Sonia Sotomayor, President Barack Obama's nominee for the U.S. Supreme Court, has more than just a personal story rooted in the American dream, law professor Lawrence Solum says. Solum, a constitutional law expert who closely follows the high court, discusses the historic nomination of the woman who is the child of Hispanic immigrants and rose from housing projects to the federal bench. Solum was interviewed by News Bureau Business & Law Editor Jan Dennis.
What is your impression of U.S. Appeals Court Judge Sonia Sotomayor?
First and foremost, Judge Sotomayor is a brilliant jurist with broad and deep experience. She is a summa cum laude graduate of Princeton and was an editor of the Yale Law Journal. She has been a prosecutor with the Manhattan district attorney's office and a corporate lawyer. She has experience as both a federal trial judge and as a federal appellate judge. Although many recent Supreme Court justices have brought some of those experiences to the court, Sotomayor has
firsthand knowledge of the law from more perspectives than any nominee in last 40 years.
Second, she is respected by those who know her well. Lawyers who appear before her say that she is very well prepared and that she asks tough, smart questions. Professor Robin Kar, who will be joining the University of Illinois College of Law faculty this summer, was a judicial clerk for Sotomayor and says that she has one of the most brilliant minds he has ever encountered. Everything we know about Sotomayor suggests that she is an excellent judge.
Third, she has an amazing personal story. Sotomayor is the child of Puerto Rican immigrants, and grew up in a housing project in the Bronx. From the projects to Princeton would be pretty amazing by itself. Her accomplishments suggest that she is simply an extraordinary individual.
How would she affect the liberal or conservative balance of the court, if at all?
Political scientists have been carefully studying the "ideology" or political leanings of judges for decades now. Based on her record, Judge Sotomayor appears to be very similar to Justice (David) Souter, whom she will replace. Of course, many Supreme Court justices change their views after they join the court, but even if Judge Sotomayor were to become more liberal, her appointment would not change the balance on the court. There are now four conservative justices, one swing justice (Anthony Kennedy), and four liberal justices. The balance of power on the court is unlikely to change unless President Obama is able to nominate a replacement for Justice Kennedy or one of the more conservative justices - Alito, Roberts, Scalia, or Thomas.
By the way, a lot of what the court does is not very political. Liberals like Justice Stevens and conservatives like Justice Scalia agree on many cases. Much of the Supreme Court's work involves the nitty-gritty work of keeping the law in good order. I think Judge Sotomayor will make an important contribution by bringing a trial judge and trial lawyer's perspective to the court.
Are there any important cases pending that could be influenced if Sotomayor is confirmed?
The short answer to this question is no. The current term is almost over, and the court's docket for next year has not yet been set. Of course, there are important cases every term. Justice Sotomayor, if confirmed, will likely serve for 20 years or more. During that time, all of the great constitutional issues of our time will come before the court - abortion, affirmative action, the right to bear arms, presidential power, and on and on.
Was Sotomayor a good choice in light of grumbling about the lack of diversity on the court, which now has just one woman, one black and no Hispanics?
A diversity of life perspectives is surely a good thing. Judging is a mix of legal knowledge, logic, and the ability to understand the real-world consequences of legal rules. Judge Sotomayor will see some issues from a perspective that is a little (or a lot) different from her colleagues on the court. In some cases, that difference in perspective may enable the court to make better decisions.
The appointment of a Latina is important to many Americans of Hispanic and Latin American origins for another reason - their pride in this historic nomination. That is surely something to celebrate, but in my opinion that is not a very good reason to appoint someone to the Supreme Court. Of course, I am not the president, and many presidents have made Supreme Court appointments for political reasons. Perhaps the most famous example is President Eisenhower's appointment of Earl Warren, which was purely political. I am not a mind reader, but the political pundits are sure to speculate that Sotomayor's ethnicity and gender were key factors in the president's decision.
President Obama has said he wants a justice who understands how laws affect people's daily realities. What qualities do you think Americans should be most concerned about in a new justice?
In my opinion, the most important characteristics of a great justice do not depend on gender, race or social background. Great justices have great legal minds. They are learned in the law, and have the ability to see the deep structure in what we call "the seamless web of the law." Great justices are wise - they understand how the legal system works in the real world. I don't know if Sonia Sotomayor will be a great justice, but I do think she has the right background to become one.
There is a lot of talk about "judicial activism" these days. Some of that talk is just political rhetoric, but I strongly believe that judges are not just politicians in robes. A great Supreme Court justice cares about the law and its integrity. One of the issues that will be raised during Judge Sotomayor's confirmation hearings will concern her judicial philosophy. Does she believe that judges should use the law to achieve their own vision of social justice? Or does she believe that the values that count are those that we find in the law itself? The rule of law is valuable, but it may be more fragile that we realize. As far as I can tell, Judge Sotomayor has a reputation as a judge who cares about the law. I believe that senators should only vote to confirm judges and justices who will try to get the law right and let the political chips fall where they may.
Associate Justice Ruth Bader Ginsburg is 76, and battling cancer, and Associate Justice John Paul Stevens is 89, so Obama could potentially fill two other vacancies before his first term ends. If so, how could that change the balance of the court and what new precedents might result?
Both Ginsburg and Stevens are from the liberal wing of the court. Even if Obama were to replace both of them, it would not change the political balance of the court in a significant way. Indeed, given Obama's preference for moderates, it is possible that his first three appointments might make the court slightly more conservative. The oldest justices who are conservative or swing votes are Scalia (conservative) and Kennedy (swing): If they were both to serve until their early 80s (as most justices now do), then President Obama would not make an appointment that would change the balance of power on the court, assuming he serves two full terms. It is likely that the next great change in the court will not occur until after 2016.
Of course, the very fact that justices serve for decades makes appointments to the Supreme Court all the more important. For all we know, Judge Sotomayor might be the swing justice in the 2020s and 2030s! If she serves until her later 80s (like Justice Stevens), she will be on the court in 2040!