Special Coverage: Sotomayor, Day 3

In a full hour of NPR special coverage, Los Angeles Times Supreme Court reporter David Savage, Harvard law professor Charles Ogletree and George Mason University law professor Neomi Rao discuss the Senate Judiciary Committee hearings for Supreme Court nominee Judge Sonia Sotomayor.

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NEAL CONAN, host:

This is special coverage from NPR News. I'm Neal Conan in Washington.

Judge Sonia Sotomayor responds to questions from the Senate Judiciary Committee for a second day. Today, the more junior members of the committee get their first crack at President Obama's choice for the Supreme Court. And like yesterday, Democrats have been friendly and supportive while Republicans challenged the nominee's statements in and out of the courtroom. We're going to let you listen to substantial excerpts of today's testimony and bring you analysis. A bit later in the hour, we'll talk about the numbers and importance of minorities and women on the high court. If you'd would like to ask questions about that, about what Judge Sotomayor has said or has not said, or about the confirmation process, you can send us an email. The address is talk@npr.org.

And let's go down to the Hart Office Building. And this is Senator Patrick Leahy, the chairman of the committee talking with Judge Sotomayor. He may be gaveling the session to an end. Indeed he has. Well, what timing. This is the end of the first round. The most junior senator on the committee, Al Franken, the newly appointed - newly elected senator from Minnesota just wrapped his testimony. His questions for Judge Sotomayor, with a stinging cross-examination, I think, on "Perry Mason" the show that she said inspired her when was a little girl watching on TV.

And then Senator Leahy gaveled the session to a close. What happens after the first round of questions when each of the 19 senators has their opportunity for half an hour of questions with the nominee is that the committee will retire to talk for a little bit and then come back for a second round of questions. Shorter time period for each senator. But the Republicans certainly indicated they want another round with Judge Sotomayor. And of course, the Democrats, though they may have little left to ask her, will make sure that somebody says something so it's not all Republicans quizzing her in a row - so she gets a break from the challenges from time to time.

David Savage joins us here in the studio. He covers the Supreme Court for the Los Angeles Times and the Chicago Tribune. And very good of you to have us - be with us today.

Mr. DAVID SAVAGE (Journalist, The Los Angeles Times; Chicago Tribune): Hi Neal.

CONAN: And day three - this is, of course, after the opening statements on Monday and first round of questioning yesterday. And then today, day three, seemed to focus more on issues.

Mr. SAVAGE: Yes, there's a lot of talk about abortion and gun rights from John Cornyn of Texas and Tom Coburn from Oklahoma. I thought they asked a lot of very good questions. They didn't get very detailed answers. She frequently said well that's an abstract issue or I can't comment on it. She didn't - I think over the last two days Sonia Sotomayor has given very good answers or least recently detailed answers when she is asked about her own court decisions. She can explain them. And she gives the whole rationale. If you ask her a general question about constitutional law, she gives you - she says well that's abstract and I can't really answer that question.

CONAN: And she is not alone in that. Previous nominees have come up with very much the same kind of formula. I'm not going to be drawn on hypothetical questions to give the opposition ammunition.

Mr. SAVAGE: Yes, that's absolutely right. It's almost a formula with all these now, you know, the judge will in this case defend her own decisions, explain them, but not venture any broader views on the law.

CONAN: You mentioned some of the toughest questioning came from John Cornyn of Texas. He asked these so called - he asked about these so called New Haven firefighter case. This is the Ricci case as it's known, which was, came to the Second Circuit Court of Appeals in New York on the three-judge panel on which Judge Sotomayor was a participant. They upheld the city of New Haven and then that decision, of course, recently reversed by the Supreme Court. And here's John Cornyn asking about the Ricci case.

Senator JOHN CORNYN (Republican, Texas): Don't you think that these firefighters and other litigants deserve a more detailed analysis of their claims and an explanation for why you ultimately deny their claim?

Judge SONIA SOTOMAYOR (Second Circuit Court of Appeals; Supreme Court Nominee): As you know that the court's opinion issued after discussions en banc recognize, as I do - the hardship that the firefighters experienced. That's not been naysaid by anyone. The issue before the court was a different one, and the one that the district court addressed was what decision the decision-makers made, not what people behind the scenes wanted the decision-makers to make, but what they were considering. And what they were considering was the state of the law at the time and in an attempt to comply with what they believe the law said.

