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tv   [untitled]  CSPAN  June 29, 2009 10:00pm-10:30pm EDT

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and what we might expect as that goes forward. then i'll offer some observations and thoughts about the way she's likely to be confirmed as a justice of the supreme court. i want to make sure i allow a. time for questions, since i know these are issues that interest all of us, i'll make sure i leave enough time to hear what's on your mind. as we stand here today, i think it's fair to say that absent an 11th hour surprise or some remarkable development that judge sotomayor is poised to become the next justice or newest justice of the supreme court. .
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>> effectively the first opportunity he had to do so in a post-bush world. i think the fact of his resignation was not a particular surprise either. justice sooter always said he looked forward to returning to his home state of new hampshire. he never enjoyed being in washington, at least that was the impression he conveyed. he always said he wanted to go home at a time that was young enough to go home and go hiking and enjoy the outdoors. as far as justice sooter's legacy goes he was a one case at a time justice, with some
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exceptions. he didn't write in a general sense or issue sweeping opinions. that's not to say he didn't have important opinions. he issued one very important opinion after he was joined to the court when he did planned parenthood v. casey. one decision that hasn't gone unnoticed but deserves more importance is the case of the seminal, intellectual property case in which justice sooter addressed the issue of file share and it was ironic that this was an opinion authored by sooter, who fashioned himself of a man of the 19th century. he had a chance to apply long-standing legal documents to a technological document,
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and i think he got that exactly right. i think justice sooter's legacy will be the impact he has had on the confirmation process. certainly when justice sooter was first nominated by the first president bush he was famously characterized by a home run for conservatives. i think it is safe to say he wasn't. i don't know if he was a single or double, but certainly aspect will have long-term ramifications when we have seen it in president obama's decision to nominate judge sotomayor. there were a number of factors playing into the decision but one may be judge sotomayor may had a long track record and her service for more than a decade on the court of appeals. so that may have given the president confidence in what he
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was getting was what he gets, and may have pushed him toward getting judge sotomayor or other finalists who did not have that track record of published opinions that judge sotomayor does. the moment he said his nomination all sorts of groups and throughout the country came to life, came out of hibernation, and they began what is characterized as a concerted effort to circumscribe what they view as the permissible candidates from which president obama can make a selection. a lot thought he should appoint a minority or a woman. i should add this was not confined to activist groups. shortly after he announced his retirement spector went on face the nation and said he should
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appoint a minority or woman. in fact, the lobbying got so intense in this area that the white house was forced to issue a remarkable statement where they said this lobbying was counterproductive and everyone who was really pushing the president in a public way toward one of their choices needed to knock it off, cut it out. a few hours after that, senator barbara boxer sent out a tweet urging her supporters to sign a petition to appoint a woman. i don't know if the message got as far out as the president hoped, or there may have been some who heard it and chose not to follow the request, but in any event the president may have perceived his choice to be narrowed in that if he didn't choose a woman he may be faced
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with a significant blash. so now out of all of this, this confusion, chaos, frenetic lobbying, judge sotomayor emerges. introducing her to the american public the president spoke of her background and characterized her as being more experienced nominee than any justice, any nominee to be a justice for a century. she has an impressive background, no getting around that. she was raised in humble circumstances in the bronx, graduated from princeton and yale, went on to serve as the assistant district attorney. she had a "private practice" litigating property practicings and was living there.
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there was a time when democrats chose one nominee. she then served on the district court until 1998 when she was elevated to the second circuit by president clinton. one interesting thing in introducing one thing is that the president has focused, and the white house as a whole have focused on her experience and quality cations, which i think represents a change from what president obama spoke about during the campaign. you will recall when asked what quality he would look for the president said -- candidate obama said -- empathy. it was interesting because empathy is one of those words that on its face certainly has
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a neutral or favorable connotation. who could oppose the justice who has empathy? but what was interesting is that he was using it in a careful sense or signaling to his supporters he would appoint a justice who would reach certain outcomes, liberal outcomes in a lot of cases. when 2 president was talking about empathy he was not talking about empathy for the crime victim or the taxpayer. he was not talking about tax empathy for the property owner. the white house has back shelved emp think and switched their focus now where it should be. her experience, her ability, her qualifications. now one interesting thing in rolling out justice sotomayor, i think the white house has done a good job. i'm not saying there haven't been bumps in the road.
