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Sotomayor hearings: Leahy points to strip search ruling

July 15, 2009 |  1:30 pm


The Judiciary Committee resumed its hearing after a closed-door break to discuss the nominee’s FBI report, as is its tradition.

Chairman Patrick Leahy, the Vermont Democrat, gave a little speech about how important one’s background is to the way one looks at the law.

“One need look no further than the Lilly Ledbetter case,” said Leahy, “to understand the impact the decisions of the Supreme Court have on the lives of countless Americans.” In the Ledbetter case, the Supreme Court said that Ledbetter, who for years had been paid less than men for the same work at a tire company in Alabama, could not sue because she had not learned about the discrimination until she retired -- long after the statute of limitations had expired. Congress passed the “Lilly Ledbetter Act,” a bill to reverse the decision, early this year.

Leahy also mentioned Sotomayor's experience as an appellate-court judge, in which she dissented in an opinion that gave a juvenile detention center the right to strip search girls.

“In your dissent, you warned that courts should be especially worried about strip searches of children,” said Leahy, mentioning a recent ruling by the Supreme Court that seemed to agree with Sotomayor’s dissent. In that case, involving the strip search of a teenage girl by school officials, the court said the school did not have the right to such an intrusive search.

During arguments, Leahy said, male justices “compared the strip search to changing for gym class.” But, he added, Justice Ruth Ginsburg, “the sole female justice,” described the search as....


The court adopted Ginsburg’s language in its opinion, said Leahy. “Cases like this underscore the need for diversity on the bench.”

He then asked Sotomayor how she thinks it affects young people “to see only one woman on the Supreme Court today?”

That was an easy one: “Society is enriched by its confidence that our legal system includes all members of society,” she replied.

Leahy turned his attention to the court’s landmark decision guaranteeing a lawyer for indigent criminal defendants, known as “Gideon.”

“To be meaningful,” said Leahy, “such a fundamental right as right to counsel requires assurances that it can be exercised?”

“That is part of the holding in Gideon,” said Sotomayor. “Not only the right to counsel in … a criminal issue, but the court has recognized that right with respect to a competent counsel."

Sotomayor said when she became a federal appeals-court judge, she chaired the committee that oversaw the provision of attorneys to indigent defendants. “I worked very hard to improve the processes of selection of criminal attorneys for the indigent and to make sure there was adequate review of their qualifications and their performances.”

Alabama Sen. Jeff Sessions, a Republican who co-chairs the Judiciary Committee, issued a mild rebuke to Sen. Al Franken on the definition of “judicial activism,” which Franken had earlier implied was a problem among conservative judges.

“We have a good definition,” said Sessions. “Our former chairman, Sen. Hatch” — he nodded to Hatch, who was sitting next to him — “when a judge allows personal, political or other biases to overcome their commitment to the rule of law…. And you can have, Sen. Franken, a liberal or conservative activist judge. Judges have to be watched to make sure they stay faithful to the law.”

Turning to the nominee, he said, “We are committed to being fair and being thoughtful.… Nobody’s perfect, but I think everybody’s done a pretty good job. I have looked at the testimony. and I am still concerned about some of the issues being raised.”

-- Robin Abcarian and Kate Linthicum

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Photo: Sen. Patrick Leahy. Credit: Win McNamee / Getty Images