And what the panel recognized as what the Second Circuit precedent said, that they made a choice under that existing law. The Supreme Court in its decision set - a new standard by which an employer and lower court should review what the employer is doing by the substantial evidence test. That test was not discussed with the panel. It wasn't part of the arguments below. That was a decision by the court borrowing from other areas of the law and saying, we think this would work better in this situation.

CONAN: And David Savage, Judge Sotomayor explaining that she and her colleagues on the Second Circuit applied precedent as they saw it, applying in this case, when the case went up to the Supreme Court by a five-four decision. Now, they said, well, we're going to change that.

Mr. SAVAGE: I think this is one where her legal defense is better than it's been portrayed in some quarters. In some of the stories, you would have thought she just decided, I don't care so much about the white firefighters. I care about protecting the black firefighters. But the legal issue in this case was Title VII, the Civil Rights Law says, if you're an employer and you have a job standard or a promotional test, and it has a disparate effect on a minority group, you can be sued. Well, I think a lot of employers would think, wow. We've got a problem. We don't want to be sued.

And your lawyer says to you, you better not go ahead with this or we're going to be sued. That's essentially what happened in the New Haven case. Now it raised another issue that a lot of people think was also deeply unfair, which was a group of firefighters took the test, most of them are white. They did well. It felt like that they were being cheated. But her decision, and I think the Second Circuit's decision was reasonable on the law at the time, which was to say, the New Haven City government was following the law as they understood it and that's why they acted and that's why we are upholding it.

CONAN: As mentioned, there were also questions about Reproductive Rights today from several senators including Republican Senator Tom Coburn, also Dr. Coburn, an obstetrician, who asked the nominee some specific questions about the applications of technology in deciding the legal standards on abortion.

Senator TOM COBURN (Republican, Oklahoma): Does technology, in terms of the advancement of technology, should it have any bearing whatsoever on the way we look at Roe v. Wade? For example, published reports most recently of a 21 week - 21 week, that's a 142 days - fetus alive and well now at nine months of age with no apparent complications because the technology has advanced so far that we can now save children who are born prematurely at that level. Should that have any bearing as we look at the law?

Judge SOTOMAYOR: The law has answered a different question. It's talked about the constitutional right of women…

Sen. COBURN: I understand…

Judge SOTOMAYOR: …in certain circumstances and as I indicated the issue becomes one of what's the state regulation in any particular…

Sen. COBURN: I understand…

Judge SOTOMAYOR: …circumstances.

Sen. COBURN: …but all I'm asking is should it have any bearing?

Judge SOTOMAYOR: I can't answer that in the abstract because the question, as it would come before me, wouldn't be in the way that you form it as a citizen. It would come to me as a judge in the context of some action that someone's taking, whether if it's the state, the state, if it's a private citizen being controlled by the state challenging that action. Those issues are…

Sen. COBURN: But viability is a portion of a lot of that. And a lot of the decisions have been made basis on viability. If we now have viability at 21 weeks, why would that not be something that should be considered as we look at the status of what can and cannot happen in terms of this right to privacy that's been granted under Roe v. Wade and Casey?

Judge SOTOMAYOR: All I can say to you is what the court's done, and the standard that the court has applied, what factors it may or may not look at within a particular factual situation can't be predicted in a way to say, yes, absolutely, that's going to be considered. No, this won't be considered.

Sen. COBURN: All I'm asking is whether it should. Should viability, should technology at any time be considered as we discuss these very delicate issues that have such an impact on so many people? And your answer is that you can't answer it.

Judge SOTOMAYOR: I can't because that's not a question that the court reaches out to answer.

CONAN: Senator Coburn then went on to ask questions about the right to self-defense and asked Sonia Sotomayor if the Constitution guarantees every citizen the right to defend himself.

Sen. COBURN: Just yes or no. Do we have that right?

Judge SOTOMAYOR: I know it's difficult to deal with someone, as like a judge, who is so sort of - whose thinking is so cornered by law.

Sen. COBURN: I know. Kind of like a doctor. I can't quit using doctor terms. I know that.

Judge SOTOMAYOR: That's exactly right, but let me try to address what you're saying in the context that I can, okay? Which is what I have experience with, all right, which is New York criminal law because I was a former prosecutor. And I'm talking in very broad terms, but under New York law, if you're being threatened with eminent death or very serious injury, you can use force to repel that, and that would be legal.

