President Obama said he was "very happy" with the 68-31 vote by which Sonia Sotomayor was confirmed, with nine Republicans breaking to join a unanimous Democrat conference -- minus the ailing Edward Kennedy, D-Mass. -- to support the nominee.
But according to a CNN/Opinion Research poll released Wednesday, only 27 percent of Republicans said the Senate should confirm Sotomayor while 58 percent opposed the nomination. And just 22.5 percent of Senate Republicans eventually voted to confirm her.
How bipartisan was the vote? A closer look at which senators voted yes or no reveals that most who are seeking re-election or election to another office voted against Sotomayor's nomination.
Of the GOP senators standing for re-election next year, all 12 voted against Sotomayor. Sens. Robert Bennett of Utah and John McCain of Arizona are facing primary challenges from conservative rivals. Although they have no declared challengers, Sens. Johnny Isakson of Georgia, Lisa Murkowski of Alaska and David Vitter of Louisiana may wish to preemptively discourage any potential primary opponents.
Of the seven Republicans likely to retire between now and 2010, four voted yes -- Sens. Christopher (Kit) Bond of Missouri, Judd Gregg of New Hampshire, Mel Martínez of Florida and George Voinovich of Ohio. Voting no were retiring Sens. Sam Brownback of Kansas, Jim Bunning of Kentucky and Kay Bailey Hutchison of Texas. Brownback and Hutchison intend to run for governor in their respective states.
In other words, four of the nine GOP senators who voted yes will be retiring in 2010.
Continue reading Parsing The GOP's Sotomayor Vote.
In the latest edition of Hotline TV, John Mercurio and Steve Shepard give their take on Sonia Sotomayor's confirmation and talk about who else came out on top.
(Credit: Julie Abramson)
Before David Souter's confirmation hearings in the summer of 1990, he so worried conservatives that White House Chief of Staff John Sununu had to mount a last-minute campaign assuring them that the New Hampshire judge would be a reliable vote for the right. During his testimony, Souter frustrated Republican Sen. Charles Grassley by telling him that "courts must accept their own responsibility for making a just society."
Sonia Sotomayor hasn't rattled liberals in quite the same way, but she, like Souter, didn't spend much time at the confirmation hearings defending her nominating party's judicial philosophy. Is there any chance these two tight-lipped jurists could share a propensity for disappointing their supporters?
Probably not, legal scholars say. What Sotomayor said during her confirmation "would not disable or disqualify her from taking a bolder position or a more progressive position if and when she becomes a justice," said Robert O'Neil, who clerked for Justice William Brennan and is founding director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia.
Read the complete story and view the latest in our ongoing political caricature series.
More than 200 interest groups have submitted testimony in support of Sonia Sotomayor -- eclipsing the next-most-praised Supreme Court nominees 10 times over. Robert Bork and Clarence Thomas had previously shared the record, with 21 interest groups in support of each judge during their nomination.
Just eight groups submitted testimony to the Senate Judiciary Committee in opposition to Sotomayor, compared with 66 filing against Samuel Alito in 2005. The last nominees chosen by a Democratic president, Bill Clinton, didn't trigger nearly as much interest group attention: Ruth Bader Ginsburg motivated 10 groups to submit testimony and Stephen Breyer only six.
The chance to put the first Latina on the high court has no doubt contributed to the unusual level of interest, as did Obama's popularity on the left and the Democrats' first chance at a Supreme Court appointment since 1994. But the heightened involvement from interest groups is also a product of convenience: More than they have in the past, groups added their names to joint letters of support, some of which were signed by dozens of organizations. "It's easy to attach themselves to a letter," said Jeffrey Segal, a political science professor at Stony Brook University who compiled the data included in this graph. "There's no cost for them to do that."
The increased politicization of the Supreme Court confirmation process also contributes to the numbers. "It's an easy way for groups to rev up their base and to send out letters asking for support," Segal said. "It becomes a way for these groups to raise their visibility."
Editor's note: This is the fifth in a series examining historical data from a database compiled by Northwestern law professor Lee Epstein and her colleagues.
By at least one measure, Sonia Sotomayor is likely the most liberal Supreme Court nominee in more than 40 years.
Sotomayor's ranking is a preliminary finding by Stony Brook University political science professor Jeffrey Segal, who parses newspaper editorials to score high court nominees on their perceived qualifications and ideology.
