The Sotomayor Nomination

The National Law Journal's ongoing coverage of the confirmation process of Sonia Sotomayor as U.S. Supreme Court Justice. Check back for updates.

Sotomayor sworn in as 111th justice
Now she can be addressed as Supreme Court Justice Sonia Sotomayor. The 55-year-old native of the Bronx, the first Hispanic on the Supreme Court, was sworn in at noon today before a nationwide television audience by Chief Justice John Roberts Jr., with her mother Celina holding the Bible.

Sotomayor confirmed
The Senate has confirmed Judge Sonia Sotomayor to the Supreme Court in a historic vote that will make her the nation's first Hispanic justice and the third woman appointed to the Court.

Senate Judiciary Committee backs Sotomayor
Supreme Court nominee Sonia Sotomayor has picked up the endorsement of the Senate Judiciary Committee. The 13-6 vote was divided largely along party lines Tuesday. All Democrats on the committee voted in favor of her nomination. All Republicans but one -- Sen. Lindsey Graham of South Carolina -- voted against it, as expected.

Senators want changes in confirmation hearings
Two Democratic senators said Tuesday they're not happy with how the Senate Judiciary Committee conducts confirmation hearings for Supreme Court nominees. As the committee prepared to vote on Sonia Sotomayor's nomination, Sen. Herb Kohl, D-Wis., bemoaned what he called a "familiar pattern" in confirmation hearings. Nominees, he said, take the "path of least resistance" when they refuse to answer almost all of senators' questions about the substance of law.

Senators on message as Sotomayor debate starts
The nomination of Sonia Sotomayor to the Supreme Court began two months ago with a debate over the impact of judges' personal biases. It's ending the same way.

Sotomayor running out of potential GOP support
The chances are dwindling that a substantial number of Republicans will vote to confirm Supreme Court nominee Sonia Sotomayor, after a key GOP senator announced his opposition Monday.

Judging is both robotic and discretionary
New York University School of Law professor Burt Neuborne pens an editorial in which he puts forth the opinion that  the senators missed an opportunity to ask how Sotomayor will approach a case for which clear guidance does not exist.

Sotomayor to wait another week for committee vote
As expected, the Senate Judiciary Committee has delayed a vote scheduled for Tuesday on the nomination of Judge Sonia Sotomayor to the Supreme Court. Republicans exercised their right under committee rules for a one-week delay in the vote, a common tactic that senators in the minority party have used for controversial nominees and for legislation. The delay sets up a vote in the committee July 28, when Sotomayor is all but certain to win the committee's endorsement.

Sotomayor responds to GOP follow-up questions
Supreme Court nominee Sonia Sotomayor told the Senate Judiciary Committee Monday that she has "no personal views about the death penalty that would interfere with my obligation to apply the law as a judge." In written responses to questions following up on a range of issues raised at her confirmation hearing last week, Sotomayor also discussed the use of foreign law in Supreme Court decision-making and explained her decision to resign from the all-female Belizean Grove shortly before her confirmation hearing.

The three faces of Sonia
Three versions of Sonia Sotomayor were portrayed before the Senate Judiciary Committee at its four-day confirmation hearing last week: the shackled slave to precedent, the speechifying activist, and the radical with a hidden liberal agenda. Which version will show at the high court?

Questioning Sotomayor without a license
Six senators on the Judiciary Committee don't have law degrees. How did they prepare for questioning U.S. Supreme Court nominee Sonia Sotomayor on complex questions of constitutional theory and statutory interpretation? By reading, they said, and by spending a lot of time with lawyers they have on staff.

Highlights from the hearing
Here are some of the key moments from a week that will determine what's ahead for U.S. Supreme Court nominee Sonia Sotomayor and the high court.

Senate Confirmation Hearing: Day Four

Cordial end to Senate hearing paves way for confirmation
Whether or not the cordial ending of three days of grilling will translate into more than a handful of Republican votes for Sotomayor is unclear. But confirmation seems assured, as Republicans pledged not to filibuster her nomination and a committee vote is likely to come before the end of July. If followed soon by a vote of the full Senate, she could easily join the Court before Sept. 9, when the Court has scheduled an unusual summer argument in a key campaign finance case.

