Diversity: Both Harvard and Yale

As I noted here, if Elena Kagan's Supreme Court nomination is confirmed, we poor oppressed Protestants will be shut out of the institution that we used to overwhelmingly dominate.

Just as Kagan's presence on the Court would mean that only two religions would be represented (Roman Catholicism and Judaism), it would also be true that only two law schools (Harvard and Yale) would have produced almost all of the nine justices.

The one exception, Ruth Bader Ginsburg, who received her law degree from Columbia, had earlier attended Harvard Law School. So it is true, as noted in this National Public Radio report, that all of the nine (after a Kagan confirmation) would have been students at either Harvard Law or Yale Law.

NPR mentions certain highly-rated law schools further west, that have, up until recently, been represented on the Court. John Paul Stevens, whose retirement led to Kagan's appointment, is an alumnus of Northwestern Law School. Two recently-departed justices, the late William Rehnquist and Sandra Day O'Connor, went to law school at Stanford.

But, aside from that, there have been some justices in recent decades who attended law schools that did not sit particularly high in the ratings. Chief Justice Warren Burger got his law degree from what was then called St. Paul College of Law, later renamed William Mitchell College of Law. Thurgood Marshall graduated from Howard University Law School, and Hugo Black from the University of Alabama Law School.

During the first two years of the Burger Court, the Harvard/Yale group was in the minority (William Brennan and Harry Blackmun from Harvard, and Potter Stewart and Byron White from Yale). But William O. Douglas, a Columbia Law alumnus, made for an overall Ivy League majority.

Is there any correlation between the party of the president who nominated a justice, and which law school that justice attended? No. Including Kagan, and counting Ginsburg with the Harvard bunch, the five Republican appointees include three from Harvard and two from Yale. The four Democratic appointees include three from Harvard and one from Yale.

Where have all the Protestants gone?

During the first 47 years of the existence of the U.S. Supreme Court, all of the justices were Protestant. The first Roman Catholic on the Court was Chief Justice Roger Taney, the author of the infamous Dred Scott decision, which held that African Americans were not citizens with standing to sue in federal court, and which contributed to the outbreak of the Civil War.

Although their monopoly had been broken, Protestants continued to dominate Supreme Court appointments for many decades.

In 1916, President Woodrow Wilson nominated Louis Brandeis as the first Jewish justice.

Another milestone was passed in 1994, when Stephen Breyer, who is Jewish, was nominated by President Bill Clinton. For the first time, Protestants were in the minority; there were four of them, serving with three Roman Catholic justices, and two Jewish justices.

Now, if Elena Kagan, who is Jewish, is confirmed to replace John Paul Stevens, there will for the first time be no Protestants on the Court. Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, Alito and Sotomayor are Roman Catholic, and Justices Ginsburg and Breyer, and Justice-designate Kagan are Jewish.

None of this is to say either that 1) I think adherents of any religion are inherently more qualified for any government office, including Supreme Court justice, than adherents of any other religion; or 2) I feel oppressed as a white, male, Protestant (my being gay is another matter).

I just find it interesting that there has been such a quick and thorough turnaround from such a strong preference for Protestant justices. Much has been said about the predominance of judges from the northeast, with Ivy League credentials, on the current Court. But those numbers make clear that this Eastern Establishment is not the same Eastern Establishment that existed before about 1980.

Experience

When President Ronald Reagan appointed Sandra Day O'Connor to the Supreme Court, in 1981, O'Connor was a judge on a state appellate court in Arizona. Since then, all new justices have been judges on federal circuit courts of appeals.

In October of 1971, President Richard Nixon was presented with the unusual situation of appointing two new justices simultaneously. John Marshall Harlan II had retired the previous month, three months before his death from cancer. Also in September 1971, Hugo Black retired, just days before his death, following a stroke.

Nixon's two nominees were William Rehnquist and Lewis Powell. Rehnquist had been in private practice in Phoenix, and was an assistant attorney general in Nixon's administration. Powell's entire legal career had been in private practice. Those two justices are the most recent ones who had no experience as a judge, prior to joining the Supreme Court.

That's a bit misleading, however. Clarence Thomas had been an appeals court judge for less than two years, when President George H.W. Bush appointed him to the Supreme Court. Thomas's previous experience had been in state government, and in the legislative and executive branches of the federal government.