Sotomayor has a perceived ideology of 0.79 on the 0-1 scale, with 1 being most liberal. Her qualifications register at 0.8, with 1 being most qualified.
The ranking system, known as the Segal-Cover score (Albert Cover was Segal's original partner developing the system), evaluates nominees dating back to the Franklin Delano Roosevelt administration. The newspapers Segal uses are the New York Times, Washington Post, Wall Street Journal, Chicago Tribune and Los Angeles Times.
The ideology score "is a little higher than I would have expected," he said, possibly because of all the focus on the ruling of Sotomayor's 2nd Circuit panel in the polarizing discrimination case Ricci v. DeStefano. "These scores represent to some extent a fixture on what's current, not necessarily what the court would see," he added.
Ruth Bader Ginsburg has the most liberal ideology score of anyone currently on the court; she was at 0.68 as a nominee. Stephen Breyer is second at 0.48. Sotomayor's presumed score would be the most liberal since Thurgood Marshall scored at 1.0 in 1967.
Sotomayor's 0.8 qualifications score was less of a surprise, Segal said. "The only real question about her qualifications" was whether she would be biased as a judge, stemming from concerns over her "wise Latina woman" remark, he said.
Segal will continue looking through editorials until the full Senate votes on Sotomayor, expected later this week. Segal said, though, that only new information would drastically change his preliminary findings. He cautioned that these scores only measure perceptions of nominees and don't predict how they would rule on the high court.
From this week's issue of National Journal:
It was the man who never set foot in Hart 216 who came out on top. President Obama got exactly what he wanted out of his nomination of Sonia Sotomayor to the Supreme Court: a fairly quick, relatively smooth, sort-of-bipartisan process that spent minimal political capital. But the White House's gain could also be the Democratic Party's loss.
With an overwhelming majority in the Senate, a still-popular president, and a nomination that wasn't expected to tilt the Court's ideological balance, the stage seemed set for a full-throated defense of liberal judicial philosophy from Democrats on the Judiciary Committee. According to a White House aide, Obama's goal for the hearings was simple: get his nominee confirmed with bipartisan support. That meant it was in the administration's best interest not to provoke a larger discussion of judicial vision.
Democratic committee senators "had a president and nominee who did not defend or promote the progressive judicial philosophy that they both previously articulated and embraced in speeches and writings," said Leonard Leo, whom George W. Bush tapped to help lead outside groups in supporting the nominations of John Roberts and Samuel Alito. "They had their hands tied and could not make the kinds of statements they would normally make."
During questioning by panel member Jon Kyl, R-Ariz., the nominee herself illustrated the gulf between the White House and Senate Democrats most clearly when she repudiated Obama's analysis of judging. Kyl asked Sotomayor during her confirmation hearings whether she agreed with the empathy standard laid out by then-Sen. Obama in opposing Bush's nomination of Roberts as chief justice in 2005. "No, sir," Sotomayor responded. "I wouldn't approach the issue of judging in the way the president does.... I can only explain what I think judges should do, which is, judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law."
Rachel Brand, who as an assistant attorney general in the Bush administration was also involved with the nominations of Roberts and Alito, said that Sotomayor's direct denial "indicates a belief that it would be hard to get confirmed" if she had embraced Obama's empathy standard. "It's not something that resonates with the American public or senators," Brand said.
Subscribers to National Journal can continue reading this story here.
On Wednesday, Judiciary Committee Chairman Patrick Leahy derided the National Rifle Association for announcing that it would be scoring senators' votes on the Sonia Sotomayor confirmation. "I would hope all senators would make up their mind based on what they saw or what they heard and not what any pressure group on the either right or left comes up with," the Vermont Democrat said at a press conference, which was co-hosted by Senate Majority Leader Harry Reid, D-Nev., in coordination with progressive interest groups.
But whether or not the NRA is pulling the strings, the Second Amendment is clearly one of the biggest concerns for Republicans voting against Sotomayor. Nineteen of the 26 Republicans who have already pledged to vote "nay" have mentioned the Second Amendment, gun rights or, more specifically, Sotomayor's ruling in Maloney v. Cuomo in official remarks or statements explaining their decision. Not surprisingly, senators from more conservative states were among those who placed the issue front and center in their remarks, including John Thune of South Dakota, Mike Johanns of Nebraska, and Roger Wicker of Mississippi.
