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Updated at 9:00 p.m., June 30
Sonia Sotomayor likely rivals Ruth Bader Ginsburg as the most liberal Supreme Court nominee of the last 40 years. But that still places her solidly within the mainstream of modern nominees to the bench, according to an analysis of Segal-Cover scores dating back to 1937.
Jeffrey Segal, who helped develop the system for grading nominees' perceived ideological leanings, told NationalJournal.com in early June that Sotomayor would likely have a similar score to Ginsburg -- around 0.68 on the 0-1 scale, with 0 being most conservative. If that's the case, Sotomayor would rank as one of the more liberal judges to be nominated since 1937, but she would hardly approach figures such as William Brennan or Thurgood Marshall, both of whom rate at 1 on the scale.
Ginsburg currently ranks as the court's 17th most liberal nominee going back to the FDR administration. The 10 most conservative nominees during that period include four current justices: Antonin Scalia (he tops the list with a score of 0), Samuel Alito (0.10), Chief Justice John Roberts (0.12) and Clarence Thomas (0.16). Former Chief Justice William Rehnquist comes in third, with a score of 0.05, and President Reagan's failed nominee Robert Bork is up there as well, with a score of 0.10.
To configure Sotomayor's score, Segal will continue evaluating editorials from five major newspapers -- the New York Times, Washington Post, Wall Street Journal, Chicago Tribune and Los Angeles Times -- until the full Senate votes. The Journal was added starting with David Souter's nomination in 1990 to compensate for the Los Angeles Times' drift leftward, Segal said.
Editor's note: This is the first of a series of posts The Ninth Justice is doing examining historical data from a database compiled by Northwestern law professor Lee Epstein and her colleagues. Check back later this week for more context and analysis on Sotomayor.
Monday night, Sen. John Thune, R-S.D., made a rallying cry for conservatives in opposition to Sonia Sotomayor: "We need you involved in this process," he said in a conference call administered by the Judicial Confirmation Network. "What you are all doing is so important, to help us as we communicate Judge Sotomayor's judicial record."
Thune, who has been one of the most outspoken Republicans in the process (he has launched a Web site tracking the nomination), expressed concern about Sotomayor's involvement in LatinoJustice PRLDEF and the Democrats' timetable.
Senate Majority Leader Harry Reid, D-Nev., and Judiciary Chairman Patrick Leahy, D-Vt., "are going to jam through this lifetime appointment rather than provide a full and fair review of her record," he warned.
The conference call differed from others of its kind in that the JCN opened it up not just to the media, but to individual citizens as well. Gary Marx, the group's executive director, said "thousands" of people were on the call.
The Supreme Court reversed the 2nd Circuit's ruling on Ricci v. DeStefano Monday, but that doesn't necessarily mean Sonia Sotomayor is ethically allowed to talk about the case in her upcoming confirmation hearings.
Tom Goldstein, Supreme Court litigator at Akin Gump and founder of SCOTUSblog, said that since the case is still technically "alive" -- the question of damages to the firefighters will require additional proceedings to determine -- Sotomayor is still prohibited by the Judicial Canons of Ethics from talking about this case.
"The Ninth Justice" explored this question earlier this month, and it seems that now, despite a ruling on the case, experts are still split on the technicality.
In a conference call Monday with reporters, Center for Equal Opportunity President and General Counsel Roger Clegg said that, had the case been remanded instead of reversed, Sotomayor "could have declined to answer questions about the case on the grounds that it was still in litigation.... That avenue is now shut off because, as I read it, the case is over."
Curt Levey, president of the Committee for Justice, said much the same thing in a statement issued Monday: "Now that the Supreme Court has reversed Sotomayor's Ricci decision, rather than remanding as many had predicted, her rationale for declining to discuss the case has vanished."
• "Foes of Supreme Court nominee Sonia Sotomayor celebrated the high court's reversal of her decision in a reverse discrimination case," AP reports. "The 5-4 ruling Monday... is unlikely to derail Sotomayor's nomination -- and it may not even sway a vote."
• "The Supreme Court's rejection of a decision against white firefighters endorsed by" Sotomayor "gives Republicans a renewed chance to attack her speeches and writings but is not expected to imperil her confirmation to the high court, political and legal sources said" Monday, the Washington Post reports.
• Supporters of Sotomayor "said Monday's decision changed the law and thus did not reflect negatively on the decision she participated in," the New York Times reports. "Critics asserted that the appeals court's approach had not been fully endorsed by any justice."
• "White House officials had put in place a plan to deal with the ruling, which they clearly expected. One of their planned talking points was to point out that retiring Justice David H. Souter, whose slot Sotomayor would take, joined the dissent in backing her ruling," the Washington Post reports. "'I think its going to be hard for people to explain why this really should be a confirmation issue for her,' [a] senior White House official said."
Continue reading Top Nomination News.
Interest groups across the political spectrum were ready for the Supreme Court's Ricci v. DeStefano ruling this morning. With many court observers expecting a reversal or remand, a variety of groups involved in Sonia Sotomayor's confirmation battle were scheduling conference calls hours after the ruling came down and lining up experts to talk about what impact the case might have on both the imminent hearings and employment law more generally.
After the jump, we've rounded up reaction from several interest group leaders who have been prominent in the SCOTUS debate so far.
Continue reading Interest Groups Move Fast On Ricci.
The Supreme Court's predictable 5-4 vote to reverse the decision by Judge Sonia Sotomayor and two federal appeals court colleagues against 17 white (and one Hispanic) plaintiffs in the now-famous New Haven, Conn., firefighters decision does not by itself prove that the Sotomayor position was unreasonable.
After all, it was hardly to be expected that the five more conservative justices -- who held that the city had violated the 1964 Civil Rights Act by refusing to promote the firefighters with the highest scores on a job-related promotional exam because none were black -- would endorse an Obama nominee's ruling to the contrary.
What's more striking is that the court was unanimous in rejecting the Sotomayor panel's specific holding. Her holding was that New Haven's decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a "disparate-impact" lawsuit -- regardless of whether the exam was valid or the lawsuit could succeed.
This position is so hard to defend, in my view, that I hazarded a prediction in my June 13 column: "Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed... opinion" by U.S. District Judge Janet Arterton.
Unlike some of my predictions, this one proved out. In fact, even Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.
Continue reading Justices Reject Sotomayor Position 9-0 -- But Bigger Battles Loom.
Senate Democrats argued today's Supreme Court decision overruling a decision that high court nominee Sonia Sotomayor endorsed as an appellate judge does not bear on her record except to highlight her tendency to judicial modesty, while Republicans tried cautiously to exploit the ruling.
"The main charge against Judge Sotomayor is that she will be an activist judge, but this decision clearly shows that she won't," said Sen. Charles Schumer, D-N.Y., who is part of the Democratic leadership and sits on the Judiciary Committee.
"The results in this case won't change things a wit... in fact it bolsters [the claim] that she is mainstream," Schumer added in a conference call.
Senate Judiciary ranking member Jeff Sessions, R-Ala., argued the opposite. In a statement, Sessions said that "this case sharpens our focus on Judge Sotomayor's troubling speeches and writings, which indicate... that personal experiences and political views should influence a judge's decision. That theory is a breathtaking departure from the proper role of the American judge and will clearly be the subject of questioning at the upcoming hearing."
Subscribers to CongressDaily can continue reading the story here.
Updated at 9 a.m. on June 30
Sen. Charles Schumer, D-N.Y., and White House press secretary Robert Gibbs both said today that Sonia Sotomayor's confirmation to the Supreme Court has only become more urgent because of an announcement made today by the high court -- and it's not the Ricci case.
In a rare move, the court decided to schedule a re-argument of Citizens United v. Federal Election Commission -- which examines whether a movie critical of then-presidential candidate Hillary Rodham Clinton violated campaign finance laws -- for Sept. 9, during the court's summer recess, instead of early October, when it begins its next term.
"The urgency of her confirmation has become greater as the result of the Supreme Court's action today," Schumer said in a conference call with reporters, adding that this is "another reason we should confirm Sotomayor quickly, so she can be in place to hear it."
In the White House briefing Monday, Gibbs echoed Schumer's thoughts, referencing the same case. "I think that underscores the importance of ensuring that we get a new Supreme Court nominee there in order to become... an active participant in that case, rather than potentially have something that's a four-to-four decision."
Updated at 6:10 p.m. on June 29.
Senate Judiciary Chairman Patrick Leahy, D-Vt., is picking up a common Democratic theme today: that the Supreme Court's ruling in Ricci v. DeStefano this morning should not reflect poorly on Sonia Sotomayor.
"Judge Sotomayor and the lower court panel did what judges are supposed to do, they followed precedent," Leahy said. He added that a ruling for the firefighters who were suing New Haven, Conn., over their withheld promotions "would have been judicial activism contrary to clearly settled and longstanding Second Circuit precedent. The Second Circuit was bound by this precedent and not free to adopt a new interpretation of the law, as the Supreme Court has done today."
As a follow-up point about Sotomayor's "judicial restraint," Leahy touted the nominee's endorsement by the American Hunters and Shooters Association and a variety of law enforcement agencies.
The left-leaning People For The American Way was also out early with a response. In fact, it first released its statement on Thursday, when Ricci could have been handed down. Executive Vice President Marge Baker sounded the same notes as Leahy, saying that Sotomayor was restrained by precedent and ruling any other way would have been judicial activism. Baker also argued that "Sotomayor is anything but an outlier," a reference to Republicans' emerging attack strategy (subscription).
A handful of groups on both sides of the aisle have scheduled conference calls with reporters this afternoon to discuss the ruling's impact on Sotomayor's nomination hearings, which are due to begin July 13.
CORRECTION: The Senate Judiciary Committee has not scheduled a conference call, contrary to the original version of this report.
Updated at 10:59 a.m. on June 29.
The Supreme Court ruled 5-4 today that the city of New Haven, Conn., violated the Civil Rights Act of 1964 in denying promotions to white firefighters, reversing a 2nd Circuit panel decision that was joined by high court nominee Sonia Sotomayor.
In writing the majority opinion for Ricci v. DeStefano, Justice Anthony Kennedy said the city can't be sued for discarding the test results at issue in the case. New Haven threw out the results because no black applicants made the cut for promotions. "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," he wrote.
Joining Kennedy in the opinion were John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito. Scalia and Alito both also filed concurring opinions.
Justice Ruth Bader Ginsburg wrote the dissenting opinion, which was joined by John Paul Stevens, Stephen Breyer and retiring David Souter. "The white firefighters who scored high on New Haven's promotional exams understandably attract this court's sympathy," she wrote. "But they had no vested right to promotion. Nor have other persons received promotions in preference to them." Ginsburg went on to argue that it is through the "backdrop of entrenched inequality that the promotion process at issue in this litigation should be assessed."
• "As eyes across America focus on New Haven and await a potentially landmark Supreme Court decision today on" Ricci v. DeStefano, "the firefighters' promotion case, it's all old news in the city firehouses," the New Haven (Conn.) Register reports.
• "A reversal by the Supreme Court that includes very critical remarks about the lower court ruling could be used as ammunition by some senators who don't want to see" Sonia Sotomayor confirmed, Fox News reports.
• AP reports on Justice David Souter's last day on the Supreme Court.
• Senate Minority Leader Mitch McConnell, R-Ky., said Sunday "the Senate Judiciary Committee needs to examine the materials from the Puerto Rican Legal Defense and Education Fund, now known as LatinoJustice PRLDEF," AP reports.
• "Senate Republicans can be expected to criticize the Sotomayor nomination throughout the recess," Roll Call (subscription) reports. "In particular, Members will speak out against her opinions on gun rights, affirmative action programs and the use of foreign and international laws in the United States, while making the case that her written statements, rulings and speeches 'show an out of the mainstream view of the role of a judge,' according to recess documents."
Continue reading Top Nomination News.
From National Journal's June 27 issue:
As Supreme Court nominee Sonia Sotomayor prepares for her July confirmation hearings, she clearly enjoys plenty of goodwill in the Senate, where 57 Democrats (plus two independents who caucus with them) are predisposed to support her. Even so, the first day of those hearings will be crucial in shaping public opinion -- and thus in influencing lawmakers.
Because the public really doesn't know Sotomayor, she has the opportunity to talk about her modest upbringing and later successes in a compelling manner that will help win the country's affection, observed Kenneth Duberstein, who was President Ronald Reagan's chief of staff.
"The hearings are fundamental because America really tunes in on that opening day to see whether the person can handle the pressure, and to listen to her personal story and the way she responds to questions," he said. "That is the make-or-break day."
In an interview, Sen. Arlen Specter, D-Pa., who presided over the confirmations of Justices John Roberts and Samuel Alito as the Republican chairman of the committee, was even blunter about the hearings. "Oh, they're not too important," he said sarcastically. "The only thing that's at stake is whether she gets on the Supreme Court."
Knowing that full well, Sotomayor is running through "murder boards" -- White House rehearsal sessions to put her through her paces before the hearings start on July 13. It is a repetitive and tedious process, but it has become the best way to prepare nominees for the sharp questioning they can expect from members of the polarized Judiciary Committee.
Subscribers to National Journal can continue reading the story here.
The Supreme Court's decision on Thursday faulting school officials' intrusive semi-strip search of a 13-year-old Arizona girl suspected of hiding drugs that were forbidden in school, but not very dangerous, has generated spirited commentaries. See, for example, Dahlia Lithwick's in Slate, suggesting that Justices Ruth Bader Ginsburg and John Paul Stevens "turned this ship around, I suspect, with the power of persuasion and a public-shaming chaser."
I dwell here on fairly obscure aspects of the case. They indicate that school officials will need to buy lots of insurance if the views of Ginsburg and Stevens on the question of liability ever command a majority. They also illustrate the limitations of President Obama's "empathy" standard for choosing judges, and suggest a possible question for his Supreme Court nominee.
First, the basics: Acting on a tip from another student that Savana Redding might be hiding prescription-strength ibuprofen pills (and over-the-counter naproxen), school officials told her to strip in front of two women down to her bra and underpants and pull them out, thus exposing her breasts and pelvic area to some extent. No drugs were found. Savana's mother sued the officials and the school district for invading her privacy and humiliating her in violation of her Fourth Amendment rights.
In what may turn out to be retiring Justice David Souter's last majority opinion, all of his colleagues except Clarence Thomas agreed that this "strip search" (though not an earlier search of her backpack and jacket pockets) -- looking for drugs that the officials had no reason to suspect would be very dangerous -- was unconstitutional. But Souter and six other justices (including Thomas) also agreed that the assistant principal who ordered the search enjoyed "qualified immunity" from liability to pay damages. The reason was that the illegality of this kind of search had not been "clearly established law" at the time. On this point, Souter stressed that "numerous... well-reasoned" opinions and dissents by federal appellate judges had held or suggested that similar searches of students were constitutional under a key 1985 Supreme Court precedent.
Souter's opinion in Safford Unified School District v. Redding seems reasonable to me. Not so the partial dissents by Justices Stevens and Ginsburg.
Continue reading Strip Searching Students -- And Empathy For Whom?.
• Sen. Jeff Sessions went further in his critique of Sonia Sotomayor on Thursday, "accusing her of relying too heavily on international law in her opinions, which he said raised doubts in his mind about how she would interpret the Constitution as a member of the Supreme Court," the New York Times reports.
• "A coalition of more than 100 conservative activists has called on Senate Republicans to delay a final vote on" Sotomayor "until the fall," The Hill reports.
• "Sotomayor was the stated topic of conversation during a panel discussion" Thursday "among four major conservative organizations, but the focus remained largely on President Obama," NationalJournal.com reports.
• "The fervor" of conservative criticism over this nomination "may not be just about Judge Sotomayor," the New York Times reports. "Those emotions, say people who have followed the confirmation wars, are often fueled by the sense of grievance among conservatives and Republicans who say their judicial nominees have been treated unfairly and, sometimes, disrespectfully."
• Reporting on the Supreme Court's decision Thursday ruling strip searches in public schools unconstitutional, the Los Angeles Times notes that Sotomayor has taken a "similarly strong stand against strip-searches. In 2004, she voted to uphold a suit against several Connecticut officials who had authorized the strip-search of two young girls at a juvenile detention center."
Commentary
• On Slate.com, Washington lawyer and Duke law professor Walter Dellinger examines one ruling handed down by the Supreme Court Thursday that he says may have been decided differently if Sotomayor had been on the bench.
• In Roll Call (subscription), the National Senior Citizens Law Center's Simon Lazarus charges that Republican senators are in line with conservative advocacy groups in wanting to "delay, obstruct, strain for excuses to paint candidates as extreme and, wherever possible, block confirmation."
• "All ears now are perked for the voice of judicial activism, but how many of us have ever actually heard it speak?" asks author David Lebedoff. "I have, once, up close and personal, from my seat in the second row of the visitors' bench in the Supreme Court chamber. And believe it or not, the voice belonged to Chief Justice John Roberts."