David Souter had been a federal appellate judge for less than five months when he became an associate justice, also having been appointed by the elder Bush. Souter, however, had been a judge in the New Hampshire state judiciary for 12 years.

Now, President Obama has nominated Elena Kagan to the Supreme Court. She has never been a judge. There has already been much talk about whether someone from that background is qualified to join the Supremes, and there will be much more of that, during the next few weeks.

Those on one side of the argument say that long-time judges bring a uniformly sterile view of constitutional concepts, with insufficient appreciation of the impact of those concepts on everyday life.

The counterargument is that, when politicians join the Court, they are the ones who are most likely to legislate from the bench, judging according to their policy preferences, rather than the dictates of applicable law.

That's an interesting question. As with all issues connected to modern Supreme Court nominations, it will probably generate more heat than light. But I hope for at least some enlightened debate on the topic.

Elena Kagan

Quite a few names were mentioned as candidates to succeed retiring Associate Justice John Paul Stevens, but, as it turned out, the appointment went to the one who had been considered the front-runner from the beginning. This morning, President Obama announced that he will nominate Solicitor General Elena Kagan, 50, to the Supreme Court.

She was appointed to her current job by Obama in 2009. According to the Department of Justice website: "The Office of the Solicitor General is tasked to conduct all litigation on behalf of the United States in the Supreme Court, and to supervise the handling of litigation in the federal appellate courts." Kagan is a former law professor, who also worked in the White House counsel's office during Bill Clinton's presidency. Her bachelor's degree is from Princeton, and her law degree from Harvard.

I recently commented on my other blog about some discussions regarding Kagan, during the search process.

Kagan is 30 years younger than former Associate Justice Sandra Day O'Connor, and 27 years younger than Associate Justice Ruth Bader Ginsburg. But, as was the case with those other women, Kagan had her share of "first woman to" situations. She is the first female solicitor general, and was the first female dean of Harvard Law School.

Longevity

As I noted here, regarding retiring Supreme Court Justice John Paul Stevens and his predecessor, and here, regarding Supreme Court justices generally, people tend to stay in that job for a long time. Unlike most presidential appointees, they are not shuttled out of office with every change of administration.

But longevity in the seat Stevens is vacating has been exceptional. Just coincidence, I suppose, but interesting to a trivia buff like me.

The third-to-last justice in that seat was Louis Brandeis, who was appointed by Woodrow Wilson in 1916. (As an aside, Brandeis was the first Jewish justice, which ties into my discussion of identity politics and the Court, earlier today, on my other blog.) A short-timer by the standards of his two successors, Brandeis was on the Court for almost 23 years.

Brandeis's successor, William O. Douglas, appointed by Franklin Roosevelt, set a record, by serving as an associate justice from 1939 to 1975. After suffering a stroke, Douglas reluctantly agreed to retire from the Court. Stevens has held the seat since being appointed by Gerald Ford in 1975.

The seat that is the second most longevity-prone, by that measure, is that of Anthony Kennedy (Hugo Black 1937-1971, Lewis Powell 1971-1987, and Kennedy since 1988).

The seat with the most turnover is Stephen Breyer's. Still, not much turnover; three justices since 1965: Abe Fortas 1965-1969, Harry Blackmun 1970-1994, and Breyer since 1994. Breyer has one longevity record, which I described here.

Narratives

Republicans and Democrats are gearing up for a fight over President Obama's as-yet-unannounced next Supreme Court nominee. We can, of course, expect strong disagreements about the fitness of any Obama appointee. But the fact that the two sides can't even agree on the history of Supreme Court nominations over the past few decades gives some indication of how stormy the debate might become.

This article in Politico quotes some Senate Democrats as saying that Obama shouldn't even attempt to garner bipartisan support for any nominee:

“I think we need to push someone who would be on the liberal side, on the progressive side, just as Roberts and Alito are on that side,” said Sen. Tom Harkin (D-Iowa), referring to Chief Justice John Roberts and Associate Justice Samuel Alito, who were both confirmed in George W. Bush’s administration. “Why do conservatives always get the conservatives, but we don’t get to get liberals? What the hell is that all about?”

Not everyone agrees with Harkin's historical analysis.

