Legal News

Sotomayor: A Guest?s Perspective On What Senators Should Ask The Judge

By Jennifer Forsyth

Editor’s Note: We invited a few Supreme Court experts of varying stripes to provide analysis before and during the Senate hearings for Sonia Sotomayor, which begin Monday. That’s of course in addition to our planned live blogging from our own Nathan Koppel, who will be the pointman on the hearings. Also, for a little extra to chew on this weekend, here’s a link to a CNN/Opinion Research poll on whether Americans want Sotomayor to join the court and here’s a link to a witness list for the hearings, including some surprise names.

Our first guest perspective comes from Heather Gerken, a constitutional law professor at Yale who clerked on the Ninth Circuit and later for David Souter:

It's easy to predict the questions Senators will ask of Judge Sotomayor. They will grill her on issues like race and nationality security. They will ask her whether she would overturn this or that decision. The problem with these questions is that they focus on the cases that make headlines, where a nominee will simply spit out a canned answer vetted in advance.

If you really want to know what a judge is like, don't ask about highly visible decisions; ask about the invisible work habits that produce them. Ask Judge Sotomayor simple, even mundane questions about daily life on the bench. Ask her how she prepares for a case.

How much time a judge spends on preparation is a pretty good proxy for identifying judges who care only about outcomes. A judge who spends a lot of time reading the briefs and reviewing the case law is the kind of judge who decides one case at a time.

A judge's work habits may also signal whether she will be unduly influenced by her law clerks. Even a seemingly trivial fact – whether the judge begins or ends her case preparation with her law clerk's memorandum – can be revealing. While many fine judges start with the memo, it's not a good habit. The clerk's evaluation of the case may color the judge's assessment, perhaps even tempt a busy judge to rely on the law clerk's work rather than her own. A judge that works through the materials herself, using the law clerk's views only as a check on her own, is sure to be a judge willing to do the nitty-gritty, behind-the-scenes work that makes for good judging.

Finally, a judge who knows her own mind should demand vigorous disagreement from her law clerks. Supreme Court Justices are powerful people, and the temptation for clerks to say what they want to hear is profound. A great Justice will demand that her clerks serve as sounding boards, not echo chambers.

Full post as published by Law Blog - WSJ.com on July 10, 2009 (boomark / email).