Sonia Sotomayor was the stated topic of conversation during a panel discussion today among four major conservative organizations, but the focus remained largely on President Obama.
"This confirmation debate serves as an opportunity that we didn't have in the election. It affords the opportunity to show the American people the consequences of their votes," said Manuel Miranda, chairman of the Third Branch Conference. "When they voted last November for a very charismatic candidate who also happened to be African American, they did not know that they were electing someone who would appoint judges who would rewrite the law."
The discussion, hosted by Judicial Watch, highlighted continuing concerns on the right about Sotomayor: the New Haven firefighters case, the "wise Latina" woman comment, gun rights and the "empathy" standard. But throughout the discussion panelists kept coming back to Obama. In fact, that's how Judicial Watch President Tom Fitton opened up the discussion.
"We have to give points to President Obama for clarity on his judicial philosophy," Fitton said. "Sotomayor is a constantly shifting landscape. She is moment-to-moment on her moods, bias and personal whims. That problem would arise with any Supreme Court nominee of Barack Obama's."
The panelists, who also included Roger Clegg, president and general counsel of the Center for Equal Opportunity, and Curt Levey, executive director of the Committee for Justice, acknowledged what most SCOTUS observers have been saying all along: that Sotomayor is likely to be confirmed. With that in mind, conservatives see this nomination as an opportunity to send Obama a message about his future court appointments: that they will not hesitate to put up a fight over what they see as judicial activism.
Continue reading Conservative Groups See 'Teaching Moment'.
If confirmed by the Senate, Sonia Sotomayor would join a Supreme Court that has seen its popularity rise among Democrats in the last year. According to a Gallup poll released this week, 7 in 10 Democratic respondents approve of the job the high court is doing, compared to 49 percent of Republican respondents.
Rewind to last fall, however, and those numbers were nearly reversed, suggesting that the partisan popularity of the court rises and falls depending on which party is in power. Last September, in the waning months of the Bush administration, 65 percent of Republicans approved, versus just 38 percent of Democrats. Gallup's trend data showed a similar fluctuation from the last months of President Clinton's administration to George W. Bush's first month.
Gallup noted the phenomenon and the role that major events sometimes play in party perception, but added that the new ratings may indicate "a more positive view of government in general" and the view that "none of the Supreme Court's rulings thus far in the 2008-2009 term has been particularly controversial." Independents' approval scored at 57 percent in the new poll, compared to 47 percent in September.
The poll surveyed 1,011 adults nationwide June 14-17 and has a 3-point margin of error.
Per the White House, Sonia Sotomayor is meeting with the following senators today: Jim Bunning, R-Ky.; Mike Johanns, R-Neb.; John Kerry, D-Mass.; Jeff Merkley, D-Ore.; and James Risch, R-Idaho.
Updated at 10:26 a.m. on June 25.
• Sonia Sotomayor turns 55 today. The White House held a birthday party for her Wednesday evening.
• Bloomberg News reports on the ripple effects of the New Haven, Conn., discrimination case Ricci v. DeStefano in the city's Dixwell Fire Station and elsewhere.
• "The day after Senate Republicans launched their most aggressive effort yet targeting" Sotomayor, "a handful of Democrats took to the Senate floor to push back," Politico reports.
• "Senate Republicans said Wednesday they would press" Sotomayor "on gun rights, a politically divisive issue that they hope could weaken Democratic support for the Supreme Court nominee," the Los Angeles Times reports.
• Sen. Sam Brownback, R-Kan., on Wednesday "delivered a Senate floor speech announcing why he will vote against" Sotomayor's nomination, the Kansas City Star reports.
• Brownback "became the third Republican senator to announce plans to vote against" Sotomayor "regardless of what occurs in her confirmation hearing," CongressDailyAM (subscription) reports.
• Sen. John Thune, R-S.D., "said he's keeping an open mind on whether to support" Sotomayor's nomination, the Sioux Falls Argus Leader reports. "But he's sounding like someone who won't vote for her."
• The New York Times reports on a 1998 case that sheds some light on Sotomayor's stance on the death penalty.
Continue reading Top Nomination News.
In a report released today, the left-leaning Alliance for Justice examined some of Sonia Sotomayor's business and consumer law decisions, which make up a substantial part of the 2nd Circuit caseload.
In a conference call today with reporters, the Alliance highlighted some of Sotomayor's better-known business rulings, including her now-famous move as a district judge to end the 1995 baseball strike, and an appellate case on NFL eligibility rights. Her rulings in these and other labor cases show that she "cannot be pigeonholed as pro-union, pro-employer, or pro-employee," the report states. Sotomayor included both these cases on her lists of significant decisions in her Senate questionnaire, but they have not been a factor in the nomination debate.
Michael Greve, an American Enterprise Institute scholar, said that business cases tend to be too "deep in the weeds" to trigger much scrutiny. "I don't think the business community will man the barricades over this stuff," he said.
Although he was sharply critical of Sotomayor when the nomination was announced, Greve's view now squares with the Alliance's evaluation. "She has a fairly moderate record. Her record in employment law cases is sometimes pro-employer, sometimes pro-employee," he said. "There is no overall bias that plaintiff always wins."
The one point which could make business leaders uneasy, Greve said, is her record in class-action rulings. "She was remarkably friendly to class-action suits, even considering she is on a very pro-plaintiff court," Greve said. "If anybody is nervous about anything, that's probably what people will pay attention to."
The Alliance report highlighted the fact that the U.S. Hispanic Chamber of Commerce has endorsed Sotomayor, but the U.S. Chamber of Commerce has yet to do so. The U.S. Chamber is conducting an evaluation of her record, according to a spokesperson.
(The New York Times and The Volokh Conspiracy have more on Sotomayor's business rulings).
On Tuesday evening, Republicans went on the offensive against Sonia Sotomayor on the Senate floor. Judiciary ranking member Jeff Sessions, R-Ala., Minority Leader Mitch McConnell, R-Ky., and John Cornyn, R-Texas, raised the issues of Sotomayor's membership in the LatinoJustice PRLDEF (formerly the Puerto Rican Legal Defense and Education Fund), her rulings in cases like Ricci v. DeStefano and Hayden v. Pataki, and the "empathy" question.
Less reported in various stories this morning were remarks by three Democratic senators in reaction to the GOP's coordinated speeches -- Judiciary Chairman Patrick Leahy, D-Vt., Chuck Schumer, D-N.Y., and Robert Menendez, D-N.J.
The senators sought to refute various claims made by the Republicans, and they stuck firmly to their July 13 date for beginning the confirmation hearings.
See excerpts after the jump.
Continue reading Leahy, Schumer & Menendez Respond To GOP.
Per the White House, Sonia Sotomayor will meet with the following senators today: Evan Bayh, D-Ind.; Mark Begich, D-Alaska; Tom Harkin, D-Iowa; Mark Pryor, D-Ark.; and John Thune, R-S.D.
The Thune meeting could be exceptionally interesting, considering he has launched a conservative-minded Web site tracking Sotomayor's nomination. Although he's not on the Senate Judiciary Committee, he is up for re-election in 2010 and has been rumored as a possible Republican presidential candidate in 2012. NationalJournal.com last week analyzed the electoral game theory that sometimes comes into play for senators with a Supreme Court nominee.
• "A half-dozen Democratic and Republican leaders sparred throughout the day Tuesday, turning the Senate floor into something of a preconfirmation hearing on" Sonia Sotomayor, the Washington Times reports.
• "Senate Republicans on Tuesday unveiled a new narrative ahead of" Sotomayor's "confirmation hearings, questioning her commitment to constitutional guarantees on the right to keep and bear arms and equal treatment under the law regardless of race or gender," AP reports.
• Senate Judiciary ranking member Jeff Sessions, R-Ala., said "Sotomayor has done 'extensive work' for the Puerto Rican Legal Defense and Education Fund, an organization he said is 'clearly outside the mainstream of [the] American approach to matters' and 'has taken some very shocking positions with respect to terrorism,'" CQ reports.
• "Republicans also remained adamant that if they do not have enough time to review Sotomayor's judicial record before her hearings begin in mid-July, they will push to have them delayed," Roll Call (subscription) reports.
• "None of" the Republican "lines of attack are new, but the use of Senate floor time suggested that Republicans are trying to create some sense of unity within the party -- and perhaps rally conservative activists -- leading up to the July 13 confirmation hearings," Politico reports.
• NationalJournal.com has video and speech excerpts from Tuesday.
• "In a press conference" Tuesday, "Sen. Robert Menendez, D-N.J., underscored an increasingly familiar Democratic line: that" Sotomayor "would bring exceptional qualifications -- as well as ethnic diversity -- to the court," NationalJournal.com reports.
Continue reading Top Nomination News.
Updated at 5:00 p.m. on June 23.
Senate Republicans today stepped up their criticism of Sonia Sotomayor in a coordinated effort laying out the likely GOP line of questioning at her July 13 confirmation hearing.
In a series of floor speeches, Republicans stopped short of flat opposition, but they repeatedly cited their concerns with "troubling" statements and rulings they will ask Sotomayor to address.
Senate Minority Leader Mitch McConnell, R-Ky., offered his first extended comments on Sotomayor by saying criticisms of her for favoring what Republicans label the "empathy standard" and for particular remarks are borne out by her judicial and academic record.
He zeroed in on Sotomayor's comment printed in a 2002 Berkeley Law Journal article that 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." McConnell argued that that sentiment is reflected in Sotomayor's subjective reading of the law and "underscores rather than alleviates concerns with this particular approach."
Subscribers to CongressDaily can continue reading the story here.
Excerpts and video from senators' floor speeches after the jump.
Continue reading GOP Opens Attack On Sotomayor.
In a press conference today, Sen. Robert Menendez, D-N.J., underscored an increasingly familiar Democratic line: that Sonia Sotomayor would bring exceptional qualifications -- as well as ethnic diversity -- to the court. Menendez was accompanied by representatives from the Hispanic National Bar Association and the National Latino Peace Officers Association. Vice President Joe Biden held a similar event a few weeks ago at the White House with eight national law enforcement agencies touting Sotomayor's record on criminal cases.
When asked after the conference about a fine line some say the White House and Democrats are walking -- touting Sotomayor's racial heritage while at the same saying it's not a factor -- Menendez reiterated a familiar talking point: that it's the "totality of her experiences" that qualify Sotomayor for the Supreme Court.
During the presser, Art Acevedo, president of the National Latino Peace Officers Association, said Republican complaints about not having enough time to research Sotomayor's record are disingenuous. "If she is not on the court in October, it will be because of politics," Acevedo said.
These arguments have served Democrats well so far in the process, said one conservative observer. "I think they thought the nomination would put Senate Republicans in a box, and that game is still going on," said Ed Whelan, president of the Ethics and Public Policy Center and contributor to National Review's Bench Memos blog. "They're trying to build that box and make it tight."
Per the White House, Sonia Sotomayor is meeting today with the following senators:
Bob Corker, R-Tenn.; Tim Johnson, D-S.D.; George Voinovich, R-Ohio; Jay Rockefeller, D-W.Va.; Roger Wicker, R-Miss.; and Mark Warner, D-Va.
Sonia Sotomayor has gone from being the biggest newsmaker the week of her nomination to not even making the top five last week, according to numbers compiled weekly by the Pew Research Center's Project for Excellence in Journalism.
During the week of her nomination, Sotomayor was at the center of 14 percent of all news stories -- twice as much coverage as anyone other than President Obama since his inauguration, according to Pew. The president himself generated 7 percent of the news stories, his lowest showing since taking office. (Click here to see a list of the outlets included in the index and here for its methodology).
Newspaper and online coverage of the nomination went from 15 and 18 percent (respectively) the first week, to less than 5 percent the next, to nothing the next two weeks. Cable TV has been more attentive to the story, giving it 35 percent of its news hole the first week, but those numbers have dropped as well -- to 8 percent, then 3 percent and then nothing last week.
Continue reading Sotomayor Coverage Falls Off After Early Peak.
• Senate Republicans have started "focusing their critique of Supreme Court nominee Sonia Sotomayor, readying a series of speeches to illustrate conservative discomfort with" her, the Wall Street Journal reports.
• Judiciary Committee Ranking Member Sen. Jeff Sessions, R-Ala., "and other Judiciary Republicans will take aim at" Sotomayor's "position on gun rights, the role of 'empathy' in her rulings as a federal judge, and whether she has allowed foreign laws to inform her decisions in the past," Roll Call (subscription) reports. "Republicans will also focus their critiques of Sotomayor on her involvement in the Puerto Rican Legal Defense and Education Fund."
• The Washington Times profiles Senate Judiciary Committee Chairman Patrick Leahy, D-Vt.
• "As president, Obama avoided much talk about diversity even while choosing the most diverse Cabinet in history: He publicly justified each nominee on his or her individual merits, not race or background," the Boston Globe reports. "With his nomination of" Sotomayor, "however, Obama has sounded some very different notes."
• Sen. Tim Johnson, D-S.D., will meet with Sotomayor today, AP reports.
Commentary
• Stanley Fish describes a recent panel discussion he attended, which examined the empathy standard in the context of Sotomayor's nomination.
• "Sotomayor's resignation last week from the all-women's Belizean Grove club raises questions about what constitutes an elite and exclusionary group and whether any public official should belong to one," remarks columnist Carol Hymowitz on Forbes.com.
• Ed Whelan looks at a New York Times article from Monday about the relationship between Judge José Cabranes and Sotomayor.
Updated at 5:44 p.m. on June 22.
Consider two judicial nominees, both of whom have won bipartisan support and praise for their distinguished service on lower courts.
Nominee No. 1 had been a not-very-active member of his grandfather's all-male fishing club in Western Pennsylvania. It had a ramshackle old building with bunk beds, wooden tables and benches like a boys' summer camp. He resigned two years before his nomination.
Nominee No. 2 was a member of a single-sex club described on its Web site as "a constellation of influential... decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships." That club has periodic meetings in New York and other cities and an annual retreat in Latin America, including cocktail parties with U.S. diplomats and host-country officials and panel discussions on public policy and business affairs.
Nominee No. 1 came under attack from the National Organization for Women and Senate Democrats. Patrick Leahy of Vermont, now chairman of the Judiciary Committee, fumed that the fishing club "invidiously discriminates against women," and thus that the nominee had violated the Canon 2 of the official Code of Conduct for U.S. Judges.
But hardly anyone is very concerned about Nominee No. 2's club, excepting a few conservatives and my friend Michael Kinsley, the liberal columnist, for reasons of his own.
Nominee No. 2 is, of course, Judge Sonia Sotomayor. Her all-woman club was the Belizean Grove, which touts itself as a women's alternative to "the power of the Bohemian Grove, a 130-year-old, elite old boys' network of former Presidents, businessmen, military, musicians, academics, and non-profit leaders." She resigned on June 19 to quiet the conservative fuss, while denying that the Belizean Grove excluded males or practiced "invidious discrimination."
Nominee No. 1 was Judge D. Brooks Smith, a Reagan-appointed federal district judge in Pennsylvania who resigned from the Spruce Creek Rod and Gun Club in 1999. He was nominated by President George W. Bush in 2001 (and eventually confirmed) for a seat on the U.S. Court of Appeals for the Third Circuit. His flaying by Democrats was recently detailed in the American Spectator.
Conservatives complain that Democrats are once again applying a familiar double-standard, denouncing white male Republicans as sexist or racist for relatively innocuous forms of discrimination or remarks while smiling on analogous conduct by female and minority Democrats.
Continue reading The Case For -- And Against -- Double Standards.
• "Nearly a month after President Barack Obama picked her for the Supreme Court, Republican senators say Sonia Sotomayor isn't serving as the political lightning rod some in their party had hoped she would be," Politico reports.
• The New York Times reports on the "30-year relationship" between Sotomayor and her mentor, Judge José A. Cabranes. The relationship was "first as protégé and mentor, later as often-opposing judges on the same court." In many ways, it has "shaped the career that led Judge Sotomayor to her own nomination to the Supreme Court."
• "While Judge Sotomayor has occasionally made statements outside court that conservatives find objectionable, it is far from clear that her judicial record supports the accusation that she is an activist," the Times reported on Friday. "Several empirical studies have concluded that she is not particularly prone to overriding policy decisions by elected branches."
• "Sotomayor resigned Friday from an elite all-women's club after Republicans questioned her participation in it," AP reported Friday. "Sotomayor said she resigned from the Belizean Grove to prevent the issue from becoming a distraction in her confirmation hearings."
Top Commentary
• In Slate, lawyer and Duke law professor Walter Dellinger discusses which Supreme Court cases from this term will play a role in Sotomayor's hearings.
• "Sotomayor's confirmation will provide inspiration for young Latinos to dream big. But we must tread lightly," Sarita E. Brown, president of a Latino education organization, cautions at Inside Higher Ed.
