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Assessing Sotomayor's Experience On The Bench

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Assessing Sotomayor's Experience On The Bench


Assessing Sotomayor's Experience On The Bench

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This is MORNING EDITION from NPR News. I'm David Greene.


And I'm Steve Inskeep, on a morning when President Obama nominated Sonia Sotomayor to the Supreme Court.

President BARACK OBAMA: Walking in the door, she would bring more experience on the bench and more varied experience on the bench than anyone currently serving on the United States Supreme Court had when they were appointed.

INSKEEP: That's the president's assertion, made this morning at the White House with a smiling judicial nominee standing beside him. We're going to talk about that experience this morning with Jeffrey Rosen. He is professor of law at George Washington University and legal affairs editor for the New Republic magazine. Good morning.

Professor JEFFREY ROSEN (Law, George Washington University; Legal Affairs Editor, New Republic): Good morning.

INSKEEP: And he's with us live. Is she as experienced as the president says?

Prof. ROSEN: Forgive me. I didn't hear that last question.

INSKEEP: Is she as experienced as the president says?

Prof. ROSEN: Well, she does have the kind of experience both on a trial court and on - and ultimately as a commercial litigator. What she doesn't have is the kind of practical, political experience that Obama had said originally that he wanted when he cited his ideal justice. Remember, he had said that Governor Earl Warren from California was his judicial model because Warren understood the effect of Supreme Court decisions on real Americans. And lots of people will think maybe he would want a former politician like Napolitano or Granholm.

INSKEEP: And plenty of people have said that that could create a different atmosphere within the court itself, because it's all about building coalitions and consensus.

Prof. ROSEN: Well, that's exactly right. And really, the hope of people who supported the political model was that, like Warren, who literally justice to justice in Brown vs. Board of Education and convinced a divided court to be unanimous, so Obama's nominee might be a similar political conciliator. Now, there have been questions, some of which I reported about Sotomayor's temperament. The idea was that although very able, she's not a conciliator. Lawyers in the Almanac of the Federal Judiciary who've evaluated her said that she can be a bit prickly and fierce on the bench.

But Obama must have concluded that that was good thing in the sense maybe she won't be a conciliator, but she'll be a counterpart to Justice Scalia, a liberal Scalia: fiery, passionate advocate for liberal views - not the kind of Warren-model conciliator. But, of course, he may have several other appointments, and perhaps he could appoint that kind of justice later on.

INSKEEP: I want to ask about that, but first, just to finish up this thought about whether we have somebody with a wide enough experience outside of the law - Senator Patrick Leahy, speaking on MORNING EDITION earlier today, pointed out hey, she's a former prosecutor. That's getting outside what he called the judicial monastery. He said that was good enough for him.

(Soundbite of laughter)

Prof. ROSEN: Well, of course, Justice Samuel Alito was a former prosecutor, and lots of Democrats weren't too crazy about him when he was nominated because of that. I do think that there is a dissonance, because Obama set the expectation so high in talking about the justice he wanted. And as a former constitutional law professor, the expectations were justifiably high. Really, what struck me most about his pre-nomination comments was the idea that he said justices should recognize that the law is a conversation between the courts and the political branches, between political movements like the civil rights movement, that courts are one word but not the last word and that they have to recognize this dynamic conversation and process, which is very creative, far-seeing statement.

Now, Sotomayor is not really the ideal that you'd think about when you think about that conversation, because again, either a former politician or someone who had a deep experience outside of the judicial or legal branch entirely would be more natural for that. But I think in the end, I mean, it's no surprise. Her life story is so inspiring, just the obstacles that she overcame, that President Obama cited, her remarkable record in just bettering herself in that regard…

INSKEEP: Jeffrey Rosen, I want to just interrupt you, because we got about a minute left, and I want to follow up on something you said. When you said she could be a liberal counterweight to Justice Antonin Scalia - who is one of the strongest, maybe the most famous of the conservative justices on the court. I want to understand that because this is a judge who, just a few years ago, Democrats presented as a moderate judge, someone that President Bush himself might be willing to think about nominating. Conservatives fiercely disagreed, and it sounds like you do. You find her to be a very strong, liberal judge.

Prof. ROSEN: I said the hope is that she might be a fierce, liberal counterpart to Scalia. Her opinions don't suggest that she is an extreme liberal, and indeed, conservative attempts to paint her as some crazy judicial activist will fail because they're pretty technical, middle-of-the-road opinions. She hasn't had a huge number of really controversial constitutional cases. The big case that Obama cited nominating her was the baseball case. So it's almost as if there are conflicting hopes for her. Maybe she'll be a liberal Scalia. She can't quite be a conciliator. She has enough experience to recognize the political role of the court and so forth.

I think the bottom line is that the politics of this were so compelling, the first Hispanic justice and so forth, that was the overriding consideration. And which role precisely she'll actually play on the court remains to be seen.

INSKEEP: Jeffrey Rosen, thanks very much. He's author of the "Supreme Court: The Personalities and Rivalries That Defined America."

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