On the Power Line blog, Scott Johnson quotes from an article by Stuart Taylor, about why conservatives hardly ever get the conservatives:

One reason why so many Republican appointees have turned out to be more liberal than the presidents who picked them has been the difficulty of getting nominees with conservative paper trails through the Senate.

The point is that many justices who were appointed by Republican presidents have ended up at various places on the spectrum between left-wing and center-right, such as Earl Warren, William Brennan, Harry Blackmun, Lewis Powell, Sandra Day O'Connor, Anthony Kennedy and David Souter. But what about Democratic nominees?

Democrats Franklin Roosevelt and Harry Truman totally remade the Court during their combined 20 years in the White House. But, since then, Republicans have appointed 17 justices, to only seven for the Democrats.

Justices such as Ruth Bader Ginsburg and Stephen Breyer, the two who were appointed by Bill Clinton, have been reliably liberal on issues such as affirmative action, LGBT rights, and the status of enemy combatants. However, there are legal theories that are more radical than the positions taken by Ginsburg and Breyer and, presumably, those are the ideas backed by Senator Harkin and likeminded colleagues.

As usual, I believe that the truth lies somewhere between these polarized viewpoints.

On the strategic question regarding the upcoming nominee, the Democrats appear to believe that the Republicans cannot hold all 41 of their senators together to sustain a filibuster against Obama's choice. Unless that person is particularly a lightning rod (a sort of leftist version of Robert Bork), they're probably correct.

John Paul Stevens

For only the second time since 1939, the Supreme Court seat held by Associate Justice John Paul Stevens is coming open. Stevens announced today that he plans to retire at the end of the Court's current term. He had telegraphed his intention well in advance, so no one is surprised by his retirement.

Stevens, 89, was nearing records for being both the oldest and the longest-serving Supreme Court justice in history. He has made clear that his longevity on the Court has not been based on an ambition to break those records.

The oldest justice was Oliver Wendell Holmes, Jr., who was 90 years old when he retired in 1932. Stevens would have surpassed that mark, had he stayed on the Court into the early months of 2011.

The longest-serving justice was William O. Douglas, Stevens's predecessor, who was appointed by Franklin Roosevelt in 1939, and retired in 1975. That was when President Gerald Ford appointed Stevens as an associate justice. Stevens would have broken that record in 2012.

For the second consecutive year, President Obama will appoint an associate justice. As was the case with David Souter's 2009 retirement, the atmosphere in Washington will be slightly less heated than it might otherwise be, because Stevens, although he was appointed by a Republican president, is classified as being part of the Court's liberal wing. Therefore an Obama nominee will not be expected to change the ideological balance among the justices.

However, as we saw with the nomination and confirmation of Justice Sonia Sotomayor last year, there is no longer any such thing as a non-controversial Supreme Court appointment. I doubt that the Senate's unanimous confirmation of Stevens's appointment will be repeated for his successor.

Aren't Republican filibusters horrible?

Thomas Geoghegan, a Chicago attorney and author, has written an op-ed piece in The New York Times, about filibusters in the U.S. Senate.

Filibusters are primarily an issue that arises when the president's party has a majority in both the House and the Senate. Under those circumstances, on an issue where the vote breaks down according to party lines, the filibuster is the last-ditch tactic by which the minority party can block initiatives of the majority party. That was the case for the Democrats as minority party from 2003 to 2007, and has been the case since last year for the current minority party, the Republicans.

Not all issues come to a party-line vote. Up until 1964, Southern Democrats filibustered civil rights bills. Even though their party controlled the Senate, a coalition of Republicans and Northern Democrats constituted a majority in favor of such legislation. Nowadays, the parties are less ideologically diverse, so party-line votes have become more common.

In the situation that existed from 1981 to 1987, when Republican President Ronald Reagan's party controlled the Senate but not the House, Senate Democrats were not completely dependent on the filibuster, because their House colleagues could block, or at least significantly influence, legislation advocated by Reagan.

And from 1995 to 2001, with Republican control of both houses of Congress, but not the White House, the Democrats' last line of defense was not the filibuster, but rather the veto pen of Democratic President Bill Clinton.

During the 2003-7 period, the most controversial Democratic filibusters were mounted in opposition to some of Republican President George W. Bush's judicial nominees. In the current Congress, the biggest issue that has brought filibusters into play is, as Geoghegan notes, the health care bill.