• In the Washington Times, Charmaine Yoest, president of the right-leaning Americans United for Life, contends that Sotomayor "is worse than Justice [David] Souter -- reading a 'fundamental right' to abortion into the Constitution."
Sonia Sotomayor announced this afternoon that she would resign from the networking club known as the Belizean Grove, just more than a week after Judiciary Republicans questioned whether her membership in the all-female organization was a violation of judicial ethics.
In a letter to Judiciary Chairman Patrick Leahy, D-Vt., and ranking member Jeff Sessions, R-Ala., Sotomayor insisted that "the Belizean Grove does not practice invidious discrimination and my membership did not violate the Judicial Code of Ethics." But, she added, "I do not want questions about this to distract anyone from my qualifications and record."
Canon 2 of the Judicial Code of Ethics forbids judges from "membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin."
Also this afternoon, Sotomayor released further documents related to her work with the Puerto Rican Legal Defense and Education Fund, in response to a joint request sent yesterday by both Leahy and Sessions.
The Democratic Policy Committee held a briefing yesterday on the Ricci v. DeStefano case. According to a White House official, this is part of a regular series of briefings the committee is holding on some of Sonia Sotomayor's key cases. (The source would not elaborate on which other cases will be addressed.)
NationalJournal.com has learned that two experts spoke at the hearing. One was Austin Schlick, counsel of record for the State of Maryland on an amicus brief filed by six states on behalf of the City of New Haven in the Ricci case. The second, University of Michigan law professor Richard Primus, sent a letter to the Senate Judiciary Committee Tuesday addressing the anti-discrimination issues -- specifically, equal protection and disparate impact -- that are at stake in Ricci.
Primus has been researching Ricci's legal implications for years. Sotomayor's nomination has simply made this issue more important to more people, he said in an interview. "I had some contact with the White House before I wrote the letter," Primus said. "But I also told them that I was going to write a letter with my views. So, the letter is from me." He would not comment on the details of the briefing or whether he has continued to be in contact with the White House since sending the letter.
In the letter, Primus said that the courts' rulings -- the district court's decision ruling in favor of the City of New Haven, the appellate three-judge panel affirming the lower court's ruling and the full court's refusal to rehear it -- should not be surprising. "It's an issue that's politically controversial, but it's not controversial legally. Legally, it's an easy issue," Primus said. "The complicated thing is that the Supreme Court is probably going to change the law on it, which means that even though it wasn't a complicated issue before, it's going to look like all the judges who decided it got it wrong. It's not going to mean that. The judges made the decision, and then the court changed the rule."
The Supreme Court is set to hand down its decision on Ricci the end of this month.
President Obama appointed two more appellate judges today -- Joseph A. Greenaway, Jr. for the Court of Appeals for the Third Circuit and Beverly B. Martin for the Eleventh Circuit. Greenaway currently serves on the U.S. District Court for the District of New Jersey and Martin serves on the District Court for the Northern District of Georgia.
Obama has nominated a total of five appellate judges now. He nominated his first three in late March and early April.
Read their bios, per the White House, after the jump.
Continue reading Obama Nominates Two More Appellate Judges.
Senate Judiciary Committee member Amy Klobuchar this morning urged a roomful of lawyers, legal experts and representatives from liberal organizations to be "ambassadors of truth as we go through" Sonia Sotomayor's confirmation hearings.
"When people question whether she is smart enough -- you can't make up that you're Phi Beta Kappa," said the Minnesota Democrat, making a point about Sotomayor's academic honors and her credentials in general. "They're facts."
Klobuchar was speaking as part of the liberal American Constitution Society's annual convention, a three-day conference at the Renaissance Mayflower Hotel in Washington. Sen. Sheldon Whitehouse, D-R.I., addressed the conference when it opened Thursday night. White House Counsel Greg Craig and Ron Klain, Vice President Joe Biden's chief of staff and a key handler for Sotomayor, are among the Obama administration figures taking part in a panel discussion tonight.
Michigan Gov. Jennifer Granholm (D), herself a rumored candidate for the Supreme Court nomination, will speak at lunch this afternoon.
Klobuchar recalled her meeting with Sotomayor on June 4, drawing parallels between their lives and the way they both view the law. The senator hearkened back to her eight years as a prosecutor in Minnesota to underscore the experience Sotomayor has gained while at the New York County District Attorney's Office.
"As a prosecutor, after you've worked with defendants and victims of crimes... you know that the law is not an abstract subject. It has a real impact on people's lives," Klobachar said. "When I met with her for an hour, I got that sense that she understood that. It's not just a book that's sitting in your... basement."
The senator took particular exception to criticism that Sotomayor is too tough on lawyers as an appellate judge. "At least where I come from, asking tough questions and having very little patience is the very definition of a judge," Klobuchar said. "I was hoping we'd get to a point in this country where we would get appointed rough, to-the-point female justices just as we've appointed male judges" with similar characteristics.
As for charges that Sotomayor is too liberal, Klobuchar said some on the left wonder if she's liberal enough. And the argument that she would be a judicial activist on the high court doesn't stand, the senator added. "I'm sure some people in this room would want her to be more of an activist judge," she said, prompting several nods of agreement among audience members.
Some 58 percent of respondents in a CBS News/New York Times survey that wrapped up this week say they haven't heard enough about Sonia Sotomayor to form an opinion on her or haven't made up their minds. In addition, 53 percent couldn't say if she should be confirmed or rejected. On both questions, about one-third of respondents viewed her positively and 9 percent negatively.
Respondents in a poll conducted at about the same time for NBC News and the Wall Street Journal were a little more certain -- 43 percent supported her either strongly or somewhat, 20 percent opposed her, and 35 percent didn't know enough to say (that's still a better number than any of George W. Bush's three nominees had).
Read the full story here.
The full political implications of President Obama's selection of Sonia Sotomayor won't be clear for some time. But if history is any indication, senators' questioning and votes in the forthcoming confirmation hearings could play a role in their re-election bids.
Legal experts hearken back to Senate elections where the incumbent's vote on a Supreme Court nominee became a hot-button issue. Christopher Eisgruber, provost of Princeton University and former clerk to Justice John Paul Stevens, recalled the failed bid of Illinois Democrat Alan Dixon in 1992; many believe he lost his primary to challenger Carol Moseley Braun because he voted to confirm Clarence Thomas.
While most agreed that Sotomayor wouldn't be as controversial as Thomas, critics say that her stance on social issues and gun rights could trigger concern among red state Democrats or electoral fodder for those senators' challengers. Meanwhile, GOP senators hailing from states with large Hispanic populations, such as Judiciary Committee members John Cornyn of Texas and Jon Kyl of Arizona, have been careful to distance themselves from the inflammatory rhetoric of Newt Gingrich and Rush Limbaugh.
Read the full story here.
• Senate Judiciary Committee ranking member Jeff Sessions, R-Ala., "complained again" Thursday "that Supreme Court nominee Sonia Sotomayor has not given the committee enough information to weigh her candidacy," CQ reports. "Sessions appeared to be laying the groundwork for possible concerted Republican procedural opposition to the July 13 start date for Sotomayor's confirmation hearing."
• "Senate Judiciary Chairman Patrick Leahy, D-Vt., rejected a new Republican demand" Thursday "to delay the confirmation hearings," CongressDaily (subscription) reports.
• Both Sessions and Leahy "made a bipartisan request Thursday for more of" Sotomayor's "records from the Puerto Rican legal aid group where she was a member for 12 years," Dow Jones Newswires reports.
• Senate Judiciary Committee member John Cornyn, R-Texas, said Thursday "he will use hearings on" Sotomayor's nomination "to ask whether she intends to be a justice 'for all of us, or just for some of us,'" AP reports. Cornyn said she "must explain whether she believes in colorblind justice in light of a 2001 speech in which she said she hoped a 'wise Latina' usually would reach better decisions than a white man without similar life experiences."
• "In visits with 71 senators during the past two weeks," Sotomayor "has essentially begun the first round of the confirmation process by previewing her answers to some of the questions senators are likely to ask," USA Today reports.
• "The full political implications of President Obama's selection of" Sotomayor "won't be clear for some time. But if history is any indication, senators' questioning and votes in the forthcoming confirmation hearings could play a role in their re-election bids," NationalJournal.com reports.
Continue reading Top Nomination News.
In NationalJournal.com's previous excerpt of The Next Justice, by Princeton provost Christopher Eisgruber, a case was made for the confirmation process as a chance for senators to understand nominees' judicial philosophy more deeply, not to put them on the spot about their records. In Chapter 9, "How To Change The Hearings," Eisgruber goes a step further, arguing that senators should say up front what they know about a nominee and what they want to find out.
If senators can investigate nominees on the basis of their records and reputations, then why should they have to testify? They should not, answers Benjamin Wittes of the Washington Post. Wittes has recommended that the Senate do away with the practice of interrogating nominees. He writes that the hearings "almost invariably prove an embarrassing spectacle that yields minimal information." In his view, "the Senate generally votes on nominees with a rough sense of who they are," but not because of their testimony: "The nominees' testimony added virtually nothing to our understanding of these people." Wittes accordingly proposes that the Senate should "vote on a nominee on the basis of his or her record and the testimony of others."
This bracing suggestion has something to be said for it. Wittes is right about some key points: Senators, like presidents, can usually develop a good sense of a nominee's judicial philosophy on the basis of his or her record and reputation; the nominee's testimony has rarely added much to this understanding; and the hearings have degenerated into embarrassing spectacles. It is hard to believe, though, that Americans today would be satisfied with a process in which Supreme Court nominees were confirmed or rejected without first being questioned about their views.
Continue reading 'The Next Justice': The Next Step For Hearings.
Senate Judiciary Chairman Patrick Leahy, D-Vt., rejected a new Republican demand today to delay the confirmation hearings of Sonia Sotomayor due to start July 13.
He said it would be a "double standard" to put off the committee hearings until September. The last two Supreme Court nominees -- Chief Justice John Roberts and Justice Samuel Alito -- received hearings within 40 days of their answering committee questionnaires. Her hearings are scheduled to start 39 days after initial receipt of her questionnaire, he said.
Judiciary ranking member Jeff Sessions, R-Ala., sought the delay until September at a committee meeting today, claiming her questionnaire is incomplete, with "serious gaps" in answers to questions about her work on the Yale Law Journal and as a 2nd U.S. Circuit Court of Appeals judge. Leahy said she will provide supplemental answers, as did Roberts and Alito. "It would be a double standard to delay confirmation hearings on the Sotomayor nomination until September, and would make the Sotomayor confirmation process the longest of any sitting justice on the Supreme Court," Leahy said.
• Per the White House, Sonia Sotomayor is meeting with the following senators today: Tom Coburn, R-Okla., Bob Corker, R-Tenn., Johnny Isakson, R-Ga., Lisa Murkowski, R-Alaska, and Bernie Sanders, I-Vt.
• Sotomayor "and senators who will vote on her confirmation are engaged in a careful conversation about where she stands on hot-button issues like abortion and gun rights," the AP reports. "You probably won't hear any of it, though, since the exchange is taking place in code."
• "Sen. Arlen Specter, D-Pa., announced his backing for" Sotomayor "in a floor speech" Wednesday, NationalJournal.com reports. "The senator also discussed a letter he sent to Sotomayor this week that asks for her views on the court's deference to congressional fact-finding when evaluating legislation."
• CQ reports that Senate Judiciary Committee ranking member Jeff Sessions, R-Ala., is going to deliver a "series of floor speeches outlining" conservatives' vision of what the courts' role should be. "Sessions is going to deliver such speeches periodically while the nomination of Sotomayor... is pending. But it remains to be seen whether his speeches will resonate with a public that, in polls, usually has trouble naming very many of the nine justices on the Supreme Court."
• "Conservatives and liberals, beware: television ads attacking" Sotomayor -- "or even supporting her -- may undermine public support for the court itself," the Washington Post reports. "That's the word from researchers at Ohio State University, who studied the reaction to heated ads accompanying the confirmation battle over Justice Samuel A. Alito Jr. in late 2005."
• A Wall Street Journal/NBC News poll shows that half the public said Sotomayor is "qualified for the post, versus just 13 percent who said she's not qualified," the Journal reports. "That's equivalent to numbers in November 2005 for" Alito, "who was subsequently confirmed to the court."
• And a New York Times/CBS News poll shows that Sotomayor is "still widely unknown to the public," the Times reports. "A majority of people surveyed, 53 percent, said they did not know enough about Judge Sotomayor, who would be the first Hispanic justice, to say whether she should be confirmed."
Continue reading Top Nomination News.
Continuing NationalJournal.com's occasional series on books about the confirmation process, we've pulled out some uniquely applicable portions of a new book released this month, The Next Justice, by Princeton provost Christopher Eisgruber.
Eisgruber, a former New York University law professor and clerk for Justice John Paul Stevens, argues in the book that, contrary to popular belief, senators should not use the hearings to "interrogate" judicial nominees about their records, since the heavy lifting on researching nominees' records should have been done earlier. Instead, he says, the hearings should be an opportunity for senators to "refine their understandings, to describe their view of the candidate's judicial philosophy, and to convince the public of that view's validity."
The following excerpt is from Chapter 8, "Should The Senate Defer?" An excerpt from Chapter 9 will follow tomorrow.
Although questioning the nominee might be the most obvious way for senators to assess his or her judicial philosophy, hearings have been strikingly ineffective for that purpose. With the singular exception of the Bork hearings, Senate questions to nominees have consistently failed to produce illuminating information. Senators and their staffs have demonstrated tremendous ingenuity in crafting questions designed to break free from the "subtle minuet" of the confirmation hearings, but their efforts have failed. That is not the senators' fault; no question can compel an unwilling nominee to disclose his or her judicial philosophy. So we seem to be at an impasse: senators have an obligation to assess a nominee's judicial philosophy, but no set of questions can compel a nominee to disclose his or her philosophy. What are senators to do?
Continue reading Book Excerpt: 'The Next Justice'.
Sen. Arlen Specter, D-Pa., today announced his backing for Sonia Sotomayor in a floor speech, praising her "extraordinary" judicial record and highlighting the diversity she will bring to the Supreme Court if confirmed.
As a former chairman and ranking member of the Judiciary Committee, Specter is a key voice on the nomination, though his position is complicated by his recent switch to the Democratic Party. Bucking his former GOP colleagues, Specter expressed support for the confirmation hearings timetable set by Judiciary Chairman Patrick Leahy, D-Vt., which Republicans have complained is unnecessarily rushed.
"I think Chairman Leahy was correct in moving the hearing date so that the confirmation process could be concluded in time for Judge Sotomayor, if confirmed, to sit with the court during September when the court will decide what cases it will hear," Specter said. "A great deal of the important work of the Supreme Court of the United States is decided on what cases they decide not to hear."
Specter acknowledged the issues that have framed the debate surrounding Sotomayor's nomination so far, including her "wise Latina woman" comment and the New Haven firefighters' case. But, he said, "The nuances of affirmative action don't lend themselves too well to brief newspaper articles or sound bites on the talk shows. They're made for a Supreme Court hearing."
Specter faces a likely primary challenge in a state with a sizable Hispanic population.
The senator also discussed a letter he sent to Sotomayor this week that asks for her views on the court's deference to congressional fact-finding when evaluating legislation.
In the letter, Specter expresses concern that Chief Justice John Roberts' oral arguments in Northwest Austin v. Holder, a pending case that challenges provisions of the Voting Rights Act, seem to contradict statements he made to Specter on congressional fact-finding during his 2005 confirmation hearings. The letter asks for Sotomayor's opinion on the issue, and specifically on Roberts' 2005 statements.
Updated at 10:20 a.m. on June 17.
• Per the White House, Sonia Sotomayor is meeting with the following senators today: Sens. Lamar Alexander, R-Tenn., Robert Bennett, R-Utah, Saxby Chambliss, R-Ga., Christopher Dodd, D-Conn., Byron Dorgan, D-N.D., and Jim Webb, D-Va.
• "When the curtain goes up on" Sotomayor's "confirmation hearing next month, the stars of the show will be the nominee and the 19 members of the Senate Judiciary Committee," the National Law Journal reports. "But this production is scripted mostly by a handful of Republican and Democratic lawyers on Capitol Hill."
• "What cases, other than the already divisive Ricci v. DeStefano, will come to the fore during Sonia Sotomayor's confirmation hearings? NationalJournal.com polled several Supreme Court observers for their take on this question, and on which Judiciary Committee Republican will be the toughest questioner."
• "Sotomayor expressed skepticism in March 2003 about the expanded government surveillance powers in the USA Patriot Act, citing what she referred to as its broader authority 'to impose nationwide wiretaps with little judicial supervision' and to monitor Internet use in search of terrorists," the New York Times reports.
