Even for the Experienced Sotomayor, Many Changes Await
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."