Path To Supreme Court: Speak Capably, Say Little

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Published on Saturday, 11 July 2009

Written by Adam Liptak, NY Times

On his first day at the Justice Department in 1981, a 26-year-old lawyer named John G. Roberts Jr. was handed a high-profile assignment: to help prepare Sandra Day O'Connor, then an Arizona judge, for her Supreme Court confirmation hearings.

"The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court," Mr. Roberts wrote later that year in a report to a Justice Department supervisor, "but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments."

That advice -- sound as if you know what you are talking about but avoid saying anything -- has been followed pretty faithfully by every nominee since, including the report's author, who is now chief justice of the United States. And it may well be followed by Judge Sonia Sotomayor, whose Senate confirmation hearings are scheduled to begin Monday.

Senators are planning to ask about politically charged issues -- abortion, race, gay rights, foreign law and the Second Amendment -- and the nominee will probably answer only a predictable few. Judge Sotomayor will have little reason to deviate from the convention, with perhaps one exception, to explain how her background would influence her work as a justice.

"It will be a slightly different cast of characters performing a set piece drama we have seen many times before," said David J. Garrow, a University of Cambridge historian who has written widely on the court.

Both the judge and members of the Senate Judiciary Committee have been preparing for their roles. For more than a week, Ms. Sotomayor has rehearsed with Obama administration lawyers who are volleying questions at her, pored over briefing books and reviewed cases that came before her as a judge. For their part, some senators have been honing their queries.

Here is the basic script: the nominee is expected to praise Brown v. Board of Education, the 1954 decision barring segregation in public schools; endorse a constitutional right to privacy without saying whether it extends to abortion; and deplore cases like Dred Scott, the 1857 decision that said black people could be property but not citizens, and Korematsu v. United States, the 1944 decision endorsing internment camps for people of Japanese ancestry during World War II.

Beyond checking those boxes, though, nominees usually decline to express views on other legal issues. The protocols are looser when it comes to questions about biography, professional experience and statements made off the court.

Judge Sotomayor may choose to veer from the script in a few places. She may explain what role empathy ought to play in a judge's work, what she meant when she said that a "wise Latina woman" might render better decisions than a white male and what she did as a board member of the Puerto Rican Legal Defense and Education Fund for more than a decade before becoming a judge.

Republican senators have said they will press her about her role with the group. "During her time there," Senator Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, said in a statement, "the organization took extreme positions on legal issues ranging from the death penalty to abortion to racial quotas."

Gregory B. Craig, the White House counsel, told the committee in a recent letter that the group is "highly respected," adding that Ms. Sotomayor did not supervise its staff or direct the lawsuits it filed.

When senators question her about divisive issues likely to reach the Supreme Court in the next few years, Judge Sotomayor will probably say she cannot comment on matters that she might one day rule on. She may invoke the phrase Justice Ruth Bader Ginsburg used at her hearings in 1993: "no hints, no forecasts, no previews" about how she would rule as a justice.

Abortion is unlikely to play the central role that it has in previous hearings, largely because Judge Sotomayor is not expected to alter the balance of the court on the question. Instead of Republican conservatives pushing her to discuss Roe v. Wade, the 1973 decision that identified a constitutional right to abortion, Democrats may raise the issue, seeking reassurance that she supports the decision.

Indeed, Nancy Northrop, the president of the Center for Reproductive Freedom, said her group had lobbied Democrats to press the judge for her views on abortion rights, an issue on which she has never ruled. The topic should not be taboo, she said.

"Constitutional protections for abortion rights should not be treated differently than other important questions of constitutional law," she said.

Judge Sotomayor, if she is true to the script, may respond in a sort of code, one that touches on respect for precedent and Planned Parenthood v. Casey, the 1992 decision that reaffirmed the core of the Roe decision.

Some Democratic senators have indicated that they will highlight Judge Sotomayor's record as a prosecutor and her somewhat conservative rulings in criminal cases. Others intend to raise other legal issues.

