Calling her Judiciary Committee testimony “evasive, lacking in substance and, in several instances, incredibly misleading,” Arizona Sen. Jon Kyl said he will vote against Sonia Sotomayor’s nomination to the Supreme Court.
Kyl, the Senate’s No. 2 Republican, will announce his decision on the Senate floor Wednesday morning. After asking Sotomayor tough questions last week and being clearly dissatisfied by her answers, his decision is not unexpected.
It is, however, significant, because it shows the Republican leadership clearly standing firm against Sotomayor -- even a Senator from a state with a significant Hispanic population.
Kyl’s decision was closely watched for a couple reasons. There’s obviously his Senate leadership position and his standing on the Judiciary Committee, where he’s one of the most prominent and effective Republicans. As a lawyer, he’s adept at questioning prospective judges, and he can clearly articulate conservative judicial philosophy (unlike some of the Republicans on that committee).
But he also hails from Arizona, a state with one of the nation’s fastest growing Hispanic populations (it’s about 30 percent Hispanic, compared to the national average of about 15 percent). Some had speculated that Sotomayor’s ethnicity -- she’s the first Hispanic nominee -- would make it harder for senators like Kyl and Texas’ John Cornyn to vote against her. Republicans have lost ground in the last two elections in this key voting bloc and need to regain their votes to win elections.
But Kyl told me the decision was not difficult, especially after he asked her last week about her ruling in the white firefighters’ case. In that case, as we all know, she and two appellate judges ruled against Frank Ricci and 19 other white and Hispanic firefighters, who argued the city of New Haven, Connecticut gave preferential treatment to blacks in promotions.
“I did not make my decision quickly. But when we finished the session in which she failed to answer my questions regarding the Ricci case, I knew then she had a very big burden to overcome, because she had just blown it as far as I was concerned,” Kyl told me.
“Had I appeared before her as litigator, and I tried to answer her questions as she answered mine, she would’ve had my head, and rightly so. It was quite apparent to me she didn’t want to answer my questions,” Kyl said. “She knew she could dissemble and delay and run out the clock, and she did.”
I asked Kyl whether he was concerned about backlash from Hispanics in his state. He said it was “ludicrous” for anyone to suggest her ethnicity would have factored into his decision.
“I think it has been clear from the outset that I’m approaching this as a question of not having anything to do with race or gender, but rather whether this is the best Supreme Court justice, or one of the best Supreme Court justices, a president could nominate,” Kyl said. “I believe most people in Arizona have a good enough sense of my honesty and my sense of fairness that they’re not going to disbelieve me when I say that I would not vote either for or against her based on race.”
The bottom line, Kyl said, is that he just didn’t buy her testimony, which at times was exactly the opposite of what she had said in the past.
In his prepared statement, Kyl takes a jab at his Democratic counterpart, Illinois Sen. Dick Durbin, who said in John Roberts’s confirmation hearing (before he voted against him) that “no one has a right to sit on the Supreme Court” and that the “burden of proof for a Supreme Court justice is on the nominee.”
Kyl says Sotomayor simply did not meet the burden of proof.
“I saw a number of things in Judge Sotomayor’s decisions and speeches that caused me great concern about her ability to put aside her biases and to impartially render a decision to the parties before her,” Kyl says in his prepared statement, which he will give on Wednesday.
But instead of dispelling concerns, he says, her testimony “exacerbated them.”
The White House has been insisting that Sotomayor was as forthcoming as or more so than any other nominee in recent history. But her testimony last week had Republicans baffled and some liberals and women’s rights groups irritated—they, too, were asking where Sotomayor really stood on the issues and complaining that, at times, she sounded like a conservative.
At the end of the day, Democrats have a decisive majority in the Senate and a handful of Republicans already have announced they will vote for her. She will be confirmed by the August recess, probably with a margin closer to that of John Roberts (78-22) than Sam Alito (58-42).
But it’s notable, still, to see Republicans like Kyl draw the line. And it’s even more striking to see some liberals -- like the Washington Post’s Richard Cohen -- complain about her testimony and grouse about her being nominated in the first place.
In his prepared statement, Kyl takes apart her testimony on several key areas -- the Ricci case, her “wise Latina” speeches, her views on the 2nd Amendment, her position on foreign law -- and then compares it to her past speeches and writings.
On her “wise Latina speeches,” Kyl said her explanation that she was trying to inspire young Hispanics and women “strains credulity” and that her attempts to explain away her statements as objective and neutral conveyed the “exact opposite meaning” of her speeches.
On foreign law, Kyl said she “again tried to drastically recharacterize her prior statements.” In speeches, she had said foreign law could and should be “considered” as a source for “good ideas” that can “set our creative juices flowing.” But in her testimony, she said foreign law cannot be used as a holding or a precedent, in order to “bind or to influence” a decision.
On Ricci: “Rather than answer the question,” Kyl says, “she dissembled and ran out the clock.”
“Her ‘answers’ answered nothing and, in my opinion, violated her obligation to be forthcoming with the committee,” Kyl said.
Before the hearing, Kyl said his biggest question was whether Sotomayor could set aside biases and prejudices and judge cases fairly.
After three days, he said, “Judge Sotomayor did not dispel my concerns. Her sworn testimony was evasive, lacking in substance and, in several instances, incredibly misleading.”