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Assessing Sonia Sotomayor

Wednesday, May 27, 2009

The Post asked for first impressions on Obama's Supreme Court pick. Below are contributions from Henry G. Cisneros, Lisa Schiffren, Erwin Chemerinsky, Jack M. Balkin, Patricia Wald, Douglas E. Schoen, Jamie S. Gorelick, Harold Ford Jr., Benjamin Wittes, Dianne Feinstein, Harold Ford Jr., Kim Gandy, Kathleen Kennedy Townsend and Maria Echaveste.

HENRY G. CISNEROS

U.S. secretary of housing and urban development during the Clinton administration; executive chairman of CityView, a real estate investment company

We know the traditional reasons Sonia Sotomayor has been nominated by President Obama: She has a strong record as a federal circuit court judge, she has earned respect as an experienced trial judge and she possesses a keen legal mind.

But there is an equally important reason, attuned to the makeup of modern America. Sotomayor embodies the excellence that exists among new Americans, those segments of our population who come up along a track different from the traditional origins of the nation's legal elite. Her extraordinary path of excellence stretches from valedictorian of her high school class to summa cum laude and Phi Beta Kappa at Princeton, to editor of the Yale Law Journal, to author of more than 400 published legal opinions. This record of excellence resides comfortably alongside her heritage as a Puerto Rican woman who grew up in public housing within the South Bronx. After Sonia's father died when she was 9, her mother -- who served in the Women's Auxiliary Corps during World War II -- worked as a nurse to support her daughter's quest for education.

As the first American of Hispanic heritage to be nominated to the Supreme Court, Sotomayor represents the largest minority group in the United States, a group whose experiences are close to immigrant life, close to the struggles of poor Americans striving to reach the middle class, and close to the everyday challenges of working families. Legal excellence that coexists with deep understanding of the labors of striving Americans is precisely the combination of experience that deserves a voice among the justices of the U.S. Supreme Court.

LISA SCHIFFREN

Speechwriter to Vice President Dan Quayle; contributor to National Review Online's "The Corner" blog

The worst thing about the identity politics surrounding Sonia Sotomayor's nomination is not that she is a token or a political chit doled out to Hispanics -- though she is clearly that. Political considerations are always with us. The worst thing is that in a nation of laws, where judges and justice should be impartial, Sotomayor has fetishized her own identity into a rationale for certain (predictable, liberal) political preferences.

She famously said, "I 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 male who hasn't lived that life." And that Latina wisdom led her to a public statement that the role of the appellate court on which she sits is "to make policy" and "to make law." The policies and laws she's made dismiss property rights and are anti-business. She favored (highly paid) labor over owners in ending the baseball strike. She clings to affirmative action, as in the Connecticut firefighters case.

As we watch our new president trample property rights and run roughshod over contract law taking over private companies, it's clear that she's with him on the substance. So Obama's empathy standard, in practice, is the same old liberal activism.

ERWIN CHEMERINSKY

Founding dean of the School of Law at the University of California at Irvine

President Obama has made a superb choice in 2nd Circuit Judge Sonia Sotomayor. Every justice's rulings are a product of his or her life experiences. As a woman, a Latina, a person with a serious medical condition (diabetes) and an American from a modest upbringing, she brings experiences that are unrepresented or virtually absent on the court.

From a political perspective, it is a brilliant choice. Sotomayor is likely to sail through the confirmation process, which means that Obama will not need to invest political capital in her confirmation. Her judicial record shows her to be a moderate liberal and is unlikely to provide fodder for her opponents. At the same time, it helps Obama and the Democratic Party appeal to a key and growing constituency, Hispanic voters. It is inconceivable that many Republicans are going to want to strongly oppose the first Latina selected for the high court.

But most of all, Sotomayor is an excellent choice because she is an outstanding judge. Her opinions are clearly written and invariably well-reasoned. My former students who have clerked for her rave about her as a judge and as a person.

JACK M. BALKIN

Knight professor of constitutional law and the First Amendment at Yale Law School; legal affairs blogger

When presidents nominate Supreme Court justices, they balance the desire to please important constituencies and the predicted ease of confirmation with their desire to have a jurist who will cooperate with them and promote their favored policies.

Sonia Sotomayor fits this balance of considerations fairly well. She is likely to please two crucial constituencies for the Democratic Party -- Hispanics and women -- whom the Republicans also need to court. That will help get her through the Senate. Although the media debate has largely been about what the court "needs" in terms of diversity and background experience (for example, the debate about "empathy"), a president is far more likely to be concerned with promoting his electoral interests and those of his party.

Sotomayor was carefully positioned as not the most liberal candidate -- other candidates were seen as farther to the left. This makes her easier to confirm and also burnishes Obama's desired reputation as a non-doctrinaire pragmatist.

Yet Sotomayor is likely to be part of the court's liberal coalition. Most justices do not disappoint the presidents who nominate them on the key issues that the presidents care about, especially when the nominees have fairly long track records, as Sotomayor has.

