Legal Update: The Sotomayor Confirmation Hearing

MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh. You're listening to These Days in San Diego. The Confirmation hearing for Supreme Court nominee Sonia Sotomayor is well underway. Yesterday, in opening remarks, Republican Senator Lindsay Graham conceded that unless Sotomayor has a total meltdown—that's his phrase—she will be confirmed by the Senate. Yet there are questions being raised about Judge Sotomayor's rulings and her general philosophy as a jurist. Few people are keeping track of this hearing with as much expertise and enthusiasm as my guest, These Days legal analyst Dan Eaton. Welcome back, Dan.

DAN EATON (Attorney): Good morning, Maureen.

CAVANAUGH: And we'd like to invite our listeners to join the conversation by posting comments online. You can go to KPBS.org/TheseDays. Well, I'd like you to, Dan, if you could, set the scene for us. The hearing opened yesterday. What can you tell us about the members of the Judiciary Committee who are evaluating this nominee?

EATON: Maureen, there are 19 members of the Senate Judiciary Committee who actually will vote on this nomination before it goes to all 100 members of the Senate. Twelve of them are Democrats, and seven of them are Republicans, the Democrats having majority now with 60 with the seating of Minnesota Senator Al Franken. Six of the members of the Judiciary Committee, interestingly enough, including California's own Dianne Feinstein and the aforementioned Mr. Franken, are not lawyers. So it's very interesting having these non-lawyers, in some cases, sit in judgment of a Supreme Court nominee. But as Senator Franken pointed out yesterday, and as lawyers, I may add, sometimes forget, the overwhelming majority of Americans, I'd told, are not lawyers. So…

CAVANAUGH: So I hear.

EATON: And the fact is that the Supreme Court decision- making affects all Americans and, therefore, they have – all Americans have a great deal of interest in this. But you're right, the table is set. We have had opening statements from everyone, including Judge Sotomayor and now we are into questioning, which is really where the meat of the hearing is occurring.

CAVANAUGH: And as background, have Supreme Court nominees always gone through hearings like this?

EATON: They really haven't. It wasn't until the mid-twenties that any Supreme Court nominee came before the court – before the Judiciary Committee at all for questioning. Prior to that, it was on the record, various statements they may have made, and so forth, as well as witnesses. Now, witnesses did appear before the Judiciary Committee, it just wasn't the nominee him-or-herself. The great Justice Louis Brandeis famously did not appear before the Judiciary Committee even though there were several witnesses who appeared against him. And there – A recent biography I read of Justice Brandeis suggested he was chomping at the bit to respond in person but it was thought that it was better that he not. Justice Brandeis, of course, being the first Jewish justice on the Supreme Court.

CAVANAUGH: Exactly. So, well, how will these hearings proceed?

EATON: Well, they are proceeding pretty much as predicted. What happens is that you have these statements, which, as predicted, you had the Democrats largely emphasizing her very impressive background, her academic backgrounds, her compelling life story, the 17 years she has served on the federal bench, six on the trial court level or District Court level and eleven as a Court of Appeals judge, the fact that George H.W. Bush, Father Bush, if you will, appointed her to the District Court and that President Clinton appointed her to the Court of Appeals. And then you have the Republicans, on the other hand, focusing heavily on the question of judicial impartiality and raising some very specific concerns. Obviously, the 'wise Latina' comment, which I'm sure we'll talk about in more detail, but also her decision in the Ricci decision which, of course, was the white firefighter decision and a ruling that she made in January of this year concerning the Second Amendment and whether it applies to the state. The Second Amendment, obviously, being the right to keep and bear arms which the Supreme Court decided last year in Heller did confer an individual right to keep and bear arms as opposed to a collective right.

CAVANAUGH: And, of course, many of the questions that the senators are posing today are about the subjects you just mentioned. But if I could, I would like to go back to the opening statements made by the senators yesterday and I was struck by one made by Senator Dianne Feinstein in which she seemed to take the opportunity to chastise Justices Roberts and Alito for their comments before the committee when they went through their confirmation hearings for perhaps not being thoroughly forthright with the committee because she noted, in her opinion, that their responses to questions to the committee did not seem to jibe with what their actions have actually been on the bench.