Today on the Blog of Legal Times:
• Sotomayor not sure if she'll jump in cert pool
• Sen. Graham compliments Sotomayor  —  sort of

Senate Confirmation Hearing: Day Three

Republican senators press Sotomayor on abortion, other issues
Supreme Court nominee Sonia Sotomayor weathered a third day of her Senate confirmation hearing Wednesday, frustrating Republican senators' attempts to probe her controversial past speeches and her views on abortion and other hot-button issues.

Today on the Blog of Legal Times:
• Senators with contrasting experience query Sotomayor
• At small firm, Sotomayor was immersed in business law
• Republicans frustrated by Sotomayor's answers
• The hearing in photos: Day 3

Senate Confirmation Hearing: Day Two

'Wise Latina' explains herself
Under sharp questioning from Senate Republicans on Tuesday, Supreme Court nominee Sonia Sotomayor insisted that she brings "an open mind" to judging, while acknowledging that some of her past statements — particularly her "wise Latina" comment — suggesting otherwise amounted to a "rhetorical flourish that fell flat."

On the Blog of Legal Times:
• Sotomayor stays noncommittal on national security
• Sotomayor responds to charges that she bullies lawyers
• Tony Mauro discusses the morning session
• The dialogue with Sotomayor on precedent continues
• Sotomayor on cameras and collegiality
• Sotomayor to Sessions: my words 'fell flat'

Senate Confirmation Hearing: Day One

Sotomayor pledges 'fidelity to the law'
Answering criticisms that her heritage and gender will influence her judging, Supreme Court nominee Sonia Sotomayor told the Senate Judiciary Committee on Monday that her judicial philosophy is "simple: fidelity to the law."

Senators take batting practice with baseball analogy
Chief Justice John Roberts Jr. gave a performance at his confirmation hearing that is considered the modern standard for a nominee to the Supreme Court. Among his lasting imprints: the analogy of the courts to baseball. Senators returned to the idea repeatedly on the first day of the hearing.

Sotomayor hearing revives old battle
Why do senators allow high court nominees to dodge questions on hot-button issues? At the Senate confirmation hearing for Sonia Sotomayor, an age-old battle over what questions can be asked and answered likely will continue with undiminished fervor.

• Watch our video analysis of Monday's hearing opening
• See Day One of the confirmation hearing in photos on the BLT.

COMMENTARY

Equal justice issues merit attention
The justice system is out of reach for millions of Americans. More than 37 million people live below the federal poverty line, and millions more are too poor to afford a lawyer. The barriers to access should be on the minds of every judge, especially those on the highest court in the land.

A fascinating tutorial
Far from being a grueling cross-examination, the Bork hearing gave Americans a lesson in constitutional law, writes Citizens' Commission on Civil Rights chairman William L. Taylor.

RECENT UPDATES

Firefighter plaintiff to testify at Sotomayor hearing
Celebrities from the law, politics, and baseball are among those scheduled to testify next week during Supreme Court nominee Sonia Sotomayor's confirmation hearing. Among those estifying at the request of Republicans will be Frank Ricci, the lead plaintiff in the racial discrimination suit brought by New Haven, Conn., firefighters in which the U.S. Supreme Court last month overturned a 2nd Circuit panel that included Sotomayor.

New report looks at Sotomayor by the numbers
New York University's Brennan Center for Justice is joining the attempts to measure quantitatively the "judicial activism" of Supreme Court nominee Sonia Sotomayor. The liberal advocacy group released a report that describes Sotomayor as in the mainstream of judges on the U.S. Court of Appeals for the 2nd Circuit.

Law professors line up behind Sotomayor
More than 1,100 law professors have signed a letter supporting the confirmation of Judge Sonia Sotomayor to the Supreme Court.

ABA committee gives Sotomayor top rating
The American Bar Association's Standing Committee on the Federal Judiciary, by a unanimous vote, has rated Sonia Sotomayor "well-qualified" for the Court. It's the highest rating the committee gives, and it's the same rating the committee gave to the four most recent additions to the Supreme Court.

