Why Obama Picked Sotomayor

Seth Stern is a legal affairs reporter for Congressional Quarterly. When he's not covering judicial nominations, he writes about other issues that include criminal justice, intellectual property, and relations between Congress and the Courts. Stern is also co-authoring a biography of Supreme Court Justice William J. Brennan Jr. to be published by Houghton Mifflin. Stern previously reported for The Christian Science Monitor in Boston. He has a bachelor's degree from Cornell University's School of Industrial and Labor Relations, a master's degree from the Kennedy School of Government and a J.D. from Harvard Law School.

This discussion is over, but please read the transcript below.

• Sue in Florida: Did Obama consider any non-Hispanic women?
• Seth Stern:

  Yes.

  Three out of the four finalists were non-Hispanic women: Elena Kagan, the Solicitor General and former Harvard Law School dean, Janet Napolitano, the Homeland Security Secretary and former Arizona governor and Diane Wood, a judge on the U.S. Court of Appeals for the Seventh Circuit.

• JB from Haymarket: How will the administration handle the comments about the superior judgement of Hispanic women? Gibbs fumbled it on Wednesday. Will they have a better answer down the road?
• Seth Stern:

   I think you're referring to her 2001 speech at Berkeley 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.” 
  

  
  

  While Newt Gingrich and Rush Limbaugh aren't doing the Republicans much good by implying she's a racist,  Sotomayor is certain to get questions about the speech at her confirmation hearings and one-on-one meetings with GOP senators. So she and her White House handlers will need to come up with a good explanation for what she meant.
  

• Liz from New York: Would overturning Roe v. Wade at this point be considered judicial activism?
• Seth Stern:

  Depends who you ask.

  Supporters of the Roe decision - including many senators - have argued that Roe has become a "super precedent," that has become so ingrained that overruling it would be inappropriate. Opponents say it's a badly reasoned decision based on bad law and should be overturned.

  Activism really is in the eye of the beholder.

• Joe from Pottstown, Pa.: Who do you suppose will ask the meanest questions at the confirmation hearing?
• Seth Stern: Admittedly, more people watch confirmation hearings for Supreme Court justices when there's the possibility of a fight rather than to hear about a nominee's jurisprudence. That's why Clarence Thomas' hearings were so closely watched and why the most memorable moment of Samuel Alito's hearings was when his wife left the hearing room in tears. But this time around, Republican senators will be very careful to avoid appearing like they're bullying the first Latino and only third woman nominated to the Court.
• Rohno in Phoenix, AZ: One can already see in his cabinet selections and now in this Supreme Court Nominee that Barak Obama will go down in history as a president of and for the people. With Sotomayor the highest court will more closely resemble the US population (female, hispanic, and disabled if juvenile onset of diabetes is a disability). Who do you think will be the next justice to retire and what are the chances of seeing a gay person nominated to replace that nominee (someone such as Steven Lachs for example)? Thank you.
• Seth Stern:

  President Obama could have as many as three vacancies to fill on the Supreme Court in his first term.

   

  Earlier this year, Ruth Bader Ginsburg disclosed she's undergone treatment for pancreatic cancer and John Paul Stevens is 89 years old. Compare that to George W. Bush and Bill Clinton, who each only had two vacancies during eight years in office.

  
  The possibility of the first gay justice was talked about in the weeks since David Souter announced his retirement. Two names were most often mentioned: Pamela Karlan, a Stanford Law School professor and Kathleen Sullivan, the former dean of the same school.

• Kate in Virginia: Do you know how long it will take to get Sodormayor confirmed?
• Seth Stern:

  Democrats and Republicans agree that Sotomayor should be confirmed in time for the start of the court's new term at the beginning of October.

   

  The Obama Administration would like to have the process wrapped up before Labor Day and Senate Democrats have expressed a preference for being finished before Congress leaves for its summer recess in August. But Republicans have already made clear they don't want to feel rushed and may push to hold it over into September.