I don't want to be unfair to Geoghegan. Perhaps he opposed Democratic filibusters during the last administration; I don't know. But I note that he has chosen this time to challenge the constitutionality of a Senate rule that has been on the books for 35 years. I can't help but speculate that he might be more concerned about what he calls the "recent health care debacle" than about a procedural question, per se.

The Senate's original rules, dating from 1789, did not allow filibusters. But they have now been institutionalized for more than two centuries. And the 1975 rule change that allows "ghost filibusters", which has contributed to making them a routine part of Senate procedure, has not been subjected to a constitutional challenge.

If, as Geoghegan advocates, the courts were now to step in and declare unconstitutional what has in effect become a 60-vote supermajority requirement for normal legislation to pass the Senate, it could be seen as a political move to benefit the party that is currently in power. But I suppose one could argue that a Supreme Court decision to that effect would be no more partisan than its Bush v. Gore opinion that halted the recounts in the 2000 Florida election dispute (although subsequent inspection of ballots showed that further recounts would not have resulted in a Gore victory).

Aside from any questions regarding the political ramifications, a plausible constitutional case could be made for disallowing filibusters. The courts would need to weigh the balance between the Senate's constitutional right to determine its own rules, and those constitutional provisions that strongly imply, but don't exactly state, that legislation is subject to a simple majority vote in both the House and the Senate, except in the wake of a president veto. The routine nature of filibusters in the modern Senate strengthens the case that procedures prescribed in the constitution are being violated.

As Geoghegan explains, the Senate rule has evolved over the years. But senators have never shown any inclination to eliminate filibusters. Majority Leader Harry Reid would rather not be required to build a 60-member coalition for the health care bill. And I'm sure that Reid's predecessor, Bill Frist, would have preferred an easier path toward confirmation of judicial nominations. But both parties have followed that old legal principle, "what goes around comes around". Sooner or later, Democrats will be back in the position they were in during the 2003-7 period. When that happens, they would regret any move they made while in the majority, to cut back on filibusters.

One last point: the procedural issue is not ideologically neutral. Those of us who veer toward the libertarian side, welcome any procedural hurdles in the path of expansion of government. Geoghegan seems to favor activist government, and I suspect that is another reason for him to crusade against filibusters.

Circular Reasoning

Adam Liptak writes in The New York Times about points of agreement between some on the left and some on the right of the spectrum, regarding criminal justice issues.

This is an excellent example of something I wrote about here, which is that the political spectrum can be represented graphically by a circle, rather than a line.

Liptak quotes one interested party who sees it that way:

“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Criminal justice issues seem particularly conducive to producing that bending-around effect. More purely economic issues lend themselves more to the traditional linear view of the spectrum. No model ever exactly fits reality.

Take two aspirin, read the Constitution, and call me in the morning

George Will analyzes constitutional implications of the health care bills under consideration in Congress.

He makes some plausible arguments about provisions of those bills being unconstitutional. But there doesn't seem to be any obvious cut-and-dried case for unconstitutionality.

If the legislation is enacted, and a challenge comes to the Supreme Court, it will, as a practical matter, probably come down to whether 1) the "swing justice", Anthony Kennedy, goes along with the challenge; or 2) President Obama is able to replace any members of the Court's "conservative wing".

But, surprises do happen. If a good case can be made against any or all of a new health care structure, some from the "liberal wing" might be compelled to call it unconstitutional.

The Democrats would do well to consider what chaos would ensue, if they implement a plan, only to have it disallowed by the Supreme Court a couple of years or so down the line.

Another retirement?

Adam Liptak reports in The New York Times that the folks who read the tea leaves around the Supreme Court are speculating that the senior associate justice, John Paul Stevens, might retire next spring.

If so, Washington will go through the Supreme Court confirmation dance for a second summer in a row. As Liptak notes, an Obama appointment would not change the ideological balance on the court, so any nomination is likely to cause only minor tremors, as the Sotomayor nomination did, rather than a major earthquake.

If Associate Justice Antonin Scalia were to leave the court during Obama's presidency, that would bring about a repeat of the type of knock-down-drag-out fight we saw in 1991, when Clarence Thomas replaced Thurgood Marshall.

Doorman (or -woman)

As is the case with the houses of Congress, seniority defines the pecking order among Supreme Court justices.

The chief justice is automatically #1 in seniority. The associate justices are ranked according to the amount of time they've been on the Court.