12 things to watch at Sotomayor's confirmation hearing
Most of the story lines are already set for Sotomayor's hearing before the Senate Judiciary Committee, and just about all of them end with her winning confirmation as the next justice on the U.S. Supreme Court. That doesn't mean, though, that she'll have an easy time.

High court's campaign finance case and the vote on Sotomayor
The Supreme Court's unusual order Monday delaying a decision in Citizens United v. Federal Election Commission and setting it for re-argument Sept. 9 may introduce more pressure on the Senate to confirm Supreme Court nominee Sonia Sotomayor and have her on the bench by then. 

Congressional Research Service on Sotomayor: Hard to categorize
The non-partisan Congressional Research Service has produced a report on the opinions of Supreme Court nominee Sonia Sotomayor, drawing conclusions that lend support to her advocates' assertions that she is far from an extreme liberal.

Examining Sotomayor's record in business cases
The Alliance for Justice issued a footnoted 16-page report on Supreme Court nominee Sonia Sotomayor's record in business and consumer cases she has faced on the district court, the appeals court, and in the private law firm where she has worked. The liberal group's verdict:  on business cases, her rulings are "generally uncontroversial and well within the mainstream."

Justice O'Connor happy there will be another woman on high court
Retired Justice Sandra Day O'Connor made a friendly, chatty appearance last night on The Late Show with David Letterman. The only tidbit of news came when Letterman asked her what she thought of nominee Sonia Sotomayor. Without offering a specific judgment on Sotomayor, O'Connor nonetheless said carefully, "I'm very happy that we're getting another woman on the court. Very happy."

Sotomayor, word by word
2d Circuit Judge Sonia Sotomayor's thoroughness usually finds its way into her writing and offers partial explanation for what some see as a weak spot in her résumé: long, plodding opinions that review every moment in the case history and cite, explore and dispose of every point made in the briefs and arguments.

COMMENTARY

The 'Latina woman' comment
The "Latina woman" comment has thus far framed the opposition to the confirmation of Sonia Sotomayor. If that's all the opposition has, Sotomayor will be the 111th justice of the United States. Was it right then for the president to opine that the judge, if she had a do-over, would in fact "restate" the now famous remark?

Who's an activist?
The term activist is generally nothing more than politically charged shorthand for decisions with which the accuser disagrees, writes U.S. Senator Edward Kaufman. Let's abandon the term altogether, recognizing it for what it has become in the confirmation process — just a tired part of an old script.

Silly linguistic games
With Sonia Sotomayor nomination to the U.S. Supreme Court seat, the same tired chestnuts are being rolled out — "judicial activism," "legislating from the bench," and so on — joined this time by a competing buzzword: judicial "empathy." Let's drop the name-calling and recognize that judges do make law and that their personal preferences play a role.

RECENT UPDATES

Leahy: Thurgood Marshall also called prejudiced
When the Senate Judiciary Committee held a hearing on Thurgood Marshall's nomination to the Supreme Court, the man who later became the first black justice faced questions along the lines of, "Are you prejudiced against the white people of the South?" Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary Committee, recalled the opposition to Marshall in the context of Sonia Sotomayor's nomination to the Court.

Sotomayor's rulings show ample exposure to IP, tech law issues
Two of Sonia Sotomayor's 10 "most significant litigated matters" while in private practice as reported to the Senate were trademark lawsuits, with the judge describing how she created an anti-counterfeiting program for Fendi.

Justice Ginsburg welcomes Sotomayor nomination
Supreme Court Justice Ruth Bader Ginsburg, addressing the annual conference of the U.S. Court of Appeals for the 2nd Circuit on Friday, signaled her admiration for 2nd Circuit Judge Sonia Sotomayor, the nominee to replace retiring justice David Souter.

HEARING AHEAD

Ghost Writers
When the curtain goes up on Sonia Sotomayor's confirmation hearing next month, the stars of the show will be the nominee and the 19 members of the Senate Judiciary Committee. But this production is scripted mostly by a handful of Republican and Democratic lawyers on Capitol Hill.