• "Many conservatives opposed to" Sotomayor's nomination "have argued that she is opposed to gun rights, a view based largely on a New York case in which she took part this year," the Times also reports. "But in an opinion a few weeks ago, in a Chicago gun-control case, a panel of conservative appellate judges said Judge Sotomayor and her colleagues on the United States Court of Appeals for the Second Circuit had gotten it right."
• The Blog of Legal Times reports on a speech Senate Judiciary Chairman Patrick Leahy, D-Vt., made Tuesday in which he compared the Sotomayor opposition to that of Thurgood Marshall's nomination to the Supreme Court.
• CQ reports on the same speech, looking at how Democrats could use a case the Supreme Court is handing down soon about the Voting Rights Act.
• "The left-leaning Alliance for Justice released a report" Tuesday promoting the nominee's "law-and-order bona fides," NationalJournal.com reports. "The report, which examines dozens of criminal law cases from throughout her judicial career, concludes that Sotomayor 'has more experience in criminal law than any of the justices with whom she will sit if she is confirmed.'"
• The group also "promises new studies of Sotomayor's record in coming weeks," the Washington Post reports.
The left-leaning Alliance for Justice released a report today touting Sonia Sotomayor's law-and-order bona fides. The report, which examines dozens of criminal law cases from throughout her judicial career, concludes that Sotomayor "has more experience in criminal law than any of the justices with whom she will sit if she is confirmed."
The release comes in the wake of a White House event last week that aimed to boost Sotomayor on the same issues. Eight of the nation's largest law enforcement agencies endorsed Sotomayor, with Vice President Joe Biden repeatedly telling attendees, "She gets it." "As you do your job, know that Judge Sotomayor has your back as well," Biden said. "And throughout this nominating process, I know you'll have her back."
In a conference call with reporters today, William Yeomans, the organization's legal director, and Brina Milikowsky, a legal researcher at the alliance, highlighted several cases they said illustrate Sotomayor's strong stance on criminal law issues. These included her ruling in United States v. Falso, a child pornography case, and in United States v. Moreno, a drug case where she issued a longer sentence than the default guideline.
"For the most part, she was willing to sentence defendants on the high end of the guideline recommendations, both in white collar and violent crimes," Milikowsky said.
"One area we don't know much about her views is the death penalty," Yeomans said. "She has not had an occasion on the bench to rule on" that issue. He did, however, reference a 1981 memo Sotomayor signed onto while a board member of the Puerto Rican Legal Defense and Education Fund that indicated she was against it.
Throughout the call, the group tried to underscore Sotomayor's adherence to precedent and her careful judicial style in criminal law cases. It's "virtually impossible" to predict how jurists might rule on the high court, Yeomans said, but Sotomayor is "certainly not someone who is going to veer off widely in one direction or another."
(This analysis updates my July 12, 2008, column.)
We in the media habitually describe the Supreme Court as made up of four conservatives, four liberals and one swing-voting centrist, Anthony Kennedy. These labels serve reasonably well to situate the justices on the ideological spectrum compared with one another.
But while the court is sometimes called "conservative," it looks pretty liberal if we chart the justices' rulings and individual views against general public opinion, as measured by poll results on issues including abortion, race, national security, religion, gay rights, gun rights and the death penalty.
The four more liberal justices -- John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- all fall markedly to the left of public opinion on every one of the abovementioned issues. So does Kennedy, when it comes to national security, religion, gay rights, the death penalty and to some extent abortion. Judge Sonia Sotomayor is widely expected to be at least as liberal as Souter, whom she would replace.
If President Obama gets an opportunity to replace one of the five more conservative justices, the new majority will be quite dramatically to the left of public opinion. And voters will, of course, remain powerless to overturn the justices' constitutional interpretations.
Justices Antonin Scalia and Clarence Thomas fall markedly to the right of center. But the same does not appear to be true -- not yet, at least -- of Chief Justice John Roberts and Justice Samuel Alito.
Indeed, while those two George W. Bush appointees appear to be politically conservative by some measures, the description of them as far right by the New York Times editorial page says more about the editorialists than about the justices. So far, Roberts' and Alito's opinions and votes have been considerably closer to the center than those of the four liberals.
Continue reading Court More Liberal Than Public Opinion.
What cases, other than the already divisive Ricci v. DeStefano, will come to the fore during Sonia Sotomayor's confirmation hearings? NationalJournal.com polled several Supreme Court observers for their take on this question, and on which Judiciary Committee Republican will be the toughest questioner.
The most popular response to our first question was the property rights case Didden v. Port Chester, in which Sotomayor affirmed a lower court's ruling by applying the Supreme Court's controversial 2005 decision in Kelo v. City of New London. (The New York Times has more on the Didden case here.)
On the second question, the most popular choice was Judiciary ranking member Jeff Sessions as the senator most likely to subject the nominee to tough questioning.
See responses after the jump.
Poll respondents were: Tony Mauro, National Law Journal reporter; Dahlia Lithwick, Slate senior editor; Paul Cassell, University of Utah law professor and Volokh Conspiracy blogger; Tom Goldstein, founder of SCOTUSblog and Supreme Court litigator at Akin Gump; William Marshall, University of North Carolina law professor; Doug Kendall, founder and president of the Constitutional Accountability Center; Cristina Rodriguez, New York University law professor; Christopher Eisgruber, Princeton University provost; Bradley Joondeph, Santa Clara University law professor; Carl Tobias, University of Richmond law professor; and National Journal's own Stuart Taylor Jr. In order to encourage frank and open speculation, contributors were given anonymity.
Continue reading Beyond Ricci: Experts Predict Hearings' Focus.
• Per the White House, Sonia Sotomayor is meeting with the following senators today: Jeff Bingaman, D-N.M., Thomas Carper, D-Del., Thad Cochran, R-Miss., Mike Crapo, R-Idaho, Frank Lautenberg, D-N.J., and Tom Udall, D-N.M.
• Sotomayor "on Monday defended her membership in an all-female networking club, telling senators... that the group did not discriminate in an inappropriate way," the New York Times reports. "Sotomayor made the remarks in a cover letter for 10 documents the White House submitted to the Senate Judiciary Committee."
• Politico reports that those documents include "additional information and documentation related to her tenure on the board of the Puerto Rican Legal Defense and Education Fund, as well as details of a couple of subsequently overturned criminal sentences she imposed."
• Judiciary Committee Republicans wanted more on Sotomayor's work with the defense fund, but she "said she could not find notes or drafts for the speeches senators asked about," the Washington Times reports.
• White House senior adviser Valerie Jarrett argues that "critics are holding" Sotomayor "to a 'double standard,'" the Washington Post reports.
• "Obama fired a Bush-era inspector general last week despite the administration's use of the former prosecutor as an adviser in Sotomayor's nomination," the Washington Times reports.
Continue reading Top Nomination News.
Updated at 4:27 p.m.
Rewind 30 years ago to when Sonia Sotomayor was a third-year law student at Yale University, and, according to a friend and former mentee, the 24-year-old already possessed "tremendous powers of persuasion." Catherine Sandoval, now a law professor at Santa Clara University, said Sotomayor "can be a real force. But she is also effective in a collegial way as a listener."
While completing her last year in law school, Sotomayor became a friend and mentor to Sandoval, who was, at the time, a freshman at Yale. The two have kept in touch throughout the years, reconnecting periodically through the "Yale networks," Sandoval said.
Sotomayor was an "analytical, very persuasive" person in those days, Sandoval said, adding that she still sees evidence of those traits in her mentor's opinions on the appellate court.
Sandoval recalls bonding with Sotomayor over not just a common ethnicity -- they're both Hispanic -- but their shared ambitions.
"I knew when I was a young girl growing up in East L.A. that I wanted to be a lawyer," Sandoval said. "She also knew when she was a young girl in the Bronx that she wanted to be a lawyer. We had very similar aspirations and both came from families of very modest means."
Sandoval is one of many friends and associates who have gone public about Sotomayor in recent weeks:
• The Los Angeles Times and Washington Post interviewed Sotomayor's former colleagues from the New York District Attorney's Office.
• The Yale Daily News got in touch with her former classmates.
• The Blog of Legal Times reported on a letter sent to the White House by Sotomayor's former law clerks, and interviewed some of them.
• ABC News contacted Sotomayor's brother, Juan, who expressed anger over the criticism directed toward his sister.
• National Journal's Alexis Simendinger spoke with longtime Sotomayor friend Dawn Cardi for some insight into the nominee's life away from the bench.
It didn't take President Obama very long to pick Sonia Sotomayor as his nominee to replace Supreme Court Justice David Souter, but he may face the same difficult choice again soon. With Justices Ruth Bader Ginsburg and John Paul Stevens likely approaching the end of their tenures, Obama could end up naming at least two more justices to the high court. What would he be looking for in his second and third nominees?
Court observers predict he will seek out consensus candidates -- or at least non-provocative ones. In his selection of Sotomayor, liberal and conservative experts alike say Obama hoped to minimize the political cost of filling the court vacancy. The nomination shows "he has certain issues that are his highest priorities that he knows could be a political challenge," said Geoffrey Stone, a law professor at the University of Chicago. "This selection of the Supreme Court justice isn't one in which he wants to expend any of that capital."
Should another vacancy open up in the near future, with Obama busy tackling issues like health care and the economy, he would be unlikely to nominate a crusading liberal justice in the mold of William Brennan or Thurgood Marshall despite calls from the left, Stone said. If retirements come later in his first term, or if he wins a second, the White House would have a firmer footing to try and push a bolder liberal voice through Congress.
Even if Obama seeks to nominate noncontroversial justices further down the line, he'll have plenty of outside expectations to balance. Should the 76-year-old Ginsburg retire, for example, Obama will almost certainly face the same pressure to appoint a woman that he did this time around. After all, he would be back at square one, with only one woman -- Sotomayor, if she's confirmed -- on the high court.
That fact has not gone unnoticed by the White House. Just days after Sotomayor's nomination, David Axelrod praised the other candidates before a small group of columnists. "It wouldn't at all surprise me if some of the very same people were back in the Oval Office" should Obama get another chance at a nomination, Axelrod said. The other candidates who had personal interviews with Obama were Solicitor General Elena Kagan, Homeland Security Secretary Janet Napolitano and Judge Diane Wood.
Continue reading the story here.
• "When Sonia Sotomayor goes before the Senate next month for her Supreme Court confirmation hearing, the questioning is likely to focus on her work as a civil rights advocate in the 1980s as much as on her nearly two decades on the federal bench," the Los Angeles Times reports.
• The New York Times examines some property rights cases that may come up in Sotomayor's confirmation hearings.
• "With less than a month before" the hearings, "the White House is trying to quietly guide what staffers describe as an unusually broad network of law enforcement organizations, liberal allies, legal officials, Latino groups and women's organizations that want to see her confirmed," the Washington Post reports.
• Politico discusses the "dos and don'ts" for a candidate facing the Senate Judiciary panel.
• On Sunday's "Face The Nation," Senate Minority Leader Mitch McConnell, R-Ky., said Republicans are "reserving their right to filibuster" Sotomayor's nomination, The Hill reports.
• NationalJournal.com reports on how the Sotomayor nomination could shed some light on the challenges facing Obama in the next high court vacancy.
Continue reading Top Nomination News.
Updated at 6:06 p.m.
If confirmed for the Supreme Court, Sonia Sotomayor will be one of the most qualified justices -- though not the most qualified -- and likely as liberal as Ruth Bader Ginsburg. That's the hunch coming from Jeffrey Segal, a political science professor at Stony Brook University who combs newspaper editorials to rank justices on their perceived qualifications and ideology.
The ranking system, known as the Segal-Cover score (Albert Cover was Segal's original partner developing the system), evaluates justices dating back to President Franklin Delano Roosevelt's 1937 nomination of Hugo Black. It uses a scale of 0 to 1: For qualifications, 0 is the least qualified and 1 is the most, and for ideology, 0 is the most conservative and 1 is the most liberal.
On the current court, Ginsburg ranks as the most liberal, with a score of 0.68. Antonin Scalia is the most conservative, at 0. And they tie for the most qualified, at 1 each. Segal analyzes editorials from the New York Times, Wall Street Journal, Chicago Tribune and Los Angeles Times. The Journal was added starting with David Souter's nomination to compensate for the Los Angeles Times' drift leftward, Segal said. For Sotomayor, he started tracking editorials since the day after President Obama nominated her and will continue until the day the full Senate votes on her.
"She's going to fall as a moderate liberal," Segal predicts. "There will be evidence that she's not a doctrinaire. And she'll come out pretty high on the qualifications, but not at the very, very top."
How Sotomayor explains some controversial comments, especially her "wise Latina woman" remark, in the confirmation hearings will factor into her qualification score, Segal said, since editorialists will likely consider that in their analyses.
When asked about the bias the scores could reflect since they're based only on media reports, Segal said the inclusion of newspapers on both sides of the divide should ensure that they're an accurate representation of how justices are being perceived. He also said that the ideology ratings end up doing "an excellent job of predicting justices' overall liberalism or conservatism once they're on the Supreme Court." Statistically comparing justices' ideology score and voting behavior going back to the Warren court, Segal said there is a 0.79 "correlation coefficient." This means that you can predict the justices' overall voting behavior "fairly accurately simply by knowing their ideology," Segal said.
Segal and Northwestern law professor Lee Epstein, who collaborated on Advice And Consent, a 2005 book on the judicial appointment process, are working with Andrew Martin of Washington University in St. Louis on a project that will rank justices on the same criteria by analyzing thousands of blogs. How useful will this be considering the blogosphere's wide range from insightful to worthless?
"We'll find out," Segal said. "I wouldn't put as much faith into this as accurately measuring the qualifications or the ideology of Sotomayor as I would the editorial judgment we'll be looking at. But, we'll see what we come up with. It's sort of an experiment."
From National Journal's June 13 issue:
I admire many things about Judge Sonia Sotomayor, especially her deep compassion for underprivileged people. I may well support her confirmation to the Supreme Court if her testimony next month dispels my concern that her decisions may be biased by the grievance-focused mind-set and the "wise Latina woman" superiority complex displayed in some of her speeches.
But close study of her most famous case only enhances my concern. That's the 2008 decision in which a panel composed of Sotomayor and two Appeals Court colleagues upheld New Haven's race-based denial of promotions to white (and two Hispanic) fire-fighters because too few African-Americans had done well on the qualifying exams.
The panel's decision to adopt as its own U.S. District Judge Janet Arterton's opinion in the case looks much less defensible up close than it does in most media accounts. One reason is that the detailed factual record strongly suggests that -- contrary to Sotomayor's position -- the Connecticut city's decision to kill the promotions was driven less by its purported legal concerns than by raw racial politics.
Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed Arterton opinion.
Continue reading the column here.
A number of interesting books about the judicial selection process have come out in recent years. This is the first in an occasional series briefly describing some of them.
We begin with the rigorously even-handed Confirmation Wars: Preserving Independent Courts in Angry Times, by Benjamin Wittes, a senior fellow at the Brookings Institution. It was originally published in 2006, but a new edition is coming out soon. At only 131 pages, it's a quick read.
(Disclosure: Wittes is a friend of mine.)
As a Washington Post editorial writer from 1997 to 2006, Wittes criticized Senate Republicans for stalling and savaging well-qualified Clinton nominees, and later Senate Democrats for stalling and savaging well-qualified Bush nominees. Confirmation Wars distills the lessons of this experience and sheds new light on many decades of prior history.
In recent years, Wittes asserts, the confirmation process "has changed fundamentally and for the worse," degraded by "activists and senators who willingly trumpet gross distortions of the nominee's record, misleading insinuations about his or her character, and sometimes even outright lies." These partisans see "the task of judging merely as an exercise of raw political power," and make barely a pretense that judges should be impartial.
Wittes also explains how we have come to this "embarrassing spectacle," with vicious attack ads demonizing nominees and sometimes circus-like hearings that yield "minimal information."
The modern practice of nominees testifying before the Senate Judiciary Committee began in earnest after the 1954 decision in Brown v. Board of Education. Southern racists -- determined to smoke out and block desegregation-minded nominees if they could -- demanded that they appear before the committee.
The escalating partisan warfare since then represents "an institutional reaction on the part of the legislative branch to the growth of judicial power." What began with Brown continued with more questionable judicial interventions "in a breathtaking array of democratic decisions," as judges increasingly asserted "the power to regulate questions of social policy at the core of Americans' sense of autonomy and identity."
Wittes' prescriptions for change are more controversial than his diagnoses. One is that the Senate -- at least when not controlled by the president's political party -- demand pre-nomination consulting and even "refuse to confirm a nominee not selected from a preapproved list of its devising."
Another Wittes proposal is to return to pre-Brown practice by eliminating or at least limiting live testimony by nominee. Senators use their questions, he says, "either to wring concessions from would-be justices or to tar them as unworthy." And the necessarily evasive answers reveal "virtually nothing" about what kind of judge or justice a nominee would be.
