By Robert Barnes
Washington Post Staff Writer
Saturday, August 8, 2009
If Sonia Sotomayor's spot on the Supreme Court is already known -- on the end, farthest from the chief justice's left -- the role she will play may become apparent only after years of service.
Even a federal judge as experienced as Sotomayor, who will be sworn in Saturday, will need time to get used to life as a Supreme Court justice, a quirky job that is tradition-bound but also remarkably open to individual interpretation.
Her first case will serve as a dramatic example of the change she faces.
During her confirmation hearings, Sotomayor repeatedly told senators that as a judge she had faithfully applied settled law and court precedents to the facts of cases at hand. But her first task as a justice will be to determine whether the Supreme Court's past rulings on campaign finance reform should be cast aside, a potentially monumental decision that could reverse a century of congressional restrictions on election spending.
"It's a bit daunting, and she'll come in with no familiarity with Supreme Court procedure," said Stephen R. McAllister, a University of Kansas law professor who was one of Justice Clarence Thomas's clerks during his first term on the court.
On questions about whether to overrule the court's precedents, which she will face in a Sept. 9 hearing on campaign finance, "it will require a mind-set change for her," McAllister said. "This is the court most free in the federal system to make change, and she'll have to get used to that."
The acclimation of a new justice was described by Justice John H. Clarke, who served nearly a century ago, as a "familiar Washington tradition" in which the newcomer wonders: "How did I ever attain such a place?" That is followed at the end of the first year with a different question, he said: "How did these other men ever come here?"
Sotomayor's jurisprudence is not far from that of the justice she is replacing, David H. Souter. And no freshman is likely to sway a divided court anchored on the left by Justice John Paul Stevens, 89, the longest-serving justice on the current court, and on the right by Justice Antonin Scalia, in his 23rd year of leading conservative legal thought at the high court.
A justice's decisions in the first term are often imperfect forecasts of career jurisprudence, studies show. Souter, nominated by President George H.W. Bush, was a consistent conservative his first year on the bench, and he retired as one of the most reliable members of the court's liberal bloc. The justices themselves often speak of needing three to five years to feel truly comfortable with their place on the court.
A familiar refrain from Republican senators who opposed Sotomayor's nomination was that there was a disconnect between the "activist" they said they detected in her numerous speeches and articles, and the cautious judicial opinions she wrote, prompting questions about the "real" Sonia Sotomayor.
But Pamela Harris, executive director of the Supreme Court Institute at the Georgetown Law Center, disagreed. "I really think she's less an unknown quantity than other [new] justices because she has such a long record," Harris said, adding that she subscribes to the "consensus that she's a moderate liberal."
But Harris said even an experienced appeals court judge such as Sotomayor will need time "getting used to the personalities [on the court] and the way things get done there."
Justices often describe ascension to the court as an overwhelming experience. On his first day in chambers after his contentious confirmation hearings, Thomas "quickly calculated that I would need to read several thousand pages of petitions, briefs and related materials over the next two weeks, and the prospect alarmed me," he wrote in his autobiography.
"What I needed was a vacation, not another marathon."
Chief Justice John G. Roberts Jr. is scheduled to administer to Sotomayor two oaths in an 11 a.m. ceremony Saturday, the first before a small gathering of her relatives and friends. The court has decided to allow the second oath -- the judicial oath -- to be televised, marking the first time that Americans will be able to watch live the ascension of a member to the nation's highest court.
This will be the first of three ceremonies accompanying the arrival on the court of Sotomayor, 55, who for the past 11 years has been a member of the U.S. Court of Appeals for the 2nd Circuit. On Wednesday, President Obama will host a reception at the White House, and the court will hold a formal investiture ceremony a month from now. After its September hearing, the court will begin its traditional term Oct. 5.
Her historic appointment will bring Sotomayor increased attention, but that is likely to fade as she begins work in one of the government's most cloistered institutions. Because their proceedings are not televised -- a decision Sotomayor seemed open to changing during her confirmation hearings -- the justices are rarely seen. They feel no need to explain their decisions in interviews and never hold news conferences, maintaining that their reasoning is explained in the opinions they write or the dissents they join. A C-SPAN poll this summer revealed that more than half of Americans could not name any of the nine justices.
It will not be hard for Sotomayor to be in the public eye more than Souter, who became famous for his reclusive ways. In general, justices give more speeches and interviews than is believed, though on their terms. Thomas opened up to the television networks when promoting his autobiography, which went on to be a bestseller, and several of the justices have written books on their views about constitutional interpretation. Justice Ruth Bader Ginsburg recently spoke out about being the only woman on the court, and her love of opera makes her a prominent member of Washington's cultural scene.
Sotomayor has begun work on some aspects of her new job. Dawn Cardi, a lawyer in New York who is her close friend, said Sotomayor began to consider potential clerks soon after her confirmation hearings ended last month, meeting some of them in New York and Washington, and interviewing others by phone.
If she follows the example of other justices, at least some of her four clerks will have worked for others on the bench and became familiar with the court's ways. "You can imagine -- everyone in the world has a candidate for her," Cardi said.
Experienced clerks can serve as guides in a court where justices work independently, rather than as a team. The justices' chambers are often described as separate law firms in one building, a description McAllister says is accurate.
The justices "are all very nice to each other, they're all collegial," he said. "But there is no such thing as 'junior justice' training." After an initial round of courtesy calls, McAllister said, the attitude is, "You're a justice now; you figure out how to do it."
Certain duties are prescribed: The junior justice speaks last at the members-only private conferences in which the court decides the cases it hears. He or she takes notes, records votes and answers the door if someone approaches. Justice Stephen G. Breyer performed those tasks for more than 11 years before Justice Samuel A. Alito Jr. joined the court in 2006, and justices joked that it took some time before Breyer realized he did not have to jump up whenever there was a knock at the door.
Unlike appellate judges, justices decide which cases merit the court's attention, sorting through about 8,000 petitions each year to select the fewer than 80 cases they will hear. The court has selected 46 cases for its upcoming term, but Sotomayor will be in place to help choose the rest.
Another difference: Appeals court judges usually hear cases in groups of three, and members of the Supreme Court from Roberts on down have talked about the adjustment required in negotiating agreement among the justices, not to mention the effect on oral arguments.
Sotomayor has described herself as a "bear" in questioning lawyers who come before her, "but even a Justice Sotomayor will have to work to get in" questions on the combative high court, Harris said.
Cardi said she expects another change for the woman who has dominated headlines and divided the political and legal worlds for months.
"I know what is going to happen. I have watched it" when she started other jobs, Cardi said. "She is going to really disappear into her work, for a year if not more."
Cardi said she thinks Sotomayor's frequent travels and her lectures and speeches, some of which have proven controversial, will come to an end for a while. "I can see her surfacing three years from now," she said.
Staff writer Amy Goldstein and news researcher Madonna Lebling contributed to this report.