The GOP Judiciary members who are voting against the confirmation didn't focus on the Second Amendment as much as other senators in their statements. John Cornyn of Texas, Charles Grassley of Iowa and ranking member Jeff Sessions of Alabama mentioned the Second Amendment only fleetingly, and Orrin Hatch of Utah didn't mention it at all. This suggests to some observers that those senators who are more knowledgeable on the issue rightly see the Second Amendment as less of a concern. "It seems that many Republicans are stretching for reasons to vote against her," said Marge Baker, executive vice president of the left-leaning People for the American Way. "And that's despite the fact that a number of Republicans on the Judiciary Committee concluded that her jurisprudence is totally within the mainstream."
As for the NRA's influence on the other side of the aisle, the votes of a handful of Democrats, especially those hailing from red states, could be telling. Ben Nelson of Nebraska, and Mark Begich of Alaska have both indicated they are still undecided. Blanche Lincoln of Arkansas, up for re-election in 2010, is one senator conservative activists have said could be vulnerable to NRA attacks.
So how much of a threat will the NRA's score be to senators up for re-election either in 2010 or later? "That's not a question for us to answer," said NRA spokesman Andrew Arulanandam. "That's a question for them to answer." He added that it's "relatively early innings in this session of Congress" to start debating how much influence this vote will have compared to other issues that may come up.
Brian Darling, director of Senate Relations at the conservative Heritage Foundation, said Sotomayor's confirmation is "not going to be an easy vote" for Democrats hailing from Western states. "If you get one Western state Democrat to vote no on Sotomayor, that could spell trouble for the nominee," he said. Darling also predicted that recent gun rights legislation widely supported by Democrats could "trickle down" and affect senators' confirmation votes. He pointed specifically to a recently rejected amendment proposed by Thune, which would have made it legal to carry concealed weapons across state lines. Twenty Democrats voted in favor, including Nelson, Lincoln and Begich.
Sonia Sotomayor's supporters -- and even some detractors -- have praised her for her long judicial career. What stands out in particular is that she would become only the second justice to join the Supreme Court since 1937 with any federal district court experience at all, according to a NationalJournal.com analysis.
Sotomayor's 17-year career on the federal bench ranks just ahead of Samuel Alito's 16 years and Stephen Breyer's 14 years among the 43 nominees of the last 72 years, as shown in the graph below. Six of those years were spent in district court, more than the two logged by Justice Charles Evans Whittaker, who joined the Supreme Court in 1957.
Among failed nominees, Nixon pick G. Harrold Carswell had 11 years of federal trial court experience. Johnson selection William Homer Thornberry had two years.
Many legal experts and sitting judges at the appellate and district levels have applauded this part of Sotomayor's resume; they say the high court too often sets precedents without taking into serious consideration how they should apply at the lower levels.
If Sotomayor is appointed, the justices with double-digit years of experience on the federal bench would make up the majority for the first time in the decades covered by this analysis. In addition to Alito and Breyer among current justices, Ruth Bader Ginsburg and Anthony Kennedy both had served 13 years before joining the Supreme Court. Retiring Justice David Souter served a mere handful of months on the federal appeals bench.
Editor's note: This is the fourth in a series examining historical data from a database compiled by Northwestern law professor Lee Epstein and her colleagues. Check back for more context and analysis on Sotomayor.
"My days at Princeton... were the single most transforming experience I have had. It was here that I became truly aware of my Latina identity." -- Sonia Sotomayor in a 1996 speech at Princeton
Does Sonia Sotomayor have a racial bias? The question informed much of the Republican line of query in her recent Senate hearings. Sen. Jeff Sessions of Alabama and his GOP colleagues on the Judiciary Committee pointed out Sotomayor's membership in a Puerto Rican activist group and her now-infamous speeches on diversity. (The phrase "wise Latina" was uttered no fewer than 27 times over the four days, by one blog's count.) Sotomayor's assent on the 2nd Circuit Court of Appeals panel that rejected Frank Ricci's discrimination suit -- which the Supreme Court later overturned -- created even more fodder for her skeptics.
