WASHINGTON - -Sonia Sotomayor will go before a Senate committee starting today and will be pressed to answer a question that has lingered since President Barack Obama made her his first choice for the Supreme Court.
Given a lifetime appointment, will she be a justice who views the law through a liberal lens because of her Latina heritage? In speeches, she said "gender and national origins ... will make a difference in our judging" and added that a "wise Latina" will "more often than not reach a better conclusion than a white male."
Or will she follow her own long track record as a careful and moderate judge who sticks to the facts and sticks to the law?
Liberal groups and the White House point to thorough analyses of her more than 400 decisions and say they prove she is a judge first, not a Latina activist. As a New York City prosecutor, corporate lawyer, trial judge and appeals court judge, Sotomayor has an "extraordinary record of following, defending and upholding the rule of the law," says Judiciary Committee Chairman Patrick Leahy, a Democrat from Vermont.
The Republicans are not convinced, and they are determined to make the case against her - and perhaps Obama as well. They say she will follow his guide and display "empathy" for some litigants and not others. "Whatever this empathy standard is, it is not the law. It is more akin to politics than law," says Sen. Jeff Sessions, an Alabama Republican.
Thanks to her appealing up-from-the-projects life story and a lopsided Democratic majority, Sotomayor looks to be a sure bet to win confirmation. If so, she will be the second woman among the nine justices, its third Democratic appointee, and its sixth Roman Catholic.
The historic nature of her nomination could pose a political peril for the Republicans. Hispanics are the nation's largest minority, and as the Bronx-born child of Puerto Rican parents, she would be the first Hispanic to join the high court. The 19-member Judiciary Committee has only seven Republicans, and they include Sens. John Cornyn of Texas and Jon Kyl of Arizona, who represent states with large Hispanic populations.
Since her nomination May 26, Sotomayor has avoided stumbles - other than a fall in New York's LaGuardia Airport that left her with a broken ankle and a cast. She made the rounds of the Senate offices and described her "wise Latina" comment as a verbal misstep.
Her friends and supporters say she was speaking of the virtues of a judge having a rich and diverse set of experiences, not asserting that one ethnic background is superior to another. Rachel Moran, a law professor at University of California Irvine, had known Sotomayor since their days at Yale Law School, and she invited the judge to speak at UC-Berkeley in 2001. The conference was on the shortage of Hispanics on the bench. It was there she spoke of her hope that a "wise Latina" would make better decisions as a judge.
"I was caught off guard by all the attention this has received," Moran said. "People are affected by their background and experience. Her claim was not that your individual perspective is better or worse, but that you reach better outcomes when multiple perspectives are represented. That's why we have nine people (on the Supreme Court) reviewing decisions." But Sessions, the ranking Republican on the Judiciary Committee, links her speech to Obama's comment about "empathy" and Sotomayor's decision last year to reject a discrimination claim from white firefighters in Connecticut. Sessions questions whether Sotomayor will be an impartial judge.
"Empathy is great, perhaps, if you're the beneficiary of it," he said in a Senate speech last week. "But it is not good if you are the litigant on the wrong side of the case, if you don't catch the judge's fancy, or if you fail to appeal to a shared personal experience," he said.
Sotomayor has described herself as "an affirmative action baby," and she has spoken in favor of strict limits on campaign spending. Both stands should put her with the court's liberal bloc. However, she has twice ruled in favor of using police evidence that was obtained through a faulty search, a stand that could put her with Chief Justice John G. Roberts Jr. and his fellow conservatives.
Law professors who have examined her decisions as a judge say they see few signs she is a liberal activist.
"I think she will be a moderate liberal who favors narrow decisions, not all that different from [Justices Ruth Bader] Ginsburg or [Stephen G.] Breyer," said Amanda Frost, a law professor at American University. "Her opinions reveal her to be someone who respects the limits of the judicial role."
She and others predict Justice Sotomayor will prove more like moderately liberal David H. Souter, the retiring New Hampshire jurist she would replace, than Justice William J. Brennan, the liberal lion who Souter replaced in 1990.
"I think this is someone who will identify herself as a champion of minorities of color," said David Garrow, a Supreme Court historian. "But it's not going to be the return of Bill Brennan as a Latino. There's just no evidence for that." Others take a longer view. "There's a huge difference between being a court of appeals judge who is bound by precedent" and a Supreme Court justice who can rewrite those precedents, said Erwin Chemerinsky, the law dean at UC Irvine.
Five Judiciary Committee members to watch
Jeff Sessions, R-Alabama: As the point man for the Republicans, all eyes will be on the new ranking member. A dyed-in-the-wool Southerner and a strong conservative, he represents the sort of regionalism that has come to define his struggling party. Can he be courtly, yet combative with the Puerto Rican judge from New York, without alienating potential swing voters who may view the GOP as too old-school?
John Cornyn, R-Texas.: Normally, you would expect Cornyn, a former state attorney general, to take the lead in attacking Sotomayor. But as noted above, these aren't normal times for the GOP. Texas has a large Hispanic population, a group Republicans are trying to woo back to the fold. And Cornyn heads the Republican Senate re-election effort. He may have to step softly.
Patrick Leahy, D-Vt.: With a 12-7 majority on the committee, Democrats would seem to hold most of the cards. Can Leahy meet the White House's timetable and make sure the nominee is reported out of the committee and reaches the Senate floor for a vote before the August recess - or will he allow Republicans to stall?
Arlen Specter, D-Pa.: Always independent and idiosyncratic, will the newly minted Democrat balk at voting lockstep with his party? Specter is passionate about judicial nominations. And the 79-year-old, five-term senator, who lost his seniority when he switched parties, won't enjoy questioning Sotomayor after most on the committee have had their chance. As far as the Democrats are concerned, he's a rookie.
Al Franken, D-Minn.: The Senate's newest member will have a chance to exhibit his new button-downed persona - although he will be the last Democrat to ask questions - after Specter.