The Nation: Sotomayor's Reality Check

Partner content from The Nation

Minnesota Senator Amy Klobuchar brought something rare and valuable to the Senate Judiciary Committee hearing on the Supreme Court nomination of Sonia Sotomayor: a savvy questioning style that invited the nominee to offer extended and revealing answers regarding her views on the law.

That's what should happen at judicial confirmation hearings. But it rarely does — and it might not have at Judge Sotomayor's session, had it not been for Klobuchar.

The senior senator from Minnesota got the judge talking, at length, about the extent to which the legal system can address broader societal ills, about the burden of sentencing guidelines that limit the options of judges, about the stark questions that arise when a prosecutor realizes a defendant is innocent and even about Perry Mason — don't laugh, he popularized the law as a profession to which working-class kids from the Bronx and Plymouth, Minnesota, might aspire.

"I was influenced so greatly by a television show in igniting the passion that I had as being a prosecutor, and it was 'Perry Mason'," Judge Sotomayor acknowledged in response to a question from Klobuchar, adding a human note to the routine give-and-take of the past several days.

The nominee was not just throwing off a pop-culture reference.

Judge Sotomayor, a former Manhattan prosecutor, was making a serious point about the law:

For the young people behind all of you, they may not even know who Perry Mason was, but Perry Mason was one of the first lawyers portrayed on television. And his storyline is that, in all of the cases he tried — except one — he — he proved his client innocent and got the actual murderer to confess.

In one of the episodes, at the end of the episode, Perry Mason and the character who played the prosecutor in the case were meeting up after the case. And Perry said to the prosecutor, "It must cause you some pain having expended all that effort in your case to have the charges dismissed." And the prosecutor looked up and, "No, my job as a prosecutor is to do justice, and justice is served when a guilty man is convicted and when an innocent man is not." And I thought to myself, that's quite amazing to be able to serve that role, to be given a job, as I was by (New York County District Attorney Robert) Morgenthau, a job I'm eternally grateful to him for, in which I could do what justice required in an individual case.

Thus began an extended rumination on the purposes of prosecutors, defense attorneys and judges by a Supreme Court nominee whose work on the bench will involve defining the roles of these key players in our legal system.

Judge Sotomayor spoke freely and extensively in her exchanges with Klobuchar, and the senator encouraged her to do so by actually listening as the nominee spoke.

For the most part, the exchanges between Judiciary Committee members and Judge Sotomayor this week have been political exercises. Democrats tossed softballs to the nominee of a Democratic president. Republicans threw hardballs. The nominee hit most of them in routine fashion — no strikes but not many home runs.

As such, the only real news out of the first few days of the confirmation hearing was made by those Republicans — particularly Utah's Orrin Hatch and South Carolina's Lindsey Graham — who seemed to be preparing arguments for joining Democrats in voting to approve the nomination of a woman who now seems all but certain to join the high court.

The political positioning is important. But, as this is the last time that Judge Sotomayor is likely to be questioned by members of the Judiciary Committee — unless she is nominated to serve as chief justice of the high court — the questioning from Democrats and Republicans has generally been disappointing. It has tended toward the recitation of talking points regarding abortion, affirmative action and gun control rather than real efforts to get a sense of Sotomayor's legal and judicial philosophy.

That's why Klobuchar's contribution to the session was so significant.

Minnesota's senior senator may never get as much attention as her homestate colleague and fellow Judiciary Committee member, Al Franken.

But Minnesotans know that Klobuchar is an exceptionally savvy former prosecutor who, herself, could be a credible Supreme Court pick.

An associate editor of the Law Review at the University of Chicago Law School, from which she graduated in 1985, Klobuchar was a highly-regarded partner in the same law firm where former Vice President Walter Mondale worked before her election in 1998 as the Hennepin County (Minneapolis) county attorney in 1998. Before her reelection in 2002 — with broad backing from Republicans and Democrats — she was named Minnesota Lawyer magazine's "Attorney of the Year" and served as president of the Minnesota County Attorneys Association.

Not a bad résumé for a judicial nominee.

But Klobuchar used it to get elected in 2006 to the Senate, where she has proven to be a heavy lifter on Judiciary Committee.

That was evident as the senator from Minnesota prodded Judge Sotomayor to talk about "a specific example of that in your own career as a prosecutor or what goes into your thinking on charging (suspects)."

Judge Sotomayor's answer revealed the nominee as a judge who has reflected well and deeply on legal systems strengths and vulnerabilities:

(Periodically), I would look at the quality of evidence and say, "There's just not enough." I had one case with a individual who was charged with committing a larceny from a woman.

And his defense attorney came to me and said, "I never, ever do this, but this kid is innocent. Please look at his background. He's a kid with a disability. Talk to his teachers. Look at his life. Look at his record. Here it is." And he gave me the file.

And everything he said was absolutely true. This was a kid with not a blemish in his life. And he said, "Please look at this case more closely."

And I went and talked to the victim, and she — I had not spoken to her when the case was indicted. This — this was one of those cases that was transferred to me, and so it was my first time in talking to her. And I let her tell me the story, and it turned out she had never seen who took her pocketbook.

In that case, she saw a young man that the police had stopped in a subway station with a black jacket, and she thought she had seen a black jacket, and identified the young man as the one who had stolen her property. The young man, when he was stopped, didn't run away. He was just sitting there. Her property wasn't on him, and he had the background that he did.

And I looked at that case and took it to my supervisor and said, "I don't think we can prove this case." And my supervisor agreed, and we dismissed the charges.

And yet there are others that I prosecuted, very close cases, where I thought a jury should decide if someone was guilty, and I prosecuted those cases and more often than not got convictions. My point is that that is such a wonderful part of being a prosecutor.

That TV character (Perry Mason) said something that motivated my choices in life and something that holds true, and that's not to say, by the way — and I firmly, firmly believe this — defense attorneys serve a noble role, as well. All participants in this process do: judges, juries, prosecutors, and defense attorneys. We are all implementing the protections of the Constitution.

As senators finish questioning Judge Sotomayor this week, much will be made of the rough-and-tumble exchanges between the nominee and conservative Republican firebrands such as Alabama's Jeff Sessions and Oklahoma's Tom Coburn — as well as the more congenial questioning by Democratic senators and Republicans such as Hatch and Graham.

But Amy Klobuchar was the senator who got a Supreme Court nominee talking about the law.

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