Senator John Cornyn, Republican of Texas, who has posted questions on his Web site that he is likely to pose to Judge Sotomayor, plans to ask about her views on the role of foreign and international law in interpreting the Constitution.

Senator Ted Kaufman, Democrat of Delaware, said he intended to focus on Judge Sotomayor's views on financial laws, including the power of Congress to make decisions about regulatory oversight of the economy. He said the Supreme Court in recent terms had shown an unduly pro-corporate "bias."

"We've got issues of business and regulatory reform coming down the pike, and I want to make sure that the Supreme Court" respects the authority of Congress in that area, he said.

Gun-rights advocates have urged senators to oppose Judge Sotomayor because she joined an unsigned decision in January refusing to extend the Supreme Court's 2008 decision in District of Columbia v. Heller, which struck down a federal gun-control law on Second Amendment grounds, to a New York law banning a martial arts weapon. The federal appeals courts are divided on whether Supreme Court precedent requires that the Second Amendment be applied to state laws, and the Supreme Court is expected to address the issue soon.

Republican senators have said they will push Judge Sotomayor to explain her role in Ricci v. DeStefano, the case brought by white and Hispanic firefighters in New Haven claiming race discrimination after the city threw out a promotional exam on which they had done well and black firefighters poorly.

Judge Sotomayor joined a short, unsigned decision last year from a three-judge panel affirming dismissal of the case, which the Supreme Court reversed and sent back to the lower court last month. "Judge Sotomayor provided no rationale for her controversial decision," Mr. Sessions said.

Since the Ricci case is still pending, Judge Sotomayor is probably barred by ethics rules from commenting on it.

But her allies said she might nonetheless want to remind senators that the vote in the Supreme Court was 5 to 4. She may want to assert, they said, that the justices in the majority announced a new legal standard, making it harder to fault her court for failing to anticipate the change. And she may want to open the curtain on her court's internal procedures, they said, as there is reason to think that she did not write the panel decision.

Justice Samuel A. Alito, Jr. faced a similar predicament in explaining his dissenting vote as an appeals court judge in the Casey case. He would have upheld a Pennsylvania law that required married women to notify their husbands before having an abortion, and the Supreme Court disagreed in a 5-to-4 ruling.

At his 2006 confirmation hearings, Justice Alito said he had wrestled with trying to forecast how the Supreme Court would rule. He said his dissent "turned out not to be a correct prediction" but was "the best [he] could do under the circumstances."

In general, though, nominees are apt to dodge questions.

"Justice Ginsburg's favored technique took the form of a pincer movement," Elena Kagan, now the United States solicitor general, wrote in The University of Chicago Law Review in 1995. If a question was too specific, she would decline to answer on the ground that she did not want to forecast a vote. If it was too general, she would say a judge should not deal in abstractions or hypothetical questions.

"Some room may have remained in theory between these two responses; perhaps a senator could learn something about Justice Ginsburg's legal views if he pitched his question at precisely the right level of generality," wrote Ms. Kagan, then a law professor at the University of Chicago.

There is a significant exception to this rule, one illustrated in Justice Ginsburg's hearings. Nominees often feel free, or are even required, to discuss their writings off the bench.

Justice Ginsburg, who had been a leading litigator in the cause of gender equality, did not shy away from discussing Roe v. Wade. (She approved of the result but questioned its timing, breadth and reasoning.) For similar reasons, Justice Stephen G. Breyer spoke candidly about regulatory policy, which had been one of his academic specialties.

Justice Clarence Thomas took a different approach at his confirmation hearings in 1991. He said his earlier writings would not influence his work as a justice. "When one becomes a judge, it's an amazing process," he said. "You want to be stripped down like a runner."

It is possible to be too candid, as Judge Robert H. Bork learned in giving the nation a guided tour of his judicial philosophy in 1987, which included a narrow understanding of the right to privacy and the scope of the First Amendment. "He was honest and forthcoming, and it was a suicide mission," said Steven Lubet, a law professor at Northwestern. "It was self-immolation." The Senate rejected Judge Bork's nomination.

Charlie Savage contributed reporting

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