Two important implications are:

• The senior justice on each of the majority and minority sides in a given case, assigns the task of writing the majority and minority opinions. That can be more than just a housekeeping matter. While, in a big-picture sense, an opinion-writer is bound to conform his or her writing to the position to which they've committed themselves, the details of the opinion can shape the case law in subtle ways. Also, assigning an opinion to a wavering justice is sometimes a tactic that a senior justice uses to keep the waverer onside.
• After the justices hear oral argument on a case, they meet in conference to discuss their opinions on the case. The justices speak in order of seniority. While everyone has a chance to be heard, those who speak earlier in the process have more power to shape the discussion than their more junior colleagues.

Those powers that are tied to seniority are the main ways in which the position of chief justice is more powerful than that of associate justice.

But, as I alluded to in the title of this post, there is another aspect of seniority, or, more accurately, the lack thereof, that is more trivial (although it perhaps doesn't seem that way if one is stuck in the junior position for a long period of time).

When the justices meet in their conference room to discuss cases, they are the only nine people in the room. No staff. No news media.

If staff need to get a message to the justices, they knock on the door of the conference room. The most junior of the associate justices is seated nearest the door, and is assigned the task of getting up and retrieving such messages.

After President Bill Clinton appointed Stephen Breyer to be associate justice, in 1994, there was an unusually long period of time before another associate justice position was vacated. Breyer remained the junior justice, until Sandra Day O'Connor's retirement became effective, in 2006. So, Breyer had the dubious distinction of having the longest tenure as Supreme Court doorman, in modern times.

If, as expected, Sonia Sotomayor is confirmed by the Senate, she will become doorwoman. Odds are she will not stay in that position as long as Breyer did. Even if all of the associate justices other than John Paul Stevens stay on the Court for another 12 years, Stevens would have his 100th birthday, before Sotomayor would have been on the Court for 12 years. Strom Thurmond served in the Senate until the age of 100, so could Stevens do the same on the Supreme Court? Is 100 the new 80?

The Sotomayor Vote (cont'd further)

I perhaps overstated the case in this post, when I said that the number of senators voting to confirm Sonia Sotomayor to the Supreme Court doesn't matter, now that her confirmation seems assured.

I think it doesn't matter in the narrow sense that, once confirmed, a justice will act the same way on the Court, if he or she is confirmed with 51 Senate votes, as her or she would have acted having received 100 votes.

But it does matter in the sense that it indicates how Republicans are using their minority position in Washington, as they attempt to rebuild their support, and eventually re-take power.

Of the 40 Republicans in the Senate, my research shows that five have declared their support for the nomination, 14 have said they will vote "no", and 21 haven't declared their intentions. I suspect that Sotomayor will get no more than four votes from those 21 undecideds. So there might be a total of 31 "no" votes, rather than the 23-25 I was projecting earlier.

Her "yes" total will depend in part on whether the two ailing Democratic veterans, Robert Byrd and Ted Kennedy, make the effort required to be there for the vote. With Sotomayor seemingly having at least 63 votes in her pocket, even without those two, there doesn't seem to be much of a reason for them to go to extraordinary lengths to make the vote.

The position that most Republicans are taking against the nomination, indicates a readiness to play hardball against President Obama, with possible implications for legislation, and other nominations, down the road. And that, of course, has possible implications for the 2010 and 2012 elections.

Also, the Republicans are following the precedent that the Democrats set, with their response to George W. Bush's nominations of Justices Roberts and Alito. Many Democrats opposed those nominations, more or less because those were not the judges they would have nominated, rather than because they found significant flaws in their qualifications.

Strong arguments can be made either way, as to whether senators should take into account how they think a prospective justice would vote on important issues, as opposed to a more narrow view of how to judge a nominee's qualifications. But it seems as though the days when Republican Ronald Reagan's nomination of Antonin Scalia could be unanimously supported by a Senate that included 47 Democrats, and Democrat Bill Clinton's nomination of Ruth Ginsburg was nearly-unanimously approved (three votes against) by a Senate with 44 Republicans, are over, perhaps forever.

The Sotomayor Vote (cont'd)

Now that Sonia Sotomayor is virtually certain to be confirmed by the Senate to be an associate justice of the Supreme Court, I suppose it doesn't really matter how many votes she gets. But it's the sort of thing that political wonks like me find interesting.