The question that would come up and does come up before juries and judges is how eminent is the threat? If the threat was in this room, I'm going to come get you, and you go home and get - or I go home. I don't want to suggest I am, by the way.

(Soundbite of laughter)

Judge SOTOMAYOR: Please, I don't want anybody to misunderstand what I'm trying to say. If I go home, get a gun, come back and shoot you, that may not be legal under New York law because you would have alternative ways to defend…

Sen. COBURN: You'll have lots of 'splainin to do.

(Soundbite of laughter)

Judge SOTOMAYOR: I'd be in a lot of trouble then, but I couldn't do that under a definition of self-defense. And so that's what I was trying to explain in terms of why, in looking at this as a judge, I'm thinking about how that question comes up and how the answer can differ so radically given the hypothetical facts before you.

CONAN: Interchanges between Judge Sonia Sotomayor and Tom Coburn, the Republican senator from Oklahoma. Of course, Perry Mason not the only television show just referenced there. There was a reference to the Lucy show, as well, you got some 'splainin to do.

We're bringing you highlights from today's confirmation hearings for Supreme Court nominee. Up next, we'll parse her comments with Charles Ogletree, who endorses Sonia Sotomayor, and Neomi Rao, who is scheduled to testify later this week about her concerns about the nominee. David Savage will stay with us, as well. I'm Neal Conan. This is special coverage from NPR News.

(Soundbite of music)

CONAN: This is special coverage from NPR News. I'm Neal Conan in Washington. It's day three of the hearings into Sonia Sotomayor's nomination to be an associate justice of the United States Supreme Court. There is still no sign she will not be confirmed to replace retired Justice David Souter.

Republicans pressed her again today on the issue of abortion, on her attitudes about race, the law and justice and some of her comments off the bench. Democrats continue to hope for bipartisan support.

Our guide to these hearings is David Savage, who covers the Supreme Court for the Los Angeles Times and the Chicago Tribune. If you'd like to ask questions about what Judge Sotomayor has said or has not said about the confirmation process, send us an email. The address is talk@nor.org. Joining us here in the studio, Charles Ogletree, a professor at Harvard Law School, and Neomi Rao, who's a professor at George Mason University School of Law. Later this week, she will testify before the Senate Judiciary Committee as a witness for the minority, and nice to have you both with us today here in the studio.

Mr. CHARLES OGLETREE (Professor, Harvard Law School): Glad to be with you.

Ms. NEOMI RAO (Professor, George Mason University School of Law): Thank you.

CONAN: And Neomi Rao, tell us what you - give us a preview of what you plan to say when you appear before the committee.

Ms. RAO: Sure. One of the things that I'm going to be addressing is the appropriate role of a judge. And to examine some common, competing different judicial philosophies that people often espouse and to try to situate Judge Sotomayor on this spectrum of judicial philosophies.

CONAN: And where would you situate her?

Ms. RAO: Well, I think that there are a couple things we can look at. She has made a number of statements in speeches and in her writings about what she views the judicial role to be. And in those writings and speeches, she has articulated a view of the judicial role that is a very personal that focuses on the individual beliefs of a judge.

And I think in this, she is very far from the sort of formalist end of the judicial philosophy spectrum, and she may even be past the mainstream, pragmatic end of the spectrum. And of course, in the hearings today and yesterday, she has disavowed a number of her earlier statements, and so that's something that the senators will have to consider.

CONAN: And are you talking about her decisions, the decisions she's made in the courtroom or some of the things she said, for example, in the speech at Berkeley or the comments she made at Duke?

Ms. RAO: I think I'm more concerned with her speeches. She is a court of appeals judge, and so as a lawyer court judge, she's bound by Supreme Court precedent. And in her opinions on the second circuit, she hasn't had much opportunity, and most lower court judges don't have much opportunity to articulate what the appropriate role of a judge is. So I think it is important to consider what she said about the judicial role when she has been speaking outside of the courtroom, and she said many of these statements time and time again over a number of years.

CONAN: Let's bring Charles Ogletree into the conversation, and your signature was among more than 1,000 of law professors across the country endorsing Sonia Sotomayor. Why do you think the Senate should vote to confirm her?

Mr. OGLETREE: Well, because she's exceptionally well-qualified. I've known Judge Sotomayor for a long time. She's hired some of my students as law clerks. I've read her opinions, and the reality is that if you listen - I was there today at the hearings. It's amazing that it's very hard to find an opinion that she's written or been a part of, out of 3,000, that you can say - or any opinion where she says as a Latina woman or as a woman or as a minority, I feel this way. She doesn't do that.

