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Sotomayor Confirmation May Be Headed to Swift Vote

July 16, 2009 at 12:00 AM EST
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With Supreme Court nominee Sonia Sotomayor's testimony complete, analysts Marcia Coyle and Tom Goldstein join Judy Woodruff to examine how the judge fared in the spotlight.
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JIM LEHRER: Judy Woodruff, who anchored our live coverage of the hearing, takes the story from there.

JUDY WOODRUFF: To assess Judge Sotomayor’s four days of testimony and her prospects for confirmation, I’m joined by Marcia Coyle of the National Law Journal. She’s been with me all week to provide analysis of the hearings for our PBS special coverage.

And Tom Goldstein, he’s a Supreme Court advocate and the founder of scotusblog.com.

Thank you both for being here. Now, Marcia, what — I’m going to ask both of you this — what did the judge need to do this week? And did she accomplish it?

MARCIA COYLE, National Law Journal: Well, I think, as Senator Graham said in his opening statement, that unless she had a complete meltdown, she was going to be confirmed. Well, she did not have a complete meltdown, not even when the air conditioning broke down in the hearing room.

She knew going into this hearing, based on comments and articles that had been written about her, that she was going to have to address speeches she had made, several decisions that she was involved in that had become controversial, and, finally, emphasize her 17-year record. And she did all of that.

To what degree of satisfaction, at least to opponents and certain Republicans on the committee, remains to be seen, but she did everything that she had to do.

JUDY WOODRUFF: Tom Goldstein, overall, how did she do?

TOM GOLDSTEIN, Scotusblog.com: Well, she, I think, performed admirably. Her first goal had to be get confirmed, to be honest, but get confirmed, and she’s clearly going do that.

Remember, as well, that this is her introduction to the country, and I think the takeaway message that Americans who won’t see her again, really, in the public spotlight much is that she’s thoughtful and she’s patient.

They did not learn a lot about her jurisprudence. There wasn’t a real desire to educate the country about the law, I’d say.

The New Haven firefighters case

Marcia Coyle
The National Law Journal
She did have support from the Democratic side, which tried to fill in any gaps that she may have left unsaid. So I think it's one of those things where sides are going to agree to disagree.

JUDY WOODRUFF: Let's talk about the main arguments that the Republicans raised against her. Tom, first, the Ricci case, where she ruled against this group of white firefighters, New Haven, Connecticut. How did she handle that? What were they coming after her with? And how did she handle it?

TOM GOLDSTEIN: Well, they are sharply critical of the court of appeals ruling in this case, which they believe reflects a mentality of not taking the claims of discrimination against whites seriously, not that there was a real problem under the law of not following these test results.

And Judge Sotomayor's strategy here was to say that she was essentially bound, that she didn't have any choice because of pre-existing law, and she wouldn't go beyond that to say what she would do in another similar case on the Supreme Court.

So her strategy in this context was to say, This wasn't something that really embodies my view of how the law should be decided at all.

JUDY WOODRUFF: Did they score points on that?

MARCIA COYLE: I think coming back to it again and again and again and not appearing to be satisfied may have raised doubts in their minds, have raised doubts in the public's mind about her.

But I think she was very, very consistent in terms of how she addressed that. And she did have support from the Democratic side, which tried to fill in any gaps that she may have left unsaid. So I think it's one of those things where sides are going to agree to disagree.

JUDY WOODRUFF: So, in all, how much did -- was she hurt by the fact that she could only -- she only went so far in answering those questions about the Ricci case?

MARCIA COYLE: Hurt, in terms of confirmation or the public image?

JUDY WOODRUFF: Public Image.

MARCIA COYLE: Public image? I don't really know, Judy. I mean, I tend to think that people do understand when judges talk that they are bound by certain decisions that have already been made. On the other hand, people also may think that judges' experiences and prejudices do come into play in certain cases.

So, again, it's one of those things. It's a very difficult case, a legally difficult case, and it was attacked in two respects, not only the ultimate decision, but how it was handled. It was handled in a short, unsigned opinion, and the Republicans also went after her for that. And I think she did respond to that, as well. I don't know how it plays in America.

2nd Amendment questions

Tom Goldstein
Scotusblog.com
Republicans are very concerned because they want to know how she'd rule in that [Second Amendment] area, and she wouldn't say, and appropriately so, because it's an issue that's coming up.

JUDY WOODRUFF: Tom Goldstein, gun rights, the Republicans kept coming back to that. I believe it's the Maloney case. What was the main line of attack there? And how did she deal with it?

TOM GOLDSTEIN: Well, Republicans certainly led, but they had a lot of Democratic support, as well. The members of the Senate Judiciary Committee across the board, very supportive of gun rights.