Confirmation hearing to begin July 13
Senate Judiciary Committee Chairman Patrick Leahy has announced that the confirmation hearing for Supreme Court nominee Sonia Sotomayor is set to begin in a little more than a month.

Hispanic law professors call Sotomayor moderate, mainstream
During a media call today put together by Hispanics for a Fair Judiciary, a coalition of Hispanic law professors supporting the confirmation of Supreme Court pick Sonia Sotomayor repeatedly described her as a moderate judge who relies heavily on precedent when she decides cases.

Republicans call Sotomayor's questionnaire incomplete
Senate Republicans say they're not satisfied with some of Supreme Court nominee Sonia Sotomayor's answers to a background questionnaire. The seven GOP members of the Senate Judiciary Committee have signed a letter outlining 10 areas where they say Sotomayor was incomplete, vague, or inconsistent.

Holiday celebrations won't slow down Sotomayor
Republicans might need a Christmas in July if they hope to delay the confirmation hearing of Supreme Court nominee Sonia Sotomayor. In remarks today, Senate Minority Leader Mitch McConnell (R-Ky.) argued that the Senate should follow a timeline similar to the one for then-nominee Samuel Alito Jr. But that confirmation process was significantly delayed by the holidays in late 2005, including Christmas and New Year's.

ACTIVISM EXAMINED

Sotomayor's balancing act
Sotomayor's 2d Circuit ruling in the child porn case U.S. v. Falso defies both liberal and conservative labels. And it will be one of dozens of cases that will determine how she fares with the Senate in her confirmation hearings.

Defining activism on the bench
Judicial activism means different things to different people. In a quest to give more meaning to the phrase, legal scholars and political scientists continue to seek the best measure of judicial activism.

No activist judge, says new book
Supreme Court nominee Sonia Sotomayor's published majority opinions in the last eight years do not paint a portrait of an activist judge, according to the co-author of a new book on measuring judicial activism.

SOTOMAYOR ON THE HILL

Closely watched, but saying little
All eyes were on Sotomayor during her visits last week in the Senate, but the U.S. Supreme Court nominee was resolute in her refusal to say more than a word or two in the presence of the media. Our staff photographer Diego Radzinschi captured her visit in images, however.

On the Hill, Sotomayor tests out a catch phrase
Judge Sonia Sotomayor has an addition to the lengthy list of familiar phrases used in the Supreme Court confirmation process: "ultimately and completely." Two senators who met with Sotomayor said the Court nominee had used those words to describe her own commitment to "follow the law" when deciding a case.

MORE NEWS

Sotomayor on appellate judging and its 'policy impact'
Among the speeches and writings by Sonia Sotomayor released Thursday by the Senate Judiciary Committee, one talk she gave in 2000 to the Litigators Club in New York stands out as an interesting appraisal of the differences between her then-new job on the 2nd Circuit and her prior position as a U.S. District Court judge. Her speech also offers insight into what she may have meant in 2005 when she made the now-controversial statement that appeals courts are "where policy is made."

Senate questionnaire details Sotomayor's interviews
Supreme Court nominee Sonia Sotomayor says that White House officials interviewed her on three separate occasions prior to her meeting with President Barack Obama.

Property rights case a sleeper for Sotomayor?
A controversial ruling on property rights could come back to hurt the Supreme Court nominee.

Senate receives FBI background report on Sotomayor
The Federal Bureau of Investigation has completed its background report on Supreme Court nominee Sonia Sotomayor — a process it goes through for all nominees to the Court — and has delivered the report to the Senate Judiciary Committee.

Sotomayor has respect for abortion precedent, Feinstein says
Sen. Dianne Feinstein (D-Calif.) said today that she believes Supreme Court nominee Sonia Sotomayor has a "real respect for precedent" on abortion.

