White House Conference Call on Judge Sotomayor

Update: Here's the official White House statement on Judge Sotomayor's nomination.

The White House held a conference call for legal media today on the nomination of Judge Sonia Sotomayor. I was on the fairly short (1/2 hr) call.

The call was led by Ron Klain (chief counsel to VP Biden). He made a brief statement and then took questions. Summary below: [More...]

President Obama interviewed four candidates personally, as did VP Joe Biden. He chose Judge Sotomayor because of:

1. Her intellectual capacity and legal acumen, outstanding academic record, successful record as DA, in private practice and as a judge on the district court and court of appeals.

2. Her approach to judging. From reading her opinions and writings, he recognized her legal precision and craftsmanship. He was also impressed by her ability to win over colleagues on the Second Circuit.

3. Her personal story, that shows her life experience.

Q and A: On the New Haven firefighters affirmative action case: She applied the law of Second Circuit to the case before her.

Michael Froomkin, Discourse.net: At what point does the attack on her credentials become racism? Answer: They will be strong in defending her credentials on the merits. Her credentials are not just good or excellent but outstanding. She has more experience than anyone since Justice Cardozo.

Adam Bonin, Daily Kos: What types of questions did he ask those he interviewed? Answer: He asked about their approach to judging, how they make decisions, how they work with judges appointed by republican presidents, how they went about convincing those judges to come over to their view.

Klain mentions Janet Napolitano, Elena Kagan and Diane Wood as others Obama personally met with.

About her remark about Latino women: It was a single sentence...judges are inevitably the product of their experience and the broader your experience, the more you bring to your judging. Her context is clear a few sentences later.

On the timing of Obama's decision. He had her in mind from the start. He interviewed her on Thursday of last week. He ran a thorough process. She was always at top of the list but he didn’t reach a final decision until Monday.

Reporter from Washington Post asks about her experience as a prosecutor in New York. Weich says she showed a concern for rigorous justice and respect for crime victims. Same for her time as a trial court judge. She brings a hands-on quality to her judging experience.

Dahlia Lathwick: Did Obama open the door to her as being overly emotional? Answer: All judges’ real world experiences affect their judgment. President Obama wants someone who will apply the law and who believes in judicial restraint. Judge Sotomayor does.

The end.

Klain didn't give suggestions on how to rebut Republican criticism of Sotomayor. He sounded confident that Obama made the right choice and didn't seem particularly concerned about attacks on her or challenges to her confirmation. He said their goal is to get her out in front of the American people.

[Correction: Original post said the call was led by Ron Weich. Mr. Weich e-mailed to say it wasn't him, he's pretty sure it was Ron Klain, chief counsel to VP Biden. (I will still say I think Ron Weich, the Assistant Attorney General for Legislative Affairs, is really smart and a straight shooter.)]
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    I'm disappointed in Obama's choice, (5.00 / 1) (#3)
    by zaladonis on Tue May 26, 2009 at 01:56:58 PM EST
    not because I have anything against Sotomayor or think there's anything wrong with her, she's an okay nominee, but there were more brilliant candidates who are more assertively liberal or progressive.  If Franken's win holds, Dems will have a filibuster proof majority in the Senate, and at last a rare opportunity to put someone really extraordinary on the Supreme Court.  Sotomayer seems a safe choice with a compelling back story, but we could achieve so much more.  If not now, when?

    My two cents.

    Time for Karlan? (5.00 / 1) (#4)
    by Big Tent Democrat on Tue May 26, 2009 at 01:58:01 PM EST

    Certainly won;t get easier.


    Liberal bloc replacements are easy (5.00 / 1) (#38)
    by RonK Seattle on Tue May 26, 2009 at 05:58:32 PM EST
    Basically status quo.

    The first conservative bloc replacement (or swing seat replacement) will be a balance tipper - an all-out grudgematch.

    It's possible a later nominee will face a much further weakened Senate GOP Conference and/or a much weakened GOP and social conservative national coalition ... but it's possible they won't.

