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DAVID GREENE, host:

It's MORNING EDITION from NPR News. I'm David Greene.

STEVE INSKEEP, host:

And I'm Steve Inskeep. Good morning.

When President Obama introduced his Supreme Court nominee today, he spoke at length about her personal story. Sonia Sotomayor would be the first Hispanic justice on the high court. She has a long record as a lawyer and a judge.

Ms. SONIA SOTOMAYOR (Nominee for Supreme Court Justice): I chose to be a lawyer and ultimately a judge because I find endless challenge in the complexities of the law. I firmly believe in the rule of law as the foundation for all of our basic rights.

GREENE: The phrase that most - the rule of law now is a phrase that most Americans can agree on. And any one nominee's interpretation of the phrase can provoke long arguments. And this morning, we're going to get two views of Sonia Sotomayor's long judicial record.

INSKEEP: In a moment, we'll hear a law professor who's known the judge for years. And we begin with Ed Whalen. He is president of the Ethics and Public Policy Center, worked in President Bush's Justice Department. Good morning.

Mr. ED WHALEN (President, Ethics and Public Policy Center): Good morning, Steve.

INSKEEP: And welcome to the program. And I wonder if we could begin be getting your viewpoint on this. Could you compare Sotomayor's record as you know it with, let's say, the record of a conservative Supreme Court justice that you once clerked for: Antonin Scalia.

Mr. WHALEN: Well, I'd like to focus attention, if we're talking about rule of law, on what Judge Sotomayor did to the firefighters in New Haven who worked hard to pass a promotional exam. And then when the city of New Haven didn't like the racial profile of the results of those who passed, it threw out the exam.

INSKEEP: Now, let's just remember, this is basically an affirmative action case. What can a government do to encourage minority participation as firefighters in this case?

Mr. WHALEN: Yes. And Sonia Sotomayor buried the claims of the firefighters who had passed the exam and whose rights were thrown out. She buried them so much that there was fellow Clinton appointee, Jose Cabranes, also Hispanic, who wrote a dissent for the rehearing on banc, just saying how outrageous the conduct of Sotomayor, her callings on the panel was. That wasn't rule of law. That was indulging her own sense of empathy to favor one set of litigants over another.

INSKEEP: Just hold on a second. You're using that word empathy, which has become kind of a toxic word. President Obama used it to describe the kind of justice he was looking for. I would imagine a supporter of Sotomayor - and we'll hear one in a moment - might argue that hey, in that case, the civil rights law is what it is and she went in and interpreted it. Why could that not be the case?

Mr. WHALEN: Well, she didn't even write an opinion explaining what her views were. She tried to bury this in an unpublished per curiam opinion that, again, got her fellow Clinton appointee Jose Cabranes to say this is an outrageous way to deal with a case of this importance. So I don't think we see rule of law at play at all here. Obviously, if the law dictated that the firefighters lose, then that should be the result and no would contend otherwise. But what she did here was to bury their claims and try to deprive them of any meaningful review. And the Supreme Court has granted review in this case, and it's going to be ruling on it in just a few weeks.

INSKEEP: This is a justice - judicial nominee whose name has been out there for a number of days. Have you had an opportunity to look at other parts of her judicial record?

Mr. WHALEN: Well, I have. I mean, she has a long, long record, and obviously, circuit judges are bound by circuit precedent, as well as Supreme Court precedent. So it's difficult to discern too much there. But you look at the statements she's made about how she understands her role as a judge, her role as a Latina, and she clearly believes that it's proper for her to indulge her own biases in cases. And that, of course, is exactly what President Obama said he was looking for in picking a justice. So what we're going to see here, I think, is real misguided empathy, the notion that judges ought to have free rein to favor certain parties over others to reach politically correct results.

INSKEEP: We're talking with Ed Whalen, a former clerk for the Supreme Court, about President Bush's Supreme Court nominee. And Mr. Whalen, I just want to mention, we have a statement here from a Republican senator, Jon Kyl, a senior Republican on - a key Republican on judicial matters. And he's put out a statement basically asking for time, saying, hey, President Bush's judicial nominees, there was a good deal of time before the hearing started. And what he seems to say - I mean, one way you could read that is hey, we want time to really, really look at her record and really look carefully at this. Do you anticipate a significant confirmation fight?