But senators have grown fond of using nominees as props while sounding off for the cameras. And the media love the spectacle. So the show will go on.
• "Judge Sonia Sotomayor once described herself as 'a product of affirmative action' who was admitted to two Ivy League schools despite scoring lower on standardized tests than many classmates, which she attributed to 'cultural biases' that are 'built into testing,'" reports the New York Times. "Those comments were among a trove of videos dating back nearly 25 years that shed new light on Judge Sotomayor's views."
• "Sotomayor told a senator Thursday that she would follow a historic ruling affirming Americans' right to own guns for self-defense, but pro-gun activists said they still believe she'd work to limit gun rights if confirmed for the high court," the AP reports.
• Sen. Dianne Feinstein, D-Calif., "accused Republicans Thursday of engaging in a 'Machiavellian delay' to buy time to dig up dirt on" Sotomayor, Politico reports. Republican Whip Jon Kyl, R-Ariz., "shot back that senators were sounding like 'squabbling spouses' and should 'stop calling each other names.'"
• "Republicans may have a window of opportunity to turn public opinion against" Sotomayor, "but a new poll finds that such a campaign could hurt their party's already weak standing with Americans, especially Hispanics, the nation's fastest-growing voter group," McClatchy Newspapers reports.
Continue reading Top Nomination News.
Tempers flared in the Senate Judiciary Committee today when Republicans pressed for a delay of Sonia Sotomayor's confirmation hearings, which are slated to begin July 13.
Sen. Dianne Feinstein, D-Calif., accused Republicans of seeking the delay at the behest of conservative groups that have been organizing a campaign to find fault with Sotomayor and scuttle her nomination. She said there were "groups out there who need more time for attacks and sound bites." Feinstein added at another point, "This is a woman who is qualified, who is brilliant, and who worked her way up."
Senate Minority Whip Jon Kyl, R-Ariz., denied the allegation and took personal offense at it. "First of all I don't like having my motives questioned. ... I suggest we just cool it," he said, noting that President Obama announced Sotomayor's nomination only two weeks ago.
Senate Judiciary Chairman Patrick Leahy, D-Vt., said Sotomayor was entitled to be confirmed at least as quickly as Chief Justice John Roberts, who appeared before the committee less than two months after being nominated. Judiciary ranking member Jeff Sessions, R-Ala., said that Roberts' 2005 confirmation had to be expedited so that he could fill the vacancy left by the death of Chief Justice William Rehnquist in time for the start of the court's fall term. "We don't have those pressures now," Sessions said.
Subscribers to CongressDaily can read the entire PM edition here.
Sonia Sotomayor would be the first Hispanic justice and the third woman on the court, but in at least one respect she would not bring diversity to the court. She will, if confirmed, continue a growing pattern of filling the Supreme Court with sitting appellate judges.
At an American Constitution Society discussion yesterday on the Sotomayor nomination, panelists debated the pros and cons of selecting potential justices in the mold of former Chief Justice Earl Warren (see video of the event below). Warren was governor of California before President Dwight D. Eisenhower nominated him to the court in 1953.
Ed Whelan, president of the Ethics and Public Policy Center and contributor to National Review Online's Bench Memo blog, pointed out that presidents often look outside the "judicial monastery" when they're initially seeking nominees, but they ultimately settle upon an appellate judge because the circuit bench simply offers the best place for nominees to hone the skills needed for the high court.
Whelan hearkened back to Bill Clinton's flirtation with the idea of nominating then-New York Gov. Mario Cuomo in 1993 before he ultimately decided on Ruth Bader Ginsburg, who at the time was a judge for the Court of Appeals for the D.C. Circuit. Whelan also noted George W. Bush's botched nomination of White House counsel Harriet Miers.
Whelan disparaged the idea of appointing politicians to the court. "The worst idea of all would be to nominate a U.S. senator," he said. "And that's an entirely bipartisan comment."
But New York law professor Cristina Rodriguez disagreed. "It's not just about going outside the judicial monastery," she said. "It's also important to have someone with legislative experience." She added that the court would need just one, not nine, politicians on its bench.
The panelists threw out some names as possible non-judge nominees when or if Obama gets a second go at the Supreme Court, including some who made it onto our long list this time around: Homeland Security Secretary Janet Napolitano, Secretary of State Hillary Rodham Clinton and Massachusetts Gov. Deval Patrick.
Per the White House, Sonia Sotomayor is scheduled to meet today with:
• Sen. Daniel Akaka, D-Hawaii
• Sen. Kay Bailey Hutchinson, R-Texas
• Sen. Bill Nelson, D-Fla.
• Sen. Debbie Stabenow, D-Mich.
• Sen. Mark Udall, D-Colo.
• The Blog of Legal Times reports on the information that Senate Judiciary Committee Republicans have asked Sonia Sotomayor to submit. The letter they sent yesterday asks "whether the questionnaire left out any other documents from her board membership. It also asks for copies of speeches, of law review articles that she edited, and of memoranda related to various court committees."
• The New York Times runs transcript excerpts from videos Sotomayor has appeared in over the last 25 years that she has given to the judiciary committee.
• "After a sit-down" with Sotomayor yesterday, Sen. Russell Feingold, D-Wisc., "came out with a statement that's somewhat less than a rousing endorsement," Politico reports.
• "A panel discussion" yesterday "hosted by the American Constitution Society grappled with the factors likely to shape how" Sotomayor "would perform as a Supreme Court justice," NationalJournal.com reports.
Commentary
• "Her opinions and speeches suggest that her views about race, multiculturalism and identity politics are more nuanced, complex and provocative than either her critics or her supporters have allowed," George Washington law professor Jeffrey Rosen writes on Time.com. "And for that reason, if confirmed, she could influence the racially charged issues the Supreme Court will confront over the next few decades in unexpected ways."
• "To hear both critics and defenders talk about the fitness of" Sotomayor "for the Supreme Court, you'd think the most successful Supreme Court justices had been warm, collegial consensus-builders. But history tells a different story," Harvard Law professor Noah Feldman asserts in the New York Times. "Measured by their lasting impact on Constitution and country, many of the greatest justices have been irascible, socially distant, personally isolated, arrogant or even downright mean."
Continue reading Top Nomination News.
Senate Judiciary Republicans, following up claims yesterday that Sonia Sotomayor's responses to the panel's questionnaire were incomplete, have sent a letter asking Sotomayor for certain speeches and other materials that were not included in the documents turned over to the committee as part of her response. The four-page long letter also asks her to further explain some answers the senators deemed incomplete.
Senate Judiciary Chairman Patrick Leahy, D-Vt., told reporters Wednesday that Republicans were applying a different standard than that used for John Roberts, who is now the Chief Justice. During the Roberts confirmation process, "thousands of documents weren't dropped off until a couple of days before the hearing and they weren't the least bit upset and didn't complain about him. But now they are complaining about a couple papers from her," Leahy said, emphasizing "him" and "her." He joked, "I don't think it's a double standard, I think it's a coincidence." A Leahy aide cited press reports that said Roberts turned over 75,000 documents from his time at the Justice Department and executive branch just days before his confirmation hearing.
Republicans have suggested they still hope for a delay in Sotomayor's confirmation, but Leahy said Tuesday that will not happen. Asked if the July 13 hearing date is set in stone, he said "yes."
The conservative Judicial Confirmation Network also issued a statement today from its general counsel, Wendy Long, charging that the incomplete questionnaire is evidence that the White House wants to rush through the nomination.
A panel discussion today hosted by the American Constitution Society grappled with the factors likely to shape how Sonia Sotomayor would perform as a Supreme Court justice. Her judicial background on the appellate court -- as well as her ethnic identity -- framed the debate, with panelists sparring over how much these factors could or should influence her judicial decision-making.
Wade Henderson, president of the Leadership Conference on Civil Rights, pointed to Sotomayor's extensive tenure on the 2nd Circuit Court of Appeals as the most appropriate basis to examine her judicial thinking. "The best evidence" of her future rulings can be "drawn from ones she's already made," Henderson said, not "her ethnicity or empathy or gender."
Ed Whelan, president of the Ethics and Public Policy and contributor to the National Review Online Bench Memos blog, isn't so sure Sotomayor's opinions offer the best window into how she could ultimately perform as a jurist on the high court. He said her speeches, most notably the one containing her "wise Latina woman" comment, offer a better glimpse into her philosophy than her written opinions from the bench, in which she is restrained by precedent. Appellate court judges are bound by precedent in a way that high court justices are not, Whelan reasoned.
New York University law professor Cristina Rodriguez agreed with Henderson that Sotomayor's appellate record should be the "most important evidence of how she would be as a judge" but agreed with Whelan that she is constrained by precedent and predicting how she'll rule as a justice based on that record is difficult. "She's going to have much more freedom on the Supreme Court," Rodriguez said. "We don't really know what kind of Supreme Court justice she will be. Most justices are very different at the end of their careers than what people expected them to be at the beginning."
On the issue of "empathy," Henderson noted that Samuel Alito wasn't criticized for saying in his confirmation process that he would be a more sensible jurist because of his immigrant background, and neither was Clarence Thomas when he said that growing up in poverty informed his judging. Henderson also pointed to the fact that Brown v. Board of Education was decided by nine white male justices as proof that race and ethnicity are not predictors of the way a justice will rule.
Rodriguez agreed, arguing that Sotomayor "is no less capable of seeing the other [the white male's] side of a discriminatory claim than a white male is capable of seeing a non-white man's side of a discriminatory case."
Whelan lauded Sotomayor's life story as "inspiring," but, he said, "the challenge is always to make sure that you're not indulging your experience in an improper way."
The panelists, moderated by Slate.com senior editor Dahlia Lithwick, commended Sotomayor's background as a trial court judge and noted that the only current justice with that level of experience is retiring Justice David Souter. "It's a weakness [not to have trial court experience] when you're crafting rules that need to be administered by trial judges," Whelan said. "It's a weakness when you're trying to understand what happened at the trial level."
• Per the White House, Sonia Sotomayor will meet today with Sens. Sherrod Brown, D-Ohio, Sam Brownback, R-Kan., Kent Conrad, D-N.D., Russell Feingold, D-Wis., John Kerry, D-Mass., Carl Levin, D-Mich., Joe Lieberman, I/D-Conn., Blanche Lincoln, D-Ark., and Jim Webb, D-Va.
• "After consulting closely with the White House, Senate Democrats announced Tuesday that hearings on" Sotomayor's nomination "would begin on July 13, infuriating Republicans who said that they had been blind-sided and that the timetable would recklessly short-circuit the review process," the New York Times reports.
• Senate Judiciary Chairman Patrick Leahy, D-Vt., "may have squandered whatever goodwill he'd developed with" new ranking member Jeff Sessions, R-Ala., "with the way he went about announcing the start date for Sonia Sotomayor's confirmation hearing," CQ reports.
• "Republicans were blindsided by Leahy's announcement but cognizant that they have few options short of moving to block votes on Sotomayor or hold up Senate business -- both politically unpalatable choices -- to delay the timetable," the AP reports. "Instead, they complained about the schedule and warned they would press their argument."
• "The GOP is still debating how to make" the "case against a nominee who, barring a disqualifying revelation, is expected to emerge from her Senate review as the newest justice," NPR reports. "But consensus is emerging over how to use Sotomayor's confirmation process -- and its three or four days of televised hearings -- as a jumping-off point to appeal to the moderate and independent voters whom the party has been rapidly shedding."
• "A legal counsel for a top Senate Democrat has been sending around" an e-mail that "seems to be the source for" the claim by Sen. Charles Schumer, D-N.Y., "that Republicans plan to shut down Judiciary Committee business in protest of the accelerated Sotomayor timetable," Politico reports.
Continue reading Top Nomination News.
UPDATED at 4:45 p.m.
CongressDailyPM has more on the political back-and-forth that will likely follow from today's announcement:
The committee hearing will likely take most of the week, with Republicans able to delay a vote after completion of the hearing for an additional week. That would give the Senate two weeks to confirm Sotomayor before the recess, although the chamber already faces a packed July calendar.Republican aides and senators suggested today that Leahy's announcement could be a bargaining tactic. He might later seek to win backing for a late July hearing by framing a short delay as a compromise, one aide said.
Original post:
Sonia Sotomayor's confirmation hearings will begin on July 13, Senate Judiciary Chairman Patrick Leahy, D-Vt., announced today.
In a statement on the Senate floor, Leahy hearkened back to the time line set for John Roberts in 2005. He said the agreement at that time was reached before the committee received answers from the nominee to its questionnaire. "If 48 days were sufficient to prepare for that hearing, in accordance with our agreement and the initial schedule, it is certainly adequate time to prepare for the confirmation hearing for Judge Sotomayor," Leahy said. Sotomayor was nominated on May 26 -- 48 days before July 13.
Democrats are hoping for a confirmation vote in the full Senate before the August recess, despite calls from Republicans to hold the process until September. See our timeline of past SCOTUS confirmations here.
"There is no reason to unduly delay consideration of this well-qualified nominee," Leahy said. "Indeed, given the attacks on her character, there are compelling reasons to proceed even ahead of this schedule. She deserves the earliest opportunity to respond to those attacks."
The July 13 date was a goal the administration and Democratic lawmakers have had in mind from the beginning. On May 27, the day after the nomination was announced, Democratic officials viewed the week of July 13 as the "earliest date that hearings could start, with the nomination heading to the Senate floor about two weeks later." Leahy said today, however, that his target date had been July 7 and that he pushed it back a week in deference to his Republican colleagues.
Vice President Joe Biden and representatives from eight national law enforcement groups gathered at the White House this morning in praise of Sonia Sotomayor's credentials on crime.
"Sonia Sotomayor's lifelong commitment to law enforcement is hard to argue with," Biden said. "She knows firsthand the brave work of the police force in fighting crime. She has worked together with the officers and detectives on the front lines, gathering evidence and building fact by fact, witness by witness, the cases that would result in putting criminals behind bars."
The groups, including the Fraternal Order of Police, Major Cities Chiefs Association and National District Attorneys Association, sent letters to Senate Judiciary Committee leadership praising Sotomayor, who if confirmed would be the only Supreme Court justice with trial court experience. Most of the groups focused on her work as an assistant district attorney in New York early in her career, and some highlighted her prosecution of Richard Maddicks, New York's "Tarzan murderer." (Sotomayor discusses the case in her Senate questionnaire, beginning on page 162 of this PDF.)
Veteran New York County District Attorney Robert Morgenthau was on hand to tout his former employee's credentials. "She is intelligent, hard-working, and has her feet on the ground," he said. "Like young Assistant District Attorney Sotomayor, Justice Sotomayor won't be pushed around, and she will do all she can to reach the right conclusion on each case."
Opponents on the right, meanwhile, are taking issue with some of Sotomayor's stances on law enforcement issues. Wendy Long, general counsel for the Judicial Confirmation Network, admonished the administration for hosting the event and put forth a critique of the nominee's record on crime.
"Today's event looks like a county sheriff election rally," Long said. "The purpose of this sideshow is to avoid facts in Sotomayor's actual record that indicate a soft-on-crime judge who twists the law, particularly law at the intersection of race and crime issues."
On Friday, the group had lashed Sotomayor for her 1981 remark that "capital punishment is associated with evident racism in our society."
My quick reaction to the July 13 timetable just announced by Senate Judiciary Chairman Patrick Leahy, D-Vt., is that Republicans probably don't have much basis for disputing it. As Leahy's statement details, the timetable he is using gives the Republicans about as much time as Democrats had to prepare for the hearings of John Roberts and Samuel Alito.
In addition, in the case of Roberts and to some extent that of Alito, it took time to obtain documents the nominees had authored as Justice Department officials during prior Republican administrations. Since Judge Sonia Sotomayor has never worked for the executive branch, it appears that all or virtually all significant documents written by her as a government official -- including her judicial opinions -- are already public, with the exception of her time as an assistant DA in New York City. (Internal memoranda Sotomayor has written for her colleagues or clerks while on the bench will presumably be considered confidential, as has been true of past nominees.)
Should the confirmation hearings begin according to Leahy's schedule, it would put Sotomayor on track to be confirmed by Aug. 7 at the latest -- unless Republicans stretch out the debate or filibuster.
• Although Sonia Sotomayor's "critics portray the Supreme Court nominee as a liberal activist, her colleagues and legal opponents in the early 1980s draw a picture of her as a zealous prosecutor whose experiences combating crime have made her, according to experts who have studied her legal decisions, something of a law-and-order judge, especially when it comes to police searches and the use of evidence," the Los Angeles Times reports.
• "Obama may have broken with history by nominating a Latina to the Supreme Court, but in another respect he followed the path of almost every president in modern times who has successfully placed a justice: he chose a nominee groomed in an Ivy League university," the New York Times reports.