    The three-dimensional strategic play would seem to have been a bold pick (Karlan) now, with a safe pick (like Sotomayor) later. Things may look different in eleven-dimensional space.


    the conservatives are going to frame (5.00 / 1) (#39)
    by of1000Kings on Tue May 26, 2009 at 06:23:57 PM EST
    this as a bold pick already...so any chance of an actual bold pick is out the window...not that I think Obama the center-right is really worried about that...

    Harder battle should have been fought first (none / 0) (#18)
    by Platypus on Tue May 26, 2009 at 03:30:10 PM EST
    Totally agree, on both counts: I'd love to see Karlan on the bench and I agree that things won't get easier.

    I wrote elsewhere that I think that tactically speaking, it would have been preferable to fight the harder confirmation battle of a bolder progressive nominee (e.g. Karlan) now rather than further down the road (i.e., when Stevens and Ginsburg need to be replaced).

    Pretty much all observers agree that Sotomayor will ultimately be confirmed. You can be sure that if Obama ever tries to appoint a more progressive candidate for the next vacant seat, the GOP/conservadem framing will be "All right, some of us tolerated Sotomayor, but this time, this extremist candidate you're trying to shove down our throats is completely unacceptable" etc. etc.


    That assumes, of course (none / 0) (#6)
    by jbindc on Tue May 26, 2009 at 02:12:16 PM EST
    that some centrist Dems wouldn't jump ship on an extremely liberal nominee.

    I can think of at least two who (5.00 / 1) (#7)
    by inclusiveheart on Tue May 26, 2009 at 02:22:25 PM EST
    have signaled that they'd go against the President on a judicial nominee so far.

    Sure, some will whine (5.00 / 1) (#23)
    by Platypus on Tue May 26, 2009 at 03:39:58 PM EST
    But if there ever was a time where a window is open to bring a very strong progressive voice to the SCOTUS, it is now.

    The GOP and conservadems are going to whine about "activist judges" and so forth in any case (they're of course already doing that with Sotomayor).


    It's not about whining (none / 0) (#27)
    by jbindc on Tue May 26, 2009 at 03:46:09 PM EST
    It's about some Dems who wouldn't sign on to prevent a filibuster if a very liberal person was nominated.  Then it's about not having enough votes, which would completely defeat the purpose of nominating a far-left winger in the first place.

    Filibuster (none / 0) (#29)
    by Platypus on Tue May 26, 2009 at 03:52:50 PM EST
    Do you think that there is any serious possibility that 10 Dem Senators (I'm including Franken) would go so far as to join a filibuster to prevent a nomination made by a President that shares their political affiliation?

    How often have senators actually filibustered (not just voted against) a nominee when it is their party that controls the White House? How often in the specific case of Democrats?


    They don't have to join it (5.00 / 1) (#30)
    by gyrfalcon on Tue May 26, 2009 at 04:03:00 PM EST
    they just have to vote against cloture.  Some of them can, and do, frame that as preseving the rights of the minority.  I know it's crap, but that's their excuse.  Unless Reid/Obama extracted a binding pledge from Lieberman, it's the kind of thing he'd do because he's done it before.

    I don't think that's going to happen, but to imagine it couldn't possibly under the right circumstances is naive.


    Um (none / 0) (#34)
    by Platypus on Tue May 26, 2009 at 04:06:10 PM EST
    Sorry... I'm barely awake and apparently completely dysfunctional right now: I was for some reason mixing up the filibuster and the majority...

    Still, my point is that a filibuster on a nominee coming from your own political family is a rather extraordinary thing.

    What was the Alito cloture vote like, already? (just to see the willingness of the opposition party to filibuster...) [checking...] 72-25.


    The "Latina women" remark (5.00 / 5) (#8)
    by Steve M on Tue May 26, 2009 at 02:28:32 PM EST
    No one ever seems to be interested in discussing the full context of that "infamous" remark.  Obama's advisor, from this account of the call, seems to be resigned to the fact that we live in a sound-bite world.  But here's what the controversy is actually about:

    Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

      Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

      However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

      That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects.

      Yet, because I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minow of Harvard Law School, states "there is no objective stance but only a series of perspectives--no neutrality, no escape from choice in judging," I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.