In fact, she is very pedantic about the law, respects the law and constantly says in cases like the crash of the TWA airplane with their, you know, victims, innocent victims, that she couldn't side with them because the law didn't allow it. She always cites precedent. Even in the Ritchie case, which people have talked about, she was going with the existing law.

So she is someone who is not only mainstream but moderate in her decisions, and I think that that's what the senators are finding out, and I'm glad that people are testifying. They have a right to say what they want to say. They ask the questions, and she has an obligation to answer them, even if the answer is I can't comment on it. But I think at the end of the day, 70 or more of these senators will say, you know what? She's qualified. There's no qualification that excludes her, and we should confirm her.

CONAN: Seventy or more. What do you think the vote is going to be on the Judiciary Committee?

Mr. OGLETREE: I think it'll be over a dozen.

CONAN: And that would include, of course, well, there are 12 Democrats, so…

Mr. OGLETREE: Yup.

CONAN: So you think they're going to get some Republicans.

Mr. OGLETREE: Yes, and I won't name them, not yet.

(Soundbite of laughter)

CONAN: David Savage, what do you think of Charles Ogletree's prognostications there?

Mr. SAVAGE: Well, it may be right. I do not have any idea. All the Republicans have asked skeptical questions. I don't know, in the end, whether some of them will vote for her. I do think a lot of - their feeling is that, you know, Barack Obama voted against John Roberts and Sam Alito. The vote against Sam Alito was pretty much of a partisan line. I think the Republicans think they could all line up and vote against her.

I don't sense that any of them are particularly - I don't think anybody's going after her too hard. So I can also imagine a couple saying, we'll vote for her, and then we'll hold our fire for President Obama's next nominee.

CONAN: And there is that well-known quote, Charles Ogletree, about the - President Obama, when deciding his vote, eventually against John Roberts, telling his chief of staff at the time, well, you know, if I were to appoint a Supreme Court nominee, I wouldn't want people making the decision simply on the basis of ideology and his chief of staff saying, well, politics tells you to vote against her.

Mr. OGLETREE: Yeah, I think Barack Obama has made a wise set of choices in those who he's opposed as a senator and now who he's nominated for the Supreme Court, and he was right about Roberts and about Alito.

They have not just been conservatives, but in fact, if you look at Alito's opinion the Ritchie case and other cases, he'd like to move the ball even further in terms of the importance of Title VII of the - 1964 Civil Rights Act. And I think that even Barack Obama, when he talked about the issue of empathy, I hope that's something I taught him in law school. That's a good thing. It's not liberal. It's not conservative.

It's a sense of understanding people and putting yourself in that position to understand them, but it's not saying that's how you're going to decide a case, but you decide it with a sense of bringing your experience in there. And Judge Sotomayor has appropriately backed off of that and have some people concerned. But the reality is she's right, and her opinions are what make a difference.

I'd like someone to say in these 3,000 opinions, she is going to be a liberal or more liberal than the court now. In fact, I'm, as a supporter, very concerned about her criminal justice opinions. She's been siding with the government in very serious cases, and I haven't seen her at all go beyond what the law requires to give someone extra benefit or extra credit.

So she's a very tough-minded jurist, very well-prepared jurist. And she will be, I think, a suitable opponent for people like Justice Scalia, who I admire, when she joins the court.

CONAN: Neomi Rao, Judge Sotomayor, as part of that background she sites, is of course as a prosecutor in the Manhattan district attorney's office. And as we just heard from Professor Ogletree, she has sided often with the prosecution side of the case in her role as a judge.

Ms. RAO: I think that that's right. I think it's often hard, though, to evaluate a judge's philosophy simply by the outcome of a case, right? I mean, we have to look at what the underlying law is, how they approach the current precedent and how they're applying the law to the specific facts of a case. And I think it's interesting.

She has espoused, you know, a fidelity to the law, and she said repeatedly over the last few days that she wants to follow the law and not her heart, which is a comment that President Obama had made. But of course, in having fidelity to the law, there are a number of ways that people can do that.

There are many different approaches to being faithful to the law, and I think what we haven't seen in the hearing is her articulating just how she would approach statutes and the Constitution in the process of interpreting them.

CONAN: Do you think that she would be different or decidedly different from the justice that she would be replacing, David Souter?

