Sotomayor an elusive target as hearings are set to open

WASHINGTON - Senate Republicans plan to use this week's hearings on Judge Sonia Sotomayor's nomination to the Supreme Court not only to probe her views about issues important to conservatives but also to criticize President Obama's vision of a judiciary that leavens the rule of law with empathy for real-life consequences.

Outnumbered Senate Republicans have found the 55-year-old Sotomayor an elusive target in the six weeks since Obama made her his first nominee for the court.

None of them outlines a scenario that would lead to her defeat in a chamber where they claim only 40 members.

But Republican and conservative strategists say the GOP members of the Senate Judiciary Committee will press Sotomayor on issues that appeal to their conservative base - gun rights, property rights, the use of international law in deciding cases - while trying to build a narrative that Sotomayor's political views influence her decision making on the bench.

"We've heard her call into question, repeatedly over the years, whether judges could even be impartial in most cases," Senate Minority Leader Mitch McConnell (R., Ky.) said. "And she has even said that her experience will affect the facts that [she] chooses to see as a judge. Americans have a right to expect that judges will apply the law even-handedly."

But the White House and her supporters in the Senate and elsewhere say it is a charge that has not stuck - or has even registered with the public in an environment roiled by the faltering economy and the showdown on health-care reform.

The allegation has also been challenged by a series of studies that show Sotomayor's decisions in 17 years as a district judge and on the U.S. Court of Appeals for the Second Circuit fit in the mainstream, if on the liberal edge of it. One recent study said that on matters of constitutional interpretation, she has sided with the majority 98 percent of the time.

Sotomayor received the highest rating from the American Bar Association and an endorsement from former Clinton special prosecutor Ken Starr, a favorite of conservative legal activists. She would be only the third woman among the 111 justices who have served on the court, and the first Hispanic.

"Judge Sotomayor understands that the law is not some dusty book in your basement, but that it has a real impact on people's lives," said Sen. Amy Klobuchar, a Democratic member of the Judiciary Committee from Minnesota. "She is someone who deeply appreciates the power and impact that laws and the criminal-justice system have on real people's lives."

Sotomayor is busily preparing for the hearings, and White House officials shepherding her through the process have paid close attention to the questions she has received as she has hobbled to meetings with 89 senators, including the newest, Sen. Al Franken (D., Minn.), who will be part of the committee questioning her in the hearings that start tomorrow morning.

Sotomayor's fractured ankle is still causing her pain, White House officials said, and could play a minor role in the hearings.

The foot remains in a cast and must be kept elevated to prevent it from swelling, especially late in the afternoon, a White House source said.

Sources said the White House has told the committee that Sotomayor would need breaks more frequently than other nominees to stand and stretch her leg, a factor that could extend the length of the hearings.

Republicans pin any hopes they have of defeating Sotomayor on the hearings, which will mark the first time the public will hear Sotomayor speak at length and respond to tough questions.

"None of this matters until the nominee comes to the table," said Ed Gillespie, the strategist and former Republican National Committee chairman who played key roles in the confirmations of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

If the arguments that will be advanced can be summed up in two words, they would be contradictory: activism from Republicans, restraint from Democrats.

Sen. Jeff Sessions (R., Ala.), the ranking minority member of the committee, has been particularly focused on Sotomayor's tenure on the board of the Puerto Rican Legal Defense and Education Fund, a civil-rights group that Democrats say is well-established but that he described in a recent speech as "clearly outside the mainstream of the American approach to matters."

Sotomayor served on its board until she became a federal judge in 1992.

The Republicans will focus on Sotomayor's speeches and other public appearances, such as her well-publicized remark that a "wise Latina" would "hopefully" make better decisions because of her life experiences that a white male judge who had not shared them. The theme is to present her as an activist.

"Despite Judge Sotomayor's claim at a Duke Law School panel discussion that courts of appeals [are] where policy is made, judges are not policymakers," Sessions said in a recent speech. "They are servants of the law, if they are fulfilling their role properly - the law as it is, not the way they might wish it to be."

Democrats counter that there is no justification for a charge that Sotomayor has allowed her personal feelings to color her decisions.

Nan Aron, president of the liberal Alliance for Justice, which has endorsed Sotomayor's nomination, said that, if anything, Obama had been cautious in his first pick for the court.

"No one can question her credentials and qualifications, as well as the kind of experience she would bring that's so lacking on the Supreme Court," said Aron. "I just think the White House picked a pretty winning formula. The path of caution is to pick an appeals court judge, whose decisions" can largely be explained as following precedent.