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Topic A - The Sotomayor Hearings, Day Two

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Tuesday, July 14, 2009; 1:07 PM

The Post asked legal experts to weigh in on the second day of Sonia Sotomayor's confirmation hearings.

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LAURENCE TRIBE

Professor at Harvard Law School specializing in constitutional law

Sadly, the Sotomayor hearings thus far have served to confirm my prediction that these rituals are structured to reveal as little as possible about the kind of justice a nominee will make. Sonia Sotomayor's impressive academic record and extraordinary legal and judicial career already established her ample qualifications to serve. Her precise handling of the questions, to the degree they were substantive, has largely confirmed that conclusion.

Of greater interest to some has been the way Sotomayor would handle questions about the candor she displayed in speeches addressing the way a judge's personal experience shapes the way that judge will rule in difficult cases. That candor, to me, is part of what commends her as a jurist. But it is also part of what the conventional wisdom tells a nominee to deny. And, sure enough, Sotomayor, in her exchanges with Sen. Jeff Sessions (R-Ala.), sought to deny it, offering several alternative readings of what she had repeatedly said and insisting that, in every case, she would strive to set her experience and perspective aside so that "the law" would command the result.

Attending to one's prejudices and doing one's best to set them aside is admirable. Convincing oneself that one can render judgments in a way that makes one's personal experiences and views irrelevant is dangerous self-deception. Why, after all, do the justices so often disagree about what result "the law" commands? What accounts for their different perceptions of the rules of law that govern disputes and of the facts involved in those disputes? Justice Antonin Scalia, among others, has publicly said that his own background and upbringing necessarily influence how he decides cases. How could it be otherwise?

Even if judges and justices were computerized robots, the way they decide cases would have to be influenced by the "background" built into their software. But judges are not robots, and the reason we have nine justices rather than one is precisely that we hope the differences among them will permit a collectively wiser outcome to emerge -- that we think nine minds, nine lives, will yield better results than one.

"The life of the law has been experience," as Justice Oliver Wendell Holmes reminded us. And it is the experience of each judge's life that inescapably plays a role in how that judge perceives both facts and law. It's too bad that the political dynamic at work in these hearings propels the participants to pretend otherwise.

RANDY E. BARNETT

Professor at the Georgetown University Law Center; author of "Restoring the Lost Constitution: The Presumption of Liberty;" argued Gonzales v. Raich before the Supreme Court

One of the things we hope to learn during confirmation hearings is a nominee's approach to the constitutional protection of liberty. But in her exchange with Sen. Orrin Hatch (R-Utah) about the second amendment and its potential application to the states, Sonia Sotomayor revealed remarkably little about her understanding of how the Supreme Court protects liberty under the fourteenth amendment. For example, more than once she said a right was "fundamental" if it was "incorporated" into the fourteenth amendment. But this gets it backwards. The Supreme Court incorporates a right BECAUSE it finds it to be fundamental. When asked how she understands the criteria by which the court concludes that a right is fundamental, she did not give a substantive response. Then, when Hatch asked her about the difference between nineteenth century precedent involving the privileges or immunities clause and the twentieth century cases involving the due process clause, she said she did not recall the cases well enough to address the difference. Indeed, in the per curium opinion she joined in Maloney, the panel did not address this crucial issue, in contrast with panels in the 9th and 7th Circuits.

In fairness, Hatch's questions were themselves both confused and confusing to anyone who did not know what he was trying to say. At one juncture, for example, he repeatedly referred to "the privileges AND immunities clause" (which is in Article IV of the constitution) and contrasted it with the fourteenth amendment. He seemed to be unaware that there is a privileges OR immunities clause in the fourteenth amendment itself, which the cases he was citing were about. However, I would have hoped that Sotomayor would have understood these cases -- which she had relied upon in her Maloney opinion -- as well as the discussion of this issue in the Supreme Court case of D.C. v. Heller well enough to have educated Hatch, as well as the rest of us, on this important aspect of Supreme Court doctrine.

As it stands, we know next to nothing about her understanding of this area. Hopefully, she will be given an opportunity to revisit this issue in future questioning and will elaborate on her views of how the fourteenth amendment protects liberty.

