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Sotomayor Nomination Sparks Debate on Role of Justices

May 26, 2009 at 12:00 AM EDT
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Following President Obama's nomination of Sonia Sotomayor, a federal appeals court judge, to the Supreme Court, analysts debate her record and her confirmation road ahead.

GWEN IFILL: So who is Sonia Sotomayor? And, if confirmed, what type of Supreme Court justice might she be?

For insight and opinion, we turn to Marcia Coyle, our Supreme Court watcher, of National Law Journal; Tom Goldstein, founder of and a partner at Washington’s Akin Gump law firm; Jim Copland, director of the Manhattan Institute’s Center for Legal Policy, he was a clerk on the Second Circuit Court of Appeals; and Jenny Rivera, professor of law and director of the Center on Latino and Latina Rights and Equality at the City University of New York School of Law. She clerked for Sotomayor when she served on the U.S. District Court for the Southern District of New York. It’s a mouthful.

Thank you, everybody, for joining us.

Jenny Rivera, what has the first wave of reaction been to Judge Sotomayor’s nomination?

JENNY RIVERA, CUNY Law School: Oh, it’s been tremendous. It’s been tremendous. People are just elated, so supportive of her, so impressed by her history, her story, her strength on the bench. It’s been just an incredible response. Everyone is just thrilled with this nomination. She embodies the American dream.

GWEN IFILL: James Copland, from your perch, how has been the reaction today?

JAMES COPLAND, The Manhattan Institute: Well, I think it’s been a somewhat mixed reaction. Clearly, there’s historic significance here. She wouldn’t be the first Hispanic justice — that was Justice Cardozo — but she would be the first Latina justice on the U.S. Supreme Court.

And I think clearly some of the political calculation that went into the president’s selection was precisely her demographics, as well as her impressive resume. There’s no question that she’s got an impressive resume, that she’s a serious jurist.

I would have some strong reservations about some of her judicial opinions, some of her judicial methodologies, but that’s not to say that she’s an unqualified candidate, because I think she meets a qualification standard.

GWEN IFILL: We’re definitely going to get back to some of your objections. Of course, for the record, Justice Cardozo was of Portuguese descent, so there’s some debate for some reason about whether that’s actually Hispanic or not.

Tom Goldstein, you were in the room today in the East Room of the White House when the nomination was announced. What has been the reaction in the legal community so far?

TOM GOLDSTEIN, Well, I think there’s a lot of admiration for Judge Sotomayor, not just her story, but a diversity of experiences, having been a prosecutor, a trial judge, and then a Court of Appeals judge. There’s also a sense that she’s definitely on the left, but nonetheless balanced.

You can count dozens and dozens and dozens of cases in which she’s ruled for the government, including over dissents by her colleagues that want to rule for defendants. So there’s a lot of respect there.

I also think that it’s still kind of early and people are interested in learning a lot more about her who don’t already know.

Sotomayor's temperament

Jenny Rivera
CUNY Law School
She does really thorough preparation for hearing the parties' arguments, so she is an aggressive member of the bench in that sense.

GWEN IFILL: And, Marcia, you've covered a lot of these kinds of nominations, these kinds of rollouts. What has been the rumbling in the Washington legal community and maybe even at the court?

MARCIA COYLE, National Law Journal: Well, the court -- it was business as usual today.

GWEN IFILL: As always.

MARCIA COYLE: Right, exactly. There were decisions. And it was -- the contrast was striking. While President Obama was introducing Judge Sotomayor, Justice Scalia was reading an opinion from the bench that was overruling a 23-year-old criminal law precedent, and a reminder -- it was a 5-4 decision -- how one vote can make a real difference on this court.

GWEN IFILL: Jenny Rivera, you clerked for Judge Sotomayor at one point. And we have heard lots of discussion today about her life story, about her temperament. Fill us in on what you know about that, especially her temperament.

JENNY RIVERA: Well, the judge has a very probing -- she asks probing questions when she's on the bench. She is really engaged in oral argument. She does really thorough preparation for hearing the parties' arguments, so she is an aggressive member of the bench in that sense.

And so she brings that to the court. She really knows her material, and she expects the attorneys to be prepared and to be able to answer her questions.

So I think that's a judicial temperament that we should all be pleased is going to come to the court, that it's someone who's prepared, is going to ask important and significant questions.

GWEN IFILL: Well, let me follow through on that, on kind of a scale of the current court, ranging from, say, Justice Thomas, who never speaks during arguments, to Justice Breyer, who always speaks, where does she fall in that continuum?

JENNY RIVERA: Well, we'll have to see where she falls on the continuum when she's actually on the court, but she's never been shy to ask a question when she has one.

