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Sotomayor hearings: Expert analysis — pro and con

July 14, 2009 | 11:52 am

Today’s questioning of Supreme Court nominee Sonia Sotomayor was seen by some legal experts as an attempt by Democrats to quiet concerns about controversial statements made by Sotomayor, statements that critics claimed marked her as a judicial activist. But today’s exchanges haven’t really helped to illuminate her application of the law in a discrimination case overturned by the high court last month. Here’s some analysis from two experts:

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

Alabama Republican Sen. "Jeff Sessions did a good job in pointing out, in prosecutorial style, that her previous statements contradict in certain ways what she said today, which was quite good, about not bringing your prejudices to a case, how life experiences allow us to see cases differently, but ultimately judges have to apply the law, not put in their own personal feelings.

“One thing I noticed, quite clearly, was that in explaining her comment on the wise Latina, she said she was paralleling [retired Justice Sandra Day] O’Connor’s statement that a wise old man and a wise old woman would come to the same wise decision, but the wise Latina comment is 180 degrees away from what O’Connor said. O’Connor was saying that being a woman wouldn’t skew your view, whereas the wise Latina statement said that a woman would reach a better result. So saying that she was following O’Connor was a little disingenuous.”

“I also thought it was refreshing that in only two areas did she say she couldn’t answer because a case involving those issues might come before her. But one was abortion, and Griswold, Roe and Casey [Supreme Court decisions on marital privacy and abortion] are all established law so that was kind of a cop-out.”

“For the most part, I think people saw what they wanted to see. Critics saw what they wanted to reinforce their views, while Sens. Leahy and Feinstein did a good job in rehabilitating her, pointing up her great career and personal story, giving support to those who liked her from the beginning. That’s not unexpected.”

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

“What I felt like she may need to accomplish more is to get the record straight with respect to the Ricci case. She needs to be more adamant in explaining why the New Haven firefighters case was not an affirmative-action case, although it involved issues of reverse discrimination. …

“It was a complicated legal case and to glom it together with other affirmative-action cases is just not right. She may need to educate the committee on the differences. Perhaps she should take a page out of [Chief Justice] John Roberts’ confirmation hearing, where he did pontificate but was able to teach, to be professorial in explaining the law. That’s something she may ultimately have to do.

“It may be because her temperament has been extremely judicious. … She is economical in her words, she’s not going on and on, but something is getting lost in translation, and that’s putting her in what appears to be a fight with Sessions and the other Republicans on the committee.”

-- Carol J. Williams

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