NEAL CONAN, host:
This is TALK OF THE NATION. I'm Neal Conan in Washington, where the Senate Judiciary Committee is holding it's second day of hearings on the nomination of Judge Sonia Sotomayor to the Supreme Court. Abortion and the right to privacy, guns and the individual right to bear arms, racial bias and reverse discrimination - just a few of the critical constitutional issues raised by senators today. And for the first time Judge Sotomayor got the chance to answer those questions. Over the course of this hour, we'll let you hear substantial excerpts of the interchanges between the nominee and several senators. We'll also listen in live, bring you both legal and political analysis, talk with a supporter and a critic.
And if you have questions about what the judge has said and what she hasn't, or about her performance before the committee today, send us an email. The address is [email protected]. And we begin with NPR's justice correspondent Ari Shapiro, who joins us here in the studio. Ari, thanks very much.
ARI SHAPIRO: Hi Neal.
CONAN: And to start, has Judge Sotomayor said anything today that would cause anyone to question the conventional wisdom that she will be the next associate justice of the Supreme Court.
SHAPIRO: Well, the standard that Senator Lindsey Graham laid out yesterday was short of a meltdown. She'll be confirmed. And we have certainly not seen anything coming close to a meltdown today. She has been very slow, very even, very measured, dare I say boring, which is probably what she's been shooting for in this hearing. Democrats have been much more aggressive in defending her than she has been in defending herself. And so far, it's gone pretty much like every other Supreme Court confirmation hearing.
CONAN: And that is generally according to a script. And it seems unusual for people to say this but what you hear generally from the ranking Republican or the ranking minority member and the chairman, in this case, Pat Leahy of Vermont, the Democrat - well, that seems to be pretty much what everybody else talks about too.
SHAPIRO: Yeah, you know, it's funny. People keep saying that if judges were really umpires you could have robots on the Supreme Court. Well, I don't think you could have robots on the Supreme Court but you may well be able to have robots carry out the Supreme Court confirmation hearings. Because you hear people saying the same things from one hearing to another. You know, Judge Sotomayor keeps saying she will decide cases based on the facts and the law. That's virtually identical to what Justice Alito and Chief Justice John Roberts said when they were up for confirmation hearings.
We have the majority leader, Senator Patrick Leahy, doing defense. Throwing her sort of easy questions that she can answer to help bolster her case. And then you have Jeff Sessions, the top Republican on the committee doing the harshest attacks, sort of the lead offense player, saying well, the things she's saying today sound all well and good, but they appear to contradict statements that she's made over the last decade, the last 15 years.
CONAN: And we're going to hear some examples beginning with a question from the chairman, Pat Leahy of Vermont. And this is in response to the allegations - well, not allegations, the response to the quote that has become so famous that she would hope that a wise Latina woman would make better decisions than a white male. And here's Senator Leahy giving her an opportunity to explain herself.
Senator PATRICK LEAHY (Democrat, Vermont; Chairman, Senate Judiciary Committee): So, tell us, you've heard all these charges and counter-charges - the wise Latina and on and on. Here's your chance. You tell us - you tell us what's going on here, Judge.
Judge SONIA SOTOMAYOR (Supreme Court Nominee): Thank you for giving me an opportunity to explain my remarks. No words I have ever spoken or written have received so much attention.
(Soundbite of laughter)
Judge SOTOMAYOR: I gave a variant of my speech to a variety of different groups, most often to groups of women lawyers or to groups, most particularly, of young Latino lawyers and students. As my speech made clear in one of the quotes that you reference, I was trying to inspire them to believe their life experiences would enrich the legal system because different life experiences and backgrounds always do. I don't think that there is a quarrel with that in our society. I was also, trying to inspire them to believe that they could become anything they wanted to become, just as I had.
The context of the words that I spoke have created a misunderstanding, and I want - a misunderstanding - and to give everyone assurances, I want to state upfront, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences.
CONAN: And then after Senator Leahy's half-hour of question time was over, the questioning turned to Jeff Sessions, the ranking Republican on the Senate Judiciary Committee. He followed up on that point that Judge Sotomayor was just talking about. And also followed up on something she said yesterday in her opening statement.
Senator JEFF SESSIONS (Republican, Alabama): You have previously said this: I am willing to accept that we who judge must not deny differences resulting from experiences and heritage, but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate. So first, I'd like to know, do you think there's any circumstance in which a judge should allow their prejudices to impact their decision making?
