Legal News

Sotomayor: Get Ready For Comparisons To Souter

By Jennifer Forsyth

Editor’s Note: We’re only a short time away from the Sotomayor confirmation extravaganza. At the LB’s invitation, Erwin Chemerinsky, dean of University of California, Irvine, School of Law, looks at Sotomayor’s potential for making a difference on the court:

Everyone will carefully study Sotomayor's statements and answers for clues as to how she might vote on the Court. In all likelihood, this is a futile exercise. Recent nominees rarely have said anything illuminating about how they will decide cases. In fact, often the confirmation process gives a quite misleading impression of how the individual will behave as a justice. John Roberts presented himself as a likely moderate justice, but he has been everything conservatives could have hoped for and liberals could have feared.

Assessing Sotomayor's impact on the Court tends to focus on whether she is likely to vote the same way or differently from Souter, especially on the most deeply divisive constitutional issues. Although this is interesting, it may obscure more important ways in which Sotomayor can make a huge difference.

In the short-term, the key question is whether there will be cases where Sotomayor might be more effective than Souter in persuading Kennedy to come to a more liberal result. The reality is, especially in cases defined by ideology, it is the Anthony Kennedy Court. In the just-completed term, there were 23 5-4 decisions (out of 75 cases decided after briefing and oral argument). Kennedy was in the majority in 18, more than any other Justice. Even more revealing in 16 of the 23 cases, the Court split with Roberts and Scalia, Thomas, and Alito on one side, and Stevens, Souter, Ginsburg, and Breyer on the other. Kennedy sided with the conservatives in 11 of 16 cases. Are there some cases where by virtue of her life experiences, her personality, her persuasiveness that Sotomayor could persuade Kennedy to come to a different result?

In the longer term, it must be remembered that Sotomayor is only 54 years old and likely will be on the Court for several decades. Although her immediate impact is in replacing Souter, it will be important during the confirmation hearings to remember that her role on the Court will be far greater and longer lasting than that. If she remains on the Court until she is 89 years old – John Paul Stevens current age, she will be a justice until the year 2044.

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