Attorney and Co-Founder of SCOTUSBlog
Monday, July 13, 2009 2:00 PM
Tom Goldstein, a partner in the law firm of Akin & Gump and a cofounder of SCOTUSblog, was online Monday, July 13 at 2 p.m. ET to discuss the opening day of Supreme Court nominee Sonia Sotomayor's Senate confirmation hearing.
Tom Goldstein: Good afternoon everyone. Thanks so much for joining in our chat. I'll be with you, answering your questions and also updating you from the hearing room, until 2:30.
Tom Goldstein: The judge is back now, greeting some friends and taking her seat.
Washington, D.C.: So, what's been the most notable thing for you so far?
Tom Goldstein: The fact that the Republicans don't have anything in reserve to use against her. It's all already out there. And I thought Lindsay Graham was the best so far, by far.
Fairfax, Va.: My question is, given the many things Congress has on its plate, how can we justify spending so much time on what is essentially a foregone conclusion? I mean, the notion that there still exist "undecided" Senators is absurd. It seems like these hearings are just an excuse for the Senators to confirm their own positions, not expose Sotomayor's.
Tom Goldstein: It's a foregone conclusion, but nonetheless an important process. Among other things, it's the country's introduction to her. But I certainly agree that it would be much better if it were more substantive.
Anonymous: Some of the Republicans will try to put her down and make her sound less qualified. How should she respond?
Tom Goldstein: I don't actually think they will. All the preliminary statements have been very willing to acknowledge her qualifications. The opponents' theme is bias.
Washington, D.C.: Why do the senators have a day for statements only? Once actual questions start, won't they continue to ramble on before asking anything?
Tom Goldstein: You can certainly expect to see a lot of filibustering from the Senators, who often are more interested in getting their own views out and talking to constituents than getting actual answers.
Prescott, Ariz.: Lindsey Graham told me that "no Republican President would have picked you." Didn't she first get nominated to be a judge be Bush 1?
Tom Goldstein: Technically yes, but as a practical matter no: NY's Senators had a deal to alternate appointments, and hers was a Democratic choice.
Tampa, Fla.: Justice Scalia is 73 years old. Justice Kennedy is 72. How's their health?
Tom Goldstein: Excellent. Barring a change, they won't retire until after the 2016 election, which means that's the first possible chance the Court could move back to the left.
Germantown, Md.: Its kind of funny to listen to one side of the isle vs. the other when a new Supreme Court Judge seat comes up. No matter what political party sits in the White House its always the same thing. Is it really such an off-base thing to suggest that maybe just maybe, Sotomayor might be a tad prejudiced regarding equal testing vs the Hispanic population?
Humans are not perfect. Even if you're a Supreme Court Justice. Besides, didn't Obama vote against one of the current Supreme Court justices?
Tom Goldstein: It's fair to study a nominee -- in fact, it's critically important. We wouldn't want a biased Supreme Court Justice. But there isn't any actual evidence of bias. Just as the conservative white members of the majority in the New Haven firefighters case weren't biased against Hispanics and African Americans.
Indianapolis: Is it because Sen. Session is in a southern state where Latinos won't make much of a difference that he can be so over the top with Sotomayer? Doesn't this hurt the GOP in general?
Tom Goldstein: Republican Senators have been very respectful and tried to walk a very thin tightrope. So far, they are doing a good job of it. But their principal theme looks like it's going to be worries about her racial bias, which is certainly very dangerous territory.
Arlington, Va.: I know that it's not a possibility, but why aren't the Republicans considering a filibuster to stop the Sotomayor nomination? Do they really have anything to lose at this point?
Tom Goldstein: They don't have the votes, or the stomach for going after the first Latina nominee, or really an issue that could justify it to the general public.
Tom Goldstein: Amy Klobuchar is up now. I have found her very impressive.
Meltdown: You know, as a Cuban American executive, I always appreciate when people who don't know me expect my "hot blood" to boil with the appropriate "meltdown" to follow. Thanks, Lindsey.
Tom Goldstein: It didn't come across that way. He would have said the same thing to Roberts or Alito. In fact, he may have.
PS, I was in Havana this weekend. Via con dios.
