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Analysts Examine Second Day of Sotomayor Hearings

July 14, 2009 at 12:00 AM EST
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Judge Sonia Sotomayor faced questions on past rulings and statements during her second day of Supreme Court confirmation hearings Tuesday. Legal analysts examine her responses.
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JIM LEHRER: And now some reaction to today’s hearing from Jonathan Adler, professor at Case Western Reserve University School of Law, and Maria Blanco, executive director of the Warren Institute at the University of California at Berkeley Boalt Hall School of Law.

Professor Adler, to you first. Just in general, is this a good day or a bad day for Judge Sotomayor, from your point of view?

JONATHAN ADLER, Case Western Reserve University School of Law: Well, I think any day in which she doesn’t make a major gaffe or there’s no real stumble is a good day for her.

I mean, I think the strategy is to play defense, to be very careful and deliberate in her answers, and to not do anything that would cause what Senator Graham referred to yesterday as a meltdown. And I think, as long as that’s what happens in the hearings, she’ll get through.

JIM LEHRER: All right. Ms. Blanco, how did you feel generally? Was this a good day for her?

MARIA BLANCO, University of California Boalt Hall School of Law: I think it was. I think that she was very careful. She was unflappable. But at the same time, she — I felt that she answered all the questions that were made of her and thoughtfully.

I don’t think she came across as somehow — you know, called her as a hothead. I thought she exhibited actually the opposite quality in her deliberative answers.

I was very impressed with her knowledge of the law. I think that, even in the last exchange, where she was pressed on her “wise Latina” comment, she did a good job of basically stepping away from it and saying that perhaps she understood how others might find that unacceptable, so I thought she did very well today.

Addressing controversial remarks

Jonathan Adler
Case Western Reserve University
She disclaimed any intention to suggest that one's background would make someone a better judge [...] And I think she did that because she was trying to diminish the potentially controversial aspects of some of those speeches.

JIM LEHRER: Well, let's go through some specifics here now, beginning again, back to you, Professor Adler. How did you feel about how she handled and has now dealt with the "wise Latina" remark?

JONATHAN ADLER: Well, I mean, I think she backtracked some, I mean, both in terms of the specific speech at Berkeley and some similar speeches she gave at Seton Hall and some other places. She backtracked from what, I think, most people took from the words of her speeches.

She disclaimed any intention to suggest that one's background would make someone a better judge or result in better decisions. She tried to play down the distinctions that the speeches have drawn between her views and, for example, Justice O'Connor's views, I think, you know, expressly disclaimed language in some of the speeches that suggested her experiences would cause her to choose to see certain facts and not others.

And I think she did that because she was trying to diminish the potentially controversial aspects of some of those speeches and, in that regard, make them less of an issue.

JIM LEHRER: Do you think the Republicans, particularly Senator Sessions, bought that?

JONATHAN ADLER: I don't think they were convinced, but in some respects she doesn't have to convince them. I mean, with 60 Democratic senators in the Senate really what she has to do is not say anything that gives a Democratic senator a reason to defect or even some of the more moderate Republican senators reason to vote against her.

And so that's why I think her practice today of being very cautious and careful in her answers was a very intelligent strategy, and downplaying the potentially controversial interpretations of her speeches made sense.

I'm not sure she convinced Senator Sessions. I'll admit I'm not sure I'm convinced entirely with all of those answers, but I understand why she answered in that way, and it was probably effective.

An effective approach?

Maria Blanco
University of California, Berkeley
She did a good job of explaining that [...] nobody is neutral, and that she was trying to say in her speeches that it's only when you acknowledge that that you're able to move beyond it.

JIM LEHRER: Do you agree that was effective, Ms. Blanco, that her approach was the way to go, which was to play down everything like that, correct?

MARIA BLANCO: Yes, I do, but I also think that she didn't just play down those comments. I was impressed by her attempt, on this very controversial remark, she really did attempt to explain what she was saying.

She explained, I thought, well today that she thought that people -- everybody comes with beliefs, prejudices, experiences, and that only if you recognize that you hold those biases can you set them aside and not judge with those biases.

And I thought that she did a good job of explaining that and of calling that out, so to speak, that nobody is neutral, and that she was trying to say in her speeches that it's only when you acknowledge that that you're able to move beyond it.

So I don't think she was completely cautious. I think, at the same time, she stood her ground.

JIM LEHRER: Professor Adler, what did you think about the way she handled the New Haven firefighters case and the decision in her court?

JONATHAN ADLER: Well, I think in that case and a lot of the other cases, she tried to emphasize her focus on the facts of cases and the role of precedent.

Now, I happen to be one of those that does not think that her opinion or that her panel's opinion in that case was controlled by Second Circuit or Supreme Court precedent and was one of those who would criticize the ruling even before she'd been nominated, in fact, before the president was elected, so before any of us knew it could potentially be a confirmation issue.