What confounded Sotomayor's critics, despite her record of active involvement in identity politics and head-scratching comments, was her mainstream jurisprudence. Sotomayor is widely considered to be a liberal, but her record "has not been radical by any means," Sen. Lindsey Graham, R-S.C., remarked. This seeming disconnect was the topic of a recent article in Newsweek. As Graham asked Sotomayor during the hearings, "Who are we getting here?"
Understanding Sotomayor's activism requires looking at the place where her lifelong passion for minority rights took root. "My days at Princeton... were the single most transforming experience I have had. It was here that I became truly aware of my Latina identity," Sotomayor said in a 1996 speech at her alma mater. Although Sotomayor had been one of the few minority students at Cardinal Spellman High School, a Catholic school in the Bronx, it was her experience as one of the first women and Latino students at Princeton that seemed to have galvanized her advocacy.
Princeton was one of the last Ivy League universities to accept women, and it was one of the last schools north of the Mason-Dixon to integrate -- and when it did, it was only on the behest of the federal government in the midst of World War II. When Sotomayor arrived at Old Nassau in the fall of 1972, her class was only the fourth to be coed, and men outnumbered women by more than three to one. Furthermore, the school had just begun admitting racial minorities above token numbers.
Princeton was an alienating place for racial minorities, according to Sotomayor and many of her classmates. Sotomayor recalled in 1996, "Although I had some experiences with discrimination in high school, it was limited, and I was protected by my family and friends in the close cocoon we had around us." The difference between Spellman and Princeton, said Sotomayor, was that "when I came to Princeton... that cocoon was gone."
The university was still predominantly white, and for many minority students, arriving at Princeton was a culture shock. The school lacked an institutional support system for minority students. The patrician eating clubs and faculty mentors that white students depended on, but were alien to minority students, further deepened their sense of otherness. Although they rarely experienced overt racism, many minority students say they felt unwelcome. "I remember seeing graffiti on some of the construction sites referring to the coeds as dogs," said Margarita Rosa, a fellow Puerto Rican classmate. Minority students were also aware of the angry alumni letters that flowed into campus. For Rosa, the antipathy "permeated" the campus. "I felt like I was expected to prove myself -- to prove that I had a right to be there," Rosa said.
Continue reading Sotomayor's Princeton Awakening.
Sonia Sotomayor's confirmation hearings last week may have topped the news cycle among the mainstream media, but the blogosophere and social media sites were far less impressed.
According to numbers compiled weekly by Pew Research Center's Project for Excellence in Journalism, the hearings didn't make it into the top seven stories among blogs and social media sites, including Twitter. The top seven includes topics that are linked in at least 5 percent of stories on social media sites.
Sotomayor "was such a main part of the dialogue in the mainstream media you would think there would be some pick-up," said Amy Mitchell, deputy director of the Project for Excellence in Journalism. "On the other hand, what folks in social media are drawn to are things that can incite change, impassion them.... Neither of those things really existed in these proceedings."
So, what were bloggers and other social media types focusing on? Sarah Palin, who grabbed a whopping one-third of all linked stories. Meanwhile, Iran dominated the Twitter platform for the fifth week in a row.
Despite a lack of controversy and an emerging consensus that she will be confirmed, Sonia Sotomayor's confirmation hearings dominated the news cycle last week.
The hearings grabbed the largest portion of the news hole -- 22 percent, according to numbers compiled weekly by the Pew Research Center's Project for Excellence in Journalism. This amount falls just short of the 24 percent garnered by the nomination announcement in the last week of May, but it comes after several weeks in which Sotomayor did not make it into Pew's news index at all.
"When you look at the content of what the news coverage was about, it does suggest there was a certain amount of sense on part of the news media saying that 'this is something we need to cover historically,' " said Amy Mitchell, deputy director of the Project for Excellence in Journalism. "They devote staff and [space in] the news hole whether there are significant headlines that come out of the day's proceedings or not."
Continue reading Hearings Top The News Cycle.
From National Journal's July 18 issue:
Republicans on the Senate Judiciary Committee knew going into the hearings on Sonia Sotomayor's nomination to the Supreme Court that they had a weak hand. Given their party's 60-40 disadvantage in the Senate, her confirmation has never been in much doubt -- unless she had a "complete meltdown," as Sen. Lindsey Graham, R-S.C., acknowledged on the first day of the hearings.
