Sotomayor, Sessions Sparred In 1997

When Supreme Court nominee Sonia Sotomayor ultimately sits down before the Senate Judiciary Committee, it will be the third time Congress considers her nomination and the second time she goes face to face with Sen. Jeff Sessions (R-Ala.).

Back in 1997, when she was being considered for a post on the United States Court of Appeals for the 2nd Circuit, Sotomayor faced a wide variety of questions on topics ranging from mandatory minimum sentencing, rights for homosexual inmates, the historical relevance of the Constitution, and her personal respect for Justice Clarence Thomas. Many of the pointed questions -- though not all -- came from Sessions, who a dozen years later finds himself the ranking member of the Judiciary Committee, a post that could greatly influence the tone, tenor and outcome of Sotomayor's Supreme Court confirmation hearings.

A transcript of that September 30, 1997, confirmation hearing provides insight not just into Sotomayor's capacity to handle a grilling at the hands of Congress but also her approach to hot-button and occasionally odd judicial topics. In the end, it provides the slightest of previews into the kind of nomination process that could unfold in the weeks ahead.

Following several other committee members, Sessions began his questioning of Sotomayor with a standard conservative point of concern. Did she agree that "if we respect that Constitution, we have to enforce it, the good and bad parts?"

"Absolutely, sir," Sotomayor replied.

"And we really undermine and weaken that Constitution when we try to bend it to make it fit our contemporary feelings of the moment?" asked Sessions.

"Sir," she replied, "I do not believe we should bend the Constitution under any circumstance. It says what it says. We should do honor to it."

The questioning then shifted to a topic that had already been addressed by former Senator Strom Thurmond: mandatory minimum sentencing guidelines for drug dealers. Sotomayor had expressed her preference for the guidelines earlier in the hearings (a position that promises to rile critics of the drug wars today). But a skeptical Sessions noted that she had once lamented being forced to hand down a hefty sentence for a criminal who had committed a crime out of economic necessity.

"I do not believe that I have ever stated that I was unhappy with mandatory minimums as a policy question," Sotomayor said. She added that she believed that the uniformity of minimum sentencing guidelines made a judge's job easier and their consciences lighter.

"I have no idea how the judges before me ever set a consistent standard by which to sentence individuals," she said. "The guidelines do provide that framework in a very helpful way."

If the sentencing seemed too strict, she noted, Congress could "look at the factual situations and the impact and make changes when they are appropriate."

The final line of questioning from Sessions was, perhaps, the most bizarre. The Senator pressed her on an old New York Times article in which Sotomayor had refused to tell the reporter whether or not she had applauded for Justice Clarence Thomas during a second circuit conference.

"Are you aware of that?" the Senator asked.

"Well, I never did say that, sir," replied Sotomayor. "I took the fifth amendment when the New York Times asked me that because of the raging controversy at the time. I thought it made no sense for a prospective nominee to enter that kind of political fray by any statement, but I do not think I ever did, sir.... I explained to her clearly, as I do to you now, I did that because I thought as a -- at that point, I was a confirmed nominee, and as a judge, that I should never be making political statements to the press or anyone else and I thought that was a politically charged question."

Eventually Sotomayor acquiesced: "He was my Supreme Court Justice of my circuit. I stood up."

There were, to be sure, other telling moments from that confirmation hearing. Then-Senator John Ashcroft asked Sotomayor if she believed "that there is a constitutional right to homosexual conduct by prisoners?"

"No sir, there is not," she replied, before offering what could be a slightly more controversial explanation. "The case law is very clear about that. The only constitutional right that homosexuals have is the same constitutional right every citizen of the United States has, which is not to have government action taken against them arbitrarily and capriciously." Later, she added that she did not believe in creating additional constitutional rights on top of those that existed.

Earlier in the hearing, Thurmond pressed Sotomayor on whether she held a strict constructionist philosophy, to which she replied that she believed in looking at the history of how the Constitution was framed, and the intervening history of interpretation. She did not, however, agree that the ultimate question was what those words and the text mean in our time.

"You look at the Constitution and what it meant at the time," she explained. "The last suggests that I would be trying to change its meaning today, and no. I think the first two would inform what the last result should be, which is what did it mean then and how to apply new facts to that if the issue is new facts."

It would be more than a year until Sotomayor was finally confirmed for the post on the 2nd Circuit. She would get the support of 67 Senators, but not, in the end, Sessions, Ashcroft, or Thurmond.

During a Fox News appearance on Tuesday, Sen. Sessions said he didn't remember why he voted against Sotomayor.


On the Today show Wednesday, Sessions said Sotomayor's 2005 comments about the role of the appeals court were "troubling."


Read the '97 Hearing: The Sessions questioning begins on page 356 of the document, page 16 of the PDF:

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