    Personally, I consider it completely noncontroversial to suggest that a more diverse court might have taken a different view of cases like Dred Scott v. Sandford, Plessy v. Ferguson, or Bradwell v. Illinois.

    I guess as a minority jurist, you can adopt one of two views: (1) we're all just wise old colorblind solons, and nothing in our backgrounds could ever ever ever make a difference in terms of how we rule on cases; or (2) background is going to make a difference in how we look at some cases, and you know what, where there's a difference I would hope that more often than not I'd be the one with the better perspective.  I personally appreciate the realism and self-consciousness of the second option, but I understand some people get uncomfortable any time we move outside the fantasy that we're a 100% colorblind society.

    Thanks for posting this. (5.00 / 3) (#9)
    by Dr Molly on Tue May 26, 2009 at 02:35:52 PM EST
    I love what she said. And it rings true.

    Agree (5.00 / 4) (#16)
    by dws3665 on Tue May 26, 2009 at 03:24:34 PM EST
    Completely non-controversial. I would love to see someone argue, with a straight face, that people's judgments are independent of their experiences. Decades of social science research would prove them wrong, not to mention plain old common sense.

    For me these statements ... (5.00 / 1) (#19)
    by Robot Porter on Tue May 26, 2009 at 03:32:38 PM EST
    miss the point.  Diversity is important because it changes everyone in the group.

    Would Dred Scott be decided differently with a diverse court?  Not a valid question, because the society that would create a diverse court wouldn't create a Dred Scott case to be decided.


    Hear, hear (5.00 / 1) (#20)
    by vicndabx on Tue May 26, 2009 at 03:33:22 PM EST
    I personally appreciate the realism and self-consciousness of the second option, but I understand some people get uncomfortable any time we move outside the fantasy that we're a 100% colorblind society.

    Perspective and open-mindedness used to be a good thing.


    Works for me (5.00 / 1) (#36)
    by Cream City on Tue May 26, 2009 at 04:19:25 PM EST
    and not only in how it affects judicial work.  It's also how it works in my work.  As long as one is self-aware, as she clearly is, it's not a problem.  Aware of our assumptions and other influences that may come from our personal perspective, we also work to step back and work from disinterest.

    Otherwise, let's just turn the courts over to robots, all nicely cloned to be the same.  


    How 'bout (none / 0) (#37)
    by jbindc on Tue May 26, 2009 at 04:23:23 PM EST
    a Magic 8-ball?

    I respect the statements (none / 0) (#43)
    by BackFromOhio on Tue May 26, 2009 at 09:02:13 PM EST
    for their intellectual honesty.  

    the complaints (5.00 / 3) (#11)
    by Bemused on Tue May 26, 2009 at 02:44:24 PM EST
     should be addrssed head on. "Identity politics" are and always have been a criterion;  the difference is that for close to 175 years identity as a white male was required. Even since Marshall's appointment we have only O'Connor and Thomas in over 40 years.

      Appointing justices and judges is by intent of the founders a political act and I doubt anyone can name a single appointment no matter how esteemed the person that was not based in large part on politics -- both policy and broader.

      Her "credentials" are just fine. In fact, the bigger complaint some might have is that "credentials" as they are now defined play too big a role. Very few  regardless of ideology, region, gender, race or ethnicity from outside the narrow class of those who went to the right schools, served the right clerkships, practiced with the right kind of firms and had the right kind of prior governmental experience are in play.

       An argument can be made that minority woman who was co-opted into the "establishment" as a teenager and benefitted from its patronage her entire adult life is  a bit less likely to   truly bring a new and diverse perspective to bear than countless other lawyers whose backgrounds are truly outside the box.

      Marshalll was a pioneer and the court was enriched by the background he brought to the court, but he remains more or less unique in the court's history.