EATON: And she is not the only one, by the way, who has taken issue on the Democratic side with Justices – Justice Alito and Chief Justice Roberts. The issue that you mentioned that she raised had to do with their respect for past decisions or precedent. The doctrine is called, formally, stare decisis. And she said, well, look, the guys talked about the importance of respect for precedent and as members of the Court, Senator Feinstein anyway has suggested, they have been less than fully respectful of some of the Court's precedents in a couple of areas, the extension of Roe versus Wade and so on, the right to an abortion that has been recognized under the federal constitution. And the – she suggests that, well, you know, they talked about respect for precedent but that isn't the way they've actually acted. It really is fascinating to watch, though, how much the Democrats are saying, well, you talk about activism, let's look at what Justice Alito and Chief Justice Roberts have done and let's look at what their answers were in these hearings. Now, whether that point is valid or not is certainly subject to debate, but it's fascinating how much they are contrasting what their statements were with their record on the Court, leading, by the way, Oklahoma Senator Tom Coburn to say, I didn't realize – I didn't think, anyway, that this was Judge Roberts' hearing. So – and you see this coming again and again. It's really very, very interesting, a part of this dynamic. We're sort of fighting that last battle.

CAVANAUGH: Well, the questioning of Sonia Sotomayor has started today and as we said, it seemed, at least the initial questions that I heard, really sort of revolved around the 'wise Latina' comment that she made in one of her speeches and the Ricci ruling. So tell us a little bit about that.

EATON: Sure. Look, let me talk about the 'wise Latina.' It's been sort of dubbed the 'wise Latina' speech. It refers to a 2001 lecture that Judge Sotomayor gave at Berkeley School of Law here in California. And the title of the lecture, anyway in the version that I read, was, quote, A Latina Judge's Voice, close quote. And in that speech, what she was attempting to do was lay the framework of why diversity matters on the federal bench. That is to say that the sum of experiences as a Hispanic, as a female, and maybe perhaps as a New Yorker, and so forth, all are brought to bear in how a judge views the cases that come before him or her. And that was the context in which she made the particular comment. She said, quote, I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that. It's an aspiration because it denies the fact that we are, by our experiences, making different choices than others. Not all women and people of color in all or some circumstances or, indeed, in any particular case or circumstances but enough people of color in enough cases will make a difference in the process of judging, close quote. Now what's been interesting, Maureen, is that she has backed away somewhat from this idea that it really affects her decision. And even in this particular speech, while she did say that – The most quoted comment is that, quote, I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion—the word better is attracting a lot of attention—from…

CAVANAUGH: Right.

EATON: …the committee. …than a white male who hasn't lived that life. She did say that. She also said later in the speech, I honestly – this is another quote, I simply do not know exactly what the difference will be in my judging but I accept that there will be some based on my gender and my Latina heritage. What she has said today is that, first of all, it has never affected – her heritage has never affected the outcome of any case that has come before her. She said that in response to a question from Senator Sessions of Alabama, the ranking Republican. But she has been very clear in her responses, both to Chairman Leahy, Patrick Leahy of Vermont, and to Senator Sessions that, no, all she is saying is that it helps her understanding and that, of course, she brings these experiences to her perspective as a judge but, ultimately, it's about the law.

CAVANAUGH: And it's interesting because both sides seem to be using a quote from former Justice Sandra Day O'Conner where she said that a wise old man and a wise old woman will reach the same conclusion in deciding cases. It seems both sides can find something in that to support their case when it comes to that 'wise Latina' comment by Judge Sotomayor.

EATON: Well, Maureen, it's interesting you mention that because Judge Sotomayor's speech specifically references Justice O'Conner's comment and many – in many ways was a response to that comment. As she explained this morning, in this morning's hearing, she said Justice O'Conner could not have meant that literally because, of course, judges disagree, as she first put it in her response, quote, all the time, close quote. Of course not all the time, but the judges disagree frequently and that sometimes a woman judge, in effect, is going to disagree with a male judge. So her point is that Justice O'Conner could not have meant that quite so literally. But to the extent that she is saying that being a woman or being a man makes no difference to judging, Judge Sotomayor said, I disagree. And that's what her speech, "A Latina Judge's Voice" is designed to address, to, in effect, validate or legitimize the idea that really it does make a difference of having a diverse group of people in a decision making role.

CAVANAUGH: And in questioning today, Judge Sotomayor also got a chance to explain, in a rather detailed form, her ruling in the Ricci case. Tell us what the case was and what she said today.

EATON: Of course, we've talked about this case in…

CAVANAUGH: Sure, yeah.

