Washington Post Staff Writer and Supreme Court Reporter
Tuesday, May 26, 2009 11:00 AM
President Obama this morning announced that U.S. appeals court Judge Sonia Sotomayor of New York is his pick to replace retiring justice David Souter on the U.S. Supreme Court, White House officials said.
Washington Post staff writer Robert Barnes was online Tuesday, May 26, at 11 a.m. ET to discuss the selection of Sonia Sotomayor by President Obama.
Robert Barnes: Good morning. Big news from the White House, and a historic choice from President Obama. I'm glad to be here as we talk about someone we will be getting to know much better in the next few months.
Austin, Tex.: Now that Obama has tabbed a Hispanic for the SC job, does it make sense for the Republicans to try to block her appointment as it will certainly incense the Hispanic community even more than they have already with some of their previous immigration positions. Don't they risk the expansion of their party by doing that?
Robert Barnes: I'm not sure that Republicans believe they can block Sotomayor's confirmation, absent something emerging from the investigations that are sure to come. I think conservative activists will try to make the judge appear outside the mainstream, and thus try to make the case that President Obama is governing differently than he campaigned.
Manassas, Va.: Let's be honest here: this is not about the color of one's skin or one's ethnicity. How many of those applauding Sotomayor as a candidate to the Supreme Court and lauding it as a breakthrough for Latinos supported Bush's choice Miguel Estrada to the DC's appellate court (a lower judicial level, but important, nonetheless). How many of those who pushed for Thurgood Marshall's nomination for Supreme Court justice support Clarence Thomas? Not many, I'd venture to say.
Let's say what those who want "diversity": Yeah, diversity is nice, but you better have our same ideology.
Robert Barnes: Well, I think no candidate would even want to be supported simply because of their skin color or their ethnicity. Both parties have had extremely qualified candidates of color. Appointing the first Hispanic justice is something that was considered a plum for presidents both Republican and Democrat.
Hampton, Va.: Sotomayor notoriously said "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." If you turn around the gender/race in that statement, it would instantly disqualify a white man. But set aside the long-standing double standard for racist Democrats: is it permissible for judges to base their decisions on their own ethnicity?
Robert Barnes: That speech is going to get an awful lot of attention, I believe. It is, not surprisingly, more nuanced and thoughtful than any excerpt might indicate. For instance, she also says this:
"Each day on the bench I learn something new about the judicial process and
about being a professional Latina woman in a world that sometimes looks at me
with suspicion. I am reminded each day that I render decisions that affect
people concretely and that I owe them constant and complete vigilance in
checking my assumptions, presumptions and perspectives and ensuring that to the
extent that my limited abilities and capabilities permit me, that I reevaluate
them and change as circumstances and cases before me requires. I can and do
aspire to be greater than the sum total of my experiences but I accept my
limitations. I willingly accept that we who judge must not deny the differences
resulting from experience and heritage but attempt, as the Supreme Court
suggests, continuously to judge when those opinions, sympathies and prejudices
We'll all be analyzing more what she means.
Denver, CO: Can you identify any decisions that this judge has made that the right wing will use as a means to block her nomination?
Robert Barnes: One will be her role on a panel that upheld the city of New Haven, Conn.'s move to scuttle a promotions test for firefighters after no African-Americans qualified for advancement. White firefighters sued, and the case is now before a skeptical Supreme Court, which will render its decision before the end of June. Perhaps our moderator can post a story I wrote about this that was in Sunday's paper.
New York, NY: You wrote: "I think conservative activists will try to make the judge appear outside the mainstream, and thus try to make the case that President Obama is governing differently than he campaigned."
That's going to be some trick to pull off, I think. After all, I seem to remember that Obama campaigned on something called "CHANGE."
What am I missing?
Robert Barnes: Well, Obama also said he would try to bridge the gap between Republicans and Democrats, and I think Republicans will argue this choice is not designed to appeal to them. That is part of the reason the President pointed out this morning that Sotomayor was initially appointed to the bench by President George H.W. Bush, although that was part of a deal with New York's Democratic senators.
Arlington, Va.: Did Obama move his announcement up to take the news focus off of North Korea, where his "fresh" approach is having the same results (i.e. Zero) as Clinton and both Bush I and II?
Robert Barnes: I don't believe the events in North Korea had anything to do with the timing. Obama wanted to make his nomination early enough that he could pressure the Senate to act before it leaves for its summer recess on Aug. 7.
Anonymous: Can you give us some idea where this nominee comes down on issues that relate to the criminal justice system ? Is she a strong supporter of law enforcement ?
