Federal Judges, SCOTUS, Sonia Sotomayor, Supreme Court, White House Counsel

The Sotomayor Nomination: A Bit of Backstory

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This morning we covered the announcement by President Barack Obama of his intention to nominate Judge Sonia Sotomayor, of the New York-based Second Circuit, to serve as an associate justice of the U.S. Supreme Court. This afternoon, we participated in a conference call between a senior Administration official and several reporters, to discuss the Sotomayor nomination. Here’s a quick write-up of the call.
“Obviously it’s an historic day here at the White House,” the official noted, referencing the fact that Judge Sotomayor, if confirmed, will be the first Hispanic (and only the third woman) to serve on the SCOTUS. He stressed that the president took the choice “very seriously,” and read “literally thousands of pages” of judicial opinions and academic writings by the potential nominees. (Of course, as a former law professor, Obama is used to such intellectual heavy lifting.)
Obama interviewed four candidates personally (and Vice President Joe Biden also talked to the final four): Judge Sotomayor; Judge Diane Wood, of the Seventh Circuit; Solicitor General Elena Kagan; and Secretary of Homeland Security Janet Napolitano. He picked Judge Sotomayor based on three factors: (1) her overall level of intellectual capacity and legal acumen, reflected in her academic record, her work as a lawyer, and her judicial service; (2) her approach to judging, including her legal craftsmanship and her ability to win over colleagues on the Second Circuit; and (3) her compelling personal story, which was placed front and center at this morning’s press conference.
Then the floor was opened up to questions. Read more, after the jump.


The questions were generally supportive rather than confrontational. Here’s a rough summary — paraphrased, unless otherwise indicated — of the Q-and-A:
Q: Could we see a Republican filibuster?
A: So far today we haven’t heard Republican senators talking about a filibuster under any standard, “extraordinary circumstances” or otherwise. Our hope is that that can be avoided. We believe Judge Sotomayor is a very strong nominee and one that will do quite well in the hearings. Our focus is on getting her in front of the American people.
Q: What are the White House talking points on Ricci v. DiStefano (the Title VII case brought by the white firefighters in New Haven)?
A: Judge Sotomayor, as part of a unanimous panel, applied the law of the Second Circuit to the case before her. The opinion expressed a great deal of sympathy for the firefighters and their predicament, but she and the other judges on the panel believed they were bound by the law of the circuit to uphold the district court opinion.
Her critics can’t have it both ways. They can’t criticize her as a judicial activist on the one hand and then attack her for applying Second Circuit law on the other.
Q: What is the best response to attacks on her credentials?
A: Such attacks would be inaccurate. Judge Sotomayor graduated summa cum laude from Princeton, was an editor of the Yale Law Journal, worked in the Manhattan DA’s office, and was a partner at a law firm. Then she served as a federal trial and appeals court judge.
“I don’t know many of her attackers who have that kind of record…. People will take potshots, but we will defend her strongly on the merits. Judge Sotomayor’s credentials are not just good or even excellent; they are outstanding. She will come to the Court with more prior judicial experience than anyone currently on the court, and with more prior federal judicial experience than anyone in the past 100 years.”
Q (follow-up): Is that — an emphasis on judicial experience — a good line to push? What if the next nominee doesn’t come from a judicial background?
A: We take each nomination as it comes. Each nominee needs to stand on their own merits.
Q: When Obama met with the four finalists, what types of issues did he discuss with them?
A: He did not ask about specific cases or how they would rule in specific cases. Each conversation was different because each nominee had a different background.
With Judge Sotomayor and Judge Wood, he talked a lot about their approach to judging, how they made their decisions, and how they worked on courts to persuade their colleagues, especially those appointed by Republican presidents. The conversations with Solicitor General Kagan and Secretary Napolitano were different. But President Obama dug deeply into the legal writings of all the people he interviewed.
Q: How does the White House plan to address challenges based on Judge Sotomayor’s talk at Berkeley, concerning being a Latina judge?
A: Some of her critics have seized upon a single sentence, taken out of context from a rather thoughtful presentation by Judge Sotomayor. When you read the whole talk, you see the bigger picture. She observed that judges inevitably are the product of their experience. She also noted that it was nine white men on the Court who decided Brown v. Board of Education. She was not articulating some theory that only Latina women can be good judges.
Q: Over the weekend, the president made references to a nominee with “a common touch,” as well as a practical knowledge of business issues. These references seem to foreshadow his pick of Judge Sotomayor. Was that intentional?
A: The president did have Judge Sotomayor in mind over the weekend, having interviewed her on Thursday of last week. That said, he ran a very thorough process, and he didn’t reach a final judgment until Monday evening. His decision to select Judge Sotomayor didn’t surprise any of us who had talked with him about the decision. At the same time, it wasn’t a decision he reached without putting in a lot of time and thought.
Q: What did Judge Sotomayor’s time as a prosecutor, an assistant district attorney in New York, contribute to her background?
A: It left her with a sense of some of the problems our country faces, the need to have rigorous justice, and the importance of defending the rights of crime victims.
Q: Did the president open the door to the criticisms of Sotomayor as an overly emotional judicial activist with his initial talk about seeking a justice with “empathy”?
A: The president has made very clear that a nominee’s real world, hands-on experience will affect their judgment. He has also made clear, however, that he is looking for a judge who understands the importance of the rule of law and the importance of precedent. He believes that, in Sonia Sotomayor, he has found both. As she makes the case for herself at the hearings, people will find her to be a very compelling nominee.
Earlier: Breaking: Obama To Nominate Judge Sonia Sotomayor (2d Cir.) to Supreme Court

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