7th Circuit ruling agrees with Sotomayor on Second Amendment
The U.S. Court of Appeals for the 7th Circuit ruled Tuesday that the Second Amendment right to bear arms cannot be held to restrict state gun control laws until the Supreme Court rules that the right applies to the states. As a result, the ruling in NRA v. Chicago will likely give Supreme Court nominee Sonia Sotomayor some much-needed political cover against criticism of a similar Second Amendment ruling she joined in on the 2nd Circuit earlier this year.

Sen. Reid praises Sotomayor as 'the whole package'
The Senate's top Democrat praised federal judge Sonia Sotomayor Tuesday as an extraordinarily well-qualified Supreme Court nominee whose background as an "underdog" appeals to Americans. "We have the whole package here," said Sen. Harry Reid, seated beside Sotomayor before the two met in his Capitol office. He called her life story "compelling."

Sotomayor could influence 'Bilski' patent case
Intellectual property experts predict that, if confirmed, Sonia Sotomayor could make a marked difference in the outcome of Bilski v. Doll, a case the Supreme Court has agreed to hear in the fall in which the patentability of so-called "business methods" will be decided. Prior to sitting on the 2d Circuit, Sotomayor had extensive experience in private practice defending intellectual property rights.

Sotomayor's law clerks sing her praises
The White House released a joint letter on June 1 signed by 45 Sotomayor clerks and sent to leaders and members of the Senate Judiciary Committee. "Judge Sotomayor is a brilliant and first-rate judge who is an ideal selection for our nation's highest court," the letter stated. Several of the law clerks interviewed say the idea of the letter sprang up spontaneously among the clerks, and as soon as the far-flung group could be reached, the letter developed and caught on quickly. "I was pleased to sign it," said Jenny Rivera, a 1993 clerk who now teaches law at City University of New York.

THE BATTLE AHEAD

Big issues lurk below surface
Pity the U.S. Supreme Court nominee about to face 19 senators, each with a set of issues, some predictable, some not, and many far removed from the day-to-day work of a justice — or for that matter, a judge or lawyer. The predictable menu of issues is already being written for Judge Sonia Sotomayor by senators and special interest groups. Perennial favorites include abortion, the scope of the right to privacy, the death penalty and when stare decisis should prevail.

The debate over reversals
Now that U.S. Court of Appeals for the 2d Circuit Judge Sonia Sotomayor has been nominated for the U.S. Supreme Court, she finds herself under intense scrutiny for the handful of times that the court reversed her decisions. It's no deal-breaker, however: the Court's last appointee, Samuel Alito Jr., had a 100% reversal rate when George W. Bush nominated him to the Supreme Court in 2005 — a fact that was barely noted and did not count against him.

Nominee will need 'sherpa' to lead the way
As Sotomayor makes her through the nomination process, which Washington insider will serve as her guide? Those who have served that role for past judicial nominees say the White House will need to heed the smallest details, react promptly to any unexpected barriers and step carefully around the traditions of the Senate.

In climate case, long delay by Sotomayor-led panel
A major climate change lawsuit brought by eight states against five utilities has been pending decision for nearly three years before a panel of the U.S. Court of Appeals for the 2d Circuit on which Sonia Sotomayor is the presiding judge. "No one knows why the case has never been decided," said David Doniger, policy director of the Natural Resources Defense Council's Climate Center.

A Catholic super-majority on the Supreme Court
If Judge Sonia Sotomayor is confirmed to the Supreme Court, she will be only the 12th Roman Catholic justice in history. But what is remarkable is that six of those 12, if you include her, will be on the Court that convenes in October. But Sotomayor, who is said to attend church for family events, may not be easily lumped together with the Court's other five Catholics, all of whom are on the conservative wing on the Court.

THE NOMINEE

Nominee's civil practice was with a small, but specialized, firm
Long before President Obama thrust Sonia Sotomayor into the spotlight by nominating her for the U.S. Supreme Court, she was a corporate attorney with an interesting specialty: designer handbags. Sotomayor spent eight years at New York firm Pavia & Harcourt, where she represented Italian luxury goods retailer Fendi in its fight against knockoff handbags bearing the designer's logo.