I was surprised to find out that Republican Senators John Cornyn of Texas and Jon Kyl of Arizona plan to vote against Sotomayor.

When I predicted in this post that she would get at least 77 votes, I was assuming that Republican senators from states with high Hispanic populations, such as Florida, Texas and Arizona, would go along with making her the first Hispanic justice.

We'll see if there's any backlash against them in their respective states. Kyl is next up for reelection in 2012, and Cornyn in 2014.

Senator Mel Martinez, Republican of Florida, who has announced that he won't seek reelection next year, has said he will vote in favor of Sotomayor's confirmation.

As far as I know, the other Republican senators from the states listed above, John McCain of Arizona, and Kay Bailey Hutchison of Texas, are still on the fence.

Senators on the Republican right are taking a more hardline stance on this nomination than I expected. It currently seems as though Sotomayor won't get more than about 75 votes.

Sotomayor Confirmation Hearings (cont'd)

Robert Bork gained recognition as a major constitutional law scholar, when he taught at Yale Law School in the 1960s and '70s. He was increasingly mentioned as a prime prospect for a Supreme Court appointment by a Republican president.

When Ronald Reagan appointed Bork to the Court of Appeals for the District of Columbia, in 1982, many assumed that Reagan was making Bork the on-deck batter for a future Supreme Court vacancy.

Associate Justice Lewis Powell retired in 1987, and Reagan appointed Bork to replace him.

It was clear that Bork was in for a fight. The Democrats had reclaimed control of the Senate in the 1986 mid-term elections. Bork's judicial philosophy of interpreting the Constitution according to the original intent of the framers, rather than by evolving judicial interpretation, runs counter to the basis for many decisions of the Warren and Burger courts. Exhibit A is the Roe v. Wade abortion decision, which Powell supported. Most Democrats, and some Republicans, wanted to preserve Roe.

Associate Justice Antonin Scalia, whose judicial philosophy is similar to Bork's, was easily confirmed in 1986. Republicans still controlled the Senate that year, but both parties unanimously supported him. What was different in Bork's case?

For one thing, I suspect that, as Reagan made more Supreme Court appointments (he would end up appointing three associate justices, and promoting William Rehnquist to chief justice) the pro-choice side became more fearful about the future of Roe. Even though Reagan's first appointee, Sandra Day O'Connor, later voted to uphold Roe, they had reason to expect that the fiercely pro-life Reagan would try to sway the Court his way.

But, aside from such substantive issues, much has been said about the way Bork presented himself at his Senate hearings. He and the Reagan White House were seemingly unprepared for the media event that confirmation hearings had become. The hearings were televised, and Bork did not make a favorable impression via that medium.

Edward Lazarus writes of Bork that:

On television, he came across as smug and contemptuous - in a word, injudicious - though in real life, he could be quite charming. As things turned sour for him, he simply could not muster the kind of charisma and humor that might have disarmed his opponents, rallied public support, and seen him through the rough patches.

Some even said that Bork's unconventional beard made him appear sinister.

Whatever the causes, Bork's nomination was rejected by the Senate, by a vote of 42 to 58. Anthony Kennedy was eventually confirmed as Powell's successor.

Fast forward to 2009, and there has been much talk about Sonia Sotomayor being unusually reserved in her exchanges with the senators on the Judiciary Committee. In this New York Times report, Sheryl Gay Stolberg wonders where the judge's passion disappeared to.

Judges nominated by presidents of both parties are now much more careful about the impression they make on the TV audience. In a lesson similar to one that had previously been learned by principals in the political branches of government, potential Supreme Court justices have come to realize that their acting skills have become just about as important as their legal experience.

In that Times piece, Stolberg makes an interesting comparison between Sotomayor and Chief Justice John Roberts:

Chief Justice John G. Roberts Jr. arrived at his confirmation hearings four years ago with a reputation as brainy but detached, and had to demonstrate his humanity. Judge Sotomayor arrived at Tuesday’s proceedings with the opposite problem: a reputation for too much feeling. Her task was to demonstrate restraint.

To summarize the point concisely: nominees don't want to get borked. Bork has the dubious distinction of joining the likes of Charles Boycott and Elbridge Gerry, as people whose proper names have been turned into common nouns.

