Wednesday, June 24, 2009

Judge Sotomayor as a Change Agent on the Court?

Shortly after Justice Souter announced his retirement, I opined that if President Obama wanted to change the Court quickly, he should "find a nominee . . . that not only shares Obama's legal views and philosophy, but can also convice Justice Kennedy of the correctness of these positions."  The idea was that since Justice Kennedy is the perennial "swing vote," a person that could influence him would have a great deal of influence on the Court. 

Could Judge Sotomayor be that person?  

Recent media reports have provided information that may be helpful in predicting the impact the nominee will have if confirmed.  McClatchy newspapers posted an article entitled, "Sotomayor's take-no-guff demeanor could alter Court dynamics."  Her colleauge, Judge Guido Calabresi, remarked that Judge Sotomayor is a "'wonderful colleague' who doesn't mince words. He said she had 'in a not insignificant number of cases changed my mind . . . both by charm, but mainly by the force of her legal argument.'"  

Over at Slate, Emily Bazelon began her post by suggesting that Judge Sotomayor's effectiveness will be determined by her ability to influence her more conservative colleagues, particularly Justice Kennedy, to side with her in important votes.  Bazelon chronicles a case - Jocks v. Tavernier - wherein Judge Sotomayor convinced the other judges on the panel to see her point of view and to eventually side with an off-duty police officer.   Bazelon's analysis of the case concludes, "I'm consistently hearing that Sotomayor is forceful and assertive and plays well with her colleagues."

A final article talks about what Judge Sotomayor might bring to the bench as a Latina.  The New York Times' Adam Litpak authored an article about how those in the minority affect the Court's deliberations.  He quotes Justice Scalia as stating that Justice Thurgood Marshall "wouldn’t have to open his mouth to affect the nature of the conference and how seriously the conference would take matters of race.”  Justice O'Connor also stated that Justice Marshall was “constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.”   Moreover, Professor Mark Tushnet was quoted as saying that Justice O'Connor's very appearance at the Court "affect[ed] the way other justices responded.”

What does this mean for the deliberations that Judge Sotomayor will enter if confirmed? It could mean everything, or it could mean very little.  It could mean everything because if Judge Sotomayor is able to persuade her Supreme Court colleagues in the same manner in which she influenced her peers on the Second Circuit, she will certainly be a force to be reckoned with on First Street. If she brings the same skills from New York, we must assume that she will have a chance to alter the 5-4 dymanic in her favor.   However, her presence could bring very little change as well.  The NYT article also goes on to note that while Justice O'Connor acknowledged Justice Marshall's persuasive abilities, she rarely voted with him in civil rights cases.  Despite the presence of a woman on the Court since 1981, Justice Ginsberg was quoted in the NYT article as feeling at times that her points are not heard until someone else makes them.  

Of course, we won't know the extent of Judge Sotomayor's persusive skills until she is confirmed and has been in conference with the other Justices for at least a term.  But one thing is certain - a new justice will change the dynamic of the Court in some fashion.  The only variables are the extent of the change and the contexts in which it may occur.  

Assuming confirmation, this will be the story to watch over the 2010 term.  As always, we'll keep you posted. 


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