Discuss Analysis of Sotomayor's Rulings

Jerry Markon
Washington Post Staff Writer
Thursday, July 9, 2009; 3:00 PM

Staff writer Jerry Markon was online July 9 at 3 p.m. ET to discuss The Post's analysis of Supreme Court nominee Sonia Sotomayor's rulings during her 11 years as a federal appeals court judge.


Alexandria, Va.: Nine hundred pages of legal opinions?! That's even more impressive than the judge's attention to detail. What surprised you the most in what you read?

Jerry Markon: Hah -- thanks! It was grueling work, I will admit. What surprised me the most is what turned out to be the partial focus of the story: Judge Sotomayor's incredible attention to detail. I've been reading appellate opinions for nine years and to be honest, I've never seen anything like it.


Confirmation: What relevation would have to come up for Sotomayor not to win confirmation?

Jerry Markon: Well, I think the premise of your question is right: the consensus seems to be that it's very likely she will be confirmed. Even Republicans admit that privately. As for any revelations, it's hard to comment on what we don't know. But given that Judge Sotomayor has been through this before - she took some tough questions at her appellate confirmation hearings in 1997 -- it would probably have to be something very big at this point to block her confirmation.


Bethesda, Md.: We've heard about her ethnicity and how it could possibly influence her thinking. How about her religion: what is it, and has it influenced her?

Jerry Markon: That's a great question. She is Catholic. I haven't personally done much reporting on her personal background, so I can't say if or how it has influenced her. I will say that we were curious if her Catholicism had any impact on her views on abortion (which are unclear, mainly because she's had very few cases involving the constitutionality of abortion). I haven't seen any evidence of a relationship. But we're still doing reporting on Judge Sotomayor, so stay tuned!


New York, NY: It seems like Sotomayor just can't win--she gets slammed for not enough detail in the Ricci decision, but now is being criticized for too much in other cases.

It seems to me that whatever the consensus about Sotomayor's fact-finding as an appellate judge, this tendency would serve her well on the Supreme Court. Your feelings?

Jerry Markon: You win the "Guest Editor" award for today! At the suggestion of our excellent Supreme Court reporter Bob Barnes, we were going to put that exact point in today's story. It didn't make it purely for lack of space. But yeah, it is kind of ironic. All I can say is that the Ricci decision was not written directly by Judge Sotomayor -- it was a brief unsigned opinion filed by her and the other judges on the panel. Based on my reading of these 900 pages of opinons, however, if the panel had decided that she should write the decision I bet it would have been far more detailed. I can't really comment on your second point, but it's an interesting question. That wasn't really the point of today's story: today was about her record up until now. Perhaps we will explore that subject in future stories.


Elysburg, Pa.: After all your in-depth research, is there anything you discovered that could conceivably slow her confirmation?

Jerry Markon: Thanks for the compliment and thanks for your in-depth reading :) But no...even though some people were critical of her style, it doesn't seem that anything found in these split decisions would slow her confirmation. Especially since our database analysis comparing her to other judges indicated she is in the mainstream of Democratic appointees.


Paxinos, Pa.: In your research, what was Sotomayor's most controversial opinion?

Jerry Markon: Another good question from Pennsylvania :) I have to say that it's hard to top the Ricci decision -- the New Haven firefighters -- for controversy. But I deliberately did not write about that because everyone else has so much. I wanted to shine some light on her other opinions and give people a sense of where she has come out in the cases that tend to divide her and her colleagues...


Catonsville, Md.: Didn't you think it was significant that Professor Hellman, whom you quote twice as criticizing Judge Sotomayor, has a record of making substantial contributions to the Club for Growth and very conservative Republican candidates, and therefore might have a bias concerning her nomination?

Jerry Markon: I saw your earlier question and don't worry, I was going to answer it! In a word: no, it does not concern me. (assuming your information is true: I cannot personally verify it). I've been covering the federal courts for nine years, both at the Post and The Wall Street Journal, and when you've been doing it that long you get a pretty good sense of which experts are credible. Prof. Hellman has a very good reputation among attorneys and law professors and is considered one of the nation's top authorities on federal courts. Numerous other professors have sent me to him over the years. I have interviewed him numerous times, as have other Post reporters, and have never found him to be anything but fair. The White House the other day released a list of a ton of law professors (hundreds, I believe) who were supporting Judge Sotomayor. Does that mean they are all biased and we can't ask them for comment about her record?