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i can't resist quoting this. i actually went and looked at the transcript. robert gibbs, the white house press secretary held his daily press secretary and you can see from his perspective this was a historic day. the president just nominated a woman who would be the first hispanic supreme court justice in history. clearly robert gibbs was hoping to bask in the warmth of the press corp. he gets from the podium and takes a question from hillary thomas. he gets up there says, the president believes that judge sotomayor's life story is a compelling one and her voice will be an important addition to the supreme court. then he calls on helen thomas. >> question, did he pay her
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taxes? >> mr. gibbs says did she pay her taxes? >> well, i have not seen anything on that. in fairness i should note that it does appear she has paid her taxes so i think there is some truth to the claim that judge sotomayor has had life experiences that other obama nominees have not. there were more serious issues that emerged. two of the issues that arose concerned comments that judge scothe made of a written opinion, but law school forum and the like. the first was the statement she made at berkeley where she said "i would hope that a wise latino woman with the richness of her experiences would reach a better experience than a white man who would never live that life." the second is where she said the court of appeals is where
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the policy is made. she said i know this is on tape and i should never say that. i think both of these comments raise concerns. both present perfect legitimate areas of inquiry. the u.s. senate and individual senator haves a constitutional evaluation to evaluate the nominee for themselves. it is part of their constitutional advice and consent process. i don't think it is disrespectful for the senators to ask good, hard, tough questions. and i think judge sotomayor would welcome the opportunity to clarify her opportunities and explain what she meant. one interesting thing about the confirmation process in recent years is the extent to which it has become a partisan, politicized event. it wasn't always this is way.
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one thing we have seen is that many senators use the confirmation process as an opportunity to talk about their view of the law enforcement there was one wonderful statistic -- i can't recall who gathered it, but it was terrific and telling. they went out and quantified the amount of time -- i think this was the con teck to the roberts and alito hearings -- they quantified the time during which the senators spoke relative to the time the nominees spoke and there were some senators whose allotted time was used 95% of the time and then permitted only 5% for a response. what was interesting about this was at the send of the hearings many times the american public simply didn't have a handle on what the nominees' views were whereas everyone had a clear idea of what senator biden's
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views were, to take a random example. it will be interesting to see whether the sotomayor confirmation plays out in that rcht. there is an old saw in washington circles about advising a nominee that they need to follow an 80/20 rule. what that means is that you need to make sure the senators are speaking for 80% of the time and you are not speaking for more than 20% of the time because if you are, your nomination is in trouble. it will be interesting to see if that plays out. i said a moment ago the hearings have become increasingly politicized and partisan, which is regrettable. we saw in the bork nominations this play out but in the 1990's, namely in the contexts of the two clinton appoint's where a lot of sectors where
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able to put partisanship aside. when clinton nominated ginsburg, here was a woman clearly qualified, distinguished background, at the time a judge on the d.c. circuit and even though many senators disagreed with her philosophically, nonetheless they said look, elections have consequences, presidents are entitled to appoint the nominee who shares their views, and at the end of the day the vote was 93-7 in favor of con firm mation. justice breyer who had a distinguished record, served as an aid in the u.s. senate and went on to become a judge on the first circuit was confirmed by 87-9. we look at the bush era where president bush appointed two people. first was chief justice roberts
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who was a judge on the d.c. circuit and had a distinguished career where he was widely acknowledged as one of the advocates of his generation. his 78-22. so there were a lot of senators who acknowledged his credentials, his unquestioned ability and confidence but because they disagreed with him phil softically, but refused to vote for him. justice alito, sitting judge on the third circuit, again, long distinguished record, served as a prosecutor, his vote was 58-42 so in the span of a little other a decade we have gone from three votes in opposition to ginsburg and the other side, alito, who at the risk of overgeneralization, he had 42 in opposition.
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now, there's one interesting comment made during the roberts hearing, where there was one senator who took to the floor to offer lavish praise in support of justice roberts' nomination, and this senator said "there is absolutely no doubt in my mind that judge roberts is qualified to sit on the highest court in the land. he is humble, personally decent and appears to be respectful of different points of view." that senator went on to vote against roberts. the senator i quoted is now president obama so it will be interesting to see how senators treat the situation when the shoe is on the other foot and you have a nominee who has excellent credentials and no doubt many senators who disagree with phil softically. i think it will be interesting
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to see how they handle that in the weeks ahead. i would like to talk about judge soth's introductions. she had -- i had five appeals and ran a branch that had hundreds of cases before her so even prior to her i spent a fair amount of time thinking about judge sotomayor. she was on my mind and in the last few weeks i was spent a lot of time in her opinions. of course it is always difment at this stage to predict with 100% certainty how a sitting judge would act if confirmed to the supreme court. that's so for a number of reasons. one is that of course you are dealing with a number of small sample size in a sense that it's not as though she has had dozens of decisions addressing
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the abortion issue, gun control, things of that nature so you are working from a small sample size. the other complicating factor is that a court of appeals judge, at least in theory, is bound by supreme court precedent. so there's always the possibility that a judge, when elevated to the supreme court, and when those restrictions or boundaries are removed and they are free to resolve things in the first instance, would approach the law somewhat differently. so subject to those two qualifications, let me offer thoughts. i think judge sotomayor's writing style, i think it is characterized as workman like rather than ideological. she is not an overly rhetorical writer. i don't think she's characterized as someone who writes in the narrative style
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that judge pose never writes. i think her opinions are straightforward as far as structure. in other words she will state the law and apply the facts. that said, i don't think i'm going on a limb to say it is likely that a justice sotomayor would often align herself with the liberal block on the supreme court. certainly everything on her background says she is likely to share views that justice suer has, particularly in hot button cases involving constitutional law or where we have seen the 5-4 split on the court. i think one aspect of her record that will get close attention during the confirmation cases -- for those who don't know -- there was a case involving an aptitude test
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given by the city of new haven for firefighters, to determine which were eligible for promotions. a bunch of hopefuls took the test and at the end of the day they determined that an insufficient number of african american candidates qualified basted on scores. so the city decided under those circumstances the best approach was to jettison the test thereby depriving the plaintiff group, a group of white and hispanics, the promotions they earned. judge sotomayor sat on a three-judge panel that decided the case and held that what the city did should be upheld and affirmed. cation went to the supreme court. they had an argument and based on the argument there is a likelihood the court is going to reverse the second circuit.