ERWIN CHEMERINSKY

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

Throughout a long day of answering questions, Sotomayor said what was necessary to ensure her confirmation. She went out of her way to reassure Republican Senators. She repeated the slogan that, "judges apply, not make the law," even though everyone knows that Supreme Court decisions always make the law. She expressed regrets about saying that a wise Latina can make better judgments than a white male, noting that she was elaborating on a comment by former justice Sandra Day O'Connor and not expressing the belief that the race or gender of a judge matter. As with every recent nominee, she said that Roe v. Wade is settled precedent, but refused to express views about matters likely to come before the court. She repeatedly referred to her long record as a judge to reassure the senators as to what kind of justice she will be.

At times, Republican senators such as Lindsay Graham (S.C.) and Jeff Sessions (Ala.) used their time to rail against liberal activism, such as with Graham's diatribe against the positions taken by the Puerto Rican Legal Defense Fund. But nothing they asked and nothing said by Sotomayor left the slightest doubt as to her confirmation. Basically, she followed the script of every nominee since Robert Bork's defeat: present oneself as a judicial moderate, refuse to answer questions about what will come before the court, and be conciliatory where possible to Senators of the opposing political party. It worked most recently for John Roberts and Samuel Alito and will work for Sonia Sotomayor.

JONATHAN H. ADLER

Law professor and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law

In Tuesday's hearing Sonia Sotomayor was careful and deliberate in answering even the most pointed questions from senators, providing few openings for criticism and even fewer opportunities for controversy. Most of Sotomayor's answers were what we've come to expect from judicial nominees. She acknowledged the court's decisions, noted their authority as precedent and said little if anything to reveal how she would handle a given case.

Challenged on her handling of Ricci v. DeStefano, the New Haven firefighters case, she claimed her decision was controlled by her court's precedent and suggested she is not to blame if the Supreme Court's majority decided to move the law in another direction. Confronted with the contrary views of other Democratic nominees on her court, she did not give ground, but also did not push back. Questioned on potentially controversial rulings concerning property rights and gun control, Sotomayor downplayed the significance of her opinions and their implications.

Sotomayor was also conciliatory when it came to her controversial speeches regarding the role of personal experience, race and gender on the practice of judging. Confronted with her own words, she backtracked. For instance, Sen. Jeff Sessions (R-Ala.) asked about her claim, repeated in more than one speech, that she accepts "the proposition that a difference there will be by the presence of women and people of color on the bench, and that my experiences affect the facts I choose to see as a judge." In response, Sotomayor denied that was what she meant. "It's not a question of choosing to see some facts or another," she explained. "I didn't intend to suggest that." Similarly, when asked about her so-called "wise Latina" speech, in which she expressed the hope that a "wise Latina justice" would reach "better" decisions than others, she qualified her remarks. Though her speech explicitly sought to distinguish her views from those of former justice Sandra Day O'Connor, she today said she was trying to agree with the nation's first female justice, that her effort to play off of O'Connor's words "fell flat," and she had not meant what her words seemed to say.

Tuesday made clear the confirmation strategy for Sotomayor is to play defense and run out the clock. If she can endure several more hours of questioning without making a major misstep or losing her cool, there's no reason she won't be confirmed. She has not said much to earn converts to her cause, but she hasn't given her opponents much ammunition, either.

GERALD TORRES

Professor at the University of Texas School of Law; counsel to Attorney General Janet Reno; knew Sotomayor when she was a law student

Tuesday proceeded as expected, with questions both about Sonia Sotomayor's potential biases based on her background and how she might rule on hypothetical cases likely to come before her. Subsequent questions were often clothed as inquiries about cases she had decided as a lower court judge. Asked to second guess her judgments, she instead quite carefully went though the analyses that supported her conclusions, further reinforcing the impression that she is a careful jurist who relies on the facts and the law and reaches the narrowest decision possible to resolve the underlying dispute. On questions of the tension between the three branches, her answers (involving the commerce clause, the first amendment and national security, among other things) read like textbook constitutional law. The court, she seemed to be saying, acts only as a referee to ensure that the other branches have not overstepped their constitutional boundaries. Though she was careful to avoid commenting on cases that might come before the court, she seemed to go out of her way to reassure the senators of the importance of the role of the legislature, even where it seemed as though she was at odds with the ideological predisposition of her interlocutors.


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