So, with the final outcome near-certain, the seven Republicans on the panel this week chose to emphasize the high stakes at issue in considering Supreme Court nominees, took potshots at President Obama for suggesting that judges must have "empathy" in grappling with difficult cases, and tried to reinforce public doubts, reflected in some polls, about what the GOP portrays as Sotomayor's out-of-the-mainstream views.
Even before the nominee was sworn in to testify on July 13, committee Republicans pledged to be respectful but, at the same time, to pull no punches. The obvious political reality is that they had to thread the needle by aggressively questioning Sotomayor to mollify their conservative base, while avoiding looking like bullies and further damaging their party's deteriorating position with Hispanics, the fastest-growing demographic group among voters.
"At the end of the day, Supreme Court nominations are what ring the bell for social conservatives," said Scott Reed, a Republican strategist who managed Bob Dole's 1996 presidential campaign. "Supreme Court nominations are for life; they are vitally important."... "That firefighters' issue is big," he said. "That hits every lunch-pail guy and woman in this country. It breaks the commonsense rule -- doesn't make common sense."
But Bill Greener, another veteran GOP strategist, worried before the hearings that if Republicans were perceived as attacking Sotomayor -- the first Latina nominated to the Supreme Court -- the party would face an even deeper hole among Hispanics, who voted 2-1 for Obama in last year's presidential race. "If the Republican Party achieves a level of weakness among Hispanics the equivalent to what exists among black voters," Greener said, "I just don't see how the numbers add up" to win a national election....
By midweek, Greener applauded the Judiciary Committee Republicans for their "very respectful and somewhat circumspect" approach and their willingness "to put on the table serious items, but to make certain it's done in a way that's respectful." Clearly, R-E-S-P-E-C-T was a well-circulated GOP talking point this week.
Subscribers to National Journal can continue reading the story here.
Amy Harder gets Stuart Taylor Jr.'s take on this week's hearings.
Various Republican senators and allied commentators have suggested that Judge Sonia Sotomayor's "wise Latina" statements are passive assertions of racial or ethnic bias. But there's a simpler explanation: Sotomayor may simply have been rallying female, Latino and African-American lawyers to her cause.
"I was trying to inspire," she told senators about the speeches, in which she sometimes pointed to herself as a model for breaking through barriers.
In her long climb up toward the Supreme Court, Sotomayor routinely tailored her stump speeches for each audience. For example, in 1998, when she took her seat on the 2nd Circuit Court of Appeals, she pitched her speech at two very different audiences. For her supporters in the courtroom, she declared that "hundreds of lawyers, many of whom are in this room today, not only sent letters but called upon their personal contacts to assist in my confirmation process.... The outpouring of affection and support I received from the legal, women's and Hispanic communities in New York, Puerto Rico and nationally has been, quite frankly, overwhelming. Without this combined effort, this day would never have happened."
But for her judicial peers in the courtroom, she emphasized the example set by her hard-working mother. "To this day, I can remember how devoted she was to getting her [nursing] degree. My Mom was like no student I knew. She got home from school or work and literally immersed herself in her studies, working until midnight or beyond, only to get up again before all of us. She was a straight-A student who took the nursing test and passed all five parts on her very first try. With an example like that, none of you have to wonder why my brother and I had no choice but to do well in school."
Continue reading On The Stump With Candidate Sotomayor.
From National Journal's July 11 issue:
Sonia Sotomayor has repeatedly said that female and minority judges should over time issue more-compassionate and caring courtroom decisions than white males, but a review of two decades' worth of legal and scientific literature shows that gender and race may not have a significant influence on verdicts. In fact, research finds little difference in decisions made by men and women even though those decisions can be reached in different ways by each gender.
Judge Sotomayor has over the years consistently presented her view that gender and race certainly could, and probably should, affect the way judges make decisions, if only because women and minorities are likely to have had different experiences than their white male counterparts. In a 2001 speech at the University of California (Berkeley), she said, "Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague [U.S. District Court Judge Miriam] Cedarbaum, our gender and national origins may and will make a difference in our judging."
Subscribers to National Journal can continue reading the story here.
From National Journal's July 11 issue:
Sonia Sotomayor may be the one in the hot seat at her confirmation hearings next week, but that's not where the real spotlight will be shining. To Senate Republicans and conservative interest groups, these confirmation hearings are less about Sotomayor as the next Supreme Court justice and more about, well, everyone else.