Now, she had decided a case coming out of New York and actually involving nunchucks, rather than a gun, but she again said that she had been bound by prior law to hold that the state of New York and the city of New York were not bound by the Second Amendment right to bear arms, that the Supreme Court a long time ago, more than a hundred years ago, and her court of appeals had already ruled that that part of the Constitution doesn't limit state and local regulation and that it would be up to the Supreme Court to actually decide that case, that issue.

And there are three cases now that are on their way to the Supreme Court. And since she's going to be confirmed, Republicans are very concerned because they want to know how she'd rule in that area, and she wouldn't say, and appropriately so, because it's an issue that's coming up.

JUDY WOODRUFF: How would you sum up how she dealt with the whole gun issue?

MARCIA COYLE: I think, again, she dealt consistently the reply that Tom just addressed. I think she dealt with it as best she could, because she does know that that issue is coming up before the Supreme Court, that there are cases already in the court that raise the issue, and she just could go with it no further than she had.

Gender and ethnicity issues

Marcia Coyle
The National Law Journal
What she said she meant in that speech and others is that a judge's life experiences do figure into judging in the sense that it helps you understand the parties who come before you.

JUDY WOODRUFF: Marcia, this whole question of her speeches, the "wise Latina" remark, other suggestions that feelings, gender, ethnicity could play a role, and we heard that again from the senators just now, that there -- are there two Sonia Sotomayors, one who rules in the mainstream, who casts opinions in the mainstream, but then who makes speeches in another direction? How did that come down finally, do you think?

MARCIA COYLE: Well, I think this is an area where the Republicans may have scored some points. She did back away in her choice of words, what we've heard endlessly now as the "wise Latina" part of one of her speeches. She said that that was a bad choice of words, but she did stand by what she meant.

And what she said she meant in that speech and others is that a judge's life experiences do figure into judging in the sense that it helps you understand the parties who come before you. And so whether, again, you know, people will accept that or not, I don't know.

It was very clear that Senate Republicans, most of them, did not accept her explanation of that. It's interesting, Judy. You know, with those speeches, as well as the cases that the Republicans focused on, we're talking about the Supreme Court and the number of cases in which the court is so closely divided, 5-4. And what happens when you're addressing an issue like that where it isn't really clear what the Constitution or law says, and that's what the Republicans were hoping to get answers on, and they did not.

Temperament and the "hot bench"

Tom Goldstein
Scotusblog.com
The American Bar Association said it had interviewed 500 people about this claim that she was intemperate, that she was too aggressive on the bench. They had only gotten one complaint... And that seemed really decisive.

JUDY WOODRUFF: What about, Tom Goldstein, this whole issue of temperament? Were there any points scored on that?

TOM GOLDSTEIN: I think not. Here I think she was exceptionally successful, both just in her mannerisms. She's been under enormous pressure for several days now, in front of the country, under sometimes withering questioning, and was almost always incredibly patient.

And then the American Bar Association said it had interviewed 500 people about this claim that she was intemperate, that she was too aggressive on the bench. They had only gotten one complaint. They investigated it by talking to every other lawyer and judge who was in the room at the time and found no basis for it. And that seemed really decisive.

JUDY WOODRUFF: And when she was asked about it in that, I guess, memorable exchange, Marcia, she defused it? I mean, how would you describe how she handled it herself?

MARCIA COYLE: Well, I think she handled that well. She said she is a tough questioner. She said she sits on a hot bench, with means it's a bench that has judges who are very active in questioning. She expects lawyers to try to persuade her.

And then the Democrats did come to her support and say that there were almost an equal number of comments that were positive about her temperament in the same Almanac of the Federal Judiciary that the Republicans used for the critical comments.

JUDY WOODRUFF: So, just quickly, prospects. What does it look like in the Senate? What are you hearing?

TOM GOLDSTEIN: Somewhere between 72 and 78 votes, I'd say; 78 is what Chief Justice John Roberts got. So we will have more of a bipartisan vote than with Sam Alito. She'll either get two or three, most optimistically four on the Senate Judiciary Committee from Republicans, but somewhere between two and three.

JUDY WOODRUFF: Any sense of that?

MARCIA COYLE: No, sounds good to me. I mean, it's my sense of it, as well.

JUDY WOODRUFF: That she'll pick up maybe a dozen Republican votes?

TOM GOLDSTEIN: It's a dozen to a dozen and a half.

JUDY WOODRUFF: All right, we will leave it there. Marcia Coyle, Tom Goldstein, thank you both.

MARCIA COYLE: My pleasure.

TOM GOLDSTEIN: Thank you.

JIM LEHRER: On our Web site, newshour.pbs.org, you can watch all of the NewsHour's coverage and analysis of the Sotomayor hearings. There's also a guide to the confirmation process and a lesson plan for teachers.