Robert Barnes: I'm afraid I can't give you a definite answer, since the search into her opinions is just beginning. As you may have heard, she is a former federal prosecutor, and if confirmed, she will also replace Justice David H. Souter as the only justice who served on a trial court.
The One Thing I Know: Over the past decade I have learned one thing about court nominees: We must give them an up-or-down vote!
Robert Barnes: True. And as Harvard professor Charles Ogletree noted the other day, she will be known as "Madame Justice" whether she is confirmed with 51 votes or 100. (I'm assuming there will be 100 senators by then.)
Washington, D.C.: "and the case is now before a skeptical Supreme Court"
Will Sotomayor be on the bench when this is heard? And if so, would she be expected to recuse herself?
Robert Barnes: No, the case has already been argued, which is why I can say the court was skeptical. It will be decided before her confirmation hearings begin, most likely.
New York, N.Y.: Hmmm. Funny how women and minority candidates for the Supreme Court are often portrayed as not being smart enough for the job. I recall a lot of issues being raised during the Samuel Alito confirmation fight, but at that time I don't remember anyone raising questions about the intelligence of a Princeton/Yale Law graduate who'd done time on an Appeals Court? Do you?
Robert Barnes: I think those who would oppose whoever President Obama appointed got an early start on Judge Sotomayor, since she had been considered a strong possibility for so long.
Sotomayor and Executive Power?: Just wondering if there's any inkling on how Sotomayor views the question of executive power... what with Obama's new attempts at creating "preventive detentions" and other issues related to the powers of the presidency, I'd think those issues would be lighting rods.
Robert Barnes: I believe she does not have much of a record on those types of cases, which are more likely to come before the judges of the court of appeals for the DC circuit or the 4th Circuit, based in Richmond. Again, we have much to learn.
Falls Church, Va.: Can I just say that I thought the Republican statements last week that they would not rule out filibusters made them sound close-minded and obstructionist when they did not even know who would be nominated? I realize this is largely posturing, but comments like this are such a turn-off for independents like myself. And they wonder why they are on the outs.... thanks for letting me rant.
Robert Barnes: Independents like you are who the political parties very much want to please.
Saint Paul, Minn.: Hi Robert -- Thanks for taking questions today. Sorry to be the cynic here, but will we really see anything different this time around? At Judge Sotomayor's hearing, I fully expect four paragraph long questions reflecting the usual grandstanding and posturing, followed by airtight answers from the nominee that reveal nothing.
Robert Barnes: It would be nice if we could figure out a way to avoid those, wouldn't it? Now is the chance for someone to say something about Biden not being on the committee anymore. Please note that I'm not saying that.
Anonymous: Was the vetting process for Sotomayor different from the process during the cabinet selection? That seemed to leave a lot to be desired and gave him some embarrassment. Can we assume that we won't be hearing about how she hasn't paid her taxes or as nanny problems?
Robert Barnes: Well, we can never be sure of course. But in the course of reporting about this, I heard so many people say that the only real danger for any candidate Obama would nominate, given the makeup of the Senate, would be that the White House missed something in the vetting. I would imagine the White House heard this as well.
Living Document : Can you explain to me the argument that the Constitution is not a living document and that all judicial decisions should be based on the thinking of the late 1700s. Do people who believe in this interpretation not believe in women voting, do they believe in slavery etc.?
Robert Barnes: There are others better qualified than me for a discussion on orginalism, but I believe they would say the Constitution should be amended rather than reinterpreted. Maybe we could get Justice Scalia to do one of these.
Anonymous: Wouldn't it be a hoot if she got into hot water for having hired an illegal housekeeper from England?
Robert Barnes: No comment. I've always wanted to say that.
Arlington, VA: In his faux zeal for racial equality, what Hapmton, VA is conveniently disregarding is that white males have never had to live the reality of being instantly classified by gender, race or ethnicity.
BTW, not that it matters, I'm a mid-50s white male.
Robert Barnes: That was something Sotomayor addressed in the speech.
Cabin John, Md.: It seems to me that this pick signals the end of Obama's attempt at bipartisanship. Otherwise, he would have picked someone like Gov. Granholm. (And good riddance, in my opinion. The Republican party has obviously been itching to play rough, so I'm glad that Obama has finally decided to give them what they want!)
Robert Barnes: I'm not so sure about that--Granholm, for instance, had a record on abortion that was anethma to conservative activists. That said, I do believe Sotomayor is the most controversial of those on the president's short list.
Silver Spring: Is Ms. Sotomayor a practicing Catholic? Do you think her religion (or lack thereof) will be an issue?
