Federal Courts and Nominations

Obama makes Sotomayor his first Supreme Court nominee


President Barack Obama nominated Appeals Judge Sonia Sotomayor to the U.S. Supreme Court Tuesday, Reuters reports. “I have decided to nominate an inspiring woman who I believe will make a great justice, Judge Sonia Sotomayor of the great state of New York,” Obama said in a White House event announcing his decision.

Conservatives quickly moved to criticize the choice, but political analysts said that, barring an unexpected scandal, there was little chance the nomination — to fill the seat being vacated by liberal Justice David Souter — could be derailed. Supreme Court justices serve for life but their nomination must be approved by the U.S. Senate, where Obama’s fellow Democrats have a majority.

“Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written,” said conservative activist Wendy E. Long, Counsel to Judicial Confirmation Network. “She thinks that judges should dictate policy and that one’s sex, race and ethnicity ought to affect the decisions one renders from the bench. She has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court.”

Senate Republican Leader Mitch McConnell issued a more conciliatory warning note: “Senate Republicans will treat Judge Sotomayor fairly. But we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences.”

Sotomayor, 54, is a judge on the 2nd U.S. Circuit Court of Appeals in New York. Some have suggested Sotomayor, a graduate of Yale Law, would be a hit with two political constituencies given her Hispanic heritage.The daughter of Puerto Rican immigrants, and a moderate appointed by George H.W. Bush.

Canwest News Service Washington correspondent Sheldon Alberts writes that while her judicial background is extensive, she also possessed real-world experience Obama said he wanted in his first Supreme Court nominee.

“What I want is not just ivory tower learning,” Obama said in a recent interview with C-SPAN. “I want somebody who has the intellectual firepower, but also a little bit of a common touch and has a practical sense of how the world works.”

Obama has said he wants the Senate to hold confirmation hearings on Sotomayor before Congress breaks for its summer recess in August.

Marc Ambinder at the Atlantic got his hands on the White House talking points for the announcement (which were NOT for distribution, whoops!). Obama’s line in pushing her nomination will be:

As a former constitutional law professor, [the President] believes it paramount to select someone who rejects ideology and shares his deep respect for the Constitutional values on which this nation was founded.

Over a distinguished career that spans three decades, Judge Sotomayor has worked at almost every level of our judicial system – as a prosecutor, litigator, trial court and appellate judge — yielding a depth of experience and a breadth of perspectives that will be invaluable – and is currently not represented — on our highest court

Doug Kendall, President of the liberal Constitutional Accountability Center, was happy to stay on board with the White House line, saying “In Judge Sotomayor, we believe President Obama has found a nominee who will help ensure that the Constitution and laws are faithfully applied and remain true to their intended purpose as guardians of our rights, liberties, and equality.”

The New York Times reporter Jeff Zeleny writes:

The president reached his decision over the long Memorial Day weekend, aides said, but it was not disclosed until Tuesday morning when he informed his advisers of his choice less than three hours before the announcement was scheduled to take place.

New Republic legal affairs writer Jeffrey Rosen wrote a lengthy Case Against Sotomayor (a headline he immediately regretted, saying his piece “was intended to convey questions about her judicial temperament that sources had expressed to me in the preceding weeks.” and not a full-fledged attack on Sotomayor)

Sotomayor’s former clerks sing her praises as a demanding but thoughtful boss whose personal experiences have given her a commitment to legal fairness. “She is a rule-bound pragmatist–very geared toward determining what the right answer is and what the law dictates, but her general approach is, unsurprisingly, influenced by her unique background.”

But despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor.

The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?”)

Politico reports Senate Judiciary Committee member John Cornyn (R-Texas), said Tuesday “It is imperative that my colleagues and members of the media do not pre-judge or pre-confirm Ms. Sotomayor.” The story’s consensus view was that the GOP thinks:

Any nominee should live by the baseball metaphor used by John G. Roberts Jr. during his 2005 Supreme Court confirmation hearing, when he said that a justice should simply “call balls and strikes” and not “pitch or bat.”