PATRICIA WALD

Former chief judge of the U.S. Court of Appeals for the District of Columbia

Sotomayor's writings strongly suggest she will be independent, realistic but not passive about the limits of judicial power. She will bring a new voice to the court. I am thrilled that the likely next justice is a woman from an ethnic and economic background that is not the traditional grist for the judicial mill.

I am a firm believer that a judge does and should bring her life's experience to her judicial role. Sotomayor has written, "All judges have cases that touch our passions deeply, but we all struggle constantly with remaining impartial and 'letting reason speak'. . . . We struggle to find ways to convince our colleagues of our views and to accommodate the needs -- and respect the powers -- of the other branches of government . . . . All courts, no matter what their provenance or jurisdiction, are in large part the product of their membership and their judges' ability to think through and across their own intellectual and professional backgrounds to reach some juncture of consensus and cooperation in which common language is used to articulate the rules and norms that bond their communities. In the end . . . we are all trying to achieve justice." She knows what judging is about. I applaud President Obama's fidelity to his campaign pledge to appoint federal judges who, apart from excellence of intellect, bring to the bench varied backgrounds and exposure to different facets of American life.

DOUGLAS E. SCHOEN

Democratic pollster and author

Nothing better explains President Obama's selection of Sonia Sotomayor for the Supreme Court vacancy created by the retirement of David Souter than Obama's trip yesterday to Las Vegas, where he attended a fundraiser on behalf of Senate Majority Leader Harry Reid, whose anemic poll numbers make him a likely Republican target in 2010.

Hispanics make up 15 percent of Nevada voters and broke almost three to one for Obama in 2008. Reid will need to do at least as well with this group to be reelected next year.

Obama improved the Democrats' share of the Hispanic vote nationally by almost 15 percent from 2004 -- gains that he and his strategists hope to institutionalize, especially given the rightward drift of the Republican Party.

Consider some of the races up for grabs next year: Illinois and New York (Sotomayor's home state) have populations that are about 10 percent Hispanic. Both have appointed senators who have not yet created a political dynamic that makes their seats a lock for the Democrats next year.

In Colorado, where the Hispanic vote approaches 15 percent, the party is likely to run an appointee who had little visibility and name recognition before being named to a traditionally marginal seat in a state that had, until recently, been trending Republican in national elections.

The most vulnerable Democratic incumbent at this point is probably Chris Dodd, and his state's electorate also is nearly 10 percent Hispanic.

While Obama said that demographics were not the critical variable in his selection of Sotomayor, her status as the first Hispanic woman nominated for the nation's highest court makes this appointment potentially a political game changer in a way no other appointment possibly could have been.

JAMIE S. GORELICK

Deputy attorney general in the Clinton administration; partner at WilmerHale

We now understand President Obama's description of the kind of person he wanted to put on the Supreme Court: superb credentials, bipartisan credibility, broad experience in the law and in life. Sonia Sotomayor, the Princeton summa cum laude graduate who was Phi Beta Kappa and an editor of the Yale Law Journal, has the intellectual firepower to tackle the hardest issues and to argue with -- and persuade -- others on the court. This talent was recognized by two presidents of different parties who nominated her to the district court and the court of appeals. But it is her breadth of background that is distinct. Her childhood -- fatherless at a young age, fighting illness, overcoming odds to rise to valedictorian of one of the toughest schools in New York -- continues to inform her worldview.

She chose first to become a prosecutor, to keep poor communities safe, and that tough-on-crime perspective is found in her opinions. She has been a leader and a model in the Latino community; that empathy for those striving to make their way is seen in her work as a judge. Sotomayor is going to show us what the president meant when he said he wanted both brilliance and humanity.

HAROLD FORD JR.

Chairman of the Democratic Leadership Council; former House member from Tennessee

"I am an ordinary person with extraordinary experiences," the next Supreme Court justice, Sonia Sotomayor, said this morning with the president and vice president standing behind her -- as a country full of complexities, experiences, challenges and varied backgrounds stood before her. This country needs her on the high court.

Predictably, she will inspire the right's ire. We all know the attacks: "She's too liberal" and "she's a judicial activist." Lack of substance will lead these arguments to fade fast, and she will be confirmed for many reasons, two of which stand out.

First, Sotomayor's record defies ideological caricature. Her credentials, temperament and legal experience are unassailable. One may disagree with her conclusions but not the power, rigor and depth of her intellect. Further, the right must remember that she was first appointed to the federal bench by President George H.W. Bush.

Second, she humanizes the court. The millions of Americans who haven't grown up with much can relate to someone who started out in a Bronx public housing community. And her roots will help her identify with people across the spectrum. In short, she brings an informed empathy.

The Senate should hold hearings, examine her record thoroughly -- and barring anything disqualifying -- confirm her.