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one thing is that the case appears it was wrongly decided. chief jus roberts said the way to stop discriminating is to stop discriminating on the basis of race. another way that was issued, the court -- second circuit -- issued it as an unpublished aura that was brief and didn't engage the merits on the issues at stake. this was a criticism that was lodged by another clinton appointee, judge cabranas who expressed concerns that the way the panel handled it wasn't appropriate given the important constitutional issues at stake, the fact the case had been briefed and argued. i expect this is a decision that will be flont and center during the confirmation
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hearing. with regard to judge sotomayor's positions on other issues, as far as criminal issues go, i think it is fair to say she will take a liberal approach to a lot of these cases. i think she will align herself on those issues with the liberal block. that said, it is interesting to note that if you go back and look at justice sotomayor's written question ears and answers she has given when people ask, what are the most important cases that you have handled during your career as a lawyer and judge, more often and not she identifies criminal cases she handled as a prosecutor or judge that involve crimes with children. this was a real area of focus for her and she has spoken about it repeatedly. shelfs passionate. so i think she may stake out a
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more conservative position there. as far as immigration issues go,, this is interesting because here's a statistic that you may not know. when i learned about it, 40% -- about 40% of the second circuits' docket today is immigration cases. that's a remarkable number, second only to the ninth circuit which is approaching 50%. that means a few things, one judge has a lot of experience in this area. she knows this area of law well. the other way it may impact her service on the supreme court is that this explosion of immigration cases is a relatively new phenomenon in the sense it began in the last few years. the only other justice who had a comparable experience was
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justice alito. it means justice sotomayor and alito are the only two who have personal, tangible meerns with the modern-day immigration system as far as being a judge goes. they are going to be aware of many problems that plague our system. i know in a number of immigration cases justice alito played an active role. it's clear he brings to the cases his perspective as a judge, who for the last few years had been hearing these cases and was flommuxed about what to do with it and how to approach the law given the deluge. as far as her position on business issues, this is a very interesting area of law. i have spent a lot of time reading her cases on business issues. i'm primarily a business lit
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gator so it was interesting to me to see her sporns. it is hard to pin her down. there are some cases where she has a pro business issue. on the other hand there are no short anl of cases where she has gone the other way. there are securities litigation where she staked out a pro plaintiff view , and it is hard to pin her down. i think the best way to think about this is if you look at the way that the modern supreme court has addressed business issues, those are the issues that have split the modern court in nontraditional and atypical ways. by that i mean there are a number of issues where the conservative people have gone against and the liberal are the biggest protector of business. punitive damages.
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the question of whether the constitution imposes substantive limits on punitive damage, that was a doctrine made by the liberal justices, over the justices who are regarded as pro business justices, but they viewed the limits as the latest issues of it. preemption, liberals and conservatives take different views. certainly there are stakeouts of liberal positions, but there are some where she takes a pro business approach. let me say a few words about her temperament and demeanor.
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as i said i have argued a number of cases before her. there is absolutely no question she is a very forceful, direct questioner. i have argued before -- almost all the judges on the second circuit -- and in my experience she was far and away the most active of any judge on that court in terms of questions, many of which give some ink nation of which she is approaching the case. all that said, i did not find she was in any sense abusive or that her questions were inappropriate. again, that is not to say she's not direct and forceful and als often makes her views known. there was one case unique in my experience where the lawyer on the other side presented a deficient brief that during the course of the argument judge sotomayor ordered the lawyer removed and replaced with a
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court appointed lawyer. unique in my experience, and i can only imagine what that lawyer would say when she wrurned. how did it go? well, i got fired. it was an unusual experience. we'll see if she does that on the supreme court. i guess probably not, but you never know. one last point i would like to make before we open to questions is one question often raised 88 with nominees is whether or not they could fulfill a consensus building rule on the supreme court. in other words, whether their personality is such that they would be able to forge consensus, build coalitions on the court, and when people say this i think what they mean is can she persuade justice kennedy. as far as that, who knows. i think one thing that i will note is that it is hard to
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predict these things in advance. the history of the supreme court in many respects has been a history of individual personalities, and it is very difficult for an outsider to predict that once you have got a new justice in the mix and it is a closed court in the sense that their confidences are closed and no one can be sure of the die unanimous na ims, but it may be she forges relationships with other justices we may not anticipate, but if she does it is still a question to whether that would result in different outcomes. if i had to as hazard a guess my prediction would be that judge sotomayor will fit in fairly seem leslie as a replacement for justice sooter in terms of her ideology and approach to the law there bhay some differences on individual issues, but i don't think


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