   

  To see how long this process has taken for other justices, check out this interactive graphic on filling Supreme Court vacancies.

• Frank from Alexandria: Now that President Obama has selected Judge Sotomayor, and assuming she has a reasonable shot at confirmation, and assuming Ruth Bader Ginsberg will retire in the near future, do the runners-up become the likely short list for her seat? Or are there indications that once this selection is confirmed that the criteria for a new judge changes?
• Seth Stern:

  Of course, anyone on the short list this time around is a strong contender for the next opening.

  Stephen Breyer was a runner-up when President Clinton selected Ruth Bader Ginsburg and then wound up getting tapped the second time around. But circumstances can change and the factors taken into account by the White House may shift over time, too.

  Though, if Ginsburg was to leave the court, it seems likely that President Obama would once again want to pick a female justice, given that she's currently the only one on the court.

• Rhoda from White Plains N.Y.: I have seen contradicting statements about her philosophy on judicial activism. What is your take on how she feels on this subject.
• Seth Stern:

  Her attitude about judicial activism has become a big topic because of a video circulating online and shown on cable news of her telling a Duke University audience in 2005 that “the court of appeals is where policy is made.”

   

  To conservative critics, that's evidence she wants to make law rather than interpret it.

   

  Her defenders say the opinions she's written during more than 10 years as an appellate judge are evidence that she believes in judicial restraint.

• Isaac from Iowa: Judge Sotomayor does not have a record when it comes to the issue of abortion, and according to news reports, President Obama did not ask about it when he interviewed her. Is it possible Obama, a strong supporter of abortion rights, has nominated an abortion rights opponent?
• Seth Stern:

  Sotomayor hasn't written any opinion that reveals her views about the constitutionality of abortion or a privacy right more generally.

  That's made some abortion rights groups uneasy, though the rhetoric from anti-abortion groups since her nomination suggests they certainly don't expect her to adopt a position they'd like.

• Matt in Goochland County, VA:

  Hello, Seth.

  Judge Sotomayor's stance in Ricci vs. DeStefano (the "firefighter case") has me somewhat concerned, especially since her response to the appeal was reportedly cursory. However, I've also heard that it would not have been appropriate for her court's role in the appellate process to engage in a detailed case review and that it seemed destined for the Supreme Court anyway.

  Can you provide some insight on the judicial process that might have guided her decision? Thanks, -Matt

• Seth Stern:

  The Ricci case is shaping up to be the most controversial one she had a role in on the Second Circuit.

   

  I won't go into all the details but you can read an account I wrote yesterday here. Her critics are suggesting Sotomayor and the two other judges on her panel wrote a brief unpublished opinion because they wanted to bury it and avoid further review.

   

  On a conference call organized by the White House yesterday, several law professors and appellate lawyers defended her role, saying any notion that you can bury a high profile case like that is ridiculous and that it was just a matter of deferring to the way the lower court applied existing precedent. The case is going to continue to be in the news since the Supreme Court is going to issue its decision in the appeal in the coming weeks.

• Barbara from Freehold: Who is the next justice most likely to retire and why?
• Seth Stern: We can only guess. The two most likely suspects are Ruth Bader Ginsburg, who underwent treatment for pancreatic cancer earlier this year and John Paul Stevens, who is 89 years old.
• Barry from Fort Lee: How much of an influence will Sotomayor's home state senators, Charles Schumer and Kirsten Gillibrand, have on convincing other senators to vote for her?
• Seth Stern: The Obama Administration has indicated Schumer will play an important role in helping shepherd Sotomayor through the Senate. Schumer, a member of the Senate Judiciary Committee, is expected to escort Sotomayor as she sits down with individual senators for one-on-one meetings. Past administrations have enlisted former senators or Washington establishment types to play that role.
• Anne from Virginia: There has been a lot written about Judge Sonia Sotomayor's judicial temperament. Does an examination of her judicial record inform us on this question?
• Seth Stern:

  Jeffrey Rosen, a law professor and journalist, quoted anonymous sources in a story in The New Republic prior to her nomination that raised questions about her temperament.