They're about President Obama, red-state Democrats, the GOP base, and future high court nominees. After all, barring any major slipups, Sotomayor is almost guaranteed to be confirmed. That was the consensus from the outset among Democratic senators and liberals; and in the past few weeks, GOP senators and conservatives have begun to agree. Their focus has since shifted to finding other ways to make the most of the hearings.
Subscribers to National Journal can continue reading the story here.
President Obama has just as much at stake in Sonia Sotomayor's confirmation hearings as she does -- if not more -- legal experts say in a video presentation by NationalJournal.com's Theresa Poulson.
(This is the second in a series of four videos examining key players in Sotomayor's hearings. The series will also look at the role of conservative interest groups and senators. The first video was on abortion opponents.)
Democrats shouldn't necessarily relax if Sonia Sotomayor wins confirmation to the Supreme Court. There's the matter of how long she'll be there.
In a NationalJournal.com analysis of Supreme Court nominees going back to the Franklin Delano Roosevelt administration, justices picked by Democrats have served about five years less on average than those picked by Republicans. Not counting current members of the court, GOP nominees have served about 20 years each, compared to about 15 for Democratic picks.
At 55, Sotomayor is close to the average of all nominees since 1937: about 53.5 years. But those closest to her in age have tended to serve less time yet. There have been 11 justices who were 53 to 57 as nominees; three are on the current court (John Paul Stevens, Stephen Breyer and Samuel Alito) and two left the court early (Arthur Goldberg to become ambassador to the United Nations, and Abe Fortas in a controversy over a past honorarium). The other six averaged about 14 years on the court.
Of course, these numbers don't take an individual's own circumstances into account, and they can't account for the many reasons why justices might step down. In 1942, longtime FDR ally James Byrnes left after 16 months to become Roosevelt's "assistant president."
But Democrats seeking good news in these stats can point to two numbers. The average age for a justice leaving the court going back to the FDR era is 71. And if you don't count Alito or John Roberts, the two newest justices, every confirmed nominee going back to Thurgood Marshall has served at least 15 years.
Editor's note: This is the third in a series of posts examining historical data from a database compiled by Northwestern law professor Lee Epstein and her colleagues. Keep checking back for more context and analysis on Sotomayor.
In a video presentation, NationalJournal.com's Theresa Poulson examines the role that abortion could play in Sonia Sotomayor's confirmation hearings, and how this debate could unfold in the future if she is confirmed.
(This is the first in a series of four videos examining key players in Sotomayor's hearings. The series will also look at the role of the White House, conservative interest groups and senators.)
Turnover on the Supreme Court has led to increasingly conservative nominees and likely a more conservative court, according to an analysis of nominees' ideological ratings dating back to 1937.
This study measures a nominee's ideology according to the Segal-Cover score, a 0-1 system that uses major newspapers' editorials to gauge perception of a nominee (0 is the most conservative). The graph below expands on Tuesday's analysis of nominees since the Franklin Delano Roosevelt administration.
The green line tracks the average score of nominees serving on the court since 1950, the first year the entire court was made up of justices in the S-C system. The chart begins a shift from liberal to middle-of-the-road to conservative at the same time Republican presidents began to make most of the picks, starting with Richard Nixon.
The trend underscores the notion laid out by several SCOTUS observers since Justice David Souter announced his retirement: that no nominee President Obama was likely to pick would shift the court's conservative slant. In a review of the high court's term today, the Washington Post describes "a patient and steady move to the right led by Chief Justice John G. Roberts Jr., one that is likely to continue even if" Obama "is successful in adding Judge Sonia Sotomayor to the high court -- and perhaps two others like her."
Since the scores are based on editorials written before the nominee is confirmed, the system is by no means foolproof. Assumptions or bias in the media could skew the results, and justices sometimes change while serving. John Paul Stevens and Harry Blackmun scored as safely conservative nominees, but both became known as strong liberals. Souter himself scored as more conservative than either Sandra Day O'Connor or Anthony Kennedy but later joined Blackmun and Stevens in the court's liberal bloc.
Jeffrey Segal, a political science professor and half of the duo that developed the system, told NationalJournal.com last month that the ideology ratings do "an excellent job of predicting justices' overall liberalism or conservatism once they're on the Supreme Court." He said he's found 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 has said Sotomayor would likely score near Ruth Bader Ginsburg's 0.68. That's comfortably in the liberal side but not far from the median in the S-C system.