BENJAMIN WITTES

Senior fellow at the Brookings Institution; author of "Confirmation Wars: Preserving Independent Courts in Angry Times"

Only a few years ago, a Supreme Court nominee like Judge Sonia Sotomayor could expect quick, nearly unanimous confirmation. She is, after all, a long-serving appellate court judge who has also served on the district court bench, and she is qualified for the high court in every formal sense. While fights over such nominees occasionally erupted, they were rare. The nomination of John Paul Stevens as late as 1975 received unanimous Senate approval in a mere 16 days.

Yet based on recent trends in Supreme Court nominations, Sotomayor can probably expect a minimum of 30 votes against her, maybe more like 40. She can expect highly contentious questions about everything she has ever written or said. She can expect a team of operatives to spend the next few months digging up dirt on her. And she can expect insinuations of perjury before the Senate Judiciary Committee to the extent that there is any tension between her voluminous judicial work and the words she speaks in the careful dance in which she will engage with the committee.

Our system has gone from one in which people like Sotomayor, Chief Justice John Roberts and Justice Samuel Alito are shoe-ins for confirmation to a system in which they are shoo-ins for confirmation confrontations. It's worth asking whether America gets anything in exchange for this new presumption, other than battles that serve to energize both political bases.

DIANNE FEINSTEIN (D-Calif.)

Member of the Senate Judiciary Committee

The president has chosen a very solid and tested woman as his nominee. Sonia Sotomayor has served as a New York City prosecutor, and she has been a federal judge for more than 15 years. She has already been confirmed by the Senate twice -- first as a federal trial court judge and then as a judge on the U.S. Court of Appeals for the 2nd Circuit. She would be the first Latina and the third woman ever to sit on the Supreme Court.

I know that some will try to delay this historic nomination. I believe it is important that she have a clear opportunity for a fair and open nomination process and that her nomination move rapidly to the floor of the Senate and be confirmed.

It is likely that we will have 60 votes on the floor. Therefore, any unnecessary delay will only keep the court from getting ready for the new term and inhibit the Senate's ability to focus on other important priorities such as the economy, energy and health care.

KIM GANDY

President of the National Organization for Women

Seated only a few feet from the small stage, I was a witness to history today when President Obama announced his nomination of Judge Sonia Sotomayor, who would be the first Hispanic justice and only the third woman on the high court in more than 200 years.

The president looked not just for extensive experience with the law -- of which Sotomayor has an impressive record built over three decades -- but the kind of life experience that fosters an understanding of "how ordinary people live." After her father died, Sotomayor and her brother were raised by their mother, who worked two jobs to support them. She grew up in a public housing project and went on to graduate from Princeton University and Yale Law School. She has weathered hardships like those faced by millions of Americans, and has seen how the law affects the lives of everyday people. The challenges she has faced as a woman of color from a low-income family give Sotomayor an important perspective on discrimination and the need for equal opportunity.

Judge Sotomayor will add dimension and depth to a court that stands for equality and justice for all.

KATHLEEN KENNEDY TOWNSEND

Lieutenant governor of Maryland from 1995 to 2003

Conservatives have criticized President Obama's wish that his Supreme Court nominee possess empathy and real-world experience. They fear that emotion will govern cases as opposed to a dispassionate interpretation of the law. But of course legal and constitutional interpretation is always a reflection of one's views, background and experience.

My uncle, President John F. Kennedy, chose Byron White, who had worked for my father in the Justice Department, not only because he was brilliant but because he would bring real-world experience to the court. White had played football and worked in a presidential campaign, and he had been at the center of the discussions and decisions on civil rights. That goal is no less legitimate today, for how a justice sees the world affects the outcome.

In Marbury v. Madison, the decision that established the separation of powers, Justice John Marshall asked the key question: Is this person injured? If we have justices whose life experiences remove them from those who have suffered real injury, they will not make an effort to find a remedy because they won't see that injury. Without empathy, it may be too difficult to note that someone has suffered, to acknowledge that theirs is a real grievance.

A recent New Yorker article about Chief Justice John Roberts shows that this brilliant man has not once seen fit to side with the little guy. "In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned . . . and the corporate defendant over the individual plaintiff." He and his fellow conservatives may not feel the pain or harm, and, consequently, they do not provide the justice that is needed.

Sonia Sotomayor has grown up in tough circumstances. She has seen suffering up close. She is not a stranger to the poor, the disenfranchised, those left out. She is the kind of justice we need. She will say who is injured, and know the remedy.

MARIA ECHAVESTE

Former deputy chief of staff to President Bill Clinton; founder of the government relations firm Nueva Vista Group

Even if she is not a governor or an elected official, she is someone who has a breadth of life experience that can only inform her interpretation of the Constitution. Her story is the quintessential American success story, built on hard work, and exemplifying values that conservatives have at times tried to claim as their own -- which, of course, they are not.

Republicans should be wary of going against her too aggressively, thus alienating Hispanics and risking their status as a national party.

But I also worry that the pundits, especially the conservative ones, will define her solely as an Hispanic woman, thus minimizing her accomplishments and relegating her to the status of a token appointment. That would be a grave insult to her and to the Latino community across the country.

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