Tuesday, June 16, 2009

Beyond Ricci: Experts Predict Hearings' Focus

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.

Q. Which case, other than Ricci, will (or should) receive the most scrutiny at the hearings?

Didden v. Port Chester

• "I don't know what case should, but I think the Didden property rights case will."

• "It suggests a possible lack of respect for property rights."

• "No Supreme Court case in the last decade has provoked more grassroots public reaction than the Kelo eminent domain case. To the extent that Republicans can cast her in the same light as someone willing to let cities take private property for someone else's private gain, it will hurt her."

• "Unless Arar v. Ashcroft comes down before the hearings and Sotomayor participates in the decision, which is not very likely."

Maloney v. Cuomo

• "The decision she is likely to get questioned about is Maloney v. Cuomo, 554 F.3d 56 (2009), in which she joined the panel in a per curiam decision holding that the Second Amendment does not apply to the states and thus that a New York law that prohibited the carrying of a chuka stick was valid. She's likely to get questioned on it because gun rights advocates are up in arms about the case, and the question of whether the second amendment applies to the states is almost certain to come before the Court in the wake of last term's Heller decision."

• "Not only does this raise a hot button issue (gun control) but it also brings in broad jurisprudential questions such as the role of precedent in constitutional decisions and which rights in the Bill of Rights are so fundamental that they should be construed as applying to the states through the due process clause of the 14th amendment."

Pappas v. Giuliani

• "The Senate should scrutinize her decision in Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), in which she dissented from a decision that upheld the police department's firing of an officer for engaging in racist speech outside of work. Her reasons for dissent could shed some light on her understanding of the First Amendment, as well as her conceptions of equality. I by no means think the decision was wrong, just extremely interesting."

• "I think that Giuliani case about the racist cop may get a lot of play. Its sort of a perfect storm case: race plus empathy plus cops plus free speech. Something for everyone!"

Other

• "Hayden v. Pataki, a case involving the Voting Rights Act. A potential Supreme Court's ruling striking down a key portion of the Act in Northwest Austin v. Holder would make voting rights a huge topic and Judge Sotomayor's statement in dissent in Hayden that 'a judge's job is to follow the law, not question its plain terms' is emblematic of her approach to judging."

• Entergy v. Riverkeeper, "because generally questions will be raised about how often the Supreme Court has reversed Sotomayor, which I think is a red herring, and a 2009 example is Entergy, as may be Ricci."

• "I do not believe that the hearings should be about whether the nominee decided some case wrongly (or, as is the case in the debate about Ricci, differently than some Senators would have done). It should be about the nominee's judicial philosophy -- her sense of when judges should defer to the legislative branches, and when they should overrule elected officials. You cannot get that from any single case."

Q. Which senator will question Sotomayor the most critically?

Jeff Sessions

• "He will view it as part of his leadership responsibilities."

• "He's the new ranking member and will want to show his toughness to the party faithful and he's from a safe seat and a state without a huge Hispanic population."

• "He is the new ranking member and must prove himself and [John] Cornyn because he always has to be out front."

Other

• "[Jon] Kyl and Cornyn might ordinarily be the most aggressive questioners. The question is whether either will hold back to avoid offending the large Hispanic electorate in his state. I expect that [Lindsay] Graham may be pretty aggressive."

• Sens. Kyl and Tom Coburn, "because they have been the most outspoken critics of Sotomayor on the committee thus far, and I see no reason why that would change."

• "There is no real likely candidate. As we have already seen, Sessions will be moderated by his position as the ranking Republican, Cornyn and Kyl by the heavy Hispanic populations in their states. I don't see the other Republican members of the Committee taking a lead here so that means somebody not on the Committee and not from a state with a major Hispanic bloc. What will likely motivate someone to lead the charge is the desire to shore up support in the Republican base so that may mean John Thune who has already signaled that he might use the nomination for this purpose with his creation of a nominations website."

• "I think Sen. Graham has some dog in this fight with Sotomayor, exhibited in his 'bully judge' comments. I think Sen. Cornyn will ask very hard questions as well."

• "John Cornyn (most critical questions) and Tom Coburn (most vocally opposing her)."

• "I'm not that confident of my answer, but I'd say [Charles] Grassley, based on comments he has made in the media."

(Previous expert polls on the nomination can be found here and here.)