If confirmed, Sonia Sotomayor will change the dynamics of the Supreme Court more than most people think, agreed the panelists at a discussion held in Washington this morning and hosted by the American Constitution Society.
"A new justice changes the dynamic of the way the justices react to each other," said Paul Clement, former solicitor general and current partner at King & Spalding. He predicted Sotomayor's presence would be especially consequential in business cases, where retiring Justice David Souter "has not been a reliable vote for the so-called liberal wing of the court."
John Payton, president and director-counsel of the NAACP Legal Defense Fund, echoed Clement's thoughts about the dynamics of the court. "You really are going to see a changed court," he predicted. "That will be evident in not just outcomes in specific cases. She is not Justice Souter, because everybody is different. I think it will change oral arguments."
The panel was held to review the high court's recently-concluded term, but inevitably, Sotomayor's nomination crept into the discussion. Still, she wasn't mentioned as much as she might have been: "You know you're at an ACS discussion and not a Federalist Society discussion because every other sentence doesn't begin with 'Sotomayor's ruling in Ricci' or 'Sotomayor's ruling in that case or this case,'" quipped panelist Tom Goldstein, a Supreme Court litigator with Akin Gump and the founder of SCOTUSblog.
Goldstein went on to argue, as he has elsewhere, that Sotomayor's confirmation hearings will be a non-event because at this point her confirmation seems inevitable. "I don't expect a thermonuclear war over Sotomayor," he said, predicting a final vote somewhere in the ballpark of 75-25.
Speaking more broadly about the court in the Obama era, Andrew Pincus, a partner at Mayer Brown and professor at Yale Law School, wondered "about a conservative court confronting a much more liberal Congress and administration -- how that interaction works with respect to deference and whether the court will feel pushed or push itself to adopt constitutional limits."
The panelists also made sure not to forget Souter in the discussion. David Frederick, a partner at Kellogg, Huber, Hansen, Todd, Evans & Figel who argued three cases in front of the high court this term, praised the "gentlemanly" way Souter posed questions and said the justice "brought to the court a strength of character and civility that our justice system needs. The court is all the worse with his retirement."
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