Opinion: Sotomayor hearings: Judge looks for a trap

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Arizona Sen. Jon Kyl, a Republican who voted against Sonia Sotomayor’s appellate court confirmation in 1998, read back long portions of Judge Sotomayor’s now-famous speech and asked her to explain exactly what she meant.

First, though, he asked her whether she agreed with President Obama when he said that 95% of cases faced by a judge will be handily rendered by relying on the law, and the remaining 5% “is supplied by what’s in the judge’s heart.”

Sotomayor flatly denied that she would rely on her emotions to decide a case. “No sir, I would not approach the issue of judgment in the way the president did…. Judges shouldn’t rely on what’s in their heart, they don’t determine the law. Congress makes the law. The job of a judge is to apply the law. Its not the heart … it’s the law.” There was a somewhat odd exchange in which Kyl asked Sotomayor if she’d ever been in a situation where a lawyer had argued a case to her by saying, “I don’t have any legal argument to make here, judge, go with your gut.”

Indeed, she had been in a similar situation, said Sotomayor. “ I have actually had lawyers say something similar. … I had one lawyer throw up his hands and say, ‘But it’s just not right!’ ‘But it’s just not right’ is not what judges consider.” Sotomayor seemed to have trouble figuring out exactly what he was getting at. “This is not a trick question,” said Kyl. “ I would imagine the answer is yes, you have always found some legal basis for a decision.”

But Sotomayor, seemingly fearful of a trap, said, “When you use the phrase ‘Some legal basis,’ it sounds like you are saying a judge says, ‘I think the results should be here’ ” — she moved her hand to the left — “so I am gonna use something to get here’ ” – she moved her hand to the right.

“Have you always been able to have a legal basis for decisions you have rendered and not rely on such extralegal concept such as empathy?” he asked, alluding to President Obama’s now-famous statement that empathy was one of the qualities he would seek in a Supreme Court nominee.

“Exactly, sir,” said Sotomayor. “We apply law to facts, we don’t apply feelings to facts.”

-- Robin Abcarian

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