Editor's note: This is the second in a series of posts examining historical data from a database compiled by Northwestern law professor Lee Epstein and her colleagues. Check back next week for more context and analysis on Sotomayor.
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.
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.
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.
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.
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.
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."
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.
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."
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(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?.
From National Journal's May 30 cover story:
The New York Yankees, the baseball team that Sonia Sotomayor says she adores, was among the first to use the squeeze play to great and showy effect nearly a century ago, occasionally even getting two runs with one well-executed maneuver. Senators shouldn't be surprised, then, that President Obama and his Supreme Court nominee know how to piece together victories.
As things stood at week's end, the president had the support of his own team to get Sotomayor touching home plate by the fall. Beginning next week during private meetings with senators, the 54-year-old Appeals Court judge will effectively begin the real "hearings" process, when Republican senators question her in one-on-one conversations that will shape their opinions well before the Judiciary Committee gavels open her confirmation hearings. They'll ask about empathy and her decisions during 11 years on the Appeals bench, and they'll look for any chinks serious enough to disqualify the first Hispanic, who is also only the fourth woman nominated to the Court....
Conservative activists outside the Senate lost no time assailing Sotomayor as a closet liberal well beyond the mainstream who would eagerly try to make law once confirmed. But Senate Republicans, most of them far from Washington during the Memorial Day recess, kept their instant assessments in check while studying Sotomayor's record and weighing whether a vote to oppose a Hispanic woman would haunt them politically. Some Republican advocacy groups and activists conceded that defeating Obama's choice would be tough.
"The administration wants to put a squeeze on senators and make it politically hard to oppose her," said Wendy Long, general counsel for the conservative Judicial Confirmation Network. "We want to make sure senators evaluate her without regard to demographic consideration, honestly and fairly on the merits."
"Good luck" was the refrain from Senate Democrats who are gearing up to help the White House secure the nomination of a woman who has been on liberals' short list of Supreme Court candidates for years. While they're at it, Democrats are trying to pit social conservatives against GOP moderates -- factions already arm-wrestling over their party's direction in the wake of two disastrous election cycles.
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With the Senate gearing up for its third look at Judge Sonia Sotomayor in 17 years, the politics of past votes will factor in the debate, with Republicans suggesting they will find fault with her rulings.
But absent embarrassing revelations during the confirmation process, Republicans have acknowledged they likely lack the votes to block her ascension to the Supreme Court.
"Senate Republicans will treat Judge Sotomayor fairly," Senate Minority Leader Mitch McConnell, R-Ky., said. "But we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences."
Nearly every Republican member of the Judiciary Committee, which will hold confirmation hearings, used a similar script. Judiciary ranking member Jeff Sessions, R-Ala., for example, said panel Republicans would examine her "previous judicial opinions, speeches and academic writings to determine if she has demonstrated the characteristics that great judges share: integrity, impartiality, legal expertise and a deep and unwavering respect for the rule of law."
Sotomayor was nominated as a district court judge by President George H.W. Bush in 1992 and to the 2nd U.S. Circuit Court of Appeals in 1997 by President Bill Clinton, winning Senate confirmation both times.
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Abortion has re-emerged as a hot issue, and if history is any indication, it will get even hotter when President Obama makes his Supreme Court nomination.
Obama -- who first spoke out for a nominee with "empathy" before a Planned Parenthood audience in 2007 -- rekindled conservatives' wariness over the weekend with his speech at the University of Notre Dame, calling for "fair-minded" dialogue and "common ground."
Charmaine Yoest, president of Americans United for Life, found Obama's speech at Notre Dame troubling in light of the names at the top of his short list. "He continues to want to use rhetoric to describe a mythical common ground while at the same time pursuing a real radical actual agenda," Yoest said. Her group recently released a report criticizing possible nominees such as Solicitor General Elena Kagan, appellate judges Sonia Sotomayor and Diane Wood, Homeland Security Secretary Janet Napolitano and outgoing Georgia Supreme Court Chief Justice Leah Ward Sears.
Across the aisle, neither the Planned Parenthood Action Fund nor Democrats For Life would speculate on how the issue will play out with no nominee yet announced. Democrats For Life Executive Director Kristen Day said she would "like to see someone a little more moderate on the abortion issue," but declined to comment specifically about Obama's short list. "When he picks his nominee, we'll talk to pro-life Democrats and formulate an opinion about where we are," Day said.