    And Ginsburg (5.00 / 1) (#32)
    by gyrfalcon on Tue May 26, 2009 at 04:05:05 PM EST
    for heaven's sake.

    thanks... (none / 0) (#35)
    by Bemused on Tue May 26, 2009 at 04:08:05 PM EST
    brain freeze rthere

    "I really like this nomination." Why? (5.00 / 1) (#17)
    by 1980Ford on Tue May 26, 2009 at 03:25:25 PM EST
    I respect your opinion, Jeralyn, and know you do your research, but it is not clear why you "really like" this nomination. Is it because Weich seems to approve?  And when did any court, as a matter of public policy, DISresepct crime victims? More importantly, isn't "respect for crime victims" code for "the Warren court liked the Bill of Rights too much and was wrong, wrong, wrong?"

    Here are some talking points (none / 0) (#1)
    by jbindc on Tue May 26, 2009 at 01:52:55 PM EST

    And Professor Hutchinson takes a stab as well.

    Froomkin asked the question (none / 0) (#2)
    by Big Tent Democrat on Tue May 26, 2009 at 01:53:38 PM EST
    on my mind.

    I am too enraged about that to blog about it in a coherent way.

    The "overly emotional" question (none / 0) (#10)
    by Cream City on Tue May 26, 2009 at 02:36:27 PM EST
    didn't do it, too?  Lucky that reporter isn't within reach of me, or I'd go all hormonal on her.  And I'm of an age when that means post-menopausal, too, like Sotomayor.  So did the reporter mean her worrisome hormone is testosterone?  Like only now is the testosterone level of the court a concern?!

    I didn't listen to the call (5.00 / 1) (#41)
    by lilburro on Tue May 26, 2009 at 08:01:20 PM EST
    but based on her contributions to this article, I doubt that was what she meant.  

    "But the more we freight the conversation with suggestions that women are fundamentally different, more sensitive, or more compassionate than men, the more likely it is that a woman nominee will be subject to a sexist double standard later."

    That's the thesis of the article and I am willing to bet what Lithwick meant...not that Sotomayor herself IS overly emotional, just that she is being framed with a perhaps finally harmful and sexist emphasis on her emotions.


    Wouldn't it be interesting (5.00 / 4) (#42)
    by Steve M on Tue May 26, 2009 at 08:11:42 PM EST
    if female judges were the standard, and male nominees had to deal with all sorts of speculation and questioning as to whether they would be sensitive and compassionate enough...

    It makes me think of Sen. Inhofe's amazing statement today that we need to assess Sotomayor's ability to judge impartially without "undue influence" from her "personal race and gender."  How come we didn't grill John Roberts as to whether he would decide cases based upon his race and gender?  White men remain the default... for now!


    Indeed (5.00 / 3) (#44)
    by lilburro on Tue May 26, 2009 at 09:06:06 PM EST
    But I'm mad at Obama for this too.  There are many arguments that can explain the value of diversity on the court - using a dogwhistle word like "empathy" to describe what you want and then filling your list of nominees with women sends a message about what a female justice is...personally, I think he screwed up the messaging here in a big and sexist way.  

    Well, that would fit his pattern (none / 0) (#45)
    by nycstray on Tue May 26, 2009 at 09:26:01 PM EST
    Ron Kuby wants Republicans to know (none / 0) (#5)
    by Ben Masel on Tue May 26, 2009 at 02:01:20 PM EST
    Not so hot on 1st Amendment? (none / 0) (#12)
    by Ben Masel on Tue May 26, 2009 at 02:55:18 PM EST

    Upheld School District's (mild) punishment of a student for off-campus speech.

    Seems an accurate application of the case law (none / 0) (#13)
    by Big Tent Democrat on Tue May 26, 2009 at 03:05:37 PM EST
    your issue is with existing case law it seems to me.

    I tell you what actually interests me though - who is the loser student who took the secretary post in the face of her classmates' preference for Avery?


    The ruling itself acknowledges (5.00 / 1) (#25)
    by Ben Masel on Tue May 26, 2009 at 03:41:25 PM EST
    that the caselaw's unclear on punishing off-campus speech.

    I agree (5.00 / 2) (#28)
    by Bemused on Tue May 26, 2009 at 03:49:56 PM EST
     that's a case involving more than a mechanical application of unambiguous precedent.

