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After Historic Nomination, Questions on Sotomayor’s Record Emerge

May 29, 2009 at 12:00 AM EST
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Supreme Court nominee Sonia Sotomayor will bring some 17 years of judicial experience to her confirmation hearings. Legal scholars assess what her record says about her judicial philosophy and outlook.
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MARGARET WARNER: If confirmed, Sonia Sotomayor would bring with her to the Supreme Court 17 years of experience on the bench, as a district court trial judge and a federal appeals court judge. That means she’s produced hundreds of pages of opinions and legal writings that are now being scrutinized for clues about her judicial philosophy.

Joining me now are two legal scholars who have examined Judge Sotomayor’s record, Emma Coleman Jordan, professor of law at Georgetown University. She has helped the American Bar Association evaluate the records of past Supreme Court nominees. And Paul Cassell, professor at the S.J. Quinney College of Law at the University of Utah. He served as a U.S. district court judge for the district of Utah from 2002 to 2007.

Welcome to you both.

And, professor Jordan, beginning with you, you have gone through lots of these cases.

EMMA COLEMAN JORDAN, Professor of Law, Georgetown University: Yes, I have.

MARGARET WARNER: Do you discern a clear judicial philosophy out of them?

EMMA COLEMAN JORDAN: Yes.

And it isn’t a broad architecture of theory. She is rooted in the facts of each case. I was struck in a lot of these cases how clearly and carefully and meticulously she had gone through the transcript, through the record, and actually pulled out facts and information.

She carefully sorted through the claims, allowing some, not allowing others, and carefully tailoring her opinion to what was there on the record.

Just to give an example, there was a case involving a woman who claimed sexual harassment in the workplace and a hostile environment. Her situation escalated into a physical confrontation, where she slapped her boss. Just — Judge Sotomayor took this set of facts, picked through the parts of it that she thought were not warranted, and dismissed that, those parts. But the part she thought was warranted, she kept.

MARGARET WARNER: Professor Cassell, do you — do you read it this way, that she is very grounded in the facts of the case?

I do think she’s looked at the facts of the case very carefully.

PAUL CASSELL, Professor of Law, University of Utah: But the overarching impression I get when you look at all of those opinions is that they are fairly ordinary. There is nothing in there that suggests she’s going to be a horrible Supreme Court justice. But, unfortunately, there’s nothing in there that suggests she is going to be a good Supreme Court justice, or, for that matter, even a great Supreme Court justice.

I really don’t see that she is going to be able to write the kinds of opinions that would give her the influence of, say, a Justice Scalia or a Justice Brennan, someone who is able to do more than simply resolve the particular case right in front of them.

MARGARET WARNER: So, you are saying you don’t see a broad legal theorist, someone to be, for instance, the liberal counterpart to Justice Scalia?

PAUL CASSELL: Well, I think she typically breaks to the left. I think she is going to be a predictable vote on, at least social issues, for the left side of the Supreme Court.

But I really don’t see her having the intellectual firepower or the intellectual theory to take on a Justice Scalia or a Chief Justice Roberts and move the court more than simply she could move it with the one vote that she has in each particular case.

Policy and the courts

MARGARET WARNER: Now, Judge Sotomayor has said -- and critics have -- have made much of this. It was a sort of throwaway remark on a panel that she did. And she said, "The court of appeals is where policy is made."

But it sounds as if you both are saying -- and beginning with you, professor Jordan -- that, in fact, you don't see an expansive view of judicial authority in her writings? Is that -- is that what you are saying, that she is more restrained?

EMMA COLEMAN JORDAN: She is careful and what you would call a judge's judge.

I would like to respond a bit to professor Cassell's comment that she lacks the intellectual firepower. She was a student at Princeton when Justice Alito was there. And she graduated summa cum laude. And we have no records of honors for Justice Alito. So, her firepower is quite well-established. And then she went on to be an editor the Yale Law Journal, as Justice Alito did.

