How the Republicans Will Go After Sotomayor

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Win McNamee / Getty

Supreme Court nominee Judge Sonia Sotomayor (L) arrives for her confirmation hearing with ranking member Sen. Jeff Sessions (R-AL) (R) and committee chairman Sen. Patrick Leahy (D-VT) (C) before the Senate Judiciary Committee July 13, 2009.

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This Is America
Another point of criticism has been Sotomayor's stated interest in foreign laws. In an April 2009 speech to the Puerto Rican branch of the American Civil Liberties Union, Sotomayor said: "International law and foreign law will be very important in the discussion of how we think about the unsettled issues in our legal system. It is my hope that judges everywhere will continue to do so because with the American legal system we're commanded to interpret our law as best we can. And that means looking to what other, anyone has said to see if it has persuasive value."

Senator Jon Kyl, an Arizona Republican who serves on the Judiciary panel, railed against this position in a July 6 speech on the Senate floor. "The consideration of foreign law by American judges is contrary to the principles of democracy," Kyl said. "Foreign judges and legislators are not accountable to the American electorate. Using foreign law even as a thumb on the scale to help decide key constitutional issues devalues Americans' expressions through the democratic process. An analogy would be to allow noncitizens to vote in our elections."

The position, though, is more representative of the bright line between progressive and conservative judicial philosophies than an actual problem with Sotomayor herself. For example, Supreme Court Justice Ruth Bader Ginsberg has spoken about the important impact of foreign law, and her opinions did not prevent her from being confirmed to the bench.

Guns
A 2004 opinion Sotomayor joined cited as precedent that "the right to possess a gun is clearly not a fundamental right." And in January, Sotomayor joined a Second Circuit decision on Maloney v. Cuomo. In that decision the court found that the Second Amendment does not apply to states and local governments — in this case New York had a right to ban various weapons such as nunchakus. "It is settled law," Sotomayor and the Second Circuit held, "that the Second Amendment applies only to limitations the federal government seeks to impose on this right." The rulings have caused alarm among gun-rights groups, and two scheduled witnesses for the Republicans are Sandra S. Froman, a former president of the National Rifle Association, and Stephen P. Halbrook, a lawyer and gun-rights advocate.

In 1987 Robert Bork forever changed the Supreme Court confirmation process when, after refusing to prep for the hearings, he made a series of verbal gaffes that brought down his nomination. Sotomayor seems determined not to repeat that mistake. She's taken the time to meet with every Senator possible — 89 of them — thus getting a clear idea of the kinds of questions that may be asked. She's also been combing over her 17 years' worth of decisions and practicing with Obama staffers in a small conference room in the Old Executive Office Building, next door to the White House. There's always the potential for unforeseen fireworks, but if Sotomayor is as well prepared as the evidence would suggest, the hearings could just as easily turn out to be anticlimactic.

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