The Sotomayor Vote

How many senators will vote to confirm Sonia Sotomayor, when the full Senate votes on the nomination?

She seems to be able to count on all 60 votes of the Democrats and their Independent allies, barring any skeletons making a late emergence from her closet (keep in mind the sequence of events in the 1991 Clarence Thomas confirmation).

According to several reports, including this one in The New York Times, Senator Lindsey Graham, Republican of South Carolina, "signaled that he intended to vote for her."

Based on his membership in the "Gang of 14", a group of senators who tried to find middle ground regarding Bush judicial nominations that were blocked by Democrats, Graham has a history of being less hard-line about such nominations than other Republicans. Without much specific evidence of the intent of individual senators, my quick-and-dirty count comes up with about 23 Republican senators who I'm guessing would be less likely than Graham to support the nomination.

That would indicate at least 77 "aye" votes, and I wouldn't be surprised to see more than that. Compare that to 78 votes for Chief Justice John Roberts, and only 58 votes for Associate Justice Samuel Alito.

Sotomayor Confirmation Hearings

There are two themes that I find interesting in the Senate Judiciary Committee's hearings on the nomination of Sonia Sotomayor to the Supreme Court:

1. Republicans are attacking Sotomayor quite strongly, even though they admit they can't derail her nomination.


2. Sotomayor is being very cautious in what she communicates, verbally and otherwise, to the committee and, by extension, to the country.

This New York Times article speculates on Republicans' strategy. Peter Baker and Charlie Savage write that the opposition is sending a message that President Obama will get into trouble if he submits nominees who are too far to the left, for any future Court vacancies that might arise during his presidency.

Republican senators are signaling that they won't roll over and play dead in response to a nomination by Obama. Also, they are establishing a hearing record in which Sotomayor has committed to traditional concepts of how judges apply the law, and whether the Constitution can change by judicial interpretation, as well as by amendment. They can throw that record in the face of any future nominee who varies from it.

But I think there's something more basic going on: Republican senators are keeping faith with their right-wing base. Opposition to liberal activist judges has been a battle cry among that base, since Earl Warren's tenure as chief justice during the 1950s and '60s.

More specifically, looking toward Senate elections in 2010 and 2012, as well as the 2012 presidential election, Republicans seem to be preparing to make the case that the electorate needs to send more Republicans to Washington, in order to guard against a leftward shift of the Judicial Branch.

If Sotomayor is confirmed, and she then joins in any Supreme Court opinions that are perceived as being to the left of the mainstream, Republican senatorial candidates can point to those as a danger against which the election of more of their party is a safeguard.

But they'll need to be careful in executing that strategy, so as not to alienate centrist Latino and female voters.

I doubt whether any of the 60 Democrats-and-Independents in the Senate will vote against Sotomayor. I'm guessing she'll win a few Republican votes, although perhaps a minority among the 40 members of that caucus. So, this one is a foregone conclusion but, like chess players, the politicians are planning a few moves ahead.

Presidential Legacy

As I noted here, Supreme Court justices have what is, in effect, a lifetime appointment. Therefore, they tend to be any president's most long-standing legacy, in terms of appointments to major offices.

Along those lines, President Obama, in a statement today, said that "there are few responsibilities more serious or consequential than the naming of a Supreme Court Justice". The numbers prove him right.

The longest such legacy, i.e., the longest period between a president's departure from office, and the end of the tenure of his last remaining nominee on the Supreme Court, is that of John Adams. Chief Justice John Marshall died in office, 34 years after Adams left the White House.

Gerald Ford, who holds a record that belonged to Adams for over two centuries, that of being the oldest ex-president, has a chance to surpass Adams's Supreme Court legacy record, as well. If Associate Justice John Paul Stevens, a Ford appointee, remains on the Court until May of 2011, Ford will posthumously win the Supreme Court legacy record. If Stevens survives until then, he will be 91 years old, surpassing the record for the oldest active justice, currently held by Oliver Wendell Holmes, who retired at the age of 90, in 1932.

Eight presidents have had a legacy of 30 years or more (rounded to the nearest year). 21 presidents are beyond the 20-year mark. So, yes, those appointments are certainly consequential.

At the other end of the scale, four presidents never appointed a justice: William H. Harrison, Zachary Taylor, Andrew Johnson and Jimmy Carter. Of those four, Carter was the only one to serve an entire four-year term. However, Johnson was close, having served more than three years and 10 months, when he completed the term during which Abraham Lincoln was assassinated.