  No one has come forward since her nomination and publicly raised similar questions. Judicial temperament is one part of the review currently being conducted by an American Bar Association committee that reviews federal judicial nominees so new information could come out once that committee's report is released.

• Bill in West Chester: What did you think of what Newt said yesterday?
• Seth Stern: My CQ colleague, Jonathan Allen, wrote a story today about comments by Newt Gingrich and Rush Limbaugh suggesting some of Sotomayor's comments indicate she's a "racist" or "bigot."
  
  That sort of rhetoric is very different from what we've heard from Senate Republicans since Sotomayor's nomination. They've been very guarded in their comments, neither criticizing her nor praising the landmark nature of the nominee in a way that would make opposition later more difficult.
• Frank from Alexandria: Are there any African American women that have been or would be considered for a Ginsberg slot?
• Seth Stern: Among the larger pool of finalists considered by President Obama was Leah Ward Sears, who is wrapping up her tenure as chief justice of Georgia's highest state court.
• Amirjit from Chicago: If a senator, just for argument a Republican senator, wanted to make sure she didn't get confirmed for as long as humanly possible, how long could he stall this?
• Seth Stern: The most likely delaying tactic would be to force a vote to limit debate on the Senate floor. That would be consistent with what Democrats did in 2006 when Samuel Alito's nomination reached the Senate floor. That would only add a day or two to the floor debate at most.
• Jacob from Sheepshead Bay: Did Judge Sodamayor save baseball? The President and the New York Times say so, but Huffington Post and the New York Daily News say she helped but no way was it just her. Didn't Cal Ripken save baseball?
• Seth Stern:

  I will leave it to other wiser arbiters to decide how much credit Sotomayor deserves for helping end Major League Baseball's strike.

  ut it's no accident that President Obama singled out her role in that case.

  Presidents often look for ways to humanize their nominees at such rollout events. With their impressive resumes, it's not always easy to make them appear like regular people. Of course, with her landmark status as the first Hispanic nominee and third woman in court history, that wasn't a particularly difficult task.

• Bart from Washington: How many Supreme Court justices have had diabetes?
• Seth Stern:

  I am not sure whether any other justices have had diabetes.

  But other justices, including some currently on the court have managed to deal with more acute health challenges while continuing with their duties. Ruth Bader Ginsburg, for instance, is still working while undergoing treatment for her second battle with cancer. Given the life tenure that comes with the job, the problem is usually with justices who stay long past when their bodies or minds are fully functioning.

• Bob in Wexford: Are any of the senators who voted for her for the lower court going to vote against her this time?
• Seth Stern: Seven sitting Republican Senators voted in favor of her nomination to the Second Circuit in 1998:  Judd Gregg of New Hampshire; Robert F. Bennett and Orrin G. Hatch of Utah; Thad Cochran of Mississippi; Susan Collins and Olympia J. Snowe of Maine; Richard G. Lugar of Indiana. An eighth - Arlen Specter of Pennsylvania - is now a Democrat.
  
  But senators in both parties have traditionally argued the bar for the Supreme Court is higher and that they're under no obligation to vote for a nominee because they did so earlier for a lower court seat.
• Mary in St. Paul: Will history judge this nomination as brave or cowardly, since she's not exactly a shake-things-up pick.
• Seth Stern:

  Obama picked a nominee with a traditional resume and uncommon personal history. Like the other eight justices with whom she would serve, she comes to the court from a federal appellate court. But she also brings diversity in terms of her ethnicity, gender and previous experience as a federal trial judge.

  Obama could still well have other opportuniites to pick a politician or someone else outside the "judicial monestary" as some Senators have suggested. He might also might yet add the sort of liberal stalwart in the mold of William J. Brennan Jr. or Thurgood Marshall sought by many on the left.