• Politico has video of Sotomayor walking through the Capitol on crutches after breaking her ankle Monday.
• CNN.com reports that Sen. Mary Landrieu, D-La., signed Sotomayor's cast.
• Sototomayor would be the first high court justice "with type 1 diabetes. Sotomayor's health -- and her openness about her chronic illness -- has become a hot topic," the Miami Herald reports.
• NationalJournal.com reports on the similarities and differences between Sotomayor's potential questioning on Ricci v. DeStefano and John Roberts' handling of Hamdan v. Rumsfeld in 2005.
• The White House reports Sotomayor is meeting with the following senators today: Michael Bennet, D-Colo., Roland Burris, D-Ill., Maria Cantwell, D-Wash., Bob Casey, D-Pa., Jim DeMint, R-S.C., Mel Martinez, R-Fla., Ben Nelson, D-Neb., and Richard Shelby, R-Ala.
Commentary after the jump.
Continue reading Top Nomination News.
A new poll finds that while Americans in each of four geographic regions generally approve of Sonia Sotomayor's nomination, her support is weakest in the South.
The Marist Poll, which queried 1,028 registered voters June 1-3, found that Sotomayor had 44 percent approval and 35 percent disapproval in the Republican-heavy South, compared to 68/18 in the Northeast, 58/25 in the Midwest and 56/28 in the West.
Perhaps suggesting a mixture of discontent and disinterest, respondents in the South also had the highest percentage saying they were unsure: 21 percent. The left-leaning Northeast, which got a little bluer in the last presidential race and congressional elections, recorded the lowest disapproval rate at 14 percent.
Last week, this blog explored whether Sonia Sotomayor will answer questions directly about Ricci v. DeStefano, which the Supreme Court is set to rule on this month. The White House has indicated Sotomayor cannot answer questions on the case because of judicial ethics rules, but legal experts across the political spectrum aren't so sure.
Tom Goldstein, Supreme Court litigator at Akin Gump and founder of SCOTUSblog, pointed out that "this situation has come up before where a nominee decides a real significant and high-profile case that is going to come before the justices." Indeed, a similar issue came up in 2005 when John Roberts faced scrutiny over Hamdan v. Rumsfeld, which involved the use of military commissions for Guantanamo Bay detainees.
Roberts was part of a three-judge D.C. Circuit Court of Appeals panel that ruled in favor of the legality of military commissions in Hamdan; days after that ruling, President George W. Bush nominated Roberts to the high court. Roberts' confirmation hearings began about a month after the petition for a writ of certiorari regarding Hamdan was sent to the high court. Weeks after Roberts was confirmed, the court agreed to hear the case in its next term.
The issue of whether Roberts could talk about Hamdan arose then just as it has now with Sotomayor and Ricci. In his confirmation hearings, Roberts cited a specific passage of the Judicial Canons of Ethics, Canon 3A(6), that he said barred him from talking about pending cases, and he refused to answer senators' questions on Hamdan.
Roberts' refusal to answer didn't impede his confirmation. When the high court heard Hamdan, Roberts, then chief justice, recused himself as the court reversed the decision he had joined on the D.C. Circuit panel.
Of course, there are marked differences between the two scenarios. Arguably, there will be more pressure on Sotomayor leading up to her hearings than Roberts faced, since the high court hadn't even agreed to hear Hamdan at the time of his confirmation process.
Even though Ricci may still be pending after the court rules on it, the chances of Sotomayor seeing the case again would be slim. Nonetheless, when it comes to judicial ethics rules, even a slim chance based on unlikely scenarios and technicalities may provide ample reason for refusing to answer questions about a live case.
Sonia Sotomayor meets with Sen. Charles Grassley, R-Iowa, hours after breaking her ankle. (Credit: Alex Wong/Getty Images)
Sonia Sotomayor is on crutches after breaking her right ankle this morning, White House officials said. The Supreme Court nominee injured herself stumbling at LaGuardia Airport in New York and was treated at George Washington University Medical Center in Washington. Sotomayor is "looking forward to keeping her full schedule of meetings on Capitol Hill this afternoon," the White House said.
To Josh Patashnik of The New Republic, my latest column was "a real head-scratcher." On the magazine's blog, he refutes what he believes I argued -- that "the Supreme Court should ban racial preferences because it's what the majority of Americans want."
He concludes that "if any judicial philosophy qualifies as 'activist,' then the one Taylor proposes -- that the role of a court is to implement what it sees as the will of the public when the political branches fail to -- surely qualifies."
To the contrary, a decision reversing Ricci would not stretch the meaning of the Constitution in the slightest. Rather, as my column stated, it would "vindicate the central thrust of the 1964 Civil Rights Act and the Constitution's equal protection clause."
I respectfully submit that Patashnik's well-argued critique misapprehends my central points, in part -- I must confess -- because I muddied them up a bit by trying to pack too many ideas into too few sentences and failing to make clear the logical steps underlying my argument. For those interested in whether overturning Ricci should be defined as "judicial activism," I have posted a response to Patashnik in which I unpack those steps.
Once there, scroll down to see the comment.
• The National Law Journal reports on recent studies about judicial activism and applies them to Sonia Sotomayor's judicial record.
• "For the first time, the Supreme Court would include two minority judges, but ones who stand at opposite poles of thinking about race, identity and opportunity," the New York Times reported on Sunday. "Judge Sotomayor and Justice" Clarence Thomas "have walked parallel paths and yet arrived at contrary conclusions, not only on legal questions, but on personal ones, too."
• "Former first lady Laura Bush says she's pleased that President Barack Obama nominated a woman for the Supreme Court," AP reports.
• "The 'racist' label certainly isn't sticking, but partisan feelings still run hot when voters are polled about" Sotomayor, Politico reports.
• Roll Call (subscription) reports on one group's efforts to lobby for Sotomayor's confirmation by way of Facebook.
• The New York Times reports on Sotomayor's income and spending.
• Gun rights advocates are preparing to get involved in the Sotomayor debate, CQ reports.
Commentary after the jump
Continue reading Top Nomination News.
A perennial complaint during judicial confirmation proceedings in recent decades has been that many Democrats and Republicans, liberals and conservatives, have been guilty of flagrant use of double standards.
And they have.
The most common species is partisans' tendency to attack a nominee whose ideology they dislike for actions that the same partisans would applaud, or at least defend or dismiss as irrelevant, were the nominee's ideology more to the partisans' liking.
There are dozens, if not thousands, of examples. I will confine myself here to one especially pure paradigm, with compliments to a post by conservative expert Ed Whelan on National Review Online. Whelan's post compares the treatment of Judge Sonia Sotomayor with that of a lower-court nominee about whom I wrote a column in 2007.
(Disclosure: I, too, have recently been accused -- by far-left bloggers and others -- of applying a double standard by mildly criticizing then-sophomore Sonia Sotomayor's hyperbolic attack in 1976 on Princeton University for "institutional discrimination" while giving a pass in 2005 and 2006 to then-Judge Samuel Alito for legal memos he had written 20 years before. The criticism is bogus, as explained here.
The criticism also ignores the fact that in a 2006 television appearance, I mildly criticized Alito's testimony that he did not recall his brief association with the conservative Concerned Alumni for Princeton.)
Read Whelan's post after the jump:
Continue reading Southwick And Sotomayor: Judicial Nominees And Double Standards.
Sonia Sotomayor's nomination is a big lift for Democrats and something of a problem for Republicans, according to National Journal's new poll of members of Congress and top political bloggers.
Democratic Insiders and left-leaning bloggers were in close agreement on Sotomayor: A little under two-thirds of each group said her nomination would be a major benefit for their party, and just under one-third called it a minor benefit.
"We can't brag about having a representative democracy and not follow through on that. She will help build confidence in our judicial system," remarked one Insider who predicted a major benefit. Another, who saw a minor benefit, said Sotomayor "would provide much-needed balance to the seven Republican-appointed justices, as well as (and this is key) represent the fastest-growing and most hotly-contested demographic in the country."
Another common theme was political advantage over the GOP. Greg Dworkin of Daily Kos wrote, "The Republicans can't win on this issue, and they are already showing they can lose... lose Latinos, lose women, lose votes."
On the right, 33 percent of GOP Insiders said Sotomayor would be a minor benefit to them, while 41 percent said the nomination would do them minor harm. The divide was more pronounced among right-leaning bloggers, of whom 25 percent said it would produce a minor benefit and 58 percent a minor harm.
Those who predicted a benefit saw the opportunity to rally the right. "Conservatives awaken to Obama's judicial philosophy: one part empathy, two parts identity politics," said one Insider. But the flip side was evident in the responses of those who predicted harm. "Having some of the more vocal conservatives call her a racist was beyond dumb," lamented one Insider. Walter Olson of Overlawyered commented, "Her actual rulings don't bear out the 'scary radical' meme. That Senate Dems were equally unfair to Miguel Estrada will, along with $3.26, buy you a latte at Starbucks."
National Journal's Alexis Simendinger recently spoke with Dawn Cardi, a Manhattan lawyer and friend of Supreme Court nominee Sonia Sotomayor. Edited excerpts follow.
NJ: You and Sotomayor have been "first friends" for decades. Tell us something fun about her.
Cardi: I'll tell you a little, funny story. We play this amazingly competitive game of Scattergories every Thanksgiving [with my family]. One year, we picked her to be the judge. We fired her. We said, "You're never being the judge again. You're a terrible judge!" She was not listening to our arguments and she was ruling improperly, we thought, on the definitions for the words.NJ: What are your thoughts about the flap over your friend's role in the New Haven, Conn., firefighters case?
Cardi: What a bad rap, oh please. Give me a break. First of all, she didn't write the decision. Secondly, there were other judges who agreed with her. I have to believe, knowing her, there was precedent. Believe me, she's not out to hurt white firemen. Her family members are blue-collar people, come on! And, if this is the best [her critics] can come up with against her, bring it on!
NJ: Your friend says she's been lucky. How?
Cardi: There is this bit of luck, you know -- right place, right time. For example, when she was on the [State of New York Mortgage Agency] board, she met Benito Romano [the first Puerto Rican to serve as New York's federal prosecutor on an interim basis]. Then, when [Sen. Daniel Patrick] Moynihan was looking for a candidate [for the District Court in 1991], he went to Benito Romano, but he couldn't do it. So they asked him, 'Do you have other good candidates?' and she was one. Now that's luck, but it's also her ability. She stood out and impressed him.
Continue reading Some Friendly Insight On Sotomayor.
From National Journal's June 6 issue:
Conservative critics of Judge Sonia Sotomayor may be digging themselves into a hole if they keep hurling the tired old "liberal activist" slogan at her. The reason is that her supporters can plausibly retort that these days, the Supreme Court's conservatives are as activist as the liberals, especially on racial issues.
But conservatives and like-minded centrists can win the political debate if they focus not on buzzwords but on in-depth, civil discourse about the very big issue on which Sotomayor and her liberal supporters are most at odds -- and the conservative justices most in tune -- with the vast majority of Americans.
That issue is racially preferential affirmative action. By this, I mean the many forms of supposedly benign discrimination against whites and Asians that have been engineered over the past 45 years to advance blacks and Hispanics in the workforce, in college admissions, and in government contracting.
The long-standing public disapproval of such preferences was documented yet again by a major Quinnipiac University poll released on June 3, showing that American voters, by a lopsided margin, want them abolished.
Initiated in the 1960s as a temporary expedient, racial preferences may well become permanent if a Justice Sotomayor is eventually joined on the Court by a like-minded successor to one of the Court's conservatives. (The justice Sotomayor would replace, David Souter, also supports preferences.)
The now-famous New Haven, Conn., firefighter case is a perfect symbol of how the sort of preferences she supports can operate as raw racial discrimination.
Sotomayor voted with two other judges last year to uphold the city's denial of promotions to white firefighters who had studied hard for months and done well on a scrupulously fair test of job-related skills. But because no African-Americans did well enough to qualify, the city decided that nobody would be promoted, claiming that it feared a "disparate impact" lawsuit by low-scoring blacks. (See May 30 column.)
The Quinnipiac poll showed that respondents, by well over 3-to-1, want the Supreme Court to overturn the Appellate panel's decision. And although the poll shows that this has not yet hurt Sotomayor's popularity much, the case will become more salient later this month. The justices are widely expected to reverse the panel's decision.
None of this is to suggest that the nominee's racially preferential actions put her outside the liberal Democratic mainstream. Quite the contrary. Most liberals are addicted to racial preferences and identity politics.
But this puts liberal Democrats very far out of sync with the overwhelming majority of Americans, including us centrists. President Obama made noises during the campaign that seemed to suggest he understood this. But the Sotomayor nomination -- for all her inspiring accomplishments, powerful intellect, and devotion to the underprivileged -- looks like a strong Obama endorsement of the racial preferences and identity politics that she has supported.
Continue reading the column here.
• "The White House first contacted Judge Sonia Sotomayor about the possibility of being nominated to the Supreme Court three days before Justice David H. Souter announced his retirement and stayed in touch with her nearly every day afterward, according to documents sent to Congress on Thursday," the New York Times reports.
• ABC News has Sotomayor's exact response regarding her first contact with the White House.
• "Sotomayor told the Senate on Thursday that the White House never questioned her about cases or issues she might have to decide as a Supreme Court justice, a disclosure gleaned from reams of documents that reveal she has spoken repeatedly about how her gender and Latina heritage affect her judging," AP reports.
• "Sotomayor delivered multiple speeches between 1994 and 2003 in which she suggested 'a wise Latina woman' or 'wise woman' judge might 'reach a better conclusion' than a male judge," CQ reports.
• "Sotomayor once told a group of minority lawyers that she believed a delay in her confirmation as a federal appeals judge a decade ago was driven partly by Republican lawmakers' ethnic stereotypes of her, suggesting that the tensions surrounding her current nomination are hardly new to the New York jurist," the Washington Post reports.
• "It appears the White House enlisted some outside help in vetting" Sotomayor," the Blog of Legal Times reports. "In Sotomayor's Senate questionnaire... she revealed that Zuckerman Spaeder partner Leslie Kiernan, who specializes in congressional investigations, ethics and white-collar criminal defense, was among the first to interview the judge."
• "As a federal judge," Sotomayor "dealt with two important media issues -- copyrights and access -- and was reversed by higher courts when she ruled that freelance writers need not be compensated for online use of their published work, documents released Thursday show," AP reports.
• The Washington Post runs excerpts from several of Sotomayor's past speeches.
• "About three in 10 Americans say they have followed news about" Sotomayor "very closely and, for the most, part they like what they've learned about her more than they dislike, according to a Pew Research Center survey conducted May 29 - June 1," CQ reports.
• Sen. Susan Collins, R-Maine, says Sotomayor's "favorite Supreme Court justice is Benjamin Cardozo," CQ reports.
• "If one wants to understand Ms. Sotomayor's journey from boutique corporate lawyer to strikingly young federal judge, the eight-year stretch from 1984 to 1992 offers the best window into her maturation as a public figure," the New York Times reports. "Her service on the city's Campaign Finance Board was vigorous, as she joined decisions that challenged three present or future mayors of both parties."
Commentary after the jump.
Continue reading Top Nomination News.
From National Journal's June 6 issue:
President Obama's nomination of Sonia Sotomayor to the Supreme Court is compelling both parties to grapple with combustible issues of affirmative action and racial preference that have been submerged for most of the past two decades.
During the 1970s and '80s, programs to increase representation of minorities in public- and private-sector hiring, college admissions and government contracting ignited many of the most searing arguments in American politics and helped remake the Republican and Democratic electoral coalitions. But since then these issues have provoked only rare skirmishes, as a combination of political, economic and cultural changes have reduced their visibility and immediacy to all but a handful of activists on each side. "You had an environment where it wasn't on the top of the radar screen for anybody," veteran Republican pollster Tony Fabrizio said.
Now Sotomayor's nomination is forcing these issues back into the spotlight. And they have quickly proved as polarizing as ever.
The resurfacing of this debate creates something of a minefield for each party. Some Republicans worry that challenging Sotomayor too forcefully, particularly on issues inextricably intertwined with her ethnicity, could further accelerate the party's rapid decline among Hispanic voters -- two-thirds of whom supported Obama in the 2008 election. For that reason, even some conservatives believe that Republican senators will prove cautious about pressing Sotomayor on these issues when she appears before the Judiciary Committee. "I regret to say that it is probably going to be one or two short questions, that they have no appetite for this," said Linda Chavez, a senior civil-rights official under President Ronald Reagan who now chairs the Center for Equal Opportunity, a group opposed to racial preferences.
Conversely, some Democrats worry that identifying too closely with programs perceived as favoring minorities risks deepening their party's decline among white working-class voters, nearly three-fifths of whom rejected Obama in November. "To the extent these issues remain of low salience, then the risks to Democrats are limited," says William Galston, a Brookings Institution senior fellow, who has grappled with these questions since serving as Walter Mondale's issues director in the 1984 presidential campaign. "To the extent that the debate over this nominee pushes this issue back higher up the radar screen than it is right now... then there is an element of risk."
