A law degree wasn’t a requirement last week to participate in the biggest legal spectacle in the nation — even for those asking the questions.
The U.S. Senate Judiciary Committee includes members who, in their professional careers, have been a medical doctor, a satirist and the owner of the National Basketball Association’s Milwaukee Bucks. These senators haven’t sat through 1L classes, let alone had the extensive academic training or practical legal experience of some of their colleagues.
So how did they prepare to take on the responsibility of questioning U.S. Supreme Court nominee Sonia Sotomayor? And of grilling her 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.
“Where we come up short is the language of lawyers,” said Sen. Chuck Grassley (R-Iowa), a farmer by profession who’s been in Congress since 1975. “That’s our shortcoming. So, I think that what we have to do is spend more time with our LAs, legislative assistants, to ask more questions — probably very simple questions — but we’ve got to understand the language of lawyers, and we’ve got to study the cases to a greater extent maybe than the average lawyer.”
Grassley, who asked Sotomayor about property rights and same-sex marriage, said he took classes in administrative and constitutional law when he was a student of political science in the 1950s. “So we’re not totally ignorant about the major cases of law and the major precedents,” he said. To get ready for last week, he said, he read summaries, prepared by staff, of some of Sotomayor’s cases from her 17 years as a district and appellate judge, as well as legal commentary that he came across in newspapers.
In all, six of the committee’s 19 members are nonlawyers, including two of its senior members, Grassley and Sen. Herb Kohl (D-Wis.). That ratio — of almost one in three — is significantly higher than it’s been in other recent confirmation battles. About one in five members did not have a law degree during the hearings for Chief Justice John Roberts Jr., Justice Samuel Alito Jr., Justice Clarence Thomas and failed nominee Robert Bork.
One of the six nonlawyers on the current panel, Sen. Ted Kaufman (D-Del.), has the advantage of having spent three decades working for then-Sen. Joe Biden, a key figure in a generation of Supreme Court confirmation battles. Kaufman, who used to help Biden write questions, pressed Sotomayor about a string of cases related to antitrust law and other business issues.
The committee members who are lawyers have been state attorneys general, U.S. attorneys and state prosecutors. One was a state supreme court justice, and at least three of the lawyer-senators have argued cases before the U.S. Supreme Court.
Kohl, the Bucks owner and a retail magnate, prepared for Sotomayor’s hearing in part by convening a group of Wisconsin legal experts at Marquette University Law School. Sen. Al Franken (D-Minn.) said in his opening statement that he’s been “consulting with some of Minnesota’s top legal minds” after spending the past three decades as an author, radio personality, and writer and performer for “Saturday Night Live.”
Jennifer Duck, chief counsel for Sen. Dianne Feinstein (D-Calif.), disputed the idea that Feinstein needed any extra preparation because she’s not a lawyer. “It really is the same as it is for all of the members who are lawyers,” Duck said. Feinstein, a former San Francisco mayor who has been on the Judiciary Committee since 1993, relied on Duck and three other staff lawyers to research cases and gather other background on Sotomayor. Unlike Franken and Kohl, she did not seek out the advice of legal experts back home.
But, Duck said, Feinstein’s nonlegal background does affect the questions the senator asks. “I think the difference is that Senator Feinstein asks questions…that explain why these legal issues matter.” On the third day of questions for Sotomayor, for example, Feinstein asked the nominee to explain to viewers at home the significance of a per curiam decision.
One senator known for holding up a copy of the Constitution on the Senate floor gave Sotomayor an especially difficult time. Sen. Tom Coburn (R-Okla.) wanted to know whether there’s anything the Supreme Court can do to limit federal spending and how far states can go in limiting post-viability abortion. “I read the Constitution about every other day, because I use it on the floor,” said Coburn, an obstetrician and gynecologist. “You see me holding up the book all the time because I’ve become a great student of it. We violate it all the time in Washington.”
Franken, too, read aloud from a copy of the Constitution, asking Sotomayor whether the plain language of the 15th Amendment places any limits at all on Congress’ power to enforce voting rights. Sotomayor, as she did with most questions that touched on potential litigation, declined to answer.
Grassley, in an interview, said a nonlegal background can hinder him when he’s questioning a nominee. He acknowledged that he rarely asks follow-up questions — a characteristic common of Kohl’s questioning, too. “That’s probably our inability to get any point in, or to ask a tough question in the middle of an answer, when we ought to be doing it,” Grassley said, adding that follow-up questions are something that “lawyers can do very well.”
David Ingram can be reached at email@example.com
See all of the NLJ’s continuing coverage of the confirmation.