EATON: …some detail, Maureen, but the Ricci decision, of course, concerned a challenge by white firefighters—there was one Hispanic as well, who happened to be of Puerto Rican descent—who challenged the decision of the City of New Haven in a promotional exam to say, look, since no African-Americans qualified for promotion to captain or lieutenant of the firefighting force, we are not going to promote anyone. What the firefighters—I'll have to use the term white firefighters for shorthand—said is that, no, that violates the federal antidiscrimination law and it also federal – violates the constitution. Now what the lower court, what the Second Circuit held, with Judge Sotomayor being part of the panel in an unsigned, very, very brief decision with only one substantive paragraph has said, look, the city really was trying legitimately to avoid validating a test that had a disproportionate impact. You keep hearing the phrase 'disparate impact,' that's what the legal term is. And so the fact that it ended up having a disparate treatment, that it resulted in disparate treatment or different treatment towards these white firefighters who did qualify, did not mean that the city's approach in not promoting anyone was invalid. Obviously, the Supreme Court, by a vote of five to four, disagreed, saying that, look, if you're going to use disparate impact where there is no showing of intentional discrimination, only an unintended effect that has a differential result or effect on a minority group, you've got to show, quote, a strong basis in evidence, close quote – a strong basis in evidence, close quote, that this test was not job-related or that there was a valid alternative, and neither of those alternatives, Justice Kennedy, writing for the majority, said were present.

CAVANAUGH: And in my version of what Judge Sotomayor said is the fact that she was on the Appeals Court following precedent set by the Supreme Court. And in their overturning of her ruling, they set a new precedent. And so if that ruling had been in effect, that's the precedent that she would have followed.

EATON: Well, Maureen, that's right. I mean, what she said is that, look, Justice Kennedy and the five members of the majority created, quote, new law, close quote, and its interpretation of Title VII because it established a new standard by which you have this balancing between a possible disparate impact and to justify disparate treatment based on race, and they balanced it and came up with this strong basis of evidence test that they borrowed from constitutional jurisprudence under the 14th Amendment, Equal Protection clause. And I just realized I devolved into lawyer speak again but I do that sometimes and I guess I'm entitled. But what she said, essentially, was, look, under the existing precedence, we were just following the law. The Supreme Court had a right to set a new test but we couldn't have anticipated that…

CAVANAUGH: Right.

EATON: …on the Second Circuit.

CAVANAUGH: That's how I understand it.

EATON: We were just following the law.

CAVANAUGH: As…

EATON: That's her…

CAVANAUGH: As a non-lawyer, that's how I understood it.

EATON: Well, okay, and, well, I think you put it very, very well, as a matter of fact. But the Republicans have said, what do you mean, new law? Let's be very clear on what you did. First of all, it was a very summary decision and you didn't really explain the reasoning at all. Judge Sotomayor, of course, pointed out that there was a 78 page trial court decision that thoroughly did explain so there really wasn't much more for the Court of Appeals to say. But they also pointed out that there was a very sharply divided decision in the full Second Circuit, all 13 members of the Second Circuit who said we really need to take a look at this because this does deserve more careful treatment.

CAVANAUGH: We actually have a caller…

EATON: Okay.

CAVANAUGH: …on the line. David is in Oceanside and he'd like to join the conversation.

EATON: Great.

CAVANAUGH: Good morning, David.

DAVID (Caller, Oceanside): Hi.

CAVANAUGH: Welcome to These Days.

DAVID: Thank you for taking my call. I just -- You know, I'm an old Chicago liberal, you know, old Democrat, but I just can't see how you can't take what she says being a racist comment. I mean, it's just – it clearly is and, you know, it's like, okay, so I made a racist comment, that's just the way I am. But I mean, if I was to translate that into 'I would hope that a wise white man with the richness of his experience would more often than not reach a better conclusion than a Latino woman who hasn't lived that life…' I mean, what is – I mean, isn't that a racist statement?

CAVANAUGH: Thank you…

DAVID: And how is the reverse not a racist statement?

CAVANAUGH: Thank you, David, for that comment. And perhaps that was somewhat implied in the original response that Judge Sotomayor had to that. When it was brought to her, she said it was a poor choice of words.

EATON: Well, and President Obama has said the same thing. But getting to David's point in particular, Lindsay Graham, the Senator from South Carolina, said if I had said something like that, my career would have been over. So the point is not entirely invalid. The way she phrased it, if taken literally, suggests a superiority, an ethnic superiority, but what she was saying – what she says now, she was saying, was a rather broader and more harmless statement and at least that's what she meant – or that's what she means now. There's some talk of what are called confirmation conversions and say, yes, I said that then but now I'm up for confirmation so let's put it in the safest way possible so that I can be confirmed to the highest court.

CAVANAUGH: That's…

EATON: But David's point is a very interesting one and has been made by quite a few people who are looking, literally, at the text of what she said.

CAVANAUGH: Let's look ahead.

EATON: Sure.