Raleigh, N.C.: Why are the Republicans Congressmen engaging in hypocryisy with Sotomayor? The very arguments (prejudice and racism) they are using to vote against her confirmation are the ones they themselves are using. Not just against her but against President Obama as well. Sessions commentary was filled with racial code words so typically used by Republicans to plant fear in the hearts of whites.
Tom Goldstein: The process is broken. Liberal groups similarly attacked John Roberts and Sam Alito mercilessly. Among the groups, there is very little actual interest in the truth. That's not to say that there aren't legitimate questions about every nominee, but the claims that get made are way over the top.
Washington, D.C.: Was this Diane Wood's only chance to be a Supreme Court nominee?
Tom Goldstein: Very likely, given her age and the seeming focus on having very young nominees. If Justice Stevens retires next year, there is a chance. She's very impressive.
Arlington, Va.: Since this is a foregone conclusion, what kind of justice do you think Sotomayor will make? And how will her presence on the court affect how you (or other Supreme Court litigators) prepare a case going before the court?
Tom Goldstein: I think that she's very detail oriented. Ideologically, she's on the left, but not the far left. In terms of how it affects the balance of the Supreme Court, I think she will be quite similar to Justice Souter, but perhaps slightly further to the right on some criminal justice issues.
Tom Goldstein: Sen. Klobuchar has talked a good bit about criminal justice issues.
Tom Goldstein: Sen. Kaufman is up now.
Coverage: What do you think about the job the media has done so far in covering the nomination? Too much, biased in one way or the other, etc.
Tom Goldstein: I think that the media has a tendency to try and find a political fight, which means giving equal weight to opponents, even if there isn't much substance to the attacks. In general, I think it's been pretty good. And I've found some of the background pieces informative.
New York: The Senators seem to be concerned about "activist" v. "restrained" judges - and whether that distinction is still useful for understanding nominees.
I guess an activist court is one which does not follow statute, and issues opinions contrary to what the Congress or the people they represent want. Is that correct?
If so, then the Congress could pass laws correcting what the Court has done - as it did with the Lily Ledbetter case.
How many times has the Congress, in effect, overruled the Supreme Court?
Tom Goldstein: There isn't a common ground on a definition of activism. It generally means a decision with which the speaker disagrees. The Constitution is generally a counter-majoritarian document: it limits the power of the rest of the government. So it means that the Court invalidates state and local laws. That is an awesome use of power that has to be done very carefully, and it often generates significant opposition. There isn't an exact count of the number of laws that has been invalidated over history, but directly or indirectly it's certainly in the hundreds.
Process: If "the process is broken," what changes would you like to see to reform it?
Tom Goldstein: We have to get to the point at which Democrats and Republicans aren't treating the courts as political institutions, and fighting political fights over them. If we could to the point of a careful study of the nominees, the process could work very well.
Skippack, Pa.: Why do senators persistently expound upon the idea that judges should "strictly interpret the law," as if a ruling should be obvious to all. Judges judge; opinions, sympathies, viewpoints almost always play into that process. If that were not the case, court decisions would always be unanimous. Are these hearings more about the senators' personal and institutional egos than the issues?
Tom Goldstein: Strict constructionism is actually a bit more of a principled label than "activism," though not a ton. It generally is a reference to a jurisprudence like Justice Scalia or Thomas's. Conservative, not reading principles into the Constitution that appear there.
Bethesda, Md.: Who do you expect to ask the most challenging questions tomorrow? And what would you ask her if you were in the Senate?
Tom Goldstein: I'd say Sessions, because he has a big staff that has been working very hard, and he gets to take the lead. I think that Graham's will be very good because they will be very open. I would personally get into the substance of how you decide constitutional cases, using different lines of decisions as examples and counter-examples.
Washington, DC: What are we to expect when (if?) Frank Ricci is called as a witness? I honestly believe that the Democrats would attack him for exercising his right to file a lawsuit, but weirder things have happened. Thank you.
Tom Goldstein: I think that by the time we get to the opposition witnesses, most Senators and the audience will have checked out. That's too bad. I'm sure that Democrats will be prepared with questions. It is a fascinating, open question whether they will go after him. It would certainly be a shame if they did. He's a citizen in the middle of a huge case, asked to come to Washington. He deserves respect.
Tom Goldstein: Thanks everyone. I really appreciate you coming by. Hopefully you'll tune into the hearings. They have some unfortunately slow moments, but it's a great process that the Framers recognized was important. Thanks for being here.
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