for the American judiciary,” he said. “Are we going to now adopt this prominent idea that judges can allow ideology and their empathies to influence their decisions?”

A CNN poll released Friday showed flagging public support for Judge Sotomayor; 60 percent of respondents said they expect “a major fight” during Judge Sotomayor’s confirmation hearings next week.

The same poll showed, however, that 47 percent of respondents support her nomination; 40 percent oppose her.

Over the six weeks since Mr. Obama nominated Judge Sotomayor, her critics have largely failed to develop a story line or strategy to derail her nomination.

Early attempts to focus on Judge Sotomayor’s “wise Latina” remark largely fizzled after former Speaker Newt Gingrich called her a racist, then backed off slightly, calling the remark racist.

Efforts to focus on Judge Sotomayor’s work for a Puerto Rican legal advocacy group, which supports legalized abortion and opposes the death penalty, largely failed to gain traction.

To bolster the case that she is a careful, mainstream jurist, Democrats plan to showcase testimony at the hearing from supporters ranging from former Yankees pitcher David Cone to New York Mayor Michael Bloomberg.

Judge Sotomayor also benefits from an analysis of her cases as a trial and appellate judge released this week that said her rulings fall well within the mainstream and she often upheld tough criminal convictions.

Critics have looked to a small number of cases they say expose Judge Sotomayor’s judicial philosophy and dozens of her speeches delivered over the past 15 years, which they say demonstrate her activist tendencies.

Highlighting one of those cases, Republicans plan to present testimony at the hearing from the New Haven, Conn., firefighter whose claims of reverse discrimination ultimately led the Supreme Court to narrowly overturn one of Judge Sotomayor’s most controversial rulings.

• Tom LoBianco can be reached at tlobianco@washingtontimes.com.

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