Legal News

Listening to History in the Sotomayor Debate

By Jennifer Forsyth

Editor’s Note: Here’s another in our series of guest blog posts from legal experts who are giving us insight into the Sotomayor hearings. This time, we thank Tom Dupree, pictured below, a Gibson, Dunn & Crutcher lawyer who worked in the Justice Department under George W. Bush.

Ghosts of Confirmations Past were haunting Day 1 of the Sotomayor hearings. Few Senators were able to make it through their opening statement without an allusion, direct or indirect, to Chief Justice Roberts’s now-famous metaphor likening judges to baseball umpires. And many Senators looked to the hearings for Ginsburg, Breyer, Roberts and Alito to draw lessons for the Sotomayor hearings — either for guidance on how a nominee’s testimony may provide insight into his or her likely performance on the Court, or the permissible grounds for casting a vote against a nominee.

Today’s hearing illustrated how Supreme Court confirmation hearings are not just about precedent in the Roe v. Wade sense; they are also about precedent in the sense of establishing norms for how nominees should answer questions and how Senators should vote. In that regard, it will be very interesting to see how Republican Senators treat the Obama precedent. Recall that then-Senator Obama praised Judge Roberts’s legal acumen and then proceeded to vote against him. No doubt there are many Republican Senators who have a similar view of Judge Sonia Sotomayor; they respect her qualifications and concede that she is qualified on the basis of her smarts and experience, but are uncomfortable with what they perceive as her liberal approach. Will they vote against her on that ground? Or will they reject the Obama precedent and conclude that although they may disagree with her, elections have consequences and the President is entitled to a degree of deference in this area?

What happens over the next few days will determine not just whether Judge Sotomayor becomes Justice Sotomayor. It will establish norms and parameters for the next confirmation hearing, and we can confidently expect that the lessons of the Sotomayor hearing will be relied upon — by Republicans and Democrats alike — as precedent for years to come.

Full post as published by Law Blog - WSJ.com on July 13, 2009 (boomark / email).