Mr. WHALEN: Well, I think what's needed is time, not just to review the record, but to discuss these issues. Obviously, the Democrats have a huge majority in the Senate. But that's no excuse for rubber stamping a nominee. We ought to look carefully at her record and what she stands for and make sure the American people have the benefit of a debate over what the proper role of the courts is. So I'm glad that Senator Kyl made that statement.

INSKEEP: Mr. Whalen, thanks for joining us this morning.

Mr. WHALEN: Thank you.

INSKEEP: Ed Whalen is president of the Ethics and Public Policy Center here in Washington, D.C. He served in the Bush administration and writes about legal issues for National Review.

GREENE: Now we turn to Kenji Yoshino. He's a professor of constitutional law at New York University's Law School. He's also taught at Yale Law School and has known Judge Sotomayor for several years. And he joins us on the line from New York.

Professor, good morning.

Professor KENJI YOSHINO (Constitutional Law, New York University's Law School): Good morning.

GREENE: Tell us how you know Judge Sotomayor.

Prof. YOSHINO: I've been sending clerks to her for years. And after a few successful placements, she was good enough to shoot me an email and say, you know, come into my chambers. Let's have lunch, or let me grill you some vegetables. It's exactly like in my backyard. That's exactly the kind of person that she is.

GREENE: I'd like to ask you about one of the criticisms. We just heard the president of the Ethics and Public Policy Center, Ed Whalen, talk about Judge Sotomayor as sometimes indulging her own sense of empathy. And that, of course, is going to be one of the issues is sure to be part of the confirmation debate. Talk to us about how she hears cases, how she deals with them, and whether that is something that she brings into her practice.

Prof. YOSHINO: Yeah, I couldn't disagree more with that statement. With all due respect to Mr. Whalen, I think it was really telling to say that he didn't have a clear sense of the judge's jurisprudence, because she was bound by circuit precedent and Supreme Court precedent. That suggests that in the over 150 opinions that she issued as an appellate court judge, that she was actually following precedent. And so it seems very bizarre to me for him to say that he can anticipate that she's not going to obey the rule of law.

The one case that he did adduce for this proposition, which was the Ricci case in New Haven, is also a very, very odd case to raise. Yes, Sonia Sotomayor did write a part of a per curiam opinion, which means that she didn't write it herself. She wrote it for a three-judge panel. But what that panel said was we actually really sympathize with plaintiffs in this case, the white firefighters, but for the reasons set forth below in the very thoughtful opinion of Janet Bond Arterton, who's a district court judge, we actually affirm the results in this case, which is to take away this discriminatory test.

Mind you, what Judge Arterton had said below was that this test had - was so discriminatory in its effects that it might in itself be a violation of the Equal Protection Clause. And so, if you're actually getting rid of a discriminatory test, I fail to see how that even qualifies as a affirmative action case.

Now, we can argue back and forth about that, and I don't want to get back into the weeds with that, but again, with all due respect to Mr. Whalen, you know, that's a gross misrepresentation of the facts to say that…

GREENE: Without getting too far into the weeds, though, President Obama did say that he was looking for someone who made empathy something very important in the way that they dealt with the law. He has chosen Judge Sotomayor. So it must be something that she brings into her thinking on cases. How's she done that in the past?

Prof. YOSHINO: But internal to the rule of law. So she has done things that are squarely within, I believe, the mainstream of America in terms of the rule of law. So let me just give you some examples. So again, I didn't say this clearly enough in a previous sentence, but what I'm trying to articulate here is that she is for empathy, but she is - for empathy within the rule of law. So if we're talking about cases where an African-American first grader is being held back when a white first grader would have been given counseling and not kicked back down to kindergarten, when we're talking about racial harassment cases where people are being backed up against walls, civil rights law prohibit that. And yes, she interprets those civil rights laws and enforces them very stringently in favor of those minority plaintiffs.

However, there are other instances in which plaintiffs in civil rights cases are not…

GREENE: I'm going to have to cut you off there, professor. We've been listening to Professor Kenji Yoshino, a professor of constitutional law at New York University Law School, speaking about Sonia - oh, pardon me.

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