Supreme Court -- Sotomayor (Privacy)

The most controversial subject that involves the constitutional right to privacy that has been established in case law for more than four decades (as I discussed in this and subsequent posts) is abortion.

Judge Sonia Sotomayor, President Obama's nominee for the Supreme Court, has not, as a judge on lower federal courts, dealt with the abortion issue, in as direct a manner as she addressed racial discrimination issues in the case I discussed in this post.

Since the Court's Roe v. Wade abortion decision of 1973, abortion (specifically, the question of whether Roe might be substantially altered, or completely overturned) has received much attention during Supreme Court confirmation proceedings in the Senate. The Sotomayor nomination is not an exception to that rule.

At first glance, one might assume that a nominee of the pro-choice Obama, would defend Roe. But one of Obama's predecessors, George H.W. Bush, thought the opposite of David Souter, one of Bush's Court nominees. Bush guessed wrong, and Souter voted to uphold Roe. Might Obama be surprised in the opposite direction?

Both sides in the abortion debate have scoured Sotomayor's record, to try to discern clues from cases dealing indirectly with the issues that were involved in the Roe case. This New York Times article from May 27 discusses the uncertainty across the spectrum, about her views on abortion issues.

I'm sure that, in the Senate hearings that begin this week, Sotomayor will follow the example of previous nominees, and decline to directly state how she would vote on any future case involving those issues.

Supreme Court: Sotomayor (Race)

The debate about Judge Sotomayor's record on racial discrimination issues has been very much dominated by one case: Ricci v. DeStefano.

If you've been following the Sotomayor debate, you may already have heard all about the case. But I'll briefly recount the facts. The city of New Haven gave a test to firefighters who were seeking promotion. When no African American candidates passed the test, the city decided not to promote anyone on the basis of the test. White and Hispanic firefighters who passed the test, sued the city, claiming reverse discrimination.

A panel of judges on the federal Second Circuit Court of Appeals (which included Sotomayor) ruled that, because the tests "had a disproportionate racial impact", New Haven acted within the law, when it declined to award any promotions on the basis of the test.

By a vote of five to four, the Supreme Court reversed the circuit court's decision, and upheld the plaintiffs' charges of reverse discrimination. Associate Justice Anthony Kennedy wrote the following, in his majority opinion:

We conclude that race-based action like the City’s in this case is impermissible under Title VII [of the Civil Rights Act of 1964] unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard. As a result, the City’s action in discarding the tests was a violation of Title VII.

Kennedy was getting at the central issue in the case. The City of New Haven was between a rock and a hard place. Had they promoted those who passed the test, they would have been subject to a discrimination lawsuit by African American firefighters. On the other hand, they were sued for reverse discrimination because they denied the promotions.

The Supreme Court, unlike the Second Circuit, found that the reverse discrimination claim was sufficient to counter the disparate impact standard.

On behalf of the four dissenting justices, Associate Justice Ruth Bader Ginsburg wrote:

This case presents an unfortunate situation, one New Haven might well have avoided had it utilized a better selection process in the first place. But what this case does not present is race-based discrimination in violation of Title VII. I dissent from the Court’s judgment, which rests on the false premise that respondents showed “a significant statistical disparity,” but “nothing more.”

The question that all of this poses for the U.S. Senate is: Can this be characterized as Sotomayor having made the wrong decision, and needing to be corrected by the Supreme Court? If so, does that reflect badly on her qualifications to be an associate justice?

Here is a Slate article by Emily Bazelon, criticizing Sotomayor's handling of Ricci.

Linda Greenhouse has led the charge for the pro-Sotomayor point of view. Greenhouse reported on the Supreme Court for many years, for The New York Times. She now teaches at Yale Law School.

In this op-ed piece in her former paper, Greenhouse argues that the circuit court properly applied the law as it existed when they heard the case. According to her interpretation, the Supreme Court's decision was an example of what I wrote about here, i.e., a reversal of prior case law.

The Supreme Court can go against established precedents, but needs to tread that path carefully. The lower courts are much more constrained than is the Supreme Court, in following precedents. Therefore, according to Greenhouse's analysis, Sotomayor did not err in joining in the Second Circuit's decision.