So, she's in good company. Her intellectual credentials are quite well-established. And I think one of the things we have to remember is that, in this town, we have the confirmation mess. And, if she had established a record of soaring rhetoric and oratory and architecture for grand theories, that would be a ground for attack, and she wouldn't be here.

So, I think what we have is a modest judge, a person of great intelligence, even brilliance, who has demonstrated that with fidelity to the facts and the law.

And the final point I would like to make is that she does seem to be willing to keep the courthouse door open. She is willing to allow cases to go to a jury. And, by contrast, Justice Alito seems willing to use his power to keep cases away from juries.

Significance of the Ricci Case

MARGARET WARNER: Professor Cassell, would you like to respond to that?

PAUL CASSELL: Yes, but let's talk about one of the cases I think that has been most controversial about Judge Sotomayor. That is the Ricci case. That is a case in which 18 white firefighters were going to get promotions from the city of New Haven.

But then the city of New Haven decided, well, that's too many whites getting a promotion. We simply want to throw all of these out.

I think that is the kind of policy-making, the kind of racial set-asides, the kind of quotas that most Americans find objectionable -- objectionable -- and that most Americans think the Constitution ought to forbid.

But, unfortunately, Judge -- Judge Sotomayor upheld exactly that kind of action. And then I think the U.S. Supreme Court is going to look at that case and reverse the decision that she made. That's the kind of policy-making that she is making. That is the kind of leftist tilt that I think she is going to bring to the court.

MARGARET WARNER: Do you think the New Haven firefighters case is an example of policy-making?

EMMA COLEMAN JORDAN: Absolutely not. I have read that case.

And it is not a case where Judge Sotomayor wrote the opinion. It is a per curiam opinion. It's a one-paragraph opinion, in which they adopt the opinion of the district court, the trial court.

And, in that one paragraph, she expresses sympathy for the white firefighter who was dyslexic and tried to achieve his promotion through his test.

So, I think it's just a slander, frankly, to say that this is left-tilting, the kind of architecture that is unacceptable and not in the mainstream. It is in the mainstream. It is careful.

The role of personal experience

MARGARET WARNER: Professor Cassell, let me bring up another comment that she made -- there's been great -- great controversy about it -- in which she said she hoped that she a Latina -- she would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion than a white man who hasn't lived that life.

Now, the White House has backed down from that or rolled back from that. But the larger question is, do you see her life experiences unduly influencing her opinions?

PAUL CASSELL: Well, I think every judge or justice brings with them to the bench their experiences. We certainly wouldn't want people who are divorced from the real world deciding -- deciding cases.

The question, though, is, if you are going to have empathy for a particular class of litigants, are you going to also be able to show that same empathy for other classes of litigants? After all, the model that is emblazoned over the United States Supreme Court is equal justice for all.

So, it is one thing to say, well, look, I understand the plight of, let's say, a -- a woman who has been sexually discriminated against or sexually harassed. But it is another thing to have empathy, then, for the other side of the case and to be able to provide equal hand of justice.

I think that is the question here.

Favoring the plaintiff?

MARGARET WARNER: And so do you think she -- And so what does her record show on this, on gender-race discrimination in particular?

PAUL CASSELL: Yes. I think, when there is a close case, a controversial case, she predictability breaks for the plaintiff in those cases.

It's very rare to find a close-contested case in which Judge Sotomayor opted to go with the defendant. And, so, that's where I think she is going to be a predictable vote on the left side of the court. She's going to join with the left wing of the court. And I think we can bank or her opinion in just about every close case that goes to the Supreme Court being in favor of the plaintiff in civil rights cases, for example.

MARGARET WARNER: We're almost out of time, but a quick final rejoinder.

EMMA COLEMAN JORDAN: I think that is an oversimplification. Her cases are very complex and nuanced.

Let's just take a New York fire -- a New York policewoman's case. She picked some of the claims and dismissed some of the others.

MARGARET WARNER: All right, we have to leave it there.

I -- I can tell it's going to be exciting hearings.

Professor Cassell and professor Jordan, thank you both.

EMMA COLEMAN JORDAN: Thank you.

PAUL CASSELL: Thank you.