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After Historic Nomination, Questions on Sotomayor’s Record Emerge

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.

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