But I think, again, she tried to explain it in a way that's consistent with the narrative that she and her supporters are creating of a very careful jurist with a lot of experience and didn't say anything that really provides much of an opening for her critics in that regard.

Accusations of bullying

Jonathan Adler
Case Western Reserve University
The attorneys that argue cases before the Supreme Court are fully capable of handling the most aggressive questioning. And if it turns out that she's as aggressive as Justice Scalia, or even more so, they'll be able to handle it.

JIM LEHRER: Now, back to this -- the point that you raised, Ms. Blanco, and that follows directly from the questioning of Senator Graham and his reading from the Almanac of the Federal Judiciary about the temperament of Judge Sotomayor, that she was a bit of a bully, she acted like she was angry, she was nasty to lawyers. What do you make of that?

MARIA BLANCO: Well, first of all, I think, to the extent that that characterization of her is out there, the last two days of the hearings have shown her in quite a different light. So I think, to the extent that that's a concern, she's working very hard -- and I think successfully -- to present a very calm demeanor, a thoughtful demeanor. She does not come across as a hothead.

So I think that, beyond what she says, her actions today and yesterday have to some extent addressed that concern.

I also think that even the question itself sort of -- the questioning, that line of questioning acknowledged that this is a technique used by many judges, not just by Judge Sotomayor. She described this as a practice that's very prevalent on the Second Circuit.

I felt that she did a good job of showing herself to be a measured person and not sort of, you know, outside the mainstream in her temperament, as well as within the mainstream in terms of her decisions.

JIM LEHRER: Professor Adler, do you agree with that?

JONATHAN ADLER: Well, I generally agree with that. I mean, at the end of the day, the attorneys that argue cases before the Supreme Court are fully capable of handling the most aggressive questioning. And if it turns out that she's as aggressive as Justice Scalia, or even more so, they'll be able to handle it.

I don't think that's the sort of thing that at the end of the day should really determine whether or not she gets confirmed.

JIM LEHRER: Speaking of the end of the day, the end of this day, which is still actually, in some time zones, the hearing is still going on today, how did you think the senators -- first, the Republican senators and then the Democratic senators -- did as far as what their roles they played in questioning Judge Sotomayor?

MARIA BLANCO: I think that I was impressed. I was glad that -- I thought the tone was very civil. I've watched a lot of Supreme Court hearings, and it hasn't always been like that.

I think the Republican senators know that this is -- they have to be careful to not attack her unfairly. So I was impressed actually with the tenor of the hearings, that both parties were careful and thoughtful, and it seemed very civil compared to other hearings.

A broader discussion

Maria Blanco
University of California, Berkeley
[The hearings] are more than confirmation hearings. They are sort of garnering support for one particular view of how the Constitution should be interpreted by the Supreme Court.

JIM LEHRER: Professor Adler, civil or not, do you believe that the Republicans who already declared -- some of them have already declared their opposition to Judge Sotomayor, do you think they've done the job, are doing the job that needs to be done to expose why they believe she should not be confirmed?

JONATHAN ADLER: Well, I think in some respects they have. I mean, I agree that the questioning has been substantive for the most part, has been civil, and I think that's important if the goal is to have a broader discussion about the role of the court and what sorts of judges we should want to have on the court.

And I think some of the Republican senators who oppose her confirmation, and even some of those that will eventually vote for her, are really trying to stage a larger debate that's not so much about this nomination, but about nominations to come in the future.

And they're trying to explain why they have a view of the role of the court and what sort of judges we should have that's different from the president's and hoping that they can build support for that view so that they'll have more favorable terrain when it comes to future nominations.

JIM LEHRER: Ms. Blanco, do you agree with that, that there's more going on here than just the confirmation of Judge Sotomayor?

MARIA BLANCO: Absolutely, and that's not just the case in this hearing. I think all the Supreme Court nomination hearings that we've seen over the last 10 to 12 years always have this subtext of, what is, you know, the two or three or four different views of the interpretation of the Constitution?

And they are more than confirmation hearings. They are sort of garnering support for one particular view of how the Constitution should be interpreted by the Supreme Court, the narrow, originalist view, or the more expansive view. And, in some ways, the senators on both sides played to their base, and it is at some -- as many have said, it is political theater that goes beyond the qualifications of the nominee.

JIM LEHRER: Yes. Political theater beyond the nominees, Professor Adler? Do you agree?

JONATHAN ADLER: Without question. And you can even see that in some of the questioning. I mean, the fact that certain senators ask certain questions about cases that might not be high-profile cases or cases that make the news, but that might be important to particular constituencies in their state, and you certainly see that in these hearings.

JIM LEHRER: OK, Professor Adler, Ms. Blanco, thank you both very much.

MARIA BLANCO: Thank you.

JIM LEHRER: You can watch the hearings streamlined live on our Web site, as well as on your local PBS station. Judy Woodruff and Marcia Coyle are answering your questions during breaks in the proceedings. To participate, go to newshour.pbs.org or send a question to the NewsHour's Twitter account, twitter.com/newshour.