Ms. RAO: I think that's hard to predict. It's always hard to say how someone is going to decide cases once they're on the Supreme Court. I think most indications are that she would probably agree with Justice Souter in a large number of cases, but that, of course, isn't the test for whether someone should be confirmed.

CONAN: And the empathy that you're talking about that was the standard raised by President Obama, in 95 percent of the cases, he said, well, it's the law. The last few cases, he said, well, somebody's life experience really does make a difference. That has become really, well, a very important word in the debates that we've been hearing over the past few days.

Ms. RAO: I think that's right, and I think in part that's because there are very few politicians who are willing to espouse this kind of personal approach to judging. I mean, I think senators on both sides of the political spectrum at least say repeatedly that we want judges who make law, not policy, and…

CONAN: The umpire analogy.

Ms. RAO: The umpire analogy. Almost everyone agrees with that as a matter of theory or in the abstract, even if perhaps they intend different things by it when they use those words. So I think what's so interesting about President Obama's statement is that it really is outside of the accepted rhetoric about the judicial role.

CONAN: And we've just been mentioning the umpire analogy. We heard excerpts today, Judge Sonia Sotomayor being asked questions, some tough questions by Republican senators. And well, there were some questions from the Democratic side of the aisle, indeed more questions from the Democratic side of the aisle than the Republican side, given the lopsided majority the Democrats enjoy on the Judiciary Committee of 12 to seven, but they were not especially challenging. Here, for example, Ben Cardin, the Democrat from the state of Maryland.

Senator BEN CARDIN (Democrat, Maryland): I just want you to know that the baseball fans of Baltimore knew there was a judge somewhere that changed, in a very favorable way, the reputation of Baltimore forever. You are a hero, and they now know it's Judge Sotomayor. You're a hero to the Baltimore fan - baseball fans. Let me explain. The Major League Baseball strike, you allowed the season to continue so Carl Ripken could become the iron man of baseball in September 1995.

(Soundbite of laughter)

Sen. CARDIN: So we just want to invite you - as a baseball fan, we want to invite you to an Oriole game, and we promise it will not be when the Yankees are playing so you can root for the Baltimore Orioles.

(Soundbite of laughter)

Judge SOTOMAYOR: That's a great invitation. And good morning, Senator. You can assure your Baltimore fans that I have been to Camden Yards. It's a beautiful stadium.

CONAN: And other very controversial matters. Probably the endorsement of the New York Yankees the most controversial thing she has said in her hearings so far these last couple of days. What do we learn in these hearings, Charles Ogletree?

Prof. OGLETREE: Well, one thing. I don't everybody got the memo. The memo that went around made clear Barack Obama is not a candidate for the Supreme Court. What he says, what he believes is irrelevant. Sonia Sotomayor's writings are mainstream, very pragmatic. She's not a threat to our Constitution. But third, that this is an important process. It's a transparent process.

I'm so glad that the senators are doing their responsibility about the Constitution by asking tough questions, trying to see what a candidate thinks, trying to assure that they follow the law. But the reality is that nothing they do is going to assure that Republican or conservative, liberal or Democrat. But what they can do is let the American people know, I've done my job, carried out my duty, by asking important questions for someone who has an unprecedented lifetime on the court.

So I do think they're doing their job. And I think that she's doing her job by letting us know that the law matters, not what I say, what I feel, but what I do and what I've done for the last 17 years.

CONAN: Hmm. And by the way, we have been informed, when we just came on the air, Al Franken was quizzing Judge Sotomayor about Perry Mason cases. Indeed, he was asking about the case that Perry did not win, the only one. We've been informed it was the case of the deadly verdict from the 17th of October, 1963. But, of course, it was not Perry's fault. His client withheld evidence that Perry required to win. So, well, that was the one case that Perry Mason lost.

Prof. OGLETREE: Perry's still undefeated. That's…

CONAN: Perry is still undefeated.

Mr. SAVAGE: I didn't know he'd lost one.

CONAN: Indeed.

Prof. OGLETREE: He did one.

CONAN: And I'm also told that indeed there were guest lawyers when Burr was recovering from surgery. That, of course, the actor who played Perry Mason, including Bette Davis in "The Case of the Constant Doyle" episode number 6-16 from 1963. David Savage, it's interesting we get such an interesting look into early 1960's television in the case of Judge Sotomayor. We're talking with Charles Ogletree and with Neomi Rao and, of course, David Savage. You're listening to Special Coverage from NPR News.

