Sotomayor returns for third day of questioning

(AP Photo/Charles Dharapak)

DAVID ESPO and MARK SHERMAN,Associated Press Writers

WASHINGTON (AP) -- Supreme Court nominee Sonia Sotomayor declined repeatedly at Senate confirmation hearings Wednesday to disclose her views on abortion rights and said President Barack Obama never asked her before he chose her for the bench.

"I can't answer ... because I can't look at it in the abstract," she told Sen. Tom Coburn, R-Okla., as he sought to draw her out with questions about hypothetical cases, including one in which a woman wanted to abort a 38-week fetus with a birth defect.

Even if she knew more about the specifics of a case, she added, "I probably couldn't opine because I'm sure that situation might well arise before the court."

Sotomayor, tapped as the first Hispanic on the Supreme Court, also sidestepped when asked whether the Second Amendment right to bear arms applies to state laws as well as the federal government.

And she avoided being drawn into a discussion about Congress' authority under the Constitution to regulate financial markets.

Her reticence reflected a traditional concern among high court nominees about straying into areas where they may soon have to rule -- gun rights and abortion among them in Sotomayor's case.

But it also appeared to reflect a calculation by Sotomayor and administration officials in charge of shepherding her nomination that she was well on her way toward confirmation and thus had nothing to gain by providing detailed answers that her critics could use.

The Judiciary Committee hearings are expected to conclude Thursday.

A vote by the full Senate to confirm Sotomayor is expected in early August, allowing her to don the robes of a justice before the opening of a new term in October.

Obama nominated her to succeed retired Justice David Souter. Because Souter generally sided with justices who favor abortion rights and affirmative action, her confirmation is not expected to alter the court's balance.

The cavernous Senate hearing room was filled for the third straight day, and tourists waited in line outside for their few moments as witnesses to history.

Inside, if there was little suspense about the ultimate outcome, senators still pressed Sotomayor closely in their 30-minute turns questioning her about her rulings and her views.

There also were periodic references to baseball -- Sotomayor is a Yankees' fan -- as well as other light moments.

Coburn observed at one point that the 55-year-old appeals court judge would have "lots of splainin" to do if she were to get a gun and shoot him -- words that evoked memories of the 1950s TV show "I Love Lucy" featuring a Cuban-American bandleader and his madcap wife.

Sotomayor had just spoken humorously and hypothetically about doing just that, part of a response to a question about the constitutional right to self-defense.

Coburn and Sen. John Cornyn, R-Texas, two opponents of abortion, focused on that issue.

Coburn asked whether technological improvements that help premature babies survive might "have any bearing on how we look at Roe v. Wade," the 1973 court ruling that established abortion rights.

"I can't answer that in the abstract," Sotomayor said. "The question as it would it come before me wouldn't be in the way that you form it as a citizen, it would come to me as a judge."

Cornyn also inquired about a published report that administration officials had sought to elicit her views on abortion.

"I was asked no question by anyone including the president about my views on any specific legal issue," she said.

As much as any Republican member of the committee, Coburn illustrated the approach GOP lawmakers have taken throughout the hearings.

A staunch opponent of abortion, still he began by apologizing for outbursts at committee sessions on Monday and Tuesday by opponents of Roe v. Wade. Politely, he sought to engage Sotomayor, posed his questions calmly and interjected humorous remarks at times.

It had no discernible effect on her willingness to be more forthcoming.

When he asked whether a state legislature has the right under the Constitution to determine "what is death," she sidestepped.

"Depends on what they're applying that definition to, and so there are situations in which they might and situations where the definition would or would not have applicability to the dispute before the court," she said.

As on Tuesday, Sotomayor wouldn't answer directly when Cornyn asked whether she stood by or disavowed a controversial 2001 remark that a "wise Latina" judge would often make better decisions than a white male.

It is the issue that has caused more controversy than any other since Sotomayor's nomination, and for the second straight day she said the comment was a rhetorical flourish gone awry.

"I stand by the words 'It fell flat,'" she told Cornyn. She said of the 2001 remarks, "I understand that some people have understood them in a way that I never intended. And I would hope that, in the context of the speech, that they would be understood."

Cornyn persisted, asking whether she would regret it if her audience of students understood her to be saying that the quality of a judge depended on race, gender or ethnicity.

"I would regret that," she said.

Even Coburn's joke came in the context of Sotomayor's unwillingness to state a firm view on an issue.

The Oklahoma conservative asked whether the Second Amendment confers a right to personal self-defense.

Under New York law, she said, it is permissible to use force to repel the threat of imminent death or very serious injury. Yet, she said, "If I go home, get a gun, come back and shoot you, that may not be legal under New York law because you could have alternative ways to defend. ..."

With laughter filling the room, Coburn interjected, "You'll have lots of 'splainin' to do.'"

Sotomayor joined in the laughter, saying, "I'd be in a lot of trouble then."

Coburn's remark echoed a refrain often heard on a 1950s situation comedy, "I Love Lucy," in which Lucille Ball's Cuban-born husband Desi Arnaz would often say with exasperation, "Lucy, you got some 'splainin' to do."

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Associated Press writer Julie Hirschfeld Davis contributed to this report.

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