Kettering, Ohio: An early question as I will miss the chat. As an attorney I found your article a great read and just the meat and potatoes I wanted on what Judge Sotomeyer has being doing as a judge. I can sense why her candidacy is troubling to Republicans, but also appreciate their political dilemma as Obama has deftly boxed them with this appointment. I am not so sure this a safe first nomination from Team Obama as has been described by various reporting, but is much more substantive than that.

Jerry Markon: After that last question, I had to pick you next :) Thanks! I'm a legal reporter and don't want to get too far into the politics. But in general, yes, I think there is a consensus that Sotomayor was an effective choice politically...


Washington, D.C.: Do you think that the recent Supreme Court ruling striking down Justice Sotomayor's decision on the New Haven firefighters will present difficulties in her confirmation hearings? Will Republicans use this ruling as a sign that her views are more liberal than the other justices? Or will the fact that four justices dissented insulate her from the criticism and allow the Democrats to say that her views are within the mainstream of the current Supreme Court?

Jerry Markon: My sense is that Republicans will talk and ask about New Haven, both to press their points about her views but also to frame a broader debate about judicial philosophy. As we've seen once again since Sotomayor's nomination, there are stark differences between the two parties on the role of judges and how they should evaluate cases, whether they should strictly follow the law and constitution or consider other factors as well, etc. The fact that four Supreme Court justices dissented in the Ricci/New Haven decision (and also that the majority of the 2nd Circuit Court of Appeals backed Sotomayor's point of view) will certainly help insulate her from the criticism.


Elysburg, Pa.: It seems Sotomayor makes decisions on her sole findings...over-riding a judge and jury that sat through testimony, seeing witnesses first-hand etc. What is your opinion?

Jerry Markon: Good question. As you may know, however, working stiff news reporters like me don't get into their opinions or pontificate in public :) I will point out that the story said Sotomayor winds up overturning lower courts at about the same rate as other Democratic appointees. The difference is more one of style: she goes into a level of detail in her analysis that is extraordinary for an appellate judge. Some think that's a good thing. Some don't. That's for others to debate.


Washington, D.C.: Republicans have criticized Sotomayor for acknowledging that her Latina heritage will impact her judging, but is this not merely an acknowledgment of what we all know? Is it really possible for there to be some absolute, objective standard of the law? Obviously not, or we would not need the Supreme Court to interpret that law. Don't all justices bring certain backgrounds, ethnic or otherwise, to the table when they make these interpretations? Why should we believe that Judge Sotomayor is any different?

Jerry Markon: Interesting point. I don't want to get into whether the Republicans are right or wrong or whether Sotomayor's comment was appropriate, but it seems hard to argue with the fact that everyone brings their own backgrounds and biases to the table. Didn't (Supreme Court Justice Samuel) Alito make a comment about his Italian heritage having an influence on him? And clearly there is no absolute objective view of the law or we wouldn't be having these debates -- or this chat!


Terre Haute, Ind.: I'm no legal expert, but I'm wondering why the Post chose to frame Sotomayor's rulings as excessive, possibly hinting at a kind of vanity she exudes in her writing. I understand that kind of detail isn't common among appellate judges, but is it that remarkable that she is putting more effort into "delving into the minutiae of the record" as one source says. Overstepping? Sounds like diligence. Am I wrong?

Jerry Markon: That's a perfectly reasonable question. The answer is that we focused to some extent on her style because that is what struck us (both me and my editors) as the most unusual, most revealing element of these cases. But we tried to frame it as part of a rigorously objective analysis of her actual votes compared to other appellate judges. So the story really had a double focus, that we blended together into one whole. As to whether Sotomayor's approach is right or wrong, that's not for me to judge. Some do think she is overstepping, yes, and others think she is just incredibly dilligent and meticulous and that's a good thing. I quoted people on both sides of the debate.


Jerry Markon: I need to run -- thanks for the chat and the great questions!



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