      It's also a 3-0 panel opinion which she did not write. I do think the fact this particular "off campus speech directly related to a school matter (and one of possibly zero importance outside the school)  and directly encouraged readers to take the issue to school officials presents a much different issue than if a student was punished for off campus speech relating to a broader issue and more generally exhorted readers to speak up, even if the speech had the potential to cause a disruption at school.

      I do think the opinion dwells a bit much on the offensiveness of "douchebags" and "piss them off" and could be read to permit schools to censor and discipline students whenever they can cobble together a "pedagogic" justification.


    Seems to me (none / 0) (#14)
    by Steve M on Tue May 26, 2009 at 03:20:21 PM EST
    to be a much clearer case than the "Bong Hits 4 Jesus" decision, where the student lost as well.

    What amazes me is how many parents there are who are willing to make a federal case out of these school-related disputes.  Oh no, my daughter didn't get to be Senior Class Secretary, it's the end of the world.


    "Bong hits" deemed a school function. (5.00 / 1) (#22)
    by Ben Masel on Tue May 26, 2009 at 03:38:21 PM EST
    Wrongly, imo, but still less damaging.

    Yes (5.00 / 4) (#26)
    by jbindc on Tue May 26, 2009 at 03:43:23 PM EST
    Had I tried something like this, my parents' response would not have been "Oh, my Precious' rights have been violated." It would have been "What the heII were you thinking??" and "You made your bed in this mess, now you have to lie in it."

    We had a name (none / 0) (#15)
    by coast on Tue May 26, 2009 at 03:21:39 PM EST
    for students like that.  Do lawyers do this type work pro-bono or do the parents actually pay money for this all over some Student Council position?

    judging from the (none / 0) (#21)
    by Bemused on Tue May 26, 2009 at 03:36:54 PM EST
     student interns and public interest firms involved, I'd guess it was pro bono.

      I'll admit that particular case wouldn't motivate me to donate my time, but some of these cases raise much larger issues.



    Not exactly pro bono (none / 0) (#24)
    by Ben Masel on Tue May 26, 2009 at 03:40:01 PM EST
    since the School District (really their insurance firm) pays fees when you win.

    not always (5.00 / 1) (#31)
    by Bemused on Tue May 26, 2009 at 04:03:21 PM EST
      whether to award attotney fees and the amount is in the discretion of the court. (See 42 U.S.C. § 1988)

      coincidentally, Sontomayor was also on a panel reversing an award of fees in another case involving students and 1st amendment litigation that case involved a technical definition of "prevailing party" but it does show you can't be sure of getting paid by the court even if your clients get what they wanted.



    What "name?" (none / 0) (#33)
    by Ben Masel on Tue May 26, 2009 at 04:06:02 PM EST
    For a couple years after I left, in my HS it was "Ben Masel; wannabe."

    None of my highschool free speech battles made it to court, the School District's attorneys convinced them to fold as soon as the ACLU threatened to sue.


    Referring to the second (none / 0) (#47)
    by coast on Wed May 27, 2009 at 09:07:41 AM EST
    place finisher who took the Secretary position, not the girl who brought the suit.  Her classmates should have refused to seat anyone in the position.  The classmate who took the position would have been referred to as a "sh$%-on" by my classmates.

    Sotomayor won the tie breaker, if one was needed (none / 0) (#40)
    by ding7777 on Tue May 26, 2009 at 07:50:43 PM EST
    He [Obama] was also impressed by her ability to win over colleagues on the Second Circuit

    I really like this nomination too. (none / 0) (#46)
    by indy in sc on Tue May 26, 2009 at 10:03:33 PM EST
    I'm glad Obama did not shy away from picking Sotomayor even though some on the left were trying to paint her as slow and "emotional" to clear the path for their preferred nominee and a lot on the right were trying to paint her as the most liberal person ever to be nominated.  The right indicated that Obama would get a big fight over Sotomayor--I don't think that fight will really materialze (at least not in the Senate, where it counts)--they were just trying to scare him off from choosing the nominee he wanted.  

    The obligatory mention of her unimpeachable substantive credentials aside, I have to say that I am really proud to be part of a country where persons in the minority can rise to the highest levels of power and prestige.  That just doesn't happen in other countries with significant minority populations be they racial, ethnic or religious minorities.