Subscribers to National Journal can continue reading the story here.
When President Obama announced Sonia Sotomayor as his pick for the Supreme Court, pundits warned Republicans of a trap -- attacking the first Hispanic nominee for the court could backfire, they said. That didn't stop former presidential candidate Tom Tancredo from going on cable news to decry Sotomayor's involvement with the National Council of La Raza, which he called a racist organization. Sotomayor herself was called a racist by Rush Limbaugh and then Newt Gingrich, who later withdrew his statement.
NationalJournal.com's Lucas Grindley spoke with La Raza's president, Janet Murguia, about whether these voices have harmed the Republican Party's standing among Hispanics, a growing part of the electorate.
"I think we've demonstrated a new level of engagement -- civic engagement and political engagement -- in this 21st century, and that's something that ought to be noted before people start spouting off falsehoods, like Tom Tancredo," she warned.
Murguia said critics like Tancredo are vestiges of a split in the GOP after the immigration debate, which she said has "paralyzed" Republicans' response to Sotomayor.
Read the interview with Murguia.
Federal Appeals Court Judge Sonia Sotomayor was first contacted by White House Counsel Greg Craig on April 27, four days before Justice David Souter's retirement was officially announced by President Obama, according to a completed questionnaire she submitted to the Senate Judiciary Committee this afternoon.
"I was contacted by Gregory Craig, White House Counsel, on Monday, April 27, 2009, with respect to the possibility of a future Supreme Court vacancy," Sotomayor wrote. "Between that date and the present, I have had frequent telephone conversations with Cassandra Butts, Deputy White House Counsel, including near daily phone calls after Justice Souter on May 1, 2009 announced his intention to resign at the end of the current Supreme Court term."
Craig's outreach to Sotomayor just days prior to Souter's announcement raises questions about when the White House first learned of Souter's plans. NPR's Nina Totenberg was the first to report Souter's retirement during the evening of April 30. An AP report earlier that day cited scuttlebutt in judicial circles that Souter may retire, noting that Souter had not hired a single clerk for the court's upcoming October term.
The White House did not immediately respond to a request for comment.
Senate Democrats appear to be giving serious consideration to GOP demands to delay Supreme Court nominee Sonia Sotomayor's confirmation vote until after the August recess in the hope that doing so will prevent Republicans from escalating the fight.
"I don't want anyone subjecting this good woman to criticism because of some arbitrary deadline I set," Senate Majority Leader Harry Reid, D-Nev., said today at a news conference.
While key Democrats including Judiciary Chairman Patrick Leahy, D-Vt., Majority Whip Richard Durbin, D-Ill., and President Obama have said they want a confirmation vote before Aug. 7, Reid has not echoed those calls.
Subscribers to CongressDaily can read the rest of the story here.
While Senate Judiciary Committee leaders sort out when Sonia Sotomayor's confirmation hearings will be held, what is there for the rest of us to do? Speculate, of course.
NationalJournal.com sought out several Supreme Court observers from a variety of fields for their take on when the full Senate will vote on Sotomayor and how many senators will vote to confirm her. The consensus? That Sotomayor will be confirmed before the recess and receive a comfortable number of votes. There won't be any teetering along the crucial line of 60 votes, either, the experts predict.
Below are predictions from: Tom Goldstein, founder of SCOTUSblog and Supreme Court litigator at Akin Gump; Slate senior editor Dahlia Lithwick; University of Utah law professor and Volokh Conspiracy blogger Paul Cassell; University of North Carolina law professor Bill Marshall; Santa Clara University law professor Bradley Joondeph; University of Richmond law professor Carl Tobias; Doug Kendall, founder and president of the Constitutional Accountability Center; Federalist Society Executive Vice President Leonard Leo; and National Journal's own Stuart Taylor Jr. In order to encourage frank and open speculation, contributors were given anonymity.
Continue reading Have A Seat: Experts Predict Confirmation.
Sonia Sotomayor's completed Senate Judiciary Committee questionnaire is available here. The appendix is here.
In a blog post this afternoon, White House Counsel Greg Craig underscored the administration's goal to "advance her nomination through the Senate as swiftly as possible." He wrote that she has completed the questionnaire, all 173 pages (and 130 appendix pages) of it, "faster than any Supreme Court nominee in recent history -- in just nine days." Craig said it took 13 days for John Roberts, 15 days for Ruth Bader Ginsburg and 30 days for Samuel Alito.
Craig reiterated the administration's goal to have her confirmed before September and implicitly called for a vote by the August recess: "This historically fast completion of the exhaustive questions is no small feat that will hopefully lead to her swift consideration by the Senate and enable her to be a member of the Supreme Court by the time they begin selecting cases in September."
Sotomayor has gone through Senate confirmation twice before: in 1992, after she was nominated for District Court in the Southern District of New York by President George H.W. Bush, and in 1998, after being nominated for the 2nd Circuit bench by President Bill Clinton. Per the Judiciary Committee's Web site, here are her completed questionnaires and transcripts of the confirmation hearings for both nominations:
• District Court: questionnaire and confirmation hearing
• 2nd Circuit: questionnaire and hearing
The Senate Judiciary Committee voted this morning to advance two of President Obama's appellate nominees, David Hamilton for the 7th Circuit and Andre Davis for the 4th Circuit. They now go to the full Senate for a final confirmation vote.
Hamilton, Obama's first nominee, was voted out along party lines, 12-7. Davis was 16-3, with Republicans Jeff Sessions of Alabama, Charles Grassley of Iowa and Tom Coburn of Oklahoma voting no.
A vote was also scheduled for Obama's other judicial nominee, Gerard Lynch, for the 2nd Circuit. But Sessions, the ranking member, requested that it be delayed for one week, according to a spokeswoman for Judiciary Chairman Patrick Leahy, D-Vt.
Carl Tobias, a professor at the University of Richmond Law School, said he was troubled by the political bent of the debate over the lower-court nominees, especially Hamilton. "It was important that it was a straight party-line vote for Hamilton," he said. "It's troubling. I wonder if that's a precursor for what's to come."
I hear that Keith Olbermann declared on MSNBC Tuesday evening that I am "runner-up" for his "hypocrisy award" and also "a fraud."
In case anyone takes Olbermann seriously, I identify below the false and misleading assertions of fact that he packed into his 60-second diatribe.
• Olbermann claimed that I characterized Sonia Sotomayor's 1974 letter to the editor accusing Princeton University of discrimination as a "decisive" reason to oppose her nomination.False. I wrote nothing close to that, and I do not see Sotomayor's letter as disqualifying. I have consistently indicated that debate about this nomination should focus mostly on her judicial decisions and speeches, which I have analyzed at length. My only critical comment in my brief post about her 1974 letter was that "some may see [it] as evidence that she was predisposed to look for the worst, not the best, in the institution that had afforded her such opportunities."
Olbermann quoted that sentence, but then falsely implied that I had been far more damning -- while omitting my statement in the preceding paragraph that others may see her success at Princeton as proof of her brilliance in overcoming the discrimination of which she complained.
• Olbermann claimed that Sotomayor's 1974 letter was "milquetoast and accurate" in complaining "about the lack of opportunities for Hispanics at her school."
False again. "Milquetoast?" Sotomayor's language -- which Olbermann carefully avoided quoting -- made Princeton sound a bit like a genocidal dictatorship. She accused the school of "institutional discrimination," of "total absence of regard, concern and respect for an entire people and their culture," and of "an attempt -- a successful attempt so far -- to relegate an important cultural sector of the population to oblivion."
"Accurate?" Sotomayor did not cite a single example of discrimination by anyone against a single Hispanic student. Nor did she cite a single specific opportunity that had been denied to any Hispanic student. Her entire complaint was that Princeton had no Puerto Rican or Chicano administrator or faculty member; had fewer students of those ethnicities than Sotomayor wanted; and had no "permanent" course dealing "in any notable detail" with the Puerto Rican or Chicano culture.
• Olbermann claimed that in 2006 I characterized then-Judge Samuel Alito's legal memos of two decades before as "too distant and irrelevant to matter" in the debate over his nomination.
Highly misleading. I never said or implied that Alito's old legal memos did not matter. I did write (as quoted elsewhere in Olbermann's rant) that Alito's critics had "ignored much evidence that his 15 years of steady, scholarly, precedent-respecting work as a judge tell us more about him than a handful of widely (and misleadingly) publicized memos that he wrote more than 20 years ago." I also showed that Alito's memos (unlike Sotomayor's 1974 letter) had been both widely publicized and grossly distorted by (among others) The Washington Post and The New York Times.
• Olbermann concocted his "hypocrisy" and "fraud" charges by juxtaposing his misrepresentation of what I wrote about Sotomayor with his misrepresentation of what I wrote about Alito.
Dishonest. My approach to analyzing both nominees has been the same: Old letters and memos are of some relevance but should not be distorted, and actions as a judge are much more relevant.
In smearing me as unfair to Judge Sotomayor, Olbermann ignored the fact that on the day she was nominated I praised her intellect and accomplishments (while expressing some concerns) on his own network (MSNBC), BBC, the "Charlie Rose" show, and "The Diane Rehm Show."
• "Sen. Lindsey Graham raised concerns Wednesday about Supreme Court nominee Sonia Sotomayor's temperament as a judge, becoming one of the first senators to do so. 'There's a temperament problem,' said the South Carolina Republican after emerging from a private meeting," CQ's Legal Beat reports.
• Following private meetings with Sotomayor, "two Northwest Democratic senators [said] they are impressed" with the nominee, the AP reports.
• The FBI "has completed its background report on" Sotomayor "and has delivered the report to the Senate Judiciary Committee," The Blog of Legal Times reports.
• The New York Times examines the "competing pressures Republicans face as they sort through how to handle the nomination of Judge Sotomayor, who is under attack from the right but is a symbol of pride for Hispanic Americans."
• "The unanimous, unsigned, one-paragraph opinion affirming a lower court's ruling in Ricci v. DeStefano may be the closest thing to an Achilles heel in" Sotomayor's "17-year appellate bench career," NationalJournal.com reports. "While interest groups, legal experts and politicians will spend the coming weeks disputing the case's significance, it will undoubtedly loom large in the lead-up to her confirmation hearings."
• "Two D.C. lawyers said at Georgetown University Law Center" Wednesday "that a controversial ruling on property rights could come back to hurt" the nominee, the Blog of Legal Times reports.
• "The five years Sotomayor spent in the Manhattan district attorney's office, say several friends and colleagues, shaped her as a criminal prosecutor and helped form her worldview as a judge," the Washington Post reports.
Continue reading Top Nomination News.
(Credit: Alex Wong/Getty Images)
Updated at 9:42 a.m. on June 4.
The unanimous, unsigned, one-paragraph opinion affirming a lower court's ruling in Ricci v. DeStefano may be the closest thing to an Achilles heel in Sonia Sotomayor's 17-year appellate bench career. While interest groups, legal experts and politicians will spend the coming weeks disputing the case's significance, it will undoubtedly loom large in the lead-up to her confirmation hearings.
So will Sotomayor explain her reasoning during the confirmation hearings or in her ongoing meetings with senators? Is she compelled to? Does she have a judicial ethical obligation not to? That's all up for deliberation, according to the White House and legal experts across the political spectrum.
In Ricci, Sotomayor joined a 2nd Circuit panel opinion supporting New Haven's decision to discard the results of a firefighter promotion exam because no black applicants qualified. The suit was brought by several white firefighters and one Hispanic firefighter who said they were discriminated against when the city passed them over for promotion.
For its critics, the Ricci decision triggers concerns about affirmative action and racial discrimination. And while it isn't uncommon for a busy appellate circuit to issue one-paragraph opinions, the one in this case leaves some court-watchers wanting more explanation, given the controversial issues at stake.
In a background briefing immediately following President Obama's nomination of Sotomayor on May 26, the White House signaled that she will not have to explain her reasoning about Ricci -- at least not as long as the case is still pending before the Supreme Court, which is expected to hand down its decision toward the end of the month.
The White House remained vague on just how Sotomayor might explain her decision even after the Supreme Court has ruled. When a reporter asked one of the senior administration officials at the briefing whether they had questioned her about Ricci, he replied that they "were very careful not to ask her about her ruling in that case.... Depending on what the court does, it could wind up back in front of her again, depending on whether or not she's confirmed and -- a lot of 'dependings.' But the bottom line is that's a case that she is a sitting judge on."
Continue reading Will Sotomayor Have To Talk About Ricci?.
Key senators remain at odds over the timing of Sonia Sotomayor's confirmation hearing after Senate Judiciary Chairman Patrick Leahy, D-Vt., and ranking member Jeff Sessions, R-Ala., failed to resolve the issue at a meeting this morning.
"We haven't reached an agreement," Sessions said, although he and an aide to Leahy called the meeting productive. "We had a good conversation and we agreed we'd continue to discuss it," Sessions said. But the two senators and Democrats and Republicans in general are at odds over a timetable. Democrats want a Judiciary Committee hearing and a Senate confirmation vote before the congressional recess scheduled to start Aug. 7. Republicans want the hearing after Congress returns in September.
Sessions and Senate Minority Leader Mitch McConnell, R-Ky., cite Sotomayor's thousands of opinions as an appellate judge in suggesting that senators need more than the average 60 days from nomination to the start of committee hearings for the last three Supreme Court nominees.
Subscribers to CongressDaily can read rest of the story here.
(Credit: Alex Wong/Getty Images)
First lady Michelle Obama today didn't miss an opportunity to help sell her husband's pick for the Supreme Court, Sonia Sotomayor. At a commencement ceremony today for the Washington Mathematics Science Technology Public Charter High School at Howard University, she cited the judge's story while describing how she herself felt as a high school graduate bound for Princeton University:
I was excited, but I was also worried. I was worried about whether or not I was ready, whether or not I would fit in. And I've realized since then that I probably wasn't alone in my fears, my worries. And then I read the story of Judge Sonia Sotomayor.
I don't know if you know about this phenomenal woman, but she's the president's nominee for the Supreme Court, and she's the first Hispanic woman to be considered for the position. The first. And she went to Princeton. And in the story, she said when she arrived at Princeton as a freshman -- and this is nine years before I would even think about going -- she said that when she stepped on that campus... she 'felt like a visitor landing in an alien country.' She said she never raised her hand her first year because, and this is a quote, she 'was too embarrassed and too intimidated to ask questions.' So despite all her success at Princeton -- and then she went on to Yale Law School, where she was at the top of her class in both schools -- and despite all of her professional accomplishments, Judge Sotomayor says she still looks over her shoulder and wonders if she measures up.
And when I read her story, I understood exactly how she feels. ... We all felt a little like you might right now. We all had doubts. We all have doubts. We all heard nagging voices, and sometimes we still do, asking us, 'Will we be able to compete in this new arena? Will I fit in? Am I really ready?' But in the end, we were all more than ready. Judge Sotomayor is more than ready.Video highlights follow after the jump.
Continue reading Michelle Obama: Sotomayor 'More Than Ready'.
• "As Judge Sonia Sotomayor made her first visit to Capitol Hill as a Supreme Court nominee, top Senate Democrats moved immediately on Tuesday to defuse conservative criticism" over her "wise Latina woman" comment, the New York Times reports.
• The Times also observes that Sotomayor's congressional meetings were "far more ceremony than substance."
• "The only area where there was any outward tension in the halls of the Capitol was over the timing of hearings and a vote," Roll Call (subscription) reports. "Republican Senators on Tuesday pushed to have the vetting occur in the fall, while Democrats made clear they were in no mood to draw out the process."
• Sen. Dianne Feinstein, D-Calif., a member of the Judiciary Committee, "said today that she believes" Sotomayor "has a 'real respect for precedent' on abortion," the Blog of Legal Times reports.
• "Within 24 hours of" Sotomayor's nomination, "an alliance formed solely to push the appointment had launched a six-figure ad buy on the major television networks," the Washington Post reports. "Conservative groups, by contrast, stumbled through days of disjointed messages and never mustered the resources for a major television campaign."
• Sotomayor "finds herself under intense scrutiny for the handful of times that the [Supreme] Court reversed her decisions," The National Law Journal reports. "Reversal is a common if sometimes painful part of life for appellate judges, but rarely has it been scrutinized so closely as last week."
• The Washington Post recounts how Judiciary ranking member Jeff Sessions, R-Ala., was denied a federal judgeship 23 years ago.
Continue reading Top Nomination News.
Most Americans disagree with Sonia Sotomayor's decision in the New Haven, Conn., firefighters case, but most also say her ruling doesn't make them more or less likely to support her nomination to the Supreme Court, a new poll finds.
