Under questioning from Sen. Arlen Specter (D-Pa.) Supreme Court nominee Sonia Sotomayor has just indicated she is likely to follow Justice Samuel Alito Jr.'s approach to deciding whether to join the Court's "cert pool."
That's the arrangement that's been in place since 1972 whereby justices who participate pool their clerks for the purpose of summarizing and recommending action on incoming petitions. Those one-clerk summaries are then distributed to all the members of the pool. It started out small, but in the last decade or so, eight of nine justices participated -- all but Justice John Paul Stevens. The growth of the pool has led to criticism that individual clerks have too much power in the all-important gatekeeping function of deciding which cases the Court will take up and rule on.
Among the critics of the cert pool have been practitioners -- including onetime Hogan & Hartson appellate advocate John Roberts Jr. -- who have a hard time explaining to clients that their vitally important petitions have been read by only one or two law clerks before being tossed aside by the Court.
When Alito joined the Court in 2006, he at first joined the pool but then jumped out, after seeing how it operated and realizing that he'd prefer to have his own clerks give the petitions a look.
Sotomayor, who has clearly followed the long-running debate over the cert pool, said today, "My approach may be similar to Justice Alito's." In other words, she said she wants to "experience the process for a while," presumably from inside the pool, before deciding whether to stay or leave, and "then figure it out." As a result, she told Specter, "I can't give a definitive answer."
Sen. Lindsey Graham (R-S.C.) who has been criticized for what some saw as a dismissive tone in his questioning of Supreme Court nominee Sonia Sotomayor on Tuesday, actually said some favorable things about her in his questioning this morning.
In an extended line of questioning about the Second Amendment right to bear arms, Graham sought to pin her down on how she would go about deciding whether the right is "fundamental" in the legal sense of whether it should be applied or "incorporated" to the states. Sotomayor did not budge from her general answer that she would heed precedents and "the rule of law." But instead of moving on in a frustrated way, Graham took a more conciliatory tone.
In the end, he said, Sotomayor would probably make that decision based on her own subjective view of America. "I don't know how you're going to come down," Graham said. But based on her record as a judge and on her testimony, Graham went on to say he thinks that "you are able to embrace a right that you may not want yourself. That is my hope for you." An activist judge, Graham said, would be "chomping at the bit" to do the opposite, but he expressed hope, if not confidence, that she would not.
Graham went on to more hostile questioning about her role in the Puerto Rican Legal Defense and Education Fund and, yet again, about her "wise Latina" comment that keeps coming up. She repeated her mea culpa: "I regret that I have offended some people." As she went on to say that she never intended to say one group has an advantage over another in being able to render wise judgments, Graham interrupted to say with some resignation, "You know what? I agree with you." Graham's questioning was done.
Will he vote for Sotomayor? That's far from certain. But Graham's tone had changed.
Two senators at opposite ends of their political careers questioned Supreme Court nominee Sonia Sotomayor this afternoon. Neither had much luck getting answers.
Sen. Arlen Specter (D-Pa.) is fighting for his political life ahead of a 2010 Democratic primary election, despite his nearly 30 years in the Senate, while Sen. Al Franken (D-Minn.) has been in Congress barely a week after a long career as a satirist, author, and radio personality. They shared a stage this afternoon as the Senate Judiciary Committee finished up its first round of questions for Sotomayor.
Specter, a former chairman of the committee from his time as a Republican, began by asking Sotomayor whether the Supreme Court should hear more cases. The Court had 161 signed opinions in 1985, he said, but only 67 signed opinions in 2007.
"How about more cases?" he asked.
Sotomayor, saying she didn't want to answer before meeting with her potential colleagues on the Court, demurred. "I don't like making statements about what I think the Court can do until I've experienced the process," she said. She also declined to answer questions about the weight she would give abortion precedents and how much justices should take into account congressional fact-finding.
She did, however, hint at her view of cameras in the Supreme Court's courtroom. She noted that she allowed cameras in her courtroom as a District Court judge and added, "I will certainly relay those positive experiences if I'm fortunate enough to be there with my colleagues."
Franken, drawing frequent chuckles from the audience in contrast to Specter's prosecutorial style, received similar answers from Sotomayor. She declined to weigh in on whether corporations have too much control over the Internet, how she defines "judicial activism," and whether there are any limits on Congress' power to protect voting rights.
The closest she got to answering Franken came when he asked whether the Constitution contains a fundamental right to privacy. Sotomayor responded that the Court has recognized such a right "for over 90 years." "This line of cases started with a recognition that parents have a right to direct the education of their children," she said. "That basic right to privacy has been recognized and was recognized."
Sonia Sotomayor's first job out of Yale Law School was as a state prosecutor in Manhattan. For her second job, she said today that she purposefully avoided Big Law.
"Unlike some of my law school friends, I very much wanted to go into a small law firm," Sotomayor told senators today at Day Three of her confirmation hearing for the Supreme Court. She added, "I thought, when I left the District Attorney's Office, 'I don't think I can go to those firms where I would be the fifth guy on the totem pole.'"
As a result, she said, she had the chance to work with the partners at the firm, Pavia & Harcourt, more frequently than she would have at a larger firm. She also worked directly with some of the firm's biggest clients, including the car manufacturer Ferrari and the fashion designer Fendi, on litigation in areas including contracts and trademark law.
Sotomayor joined Pavia & Harcourt as an associate in April 1984 and became a partner in January 1988. She left in September 1992 to become a federal judge in the Southern District of New York. Click here for The National Law Journal's previous coverage of her time in private practice.