Robert Barnes: I don't know if she is a practicing Catholic, but I believe it will play no role in the hearings. By the way, she would make the court's sixth Catholic, and the only one on the liberal side of the court
How long?: Venture to guess how many days before confirmation? Over/under on meeting the August recess date?
Robert Barnes: My colleague Paul Kane has said some Senate Republicans have insisted on 60 days before starting hearings. I think there is no doubt that would like to delay the vote until after the August recess.
Female Republican support for Sotomayor?: How likely are female Republican Senators Snowe, Collins and Hutchison to support Sotomayor's nomination, and to refuse to go along with a Republican filibuster attempt? Hutchison in particular might not want to offend Hispanics is she's still contemplating running for Governor of Texas (or would run for reelection to the Senate).
Robert Barnes: Interesting point about Hutchinson, although she first has to get Republicans to think she should be the nominee. Certainly the White House will work hard to get the support of the female GOP senators, although I don't know that officials there are particularly concerned at this point about a filibuster.
Brooklyn: I know I'm getting way ahead of things here, but if another court seat opens up, do you think Obama would pick another woman?
I imagine a big deal would be made of that and that it would be unlikely. But considering women make up more than half the country and there would still only be two women on the bench, why not? No one freaks out when two men are chosen back to back.
Robert Barnes: The White House has operated under the theory that Obama will have more than one nominee to the court in his first term. If the next to leave is Ginsburg, I think her replacement would almost certainly be a woman. Even if not, I think he would like to leave the court more balanced, gender-wise.
Fairfax County, Va.: One of the more famous cases said to be decided by the Judge had to do with the Major League Baseball strike in the mid-'90s.
Hmmmm....wonder what George Will is going to say about that.....
Robert Barnes: President Obama wanted to make sure everyone knew about Sotomayor's role in ending the baseball strike.
Bloomington, Ind.: I wish I could strike "judicial activism" from our vocabulary. It is borrowed from politics, and refers to the exercise of judicial review. Judicial review is "activism" only if you disagree with the decision; otherwise, the court is upholding the Constitution, interpreting a statute, etc. Is there a way to collectively refine our vocabulary on this? Doing so would make clear that jurists on both the right and the left "interpret" the Constitution and the law, and both exercise judicial review.
To take an example from Sotomayor: when conservatives wish that the courts would overrule New Haven in the firefighter case, they are wishing for more judicial review and less deference to states, municipalities and other branches of the federal government.
Can you (the press) help with this?
Robert Barnes: I do think it is a label that is defined by the user (or listener) more than either side would like to acknowledge. But I think all would agree that the interpretation becomes different when constitutional rights are at stake.
New York, NY: Isn't it true that the Republicans at this point just want to drag this out as long as possible to maximize donations from their (ever-shrinking) "base". I'm looking forward to all the GOP's theatrics and histrionics and their patented hissy fits, but odds are she'll still be confirmed, right? Does anybody really doubt that?
Robert Barnes: You could also argue that Democrats didn't believe they could block John Roberts or Samuel Alito either, right? It works both ways, although conservative activists seem more motivated by judicial appointments than liberals.
Rockville, Md.: Dear Mr. Barnes,
Why exactly is it controversial that Ms. Sotomayor has suggested that life experiences as well as legal research guide justices' decisions? Total objectivity is a myth, whether one is speaking of social science or legal research. Standpoints influence actions and to claim otherwise is disingenuous. This is not to say that research or conclusions are or should be only reflections of opinions, but rather to suggest that unvarnished objectivity is myth and it's better to be honest about the role one's life experience plays in one's thinking and actions.
Robert Barnes: We're running out of time, so let me give you some other posts that run counter.
Arlington Va: Why would the Republicans oppose Sotomayor? Well, because of their PRINCIPLES (if they have any left). I'd be proud of them if they stood up to Obama and the media and block this parade for the "historic" selection of a far left judge. So she's Hispanic -- yawn. Who cares? I think the Republicans should expose her record. You guys in the media will portray Republicans negatively whether they do or not. What do they have to lose?
Robert Barnes: And we'll hear again from the other side.
What Makes you Feel Good About the U.S.A.: A black President nominates to the Supreme Court a woman who grew up in a housing project in the Bronx, after her parents moved to New York from Puerto Rico. The nominee has been on the Appeals Court and before that the District Court, and she went to Yale Law School.
It's the kind of story that makes you feel good about America circa 2009.
Robert Barnes: We're going to let you have the last word.
Thanks to everyone for taking the time. This will be an historic, and fascinating, confirmation process. We'll chat again soon!
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