CAVANAUGH: There are several intriguing witnesses who will testify in the coming days.

EATON: It will make absolutely no difference.

CAVANAUGH: Oh, really? Okay. Well, do we even have to talk about them?

EATON: We do. We do, though. Because this is the first – it's a great point, though, that you raise because there are some very interesting witnesses. But look, the fact is that the last witness to have any kind of significant impact on the trajectory of a Supreme Court nomination was who? Anita Hill, whose 1991 testimony really shook up the Clarence Thomas confirmation hearings. Of course, she accused him of making some sexually harassing comments but I must say the witness list this time is going to be remembered. You can't name a single witness from Alito or Roberts' hearing but you have Frank Ricci, the lead plaintiff in the Ricci case…

CAVANAUGH: Umm-hmm.

EATON: …who is going to testify. And you also have, interestingly enough, the one Puerto Rican man who was part of that group that sued to invalidate what the City of New Haven was doing with promotional testing. But on the other side, of course – And they will be testifying against Judge Sotomayor. On the other hand, you have Louis Freeh, who is the FBI Director under President Clinton and he is a Republican and he has come out in support of Judge Sotomayor. So this is going to be memorable. It'll be a lot of fireworks, there'll be some interesting exchange but, ultimately, in my view anyway, barring some evidence about the nominee herself, this is not going to affect, ultimately, the bottom line where this nomination is headed.

CAVANAUGH: Is that typical, to have as a witness someone who lost a case that the judge ruled on?

EATON: Well, I – Certainly, witnesses will come to – will submit comments, you know, written comments about that, of course. Obviously, there's some concern about whether the fact that they lost before the judge affects their overall – the value of their testimony but it certainly does make for interesting theatre and it may be a way of saying, look, we are going to scrutinize your nominees, President Obama, if you get another nominee to the Supreme Court, so you want to be very, very careful. And the fact is that the Ricci decision does give those who oppose her nomination something to work with as does this 'wise Latina' comment, which was made in one form or another, by the way, as Senator Session (sic) pointed out, three times in the course of a year. And so Judge Sotomayor has had to back away from that somewhat.

CAVANAUGH: Now when the testimony is completed and I would imagine that's when the Judiciary Committee takes its vote.

EATON: It will, right, probably sometime next week. They're expecting to wrap up the hearings this week sometime and they'll probably vote next week. And they will vote to confirm her. There will be a positive vote out of the Judiciary Committee, there's no doubt about that in my mind from what I've seen so far.

CAVANAUGH: And what happens then?

EATON: Then it goes to the full Senate for full consideration. And then the question, of course, is the potential of a filibuster. But now remember that the Democrats have 60 votes. Assuming all them vote in line, they can defeat any kind of filibuster to block a consideration of the nomination. Look, Maureen, Judge Sotomayor is going to be Justice Sonia Sotomayor. And my guess is, it's going to happen before the end of this month.

CAVANAUGH: And when she does, taking your assurance…

EATON: Sure.

CAVANAUGH: …get on the Supreme Court, what will be her first case.

EATON: September ninth, remember? We've been talking about the 'Hillary, The Movie' case. And the Supreme Court punted and asked for further argument. Normally, it would be the first Monday in October, which is when the Court opens but, in fact, they scheduled a special session of reargument on September ninth to hear this 'Hillary, the Movie' and whether federal election laws were unconstitutional and so forth. That'll be her first case so she's going to have to get up to speed very, very rapidly.

CAVANAUGH: I would imagine. You know, this may sound rather silly but I was watching Judge Sonia Sotomayor. She sat and she listened yesterday to all the opening statements by the senators and I'll – I tell you, in about an hour, two hours, she never changed the expression on her face. Is that something that judges learn to do?

EATON: They do. They go through these murder boards. They're called murder boards. Isn't that an awful phrase?

CAVANAUGH: Yes.

EATON: Where they practice this in real time, these sessions, before the Judiciary Committee with actual people from the White House staff taking the place of senators who are on the Judiciary Committee…

CAVANAUGH: Wow.

EATON: …and going through these hour long, four-hour long sessions and so forth. And the facial expression is very important because you want to show this stoic, judicial demeanor throughout. That is part of what they are being evaluated upon.

CAVANAUGH: These Days legal analyst Dan Eaton, thank you so much.

EATON: Sure. Thank you, Maureen.

CAVANAUGH: I want to tell everyone, KPBS-FM will broadcast a wrap-up report on today's events of the Sotomayor confirmation hearing, that's tonight at six. And we'll be talking about the politics of this confirmation hearing tomorrow on These Days. You're listening to These Days on KPBS.