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Analysts Discuss Sotomayor Hearings

By The NewsHour, The NewsHour - July 16, 2009

JIM LEHRER: Judy Woodruff, who anchored our live coverage of the hearing, takes the story from there.

JUDY WOODRUFF: To assess Judge Sotomayor's four days of testimony and her prospects for confirmation, I'm joined by Marcia Coyle of the National Law Journal. She's been with me all week to provide analysis of the hearings for our PBS special coverage.

And Tom Goldstein, he's a Supreme Court advocate and the founder of scotusblog.com.

Thank you both for being here. Now, Marcia, what -- I'm going to ask both of you this -- what did the judge need to do this week? And did she accomplish it?

MARCIA COYLE, National Law Journal: Well, I think, as Senator Graham said in his opening statement, that unless she had a complete meltdown, she was going to be confirmed. Well, she did not have a complete meltdown, not even when the air conditioning broke down in the hearing room.

She knew going into this hearing, based on comments and articles that had been written about her, that she was going to have to address speeches she had made, several decisions that she was involved in that had become controversial, and, finally, emphasize her 17-year record. And she did all of that.

To what degree of satisfaction, at least to opponents and certain Republicans on the committee, remains to be seen, but she did everything that she had to do.

JUDY WOODRUFF: Tom Goldstein, overall, how did she do?

TOM GOLDSTEIN, Scotusblog.com: Well, she, I think, performed admirably. Her first goal had to be get confirmed, to be honest, but get confirmed, and she's clearly going do that.

Remember, as well, that this is her introduction to the country, and I think the takeaway message that Americans who won't see her again, really, in the public spotlight much is that she's thoughtful and she's patient.

They did not learn a lot about her jurisprudence. There wasn't a real desire to educate the country about the law, I'd say.

TOM GOLDSTEIN: Well, they are sharply critical of the court of appeals ruling in this case, which they believe reflects a mentality of not taking the claims of discrimination against whites seriously, not that there was a real problem under the law of not following these test results.

And Judge Sotomayor's strategy here was to say that she was essentially bound, that she didn't have any choice because of pre-existing law, and she wouldn't go beyond that to say what she would do in another similar case on the Supreme Court.

So her strategy in this context was to say, This wasn't something that really embodies my view of how the law should be decided at all.

JUDY WOODRUFF: Did they score points on that?

MARCIA COYLE: I think coming back to it again and again and again and not appearing to be satisfied may have raised doubts in their minds, have raised doubts in the public's mind about her.

But I think she was very, very consistent in terms of how she addressed that. And she did have support from the Democratic side, which tried to fill in any gaps that she may have left unsaid. So I think it's one of those things where sides are going to agree to disagree.

JUDY WOODRUFF: So, in all, how much did -- was she hurt by the fact that she could only -- she only went so far in answering those questions about the Ricci case?

MARCIA COYLE: Hurt, in terms of confirmation or the public image?

JUDY WOODRUFF: Public Image.

MARCIA COYLE: Public image? I don't really know, Judy. I mean, I tend to think that people do understand when judges talk that they are bound by certain decisions that have already been made. On the other hand, people also may think that judges' experiences and prejudices do come into play in certain cases.

So, again, it's one of those things. It's a very difficult case, a legally difficult case, and it was attacked in two respects, not only the ultimate decision, but how it was handled. It was handled in a short, unsigned opinion, and the Republicans also went after her for that. And I think she did respond to that, as well. I don't know how it plays in America.

TOM GOLDSTEIN: Well, Republicans certainly led, but they had a lot of Democratic support, as well. The members of the Senate Judiciary Committee across the board, very supportive of gun rights.

Now, she had decided a case coming out of New York and actually involving nunchucks, rather than a gun, but she again said that she had been bound by prior law to hold that the state of New York and the city of New York were not bound by the Second Amendment right to bear arms, that the Supreme Court a long time ago, more than a hundred years ago, and her court of appeals had already ruled that that part of the Constitution doesn't limit state and local regulation and that it would be up to the Supreme Court to actually decide that case, that issue.

And there are three cases now that are on their way to the Supreme Court. And since she's going to be confirmed, Republicans are very concerned because they want to know how she'd rule in that area, and she wouldn't say, and appropriately so, because it's an issue that's coming up.

JUDY WOODRUFF: How would you sum up how she dealt with the whole gun issue?

MARCIA COYLE: I think, again, she dealt consistently the reply that Tom just addressed. I think she dealt with it as best she could, because she does know that that issue is coming up before the Supreme Court, that there are cases already in the court that raise the issue, and she just could go with it no further than she had.

MARCIA COYLE: Well, I think this is an area where the Republicans may have scored some points. She did back away in her choice of words, what we've heard endlessly now as the "wise Latina" part of one of her speeches. She said that that was a bad choice of words, but she did stand by what she meant.

And what she said she meant in that speech and others is that a judge's life experiences do figure into judging in the sense that it helps you understand the parties who come before you. And so whether, again, you know, people will accept that or not, I don't know.

It was very clear that Senate Republicans, most of them, did not accept her explanation of that. It's interesting, Judy. You know, with those speeches, as well as the cases that the Republicans focused on, we're talking about the Supreme Court and the number of cases in which the court is so closely divided, 5-4. And what happens when you're addressing an issue like that where it isn't really clear what the Constitution or law says, and that's what the Republicans were hoping to get answers on, and they did not.

TOM GOLDSTEIN: I think not. Here I think she was exceptionally successful, both just in her mannerisms. She's been under enormous pressure for several days now, in front of the country, under sometimes withering questioning, and was almost always incredibly patient.

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