Under questioning from Sen. Ted Kaufman (D-Del.), she spoke in greater detail than she has before about her career as a commercial litigator. She said she learned the importance of predictability in business law when partners would revise the drafts of settlement agreements she had written. The partners, she said, replaced her plain language with what she considered "gobbledygook," in order to conform the agreements to court precedent.
"In business, the predictability of law may be the most necessary," she said, "in the sense that people organize their business relationships based on how they understand the courts interpret their contracts."
Sotomayor said she also learned the value of out-of-court settlements from her discussions with clients who pursued unnecessary litigation and later regretted it. "Settlements are generally, in the business world, economic decisions," she said.
Kaufman criticized recent Supreme Court rulings for upending business law, including the antitrust case Leegin Creative Leather Products v. PSKS in which the Court applied the rule of reason to vertical price fixing. The Court, he said, "too often seems to disregard settled law and congressional policy choices when it comes to business cases."
Supreme Court nominee Sonia Sotomayor continued this morning to explain, downplay and apologize for her controversial past statements, as her confirmation hearing went into its third day. But Republican senators are clearly not happy with what she is saying.
During a break in the hearing, Sens. Jeff Sessions (R-Ala.) and John Cornyn (R-Texas) complained that she has shed no more light today than yesterday. "It's very confusing," said Cornyn. Her judicial record is "fairly traditional," Cornyn said, but if she becomes a justice who is more like her speeches than her rulings, "It's a problem."
Sotomayor's calm tone and manner has continued, and she seems unperturbed by the senators' displeasure.
For years, whenever her name came up as a potential Supreme Court justice, the rap on Judge Sonia Sotomayor was that she had a temper problem on the bench. And to prove the allegation, people would point to the anonymous comments made by lawyers who appeared before her published in the Almanac of the Federal Judiciary. The almanac solicits such comments about all federal judges, and they were specially tough on her.
Late today, Sen. Lindsey Graham (R-S.C.) finally asked Sotomayor about those comments, calling it "pretty tough stuff." More than once he said the comments were very different from those about other judges on the Second Circuit. He asked Sotomayor whether she was a bully, and Sotomayor replied no.
"I do ask tough questions at oral argument," she acknowledged. Noting that at the 2nd circuit arguments run 10 minutes for each side, she said the circuit has the reputation of being a "hot bench" -- implying that to get questions in, judges have to be forceful. "My reputation is that I ask the hard questions and I do it for both sides."
Supreme Court nominee Sonia Sotomayor has dealt with few cases related to national security as a judge on the U.S. Court of Appeals for the 2nd Circuit. And, under questioning today, she gave little hint how she would rule in such cases.
"I haven't had a sufficient number of cases in this area to say," Sotomayor said in response to one question during the second day of her confirmation hearing before the Senate Judiciary Committee. "Each situation would have to be looked at" on an individual basis, she added, and there would be little point in having an "academic discussion" about potential cases.
Sen. Russ Feingold (D-Wis.) tried in several ways — largely without success — to get a sense of Sotomayor's thinking on issues such as interrogation techniques, government surveillance, and the secrecy regarding anti-terrorism programs.
Feingold asked Sotomayor whether she found it "odd" that Justice Department memos regarding torture did not mention the seminal 1952 Supreme Court case Youngstown Sheet & Tube Co. v. Sawyer, regarding the limits of executive power.
"I have never been an adviser to a president," Sotomayor replied. "That's not a function I have served, so I don't want to comment on what has been done or not done."
In response to another question about the secrecy of memos from the Justice Department's Office of Legal Counsel, Sotomayor said it was "difficult to speak from the abstract" about whether such memos should be kept confidential. "One has to think about what explanations the government has. There are so many issues a court would have to look at," she said.
Sotomayor did say that the Supreme Court ruled incorrectly in Korematsu v. United States, in which the Court upheld the internment of Japanese-Americans during World War II. "A judge should never rule from fear. A judge should rule from law and the Constitution," she said.
Slowly but surely, Supreme Court nominee Sonia Sotomayor is trying today to undermine the argument Republican senators made yesterday: namely, that once she becomes a justice, she'll be unbound by the shackles of precedent that she has to live with now as an appeals court judge.
Sen. Herb Kohl (D-Wisc.) asked her about the controversial 2005 decision in Kelo v. City of New London, which ruled that cities may take private homes in eminent domain for private development. "Kelo is now a precedent of the Court," she said. "I must follow it" as a judge on the 2nd Circuit. But if she becomes a justice on the Supreme Court, she continued, "I must give it the deference that the doctrine of stare decisis would suggest." A slightly different standard on the Supreme Court, in other words, but not one that forecasts a Justice Sotomayor upsetting precedents left and right.
Later, in a dialogue with Sen. Dianne Feinstein (D-Calif.), Sotomayor elaborated on when she'd feel it appropriate to overturn a precedent as a Supreme Court justice. She said she would start from the premise that stare decisis is important. "There is a value ... in predictability, stability" of the law for all society, she said. Before dispensing with a precedent, she said justices should be "guided by the humility they should show, and the thinking of prior judges." She added, "There are circumstances in which a court should re-examine precedent, but it should be done very very cautiously." Also: "It's important to recognize that the development of the law is step by step, case by case."
Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, has elicited what may be the first confession of error from Supreme Court nominee Sonia Sotomayor. Sessions grilled her about her "wise Latina" remark, as well as a statement that her life experiences would affect the facts she hears.
Sotomayor said she was playing off Justice Sandra Day O'Connor's oft-repeated statement that a wise woman and a wise man would reach the same decision. But her play on that comment was a "rhetorical flourish that fell flat," she said. "My play fell flat. It was bad."
Sotomayor's slow, measured, responses have been calm even as Sessions has challenged her very pointedly. She acknowledged that "life experiences are important to the process of judging," but added, "the law commands the result."