New polling shows Americans shifting to the right on abortion. On Friday, Gallup reported that more Americans consider themselves "pro-life" than "pro-choice" for the first time since the polling company began asking the question in 1995. In addition, new numbers from the Pew Research Center show support for legal abortion falling. Gallup concluded that "the dominant position on this question remains the middle option, as it has continuously since 1975: 53 percent currently say abortion should be legal only under certain circumstances."
Continue reading Abortion Debate Intensifies, Awaits Nominee.
It's the calm before the Internet storm. Interest groups, influential bloggers and others are anxiously waiting to see who President Obama will pick as his first Supreme Court nominee after Justice David Souter announced his retirement May 1. Once the news is out, they will rally their online supporters and rake through the nominee's court decisions on controversial topics like gay marriage, abortion and affirmative action to speculate on how he or she will influence the high court for decades to come.
"Every chink in the armor, every flaw, gets magnified" on the Internet, said Tony Mauro, a reporter with the National Law Journal who has covered the Supreme Court for nearly 30 years. The Web makes what would otherwise be normal criticism or flaws seem "like deal breakers," he said.
In the last battle over a Supreme Court nominee, conservatives roundly criticized President Bush's choice of Harriet Miers and forced her to withdraw; liberals then attempted to filibuster Samuel Alito's nomination, charging that he was too far to the right. As the legal and political blogs have grown in influence since 2005, Mauro said, the mainstream media, in turn, has acknowledged their higher profile. It only seems natural that the process will be much more intense this time around, he said.
Indeed, the Web has woven itself into nearly every part of politics and policy since the 2008 presidential campaign.
"It really depends on who the nominee is," said Nan Aron, president of the left-leaning Alliance For Justice. "We'll have some idea once the announcement is made to really gauge how much public interest there will be in the nomination. But, having said that, this is the time -- when there's a Supreme Court opening -- to reach out to as many people across the country and educate them about the importance of judges and federal judges at all levels." AFJ sends out an e-mail to its online supporters at least once a week, Aron said, and the group will undoubtedly take to its Justice Watch and Nonprofit and Foundation Advocacy blogs once a nomination is announced.
Americans United For Life says it has already seen an overwhelming response from its online supporters in discussions anticipating a nominee. "We had to upgrade the back end of our computer operation because we've seen such an outpouring of interest being more active on these issues," said Charmaine Yoest, the anti-abortion group's president. Her organization echoes a common concern on the right that Obama will nominate a judicial activist who will trigger a "dramatic shift in public understanding of the role of the courts," Yoest said. "When you go down the path of accepting judicial activism as the norm, that dramatically increases the amount of power judges have."
Yoest said her group will be ready to go right out of the gate once a nominee is announced. She said its "robust" online advocacy program, Facebook community and new IT system will mean "better, faster and cheaper" communication with supporters. "We're ready whenever they bring it out," she said. "There won't be a huge delay."
Continue reading Online Rumble A Precursor To Offline Battle.
For all the speculation surrounding President Obama's choice to replace Justice David Souter on the Supreme Court, there's been less attention paid to the judges he's already nominated to lower courts. In his first 100 days, Obama put up three federal court of appeals nominations. And, while the circuit courts lack the glamour of the Supremes, Obama's picks so far offer one of the few guides on how he wants to shape the court system.
David Hamilton, Obama's first judicial nominee, was nominated on March 17 to sit on the U.S. 7th Circuit Court of Appeals. Though he has faced criticism from conservative groups, his nomination has advanced steadily through the Senate so far. The other two, Gerard Lynch for the 2nd Circuit and Andre Davis for the 4th Circuit, were announced April 2, with far less outcry.
"The first nominee is always going to be subject to the greatest scrutiny," said Doug Kendall, president of the progressive Constitutional Accountability Center.
Obama's low-key approach so far is in keeping with his picks, whom legal experts describe using words such as "safe," "cautious," "careful" and "moderate."
"You would have to describe them as fairly cautious choices," Kendall said. "He has nominated three sitting federal judges who have a decade or more experience on the federal bench.... There won't be a huge fight over their confirmations."
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Continue reading Obama's Early Judicial Picks Reflect Caution.
