Sotomayor's every word faces judgement

The 'wise Latina' chosen by Barack Obama is now having her every utterance scrutinised by supporters and opponents.

WASHINGTON // When it comes to the US Supreme Court confirmation process, which can be as political as anything in hyper-partisan Washington, every word uttered by a nominee - whether last week or last decade - matters.

As Sonia Sotomayor held her first private meetings yesterday with key senators on Capitol Hill, the high court nominee no doubt found herself having to explain just what she meant in 2001 when she said she would hope a "wise Latina" would reach better decisions than a white male judge "who hasn't lived that life".

The line, delivered as part of a lecture to the law school of the University of California, Berkeley, later reprinted in a law journal, has touched off something of a tempest, even as supporters and critics alike comb through the thousands of rulings she has handed down over the years.

Some Republicans, including Newt Gingrich, the former speaker of the US House of ­Representatives, have gone as far as to label Ms Sotomayor a racist; Rush ­Limbaugh, the voluble ­conservative radio talk-show host, said her nomination to the high court was akin - in ideological ­reverse - to putting forth the name of David Duke, the former head of the white supremacist group the Ku Klux Klan.

While that charge is not getting much traction on Capitol Hill - other Republicans have in fact distanced themselves from it, concerned about the political fallout - Ms Sotomayor's comments raise a question certain to dominate her confirmation hearings this summer: whether her identity as a Latina woman would influence her work on the bench and to what extent that is appropriate and even, perhaps, inevitable.

"Personal experiences affect the facts that judges choose to see," Ms Sotomayor said in the same 2001 lecture. "My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. 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."

It was Barack Obama, the US president, himself who first set off warning bells with a word choice of his own even before he nominated Ms Sotomayor, who serves as a ­federal appeals court judge in New York and teaches law at Columbia University. In describing the type of person he was seeking to replace Justice David Souter, who is retiring, the president said he wanted someone with "empathy".

Republicans immediately honed in, suggesting that was a code word for a judicial "activist", or ­someone whose personal views and life experiences would inform their interpretation of the law. And so the outlines of the debate - no matter the nominee - already were set. "In my opinion, the Obama ­administration seriously ­miscalculated in describing the ­selection process publicly as one focused on 'empathy'," David Stras, a University of Minnesota law school professor, wrote this week on scotusblog.com, which tracks news about and decisions of the Supreme Court. "Apart from being terribly ambiguous, it does invite probing inquiry into whether a nominee can apply the law with impartiality.

"Most Americans want the ­judiciary to apply and interpret the law impartially without consideration of the demographic or socioeconomic characteristics of the ­parties before it," wrote Mr Stras, who nevertheless believes Ms Sotomayor ultimately will be confirmed. The White House may also have underestimated the unease Ms Sotomayor's "wise Latina" line would provoke, saying at first that it was just that: a single sentence pulled from a much more substantial and nuanced speech in which the judge was addressing her identity, her life story and the way her experiences have shaped her as a person and a judge. "If you look in the entire sweep of the essay that she wrote, what's clear is that she was simply saying that her life experiences will give her information about the ­struggles and hardships that people are going through," Mr Obama said in a ­recent interview with NBC News. "That will make her a good judge."

All the same, the president said he was certain that Ms Sotomayor would have "restated" her idea, if given the chance. That now seems to be the defence Democrats have settled on. Dianne Feinstein, a California senator who sits on the judiciary committee, which will hold the confirmation hearings, on Sunday called the judge's comments "inartful" and "not the right thing to say", but said nevertheless that she understood exactly what the judge meant. Mrs Feinstein met with Ms Sotomayor yesterday.

Republicans have promised to give the nominee a fair hearing on Capitol Hill. But look for potentially vigorous debate: Mitch McConnell, the top Senate Republican, who also was to meet with Ms Sotomayor yesterday, said on the Senate floor this week that he had opposed her nomination to the appellate court 11 years ago "out of a concern that she would bring pre-existing personal and political beliefs into the courtroom". Many of those same concerns remain, he said. In the end, Ms Sotomayor will indeed have a chance to "restate", as Mr Obama put it, her comments from eight years ago when she appears before the judiciary committee in the coming weeks. If she is to be confirmed, as expected, she will have to emerge as her own best defender, mindful of the power of each word she chooses. [e-mail]