GWEN IFILL: Let's go back to James Copland. I'm really curious about the issues that you're raising that you hinted at before, the concerns you have about specific actions she has taken, specific opinions she has written. Can you elaborate on that?

JAMES COPLAND: Well, sure. And as I wrote last week in an opinion piece, when you start looking at Justice Souter, it's easy to characterize Justice Souter as a member of the left wing of the court. And clearly on some of these hot-button issues, like abortion and affirmative action, he's been in that sort of left block of the court.

But when you look at the broader picture of the sort of litigation cases that he's considered -- and what I really look at for the Manhattan Institute is abuse of litigation, abuse of the civil litigation process -- you see with Justice Souter a very balanced approach and concern about excess damages on the one side or loose pleading standards on the other side that leads to legal abuse.

And I would argue that, when you look at some of Judge Sotomayor's decisions -- for instance, a class-action certification question, where she was issuing a majority opinion against the dissent of the current chief judge on the court and was later reversed by the second court, when you look at her interpretation of Congress's statutory efforts to try to scale back on securities class-action litigation, you find a judge that has generally been less suspicious of the problems that abusive litigation can cause than I think Justice Souter actually was. So it's a cause for concern for me.

Sotomayor, Souter records different

Marcia Coyle
National Law Journal
So there is this crossover that, you know, gives the lie that you're subbing one out for the other. It also ignores the reality of the interpersonal dynamics on the court when you have a new justice.

GWEN IFILL: So it's not an equal swap-out, Marcia, necessarily, Justice Souter for Sotomayor. Their records are not identical.

MARCIA COYLE: No, they're not, Gwen. And I'd like to say that there is something of a myth that President Obama is replacing a liberal with a liberal and so there will be no impact on the court.

I think that ignores the reality of what happens in the court, in particular areas of the law. There are unusual alliances. There are crossovers from left to right, depending on the area of the law.

We've seen Justice Souter disappoint his colleagues on the left when he has written about punitive damages. Justice Breyer has upheld the Ten Commandment monument in one case and struck it down in another on church-state separation grounds.

So there is this crossover that, you know, gives the lie that you're subbing one out for the other. It also ignores the reality of the interpersonal dynamics on the court when you have a new justice.

Perhaps Justice Sandra Day O'Connor's more moderating views on affirmative action were affected because she sat for years at a conference table with Thurgood Marshall and she spoke of what a great raconteur, storyteller he was, and his storytelling about life in the South in the '50s and the '60s always had a very important point.

So I think one justice can have an impact, and you're not subbing one out for the other.

GWEN IFILL: Well, I want to pick up on that with Jenny Rivera, because you talk about the real life experience of a Thurgood Marshall. How much of the real-life experience of a Sonia Sotomayor could you be expected to actually have an impact in some place as august as the Supreme Court?

JENNY RIVERA: Well, as she said today, her life experiences have informed who she is. They've shaped who she is. It certainly shapes the way the world perceives her.

She grew up, as we all know now, very humble beginnings, grew up basically at the knee of her mother. And so those experiences are going to inform the way she sees those cases.

I mean, my experience having observed her is that it makes her skeptical of stereotypes. It makes her skeptical of caricatures. It makes her open to the arguments presented to her. She doesn't judge based on appearances. She judges based on the facts and the strengths of those arguments, and so I think she'll bring that to the court.

GWEN IFILL: Tom Goldstein, one of the hot-button issues which we heard Judy ask David Axelrod about and he didn't quite answer it, is she asked him whether the president knew about her stance on abortion. And the answer was, the president didn't talk to her about it. Do we know where she stands on issues like that?

TOM GOLDSTEIN: When you think about the big hot-button social issues -- abortion, gay rights, the separation of church and state, the death penalty -- interestingly, while she's on a very important court and has been there for a long time as a judge, those issues really haven't come across her plate in the volume that you might otherwise expect. So we don't have a lot of information.

We have cases that are kind of similar. So, for example, she didn't have an abortion case, but had a challenge to what's known as the Mexico City Policy, which prohibited the use of federal aid overseas for abortion. And she said that that program couldn't be challenged in court, which is hardly a far left position for a judge to take.

So she is a little bit of a mystery there. We do know she's generally on the left of the court. We can make some assumptions, but you can't be entirely confident about them.

One consequence of the fact that she hasn't decided those cases is it makes her confirmation hearings probably a little bit simpler, because those are the issues that ideological groups are most likely to make huge amounts of fuss about.

Reverse discrimination ruling

James Copland
Manhattan Institute
What concerns me a little bit about this demographic picking, when you're sort of trying to pick the court is, is the notion that one person's life experience should, in fact, have a lot of impact on how they rule in a given case.