Interests groups react
The nomination of Sonia Sotomayor to the high court drew fervent praise and equally impassioned criticism. The Blog of Legal Times last week ran several comments from representatives of legal and business interest groups reacting to the nomination of Sonia Sotomayor to the Supreme Court. Here is an edited sampling.

Video: Tony Mauro Discusses Sotomayor
Supreme Court Correspondent Tony Mauro shares insight on President Obama's nomination of 2nd Circuit Judge Sonia Sotomayor and the confirmation battle to come.

THE SEARCH

What old sin will haunt the next nominee?
What will be the Achilles' heel, the french fry case, for the next U.S. Supreme Court nominee? That question might normally wait for the nominee to actually be named. But in the accelerated, intense glare of bloggers and bloviators, President Barack Obama's presumed short-listers have already been picked over and subjected to extended criticism.

An alternative short list for the high court
Is New York Law School's Annette Gordon-Reed, the Pulitzer Prize-winning law professor/historian, on President Obama's Supreme Court "short list"? Or, Alabama lawyer Bryan Stevenson, a MacArthur Foundation "genius" award recipient and tireless advocate on behalf of indigent defendants and prisoners? How about veteran consumer rights champion Alan Morrison and University of Notre Dame Law School Dean Patricia O'Hara? Probably not. But they appear on the short lists of more than a dozen constitutional law and Supreme Court scholars we asked to step into Obama's shoes to pick a nominee to succeed retiring Justice David Souter.

COMMENTARY

The complete package
President Obama made clear the qualities he sought in a replacement for Justice Souter on the U.S. Supreme Court: a sharp intellect coupled with the empathy required to apply legal doctrine to the real-world lives of the American people. In Judge Sonia Sotomayor, Obama found a candidate who has the complete package — both legal book smarts and the wisdom to use them well.

What of impartiality?
Supreme Court nominee Sonia Sotomayor's pledge to never forget the "real-world consequences" of her decisions is not unobjectionable on its face. Unfortunately, however, empathy for disaffected groups emerges as an empty, unhelpful barometer in reaching sound legal outcomes, an emptiness reflected in many of Sotomayor's decisions.

Choosing the next justice
Obama should pick a justice as liberal as Roberts and Alito are conservative, opines constitutional scholar Erwin Chemerinsky. This is important for ideological balance and to fill a gap on the current Court: There is no justice as liberal as a William Brennan, a Thurgood Marshall or a William O. Douglas. There needs to an intellectual counterpoint to the philosophies of the conservative justices.

O'Connor on vacancy, Souter
When she retired in 2006, U.S. Supreme Court Justice Sandra Day O'Connor lamented that her successor Samuel Alito Jr. did not wear a skirt. In an interview last week with The National Law Journal, O'Connor said that, with a new vacancy on the Court, most people are "expecting and indeed hoping" that the next appointee will be a woman. "There was a little backsliding when I left."

Interest groups mobilize to influence pick
The infrastructure of the U.S. Supreme Court confirmation industry went up almost overnight after Justice David Souter's May 1 announcement that he plans to retire in late June. While we wait for President Obama's high court nomination, here is a collection of items dealing with the fallout from Souter's announcement.

Justice's retirement sets stage for nomination fight
The sudden, if unsurprising, announcement that Supreme Court Justice David H. Souter will retire instantly ratcheted up the scrutiny and political pressure on President Barack Obama and on the growing list of potential replacements — some of whom are already drawing fire.

Chicago law professor says Wood outranks Sotomayor, based on empirical study
Judge Diane Wood of the U.S. Court of Appeals for the 7th Circuit should beat out federal appellate bench colleague Judge Sonia Sotomayor of the 2d Circuit for the nod as a U.S. Supreme Court candidate — at least according to an empirical view of Eric Posner, a Chicago law school professor with a judicially prominent last name.

If picked, Granholm would be 7th foreign-born justice
The inclusion of Canadian-born Michigan Gov. Jennifer Granholm on some short lists of potential Supreme Court nominees has raised awareness that there's no requirement that justices be born in the United States. The Constitution is silent on any requirement relating to place of birth or citizenship for judges — or any other qualification such as age or legal background, for that matter.

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