And, David, as you go back through this, we - so much of what we've been hearing in the last few days seems to be about these senators settling scores about what they - what was done properly and improperly in previous cases of Supreme Court nominees and, to some degree, marking the ground for the future.

Mr. SAVAGE: Yes. In the past, I recall mentioning to my colleagues in the office that this is sort of like them covering the Israelis and Palestinians. There's this endless long back and forth fight. And when you cover the Judiciary Committee, you always go up there and they start referring to the previous nominations, when your side did this and we did that and you held up the hearing or you filibustered or threatened - that seems to be the Judiciary Committee for a long time has been sort of an unhappy family.

Prof. OGLETREE: It is the - I have thought from the beginning that this hearing seems very much like the flipside of the Sam Alito hearing from two or three years ago. He was a well-qualified solid Appeals Court judge. The Republicans had a majority. You almost knew he was going to be confirmed. He basically explained his cases and didn't say much. The Democrats criticized him, voted against him; he was confirmed.

This was a little bit the same. Sonia Sotomayor is an exceptionally well-qualified, competent, smart Appeals Court judge. The Republicans, you know, don't think that she's the person they'd like on the Supreme Court. The Democrats have a solid majority. She doesn't have to win over the Republican votes. She can just play defense for three days and she will be confirmed.

CONAN: Speaking of winning over, Neomi Rao, is there anything that she could have said in the last couple of days that would have changed your mind?

Ms. RAO: Well, that's an interesting question. You know, I think that she's been like many nominees before the Judiciary Committee in the circumstances. She's been extremely deliberate. She's been careful. She's been cautious. And as David noted, she doesn't really have much to lose. And so, she can play defense.

And I think, you know, it's hard to say that something that happens over a couple of days can reflect a person's judicial philosophy more than, you know, over a decade on the Court of Appeals and a series of writings and speeches. So I think it would take a lot for me to view her record differently simply based on the statements that she made at the hearing.

CONAN: And let me ask you the same question, almost in reverse, Charles Ogletree. You mentioned some of her decisions, you know, citing her prosecution background that give you pause. But nevertheless, is there something that would have disturbed you, do you think, that would have made you reconsider your support for the nominee?

Prof. OGLETREE: I don't think so because my sense is that what she agrees with is within the bounds of the law. She's not making new law. She's affirming constitutional principles. And she believes, like she said today, that there's a warrant requirement and the police didn't meet it in one case. But there are exceptions to the warrant requirement. And one of the tests is reasonableness and that there's a good faith exception. She's right about that.

And what she said and what she did in that case was side for the government, even though a lot of people thought that if they didn't have a warrant it was defective, that ends the ballgame. But I like the fact that she says she's careful, she's meticulous. She may not - she will not rule my way all the time or even most of the time. But you know what, I'm very comfortable with the fact that she understands the enormity of her role, and she'll do a great job as a Supreme Court justice.

CONAN: All right. Charles Ogletree and Noemi Rao, we thank you both for your time today. Appreciate you coming into the studio.

David, before we let you go, the senators - well, there will be a second round of questions?

Mr. SAVAGE: Yes. That's what I understand. They were going to have a closed-door meeting for an hour, and then the second round is supposed to be 20 minutes. The Republicans have said they want to go ahead with the second round. I assume that'll carry things well into tomorrow.

CONAN: And then on Friday, we could expect the panels of people brought up by both sides, the minority and the majority, to testify on behalf.

Mr. SAVAGE: That's also possible, it may be up Thursday afternoon.

CONAN: Thursday. Will you be ready to go up on Thursday afternoon, Neomi?

Prof. RAO: My understanding from the staff is that they would like to wrap up Thursday evening if possible.

CONAN: Well, in that case, I sit corrected. Thank you very much for your time. Neomi Rao is an assistant professor of law at George Mason University School of Law. Charles Ogletree, the Jesse Climenko professor of law at Harvard Law School and executive director of the Charles Hamilton Houston Institute for Race and Justice. And of course, David Savage covers the Supreme Court for the Los Angeles Times and the Chicago Tribune.

Very crowded studio today. They were all kind enough to join us here in Studio 3A. Coming up, we'll take a closer look at diversity on the high court, how sex and ethnicity make a difference or not. Stay with us. I'm Neal Conan. You're listening to Special Coverage from NPR News.

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