The Quinnipiac University poll, released this morning, shows that 59 percent of respondents said Sotomayor's vote in Ricci v. DeStefano doesn't make a difference to them, while 28 percent say it makes them less likely to support her nomination and 7 percent say it makes them more likely. Republicans don't show overwhelming opposition based on this one case: 48 percent said it would make them less likely to support her, while 43 percent said it wouldn't make a difference.
At the same time, just over 70 percent of respondents -- including 59 percent of Democrats -- said the Supreme Court should order New Haven to promote the firefighters who scored high enough for promotion.
In Ricci, Sotomayor was part of a 2nd Circuit Court panel that supported the city's decision to discard the results of a firefighter promotion exam because no black applicants qualified for promotion. The suit was brought by several white firefighters and one Hispanic firefighter who claimed discrimination.
Looking at affirmative action more generally, 55 percent of respondents said preferences in hiring, promotions and college admissions should be abolished. When that question is broken down by political party and gender, Democrats are the only group with a majority supporting affirmative action (57 percent support, while 33 percent oppose).
The poll also asked respondents if they supported or opposed affirmative action with regard to specific groups: Hispanics, blacks, white women, people with disabilities, and gays and lesbians. Only the disabled registered support among more than one political group. Critics of the New Haven decision often point out that Frank Ricci, one of the firefighters who brought the claim, has dyslexia and had to put in extra effort in order to pass the exam.
The poll was conducted May 26 to June 1 and surveyed 3,097 registered voters around the country.
A leading conservative critic of Judge Sonia Sotomayor and two law professors have taken mild issue with Supreme Court litigator Tom Goldstein's claim on SCOTUSblog that his statistical analysis of 97 race-related decisions ruled on by Sotomayor showed no evidence "that Sotomayor allows race to infect her decisionmaking." Goldstein's analysis was highlighted on this blog yesterday.
Conservative Ed Whelan, of the Ethics and Public Policy Center, writes on National Review Online's "Bench Memos" blog that "Goldstein's review omits the important case of Brown v. City of Oneonta, 235 F.3d 769 (2d Cir. 2000), in which Judge Sotomayor joined an opinion dissenting from the denial of rehearing en banc that set forth what Chief Judge [John] Walker called 'novel equal protection theories that ... would severely impact police protection'" in cases involving black suspects. In another post, Whelan discusses the case and critiques the Sotomayor position at some length.
Jonathan Adler, of Case Western Reserve Law School, notes on The Volokh Conspiracy blog that "insofar as the [Goldstein] review excludes some cases, such as the en banc review of Hayden v. Pataki, a Voting Rights Act challenge to felon disenfranchisement in which Judge Sotomayor dissented (see here), it may present an incomplete picture."
And Goldstein's SCOTUSblog colleague David Stras, of the University of Minnesota, writes:
This is an extremely comprehensive study and I do think it is probative of her jurisprudence, but I disagree with Tom that it shows that it is 'absurd to say that Judge Sotomayor allows race to infect her decisionmaking.' The statistics that Tom describes are essentially descriptive, similar to the type of information you would get if you were to run the mean, median, range, standard deviation of a statistical sample.While I tell the Ph.D. students that I supervise on dissertation committees that descriptive statistics are extremely helpful, they can only accomplish so much.... What is more helpful is to actually read those opinions, as Tom suggests in another post. If the opinions that Tom read are correct on the law, then there really cannot be even a credible argument that Sotomayor is somehow biased in cases involving race.
In the White House press briefing today, press secretary Robert Gibbs said that Sonia Sotomayor's completed Senate Judiciary Committee questionnaire will be released sometime this week.
In response to a reporter's question about timing -- especially noting that Republicans are in no rush to vote according to any specific time table -- Gibbs hearkened back to previous SCOTUS confirmation processes.
"If you look at the time frame of number of days between the announcement of a Supreme Court pick and the hearings, for the last nine confirmed justices, it's been 51 days between the announcement and the beginning of the hearing," Gibbs said. "That would put her hearing sometime in mid-July, which would I think provide a timetable by which the due diligence of senators on both sides of the aisle can be accomplished."
(Credit: Mark Wilson/Getty Images)
Previewing her likely response to a key Republican criticism, Supreme Court nominee Sonia Sotomayor said her opinions will reflect the law, not personal opinions, in a meeting today with Judiciary Chairman Patrick Leahy.
"Of course, one's life experience shapes what your views are, but ultimately and completely as a judge you follow the law," Leahy said Sotomayor told him when he asked how her background will influence her decisions. He said she used the phrase "ultimately and completely."
Sotomayor has been ripped by Republicans like former House Speaker Newt Gingrich, R-Ga., for a 2001 speech where she said, "I would hope that 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."
Senate Republicans have been more restrained but expressed concern about the statement. The White House has said she regrets her choice of words.
The meeting with Leahy was one in a series that Sotomayor has today. With photo opportunities and media hordes on hand at each stop, the meetings appear to be ceremonial courtesies and preliminary chances for senators to question Sotomayor.
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Judge Sonia Sotomayor said in a 1996 speech at Princeton University's Third World Center (now called the Carl A. Fields Center) that when she arrived at Princeton in 1972 as her high school's valedictorian, "I found out that my Latina background had created difficulties in my writing that I needed to overcome. For example, in Spanish we do not have adjectives. A noun is described with a preposition.... My writing was stilted and overly complicated, my grammar and vocabulary skills weak."
To catch up with her prep school classmates, Sotomayor recalled, "I spent one summer vacation reading children's classics that I had missed in my prior education -- books like Alice In Wonderland, Huckleberry Finn and Pride and Prejudice. My parents spoke Spanish; they didn't know about these books. I spent two other summers teaching myself anew to write."
She taught herself well, graduating summa cum laude and winning the prestigious Pyne Prize in her senior year. The prize was for academic excellence and -- Judge Sotomayor said in the 1996 speech -- "because of my work with Accion Puertorriquena, the Third World Center and other activities in which I participated, like the university's Discipline Committee."
These honors reflect, among other things, a high grade on Sotomayor's 178-page senior thesis, La Historia Ciclica De Puerto Rico. The Impact Of The Life Of Luis Muñoz Marin On The Political And Economic History of Puerto Rico, 1930-1975.
We don't know what the exact grade was, as far as I've seen, but an award-winning history professor -- K.C. Johnson of Brooklyn College and CUNY Graduate Center -- who read it at my request concluded that "the thesis would probably receive an A/A minus or an A minus." (Johnson and I co-authored a 2007 book on the Duke lacrosse rape fraud.)
Continue reading Grading Sotomayor's Senior Thesis.
Former Sen. John Danforth has seen the ugly side of the Supreme Court confirmation process -- he fought bitterly for his friend Clarence Thomas against intense opposition from Senate Democrats and liberal groups almost two decades ago. Now, he says, it's time for the acrimony to end.
In an interview with National Journal's Kirk Victor, the Missouri Republican discussed the lessons of Thomas' 1991 proceedings and why the GOP should take the high road with Sonia Sotomayor now. Asked if Sotomayor's ethnicity has complicated things for Senate Republicans, Danforth said:
Yes, I think it has. But I would hope that even beyond that, Republicans would take the position that we have been witnesses to the worst kind of confirmation processes and that the time has come to stop it. It is just not worth doing it. We have seen how plain mean it can get and destructive of human beings. The fact that it is an Hispanic woman [creates] a political reason to have a more low-key approach to it, but I would hope that that would be a standard we would seek anyhow.
That wouldn't rule out substantive questions about the court and its role, Danforth said:
I would think that if Republicans did it right, they would have some well-designed, non-repetitious questions on how do you see the role of the judiciary; what do you understand original intent to mean; what do you understand stare decisis to mean; what do you understand the role of courts in deciding issues, narrow or broad. Those are all interesting questions on the role of the court. But I think that's as far as they should go.
Read the full interview here.
• "Sonia Sotomayor is getting her first chance to make an impression on senators who will vote on her nomination to the Supreme Court, with a marathon set of Capitol Hill meet-and-greets that kicks off what could be a long debate," AP reports. "Sotomayor's schedule" today "is packed with roughly half-hour meetings -- known as 'courtesy calls' -- that are as important for the courtly tone they set for the debate as they are for offering a few moments of candid conversation with the nominee."
• Sotomayor continues "to put the finishing touches on a detailed Senate questionnaire in advance of her courtesy calls to Senate leaders today," the Washington Post reports.
• The nominee "probably wouldn't bring a big change to the court's ideological balance, but in at least one area, she would likely make an immediate difference: oral arguments," the Wall Street Journal reports. "If confirmed, Judge Sotomayor would arrive on a high court where conservatives have tended to dominate oral arguments in recent years."
• "Conservatives are demanding that Senate Republicans take a harder line on" Sotomayor, Politico reports. "In a letter to be delivered to Senate Republicans today, more than 145 conservatives -- including Grover Norquist, Richard Viguerie and Gary Bauer -- call for a filibuster of Sotomayor's nomination if that's what it takes to force a 'great debate' over judicial philosophy."
• "The letter was organized by the Manuel Miranda, a former adviser on judicial issues to former Senate Majority Leader Bill Frist, Republican of Tennessee," the New York Times reports. "Mr. Miranda now runs the Third Branch Conference, a coalition of conservatives focused on judges."
• "Most of the 34 of Sotomayor's Yale Law School classmates interviewed for" a Yale Daily News article "attested to her practicality and intelligence both as a student and a jurist."
• The idea for a letter praising Sotomayor signed by 45 of her law clerks "sprang up spontaneously among the clerks, and as soon as the far-flung group could be reached, the letter developed and caught on quickly," the Blog of Legal Times reports.
Continue reading Top Nomination News.
Sonia Sotomayor will meet with 10 senators -- the Senate leadership and several members of the Judiciary Committee -- on Tuesday.
The Supreme Court nominee will visit with Majority Leader Harry Reid, D-Nev.; Minority Leader Mitch McConnell, R-Ky.; Majority Whip Richard Durbin, D-Ill.; Minority Whip Jon Kyl, R-Ariz.; Judiciary Chairman Patrick Leahy, D-Vt.; Judiciary ranking member Jeff Sessions, R-Ala.; and Sens. Charles Schumer, D-N.Y., Orrin Hatch, R-Utah, Dianne Feinstein, D-Calif., and Kirsten Gillibrand, D-N.Y.
Rachel Brand, who helped the Bush White House prepare John Roberts and Samuel Alito for their Supreme Court confirmations, said the substance of these "courtesy" meetings is almost entirely up to the senator. "These meetings tend to be highly idiosyncratic.... If you know something about the senator, you could guess what [the meeting] is going to be about. It's impossible to generalize."
But they're crucial nonetheless, she said.
"It's a really important part of the process," Brand said. "Both in terms of shaping the senators' views of the nominee and also for the administration to get a feel for what kinds of things the senators are concerned about."
Right-leaning interest groups don't have a specific strategy lined up for Sonia Sotomayor's confirmation process. They concede that President Obama has put them in a political tough spot by nominating a Hispanic female justice and that the prospects of filibustering or forcing a withdrawal are slim to none. But conservative opponents still see a substantive battle to be fought, and as several GOP senators signaled on the Sunday talk shows, they're in no rush to have her confirmed.
"I don't think you can stand by and see a nominee go through a nomination with what she has said publicly about the role of judges," said one conservative D.C. lawyer who helped the Bush White House prepare John Roberts and Samuel Alito in 2005. "I don't think this is one where Republican senators can just confirm someone 96 to 3 or 4 and say, 'we're going to fight this fight on the next one."
Conservatives have roundly criticized Sotomayor, both for comments she's made in the past (notably her "wise Latina woman" comment and her remark that the "Court of Appeals is where policy is made") and for her more recent judicial work, particularly Ricci v. Stefano, in which New Haven firefighters' promotions were discarded because no black applicants made the cut. These issues haven't seemed to faze the administration or left-leaning groups about Sotomayor's competence or her chances of being confirmed.
But groups on the right are wondering what else might be out there. They are "playing a wait-and-see game," said Robert Alt, a senior legal fellow at the Heritage Foundation and deputy director for its Center for Legal and Judicial Studies. "We're looking at a thumbnail sketch of Sotomayor. Much more will come out of the hearings. If more of the same comes out of the hearings -- more statements that express this sort of extreme view of identity politics, this view that judges can be making policy from the bench -- it will make it much more difficult for red-state Democrats to support her nomination. This is a question that only time will tell."
Continue reading Conservative Groups See Tough Road Ahead.
Who made Supreme Court nominee Sonia Sotomayor's ethnicity an issue? Ward Connerly, the founder of the American Civil Rights Institute, argues that it was President Obama.
Connerly, who has mounted several successful ballot initiatives combating racial preferences, told NationalJournal.com's Lucas Grindley that by seeking out a Latina nominee and narrowing the field of candidates, Obama has made it "very difficult to say that this person would be a good jurist."
As for Sotomayor's remark that "I would hope that 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," Connerly said that even if every identity were represented on the court, such an approach would still be inadvisable:
If we're relying on a person's experiences, then the law itself is subject to the collection of experiences that the nine judges on the court would bring to the arena. And if you carry that into every judicial setting, then the law becomes whatever any collection of jurists want it to be at any given moment based on their recollections of their experiences on the cases at hand. How can we have any kind of a civil society when the law is going to be interpreted in such a subjective manner?
Even Sotomayor herself is poorly served by the introduction of identity politics into the process, Connerly said.
"The appointing power really does marginalize the person being appointed because then they have to carry all of this baggage of whether they are truly qualified for that appointment," he said. "... She's going to have to prove it. That's really unfair."
Read the full edited transcript here.
The concerns that I and others have raised about Judge Sonia Sotomayor's now famous "wise Latina woman" speech, and about her vote last year to uphold race-based discrimination in promotions among New Haven firefighters, raise this question:
Has Sotomayor exhibited a pattern of favoritism to minorities in race-related cases during her more than 10 years on the U.S. Court of Appeals for the 2nd Circuit?
The answer is no, according to Tom Goldstein of Akin Gump's Washington office, a leading Supreme Court litigator. He has published on SCOTUSBlog, in two installments, the results of his own study of the 97 race-related cases Sotomayor has helped decide on the appeals court.
After summarizing statistics indicating that Sotomayor is not especially prone to rule for plaintiffs in discrimination cases and rarely disagrees with her 2nd Circuit colleagues in such cases, Goldstein concludes:
"Given that record, it seems absurd to say that Sotomayor allows race to infect her decisionmaking."
Others may look at the same cases and draw different conclusions. And Goldstein's analysis does not altogether dispel my concerns that once on the Supreme Court, Sotomayor's sympathies for particular groups may skew her views of the facts and the law. See my past columns here, here and here.
For the best detailed dissection of Sotomayor's 2001 speech, by Steve Chapman, read his column in the Sunday Chicago Tribune.
But with respect to Sotomayor's overall record in race-related cases on the appeals court, Goldstein's analysis is reassuring. Her critics now have the burden of showing either that Goldstein's analysis is wrong or that the nominee's record on the appeals court is not a valid predicter of what she would do on the Supreme Court.
• "Republican senators on the Sunday political talk shows strove... for a respectful but skeptical stance on Supreme Court nominee Judge Sonia Sotomayor, saying that she needs to explain her positions but distancing themselves from two notable conservatives, former House Speaker Newt Gingrich and talk-show host Rush Limbaugh, who have labeled her as a 'racist,'" the Washington Post reports.
• "Republican Senate leaders won't call" Sotomayor "a racist. But they're fine with" Limbaugh and Gingrich "playing the race card to rile up an out-of-power GOP," the AP reports.
• "Pity the U.S. Supreme Court nominee about to face 19 senators, each with a set of issues, some predictable, some not, and many far removed from the day-to-day work of a justice -- or for that matter, a judge or lawyer," the National Law Journal reports. "The predictable menu of issues is already being written for" Sotomayor "by senators and special interest groups."
• "A confirmation vote before the August recess is unrealistic, the Judiciary Committee's top Republican said Sunday," CQ Politics reports. "'I think that's rushing it,' Jeff Sessions, R-Ala. said on NBC's 'Meet the Press.'"
• The Washington Post looks back on Sotomayor's activities in college, law school and the early start of her legal career.
Commentary
• "President Obama's nomination" of Sotomayor "has been widely hailed as a triumph for Latinos. But," Gregory Rodriguez contends, "it could just as likely spell the end of the very idea that there is such a thing as Latino America at all."
• "Republicans won't be able to block" Sotomayor's "confirmation, expected in early August if not before, but they will be able to exploit a number of issues that cut across all political lines - especially the issue of reverse discrimination in the workplace," Donald Lambro maintains.
• "Clarifying her judicial philosophy requires going beyond generalizations and clichés, avoiding litmus test political issues and focusing on the process by which Judge Sotomayor would interpret and apply the law to decide cases," explains Sen. Orrin Hatch, R-Utah, in Politico.
Continue reading Top Nomination News.
