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Experts Discuss Sotomayor's Impact on Court

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Monday, October 5, 2009

The Post asked legal experts what could be expected from the Supreme Court during Justice Sonia Sotomayor's first year. Below are contributions from Bradford A. Berenson, Maria Echaveste, Paul D. Clement, Erwin Chemerinsky, Jonathan H. Adler, John Elwood and Gerald Torres.

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BRADFORD A. BERENSON

Associate counsel to President George W. Bush from 2001 to 2003; partner at Sidley Austin LLP; clerked for Justice Anthony M. Kennedy

The really interesting question is how different, if at all, Justice Sonia Sotomayor will be from former justice David Souter in the cases where her vote really matters. The big surprise from her first year may well be that, in the relatively few 5 to 4 cases where her views differ meaningfully from his, she will move the court to the right.

Sotomayor's instincts appear to be more conservative than Souter's in several areas. She is probably more sympathetic to the holders of intellectual property rights. With her background as a prosecutor, she weighs the needs and interests of law enforcement more heavily than he did. There are indications that she might also be more sensitive to and respectful of national security concerns than Souter.

The docket includes important cases where these differences could come into play. Her views could lead to the narrowing of the last term's decision holding that crime lab analysts must provide live testimony concerning lab tests and results. Souter supplied the fifth vote in that case, which drew a strong dissent from Anthony M. Kennedy and has been criticized by prosecutors as unworkable. This term, Briscoe v. Virginia provides an opportunity to limit the scope of that ruling. Sotomayor's vote could also prove important to the government's effort to defend the constitutionality of one of its main antiterrorism tools in the civilian justice system: the criminal statute that punishes providing material support to terrorist groups.

Sotomayor will take a while to settle into the job, and the first year won't necessarily provide a reliable indication of the nature and extent of her ultimate influence on the court. But cases like these could be an interesting bellwether.

MARIA ECHAVESTE

Former deputy chief of staff to President Bill Clinton; founder of the government relations firm Nueva Vista Group; lecturer at the University of California at Berkeley School of Law

In light of the right-wing hysteria that a Justice Sonia Sotomayor would inappropriately focus the Supreme Court's attention on minority, gender and social justice issues, some will be looking to see Sotomayor make rookie mistakes. They will surely be disappointed. With her 17 years of judicial experience, it's more likely that the new justice will be thoughtful, careful and measured. Yet given the cases already argued and those on deck -- the Hillary Clinton infomercial case on campaign finance and the Chicago gun control case in particular -- we may see soon whether court dynamics have been changed by the addition of this New Yorker of Puerto Rican heritage. It may be that Chief Justice John G. Roberts will seek her support on major cases in hopes of reducing the stark division heretofore exhibited on the court. This may result in more moderate decisions than might otherwise have emerged. As the Republicans who voted against her were acutely aware, this is the court that actually makes law by applying the law, provided you get at least five votes, and still better if you get six.

PAUL D. CLEMENT

Solicitor general from June 2005 to June 2008; partner in the Washington office of King & Spaulding and head of the firm's national appellate practice


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