In another story by Politico, conservatives admit they might be happy to lose this fight:

“Remember,” adds Princeton law professor Robert George, founder of the National Organization for Marriage, “that the base does not expect to win this. That’s the little secret. [Republicans] don’t have the filibuster, the Democrats have the votes. For [the conservative base], this is about the future of the Republican Party, not who is going to sit on the Supreme Court. . . . . That is why conservatives are going to be interested in it, and what they are going to hold people accountable for.”

Reuters reporter Tom Ferraro has done a decent Q&A of the confirmation process:

Unclear. Since 1981 it has taken, on average, 2-1/2 months for a nominee to go to a vote by the full Senate, according to figures compiled by the Senate Judiciary Committee.

According to the Senate historian’s office, 28 of 158 nominations have been rejected, withdrawn or simply not acted upon since the court was founded in 1789. Most recently, President George W. Bush’s 2005 nominee, Harriet Miers, withdrew in the face of opposition from fellow conservatives. The Senate has only used a procedural roadblock known as a filibuster once: in 1968, to stop President Lyndon Johnson from making Justice Abe Fortas, a close confidant, chief justice.

Barring a surprise scandal, that is highly unlikely. Republicans are certain to grill the nominee about topics such as abortion, torture and civil rights. But with just 40 Republicans in the now 99-member Senate (there is one opening), they would all have to stick together to deny Democrats the 60 votes needed to end a filibuster.

Obama opposed both — Chief Justice John Roberts and Justice Samuel Alito.

A questionnaire will be sent to the nominee from the Judiciary Committee. Questions will range from date of birth, net worth and employment record to a listing of all organizations that the nominee belongs to, and a request of copies of the nominee’s published writings, testimony and speeches.

The nominee will be invited to give an opening statement and then be questioned by the 19-member panel, which includes 12 of Obama’s fellow Democrats and seven Republicans. The hearing likely will last at least several days.

Senators will have a week to submit written follow up questions. Once the answers are provided, the committee will vote whether to recommend to the full Senate that the nominee be confirmed or rejected. It could decide to send the nomination to the full Senate without a recommendation.

Once the Senate receives the nomination, it will likely vote after at least a few days of debate.

Senate Judiciary Committee Chairman Patrick Leahy will head the confirmation hearing. Jeff Sessions, a conservative from Alabama, is the panel’s senior Republican and will head his party’s questioning. Arlen Specter is a former Republican chairman of the committee but after his switch to the Democratic Party he will be watched closely to see whether, and how enthusiastically, he backs the nominee. Democratic Leader Harry Reid and Republican Leader Mitch McConnell will play key roles in shaping the approach of their party members.

The confirmed nominee will likely head directly to the White House to be sworn. Chief Justice John Roberts likely will administer the oath of office. But if Roberts is unavailable, another justice would handle it. 

More from Federal Courts and Nominations

Federal Courts and Nominations
January 17, 2024

The Leadership Conference on Civil and Human Rights Sign-On Letter Prioritizing Diverse Judges

Dear Senator, On behalf of The Leadership Conference on Civil and Human Rights and the...
Federal Courts and Nominations
July 31, 2023

Liberal justices earn praise for ‘independence’ on Supreme Court, but Thomas truly stands alone, expert says

Fox News
Some democrats compare Justice Clarence Thomas to ‘Uncle Tom’ and house slave in ‘Django Unchained’
By: Elizabeth B. Wydra, By Brianna Herlihy
Federal Courts and Nominations
July 7, 2023

In Her First Term, Justice Ketanji Brown Jackson ‘Came to Play’

The New York Times
From her first week on the Supreme Court bench in October to the final day...
By: Elizabeth B. Wydra, by Adam Liptak
Federal Courts and Nominations
July 8, 2023

The Supreme Court’s continuing march to the right

Major legal rulings that dismantled the use of race in college admissions, undermined protections for...
By: Elizabeth B. Wydra, by Tierney Sneed
Federal Courts and Nominations
June 25, 2023

Federal judge defends Clarence Thomas in new book, rejects ‘pot shots’ at Supreme Court

A federal appeals court judge previously on short lists for the Supreme Court is taking the rare...
By: Elizabeth B. Wydra
Federal Courts and Nominations
May 1, 2023

Supreme Court, done with arguments, turns to decisions

Roll Call
The justices have released opinions at a slow rate this term, and many of the...
By: Brianne J. Gorod, By Michael Macagnone