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Sotomayor hearings: Analysis from legal experts

July 16, 2009 |  2:08 pm

Tott-experts_kmvycznc Wrapping up four days of grilling and pontificating, Republicans on the Senate Judiciary Committee considering Sonia Sotomayor’s Supreme Court nomination dominated the day with appeals for the prospective justice to protect national security, fight the growing deficit and heed Americans’ commitment to the right to keep and bear arms — while also admonishing her against engaging in judicial activism. Legal analysts say she succeeded in maintaining the profile of a moderate who would bring an open mind to the weighty legal issues likely to come to the high court.

Erwin Chemerinsky,
Constitutional law scholar and dean of the UC Irvine School of Law

“In the end, I think the confirmation process served two purposes: It gave the senators a chance to speak to their base, and it gave the American people the opportunity to listen to Sonia Sotomayor. But it gave no one any real sense of what she is going to be like as a justice on the Supreme Court....

“She did a wonderful job of following a script that gives such a misleading and inaccurate impression of what Supreme Court justices really do. She said many times that judges apply the law, they don’t make the law. Every first-year law student learns that judges make the law. Everything the Supreme Court does makes law, by definition.

“There were places where she was willing to go further in a conservative direction than I would have expected her to do. We heard her firmly rejecting the use of foreign....

...constitutional law in American decision-making. She described the Constitution as static, not evolving. I think she went further to try to appease the conservatives .... but I think she succeeded in ensuring that her confirmation will go through smoothly.”

Ilya Shapiro,
Cato Institute senior fellow and editor of its Supreme Court Review

“She filibustered well.... The sharper the Republicans got in their questioning, and they kept refining and working out what needed to be probed further, the more she mastered the art of saying a lot while saying very little. It seems like she was running out the clock....

“She had a pattern of saying things that were good and should assuage people, but it was the exact opposite of what she said in previous speeches. She declined to either approve of or criticize the citing of foreign law in some death penalty cases. There was some frustration on the side of the senators that she wasn’t answering.

“I am less favorable toward her than I was when the hearing started because of the manner in which she responded ... to pretend to answer the question.”

Kimberly West-Faulcon,
constitutional law professor at Loyola Law School

“It was an interesting discussion on identity politics, when they were asking her if she was a participant in such. It was the Republican senators playing identity politics themselves, appealing to the fears of white Americans about the prospects for non-whites attaining positions of authority. They ignored her explanations of the procedural posture of decision-making in the Ricci case [white Connecticut firefighters claiming reverse discrimination], despite the overwhelming views of commentators that the Supreme Court did make new law in deciding that case. Today was much more about creating the opportunity to drive in that particular wedge issue of affirmative action than about vetting Sonia Sotomayor.... A lot of what today was about was the Republican senators, who monopolized the hearing today, putting forth their own ideology and legal philosophy....

“As to how she came out in the confirmation hearing, I think she looked fabulous and accomplished the goal of appearing judicious. She left an overall impression of a moderate judge who is restrained. To the extent that was her goal and that of the Democratic senators, it was achieved.”

--Carol J. Williams

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Photo: Judge Sotomayor with Democratic Senators Patrick Leahy, left, and Ben Cardin. Credit: Charles Dharapak / Assoicated Press

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