GWEN IFILL: And I want to ask you about this, because we've sat at the table and talked about the New Haven firefighters' case. She happened to be on the panel that decided the case that got it kicked up to the court. Is that something which is likely to be a problem for her?

MARCIA COYLE: Well, I think it's going to figure in her confirmation hearings, depending on what the Supreme Court does with that particular case. The court could rule narrowly. It could criticize the panel decision.

They're certainly going to question her, I think, about why the panel did not write a full-fledged decision addressing all the constitutional issues that came up. It was a very brief decision. So I think we're going to have to wait and see how that plays out, but I think that is the one case that the senators will focus on.

GWEN IFILL: Let me ask James Copland about that, because there's not only that case that's hanging out there, but we also heard David Axelrod try to explain some of the statements that she has made either about being a Latina woman or about whether -- what the role of the Appeals Court should be. Are you satisfied with any of the answers that you heard that he gave by what her role may have been in this New Haven case in particular?

JAMES COPLAND: Well, I'm largely satisfied with the answer on the sort of the Second Circuit or the Circuit Courts make policy answer. I think it was a bit of a misstatement, but I do think that it's, in fact, the case that the law of the land is largely determined by the appellate courts.

The Supreme Court takes a very small number of cases, and the Circuit Courts actually sort of set the law out there that's followed by all the trial court judges in the country. So I don't find that particularly objectionable.

I think the Latina woman quote will get some play, and I think it should. What concerns me a little bit about this demographic picking, when you're sort of trying to pick the court is, is the notion that one person's life experience should, in fact, have a lot of impact on how they rule in a given case.

That doesn't mean that judges are blind to the long-run impacts of their decisions, but that the real-world impacts of their decisions go beyond whatever the hardship is that the individual might have faced.

So when Judge Sotomayor strongly dissented from a panel on the Second Circuit that was dismissing a lawsuit against a school board for demoting a black student who had underperformed, the real-world consequences of that go beyond that actual instance, but, in fact, create this sort of litigation, education through litigation problem we've got, which arguably we do a disservice to the very constituencies that that sort of empathy that she wants to embrace tends to create.

Identity politics a factor?

Tom Goldstein
If you're asking instead about a liberal visionary to change the direction of the law, probably not. She's much more of a narrow craftsperson.

GWEN IFILL: Jenny Rivera, how much is there -- is there a just concern about identity politics beginning to define the day for picks like this? Here we have another first.

JENNY RIVERA: Well, I think the president didn't make a choice based on identity politics. He made the choice based on the merits of her intellectual capabilities, on the experience that she brought to the court.

And you heard David Axelrod say, you know, the fact that she happens to also be Latina and be a woman, it's wonderful that we can bring that to the court. But this was a choice based on the strength of her background, her experience, and her intellect. And, certainly, that's important.

But at the same time, we have to recognize that the court is vulnerable to criticism that it doesn't look like the rest of the country and therefore is insensitive to those issues, and it is encased in this bubble, and there's an insularity about the court.

So it is important that we all feel that all sections, all branches of government somehow have a certain integrity behind them and really speak to people.

And I think certainly President Obama, when he says he's looking for someone who has empathy and who understands the implications of these cases on real people, is recognizing also the significance of the judiciary, not just the executive branch, not just the legislative branch, being a branch of government that all people in the United States, all our various, diverse communities can feel carry a certain integrity behind them and rule not based on appearances, but look at the merits of the case, and apply the rule of law, and apply those values of the Constitution.

GWEN IFILL: All right. Let me finally ask you, Tom Goldstein, and you, Marcia Coyle, whether, in the end, if she is confirmed, does Sonia Sotomayor bring the intellectual heft for the left that Antonin Scalia has brought for the right? That is, some of the concerns that some liberals have been worrying about.

TOM GOLDSTEIN: If we're just talking about smarts, the answer has to be yes. Somebody who graduates at the very top of her class at Princeton, who's an editor in the Yale Law Journal, thrives in practice, and gets nominated and confirmed twice by the U.S. Senate is a serious intellect. And you can read hundreds of her opinions, and you will see that you are dealing with somebody who really knows the judicial craft.

If you're asking instead about a liberal visionary to change the direction of the law, probably not. She's much more of a narrow craftsperson.


MARCIA COYLE: I think she'll be able, based on -- I agree with Tom on the intellect. I think, based on her willingness to speak out clearly and enunciate the principles of law, that she will be able to answer Justice Scalia with the same amount of firepower. I think we have to wait and see if she's going to be able to mold coalitions the way Justice Stevens has been able to do.

GWEN IFILL: Marcia Coyle, Tom Goldstein, Jenny Rivera, and James Copland, thank you all very much.