Legal Analysts Discuss Sotomayor's Answers

By The NewsHour, The NewsHour - July 14, 2009

JIM LEHRER: And now some reaction to today's hearing from Jonathan Adler, professor at Case Western Reserve University School of Law, and Maria Blanco, executive director of the Warren Institute at the University of California at Berkeley Boalt Hall School of Law.

Professor Adler, to you first. Just in general, is this a good day or a bad day for Judge Sotomayor, from your point of view?

JONATHAN ADLER, Case Western Reserve University School of Law: Well, I think any day in which she doesn't make a major gaffe or there's no real stumble is a good day for her.

I mean, I think the strategy is to play defense, to be very careful and deliberate in her answers, and to not do anything that would cause what Senator Graham referred to yesterday as a meltdown. And I think, as long as that's what happens in the hearings, she'll get through.

JIM LEHRER: All right. Ms. Blanco, how did you feel generally? Was this a good day for her?

MARIA BLANCO, University of California Boalt Hall School of Law: I think it was. I think that she was very careful. She was unflappable. But at the same time, she -- I felt that she answered all the questions that were made of her and thoughtfully.

I don't think she came across as somehow -- you know, called her as a hothead. I thought she exhibited actually the opposite quality in her deliberative answers.

I was very impressed with her knowledge of the law. I think that, even in the last exchange, where she was pressed on her "wise Latina" comment, she did a good job of basically stepping away from it and saying that perhaps she understood how others might find that unacceptable, so I thought she did very well today.

JONATHAN ADLER: Well, I mean, I think she backtracked some, I mean, both in terms of the specific speech at Berkeley and some similar speeches she gave at Seton Hall and some other places. She backtracked from what, I think, most people took from the words of her speeches.

She disclaimed any intention to suggest that one's background would make someone a better judge or result in better decisions. She tried to play down the distinctions that the speeches have drawn between her views and, for example, Justice O'Connor's views, I think, you know, expressly disclaimed language in some of the speeches that suggested her experiences would cause her to choose to see certain facts and not others.

And I think she did that because she was trying to diminish the potentially controversial aspects of some of those speeches and, in that regard, make them less of an issue.

JIM LEHRER: Do you think the Republicans, particularly Senator Sessions, bought that?

JONATHAN ADLER: I don't think they were convinced, but in some respects she doesn't have to convince them. I mean, with 60 Democratic senators in the Senate really what she has to do is not say anything that gives a Democratic senator a reason to defect or even some of the more moderate Republican senators reason to vote against her.

And so that's why I think her practice today of being very cautious and careful in her answers was a very intelligent strategy, and downplaying the potentially controversial interpretations of her speeches made sense.

I'm not sure she convinced Senator Sessions. I'll admit I'm not sure I'm convinced entirely with all of those answers, but I understand why she answered in that way, and it was probably effective.

MARIA BLANCO: Yes, I do, but I also think that she didn't just play down those comments. I was impressed by her attempt, on this very controversial remark, she really did attempt to explain what she was saying.

She explained, I thought, well today that she thought that people -- everybody comes with beliefs, prejudices, experiences, and that only if you recognize that you hold those biases can you set them aside and not judge with those biases.

And I thought that she did a good job of explaining that and of calling that out, so to speak, that nobody is neutral, and that she was trying to say in her speeches that it's only when you acknowledge that that you're able to move beyond it.

So I don't think she was completely cautious. I think, at the same time, she stood her ground.

JIM LEHRER: Professor Adler, what did you think about the way she handled the New Haven firefighters case and the decision in her court?

JONATHAN ADLER: Well, I think in that case and a lot of the other cases, she tried to emphasize her focus on the facts of cases and the role of precedent.

Now, I happen to be one of those that does not think that her opinion or that her panel's opinion in that case was controlled by Second Circuit or Supreme Court precedent and was one of those who would criticize the ruling even before she'd been nominated, in fact, before the president was elected, so before any of us knew it could potentially be a confirmation issue.

But I think, again, she tried to explain it in a way that's consistent with the narrative that she and her supporters are creating of a very careful jurist with a lot of experience and didn't say anything that really provides much of an opening for her critics in that regard.

MARIA BLANCO: Well, first of all, I think, to the extent that that characterization of her is out there, the last two days of the hearings have shown her in quite a different light. So I think, to the extent that that's a concern, she's working very hard -- and I think successfully -- to present a very calm demeanor, a thoughtful demeanor. She does not come across as a hothead.

So I think that, beyond what she says, her actions today and yesterday have to some extent addressed that concern.

I also think that even the question itself sort of -- the questioning, that line of questioning acknowledged that this is a technique used by many judges, not just by Judge Sotomayor. She described this as a practice that's very prevalent on the Second Circuit.

I felt that she did a good job of showing herself to be a measured person and not sort of, you know, outside the mainstream in her temperament, as well as within the mainstream in terms of her decisions.

JIM LEHRER: Professor Adler, do you agree with that?

JONATHAN ADLER: Well, I generally agree with that. I mean, at the end of the day, the attorneys that argue cases before the Supreme Court are fully capable of handling the most aggressive questioning. And if it turns out that she's as aggressive as Justice Scalia, or even more so, they'll be able to handle it.

I don't think that's the sort of thing that at the end of the day should really determine whether or not she gets confirmed.

JIM LEHRER: Speaking of the end of the day, the end of this day, which is still actually, in some time zones, the hearing is still going on today, how did you think the senators -- first, the Republican senators and then the Democratic senators -- did as far as what their roles they played in questioning Judge Sotomayor?

Read Full Article »

Latest On Twitter

Follow Real Clear Politics

Real Clear Politics Video

More RCP Video Highlights »