Judge SOTOMAYOR: Never their prejudices. I was talking about the very important goal of the justice system is to ensure that the personal biases and prejudices of a judge do not influence outcome of the case. What I was talking about was the obligation of judges to examine what they're feeling as they're adjudicating a case and to ensure that that's not influencing the outcome. Life experiences have to influence you. We're not robots to listen to evidence and don't have feelings. We have to recognize those feelings and put them aside. That's what my speech was saying…
Sen. SESSIONS: But the…
Judge SOTOMAYOR: …that's our job.
Sen. SESSIONS: But the statement was, I willingly accept that we who judge must not deny the differences resulting from experience and heritage, but continuously to judge when those opinions, sympathies, and prejudices are appropriate. That's exactly opposite of what you're saying, is it not?
Judge SOTOMAYOR: I don't believe so, Senator, because all I was saying is because we have feelings and different experiences, we can be led to believe that our experiences are appropriate. We have to be open minded to accept that they may not be, and that we have to judge always that we're not letting those things determine the outcome.
CONAN: Judge Sotomayor in response to questions from Jeff Sessions, the ranking Republican on the Senate Judiciary Committee earlier today, and the hearings continue. And Ari, it is an inevitable dynamic of such situations that the minority, those in opposition, are generally the most interesting. They're going to ask the most interesting the questions, that the…
SHAPIRO: That's right.
CONAN: …the Democrats did when it was Justice - now Justice Roberts and now Justice Alito in front of them. And it's the Republicans this time around.
SHAPIRO: Conflict makes interesting dialog and when the Republicans talk to Sotomayor, you have conflict and when the Democrats talk to Sotomayor, you have questions like, how do you feel about puppies. That's not an actual question that was asked in today's hearing, but it's along the vein of the kinds of questions that people of the president's party tend to ask a president's nominee.
CONAN: How well qualified are you?
SHAPIRO: Exactly, exactly.
(Soundbite of laughter)
CONAN: Let's, in that vein, go on to another exchange with Senator Sessions and the nominee, Sonia Sotomayor. Here, Senator Sessions is asking her about another controversial statement which she made -famously recorded on tape, much to possibly her regret later - at Duke Law School, where she said the court of appeals is where policy is made.
Senator JEFF SESSIONS (Republican, Alabama): Yesterday, you said it's simple fidelity to the law. The task of a judge is not to make law, it's to apply law. I heartily agree with that. However, you previously have said, the court of appeals is where policy is made. And you said on another occasion: the law that lawyers practice and judges declare is not a definitive, capital-L, law that many would like to think exists, close quote.
So I guess I'm asking today, What do you really believe on those subjects - that there is no real law, and that judges do not make law, or that there is no real law, and the court of appeals is where policy is made. Discuss that with us, please.
Judge SONIA SOTOMAYOR (Supreme Court Nominee): I believe my record of 17 years demonstrates fully that I do believe that law - that judges must apply the law and not make the law. Whether I have agreed with a party or not, found them sympathetic or not, in every case I have decided, I have done what the law requires.
With respect to judges making policy, I assume, Senator, that you were referring to a remark that I made in a Duke law-student dialogue. That remark, in context, made very clear that I wasn't talking about the policy reflected in the law that Congress makes. That's the job of Congress, to decide what the policy should be for society.
In that conversation with the students, I was focusing on what district court judges do and what circuit court judges do, and I noted that district court judges find the facts, and they apply the facts to the individual case. And when they do that, their holding, their finding, doesn't bind anybody else.
Appellate judges, however, establish precedent. They decide what the law says in a particular situation. That precedent has policy ramifications because it binds not just the litigants in that case, it binds all litigants in similar cases, in cases that may be influenced by that precedent.
I think if my speech is heard, outside of the minute and a half that you two present, and its full context examined, that it is very clear that I was talking about the policy ramifications of precedent and never talking about appellate judges or courts making the policy that Congress makes.
CONAN: Just Sonia Sotomayor, testifying today in the Senate Judiciary Committee. After a short break, we'll come back and hear what she had to say on several specific issues, including abortion and the right to privacy, guns and the individual right to bear arms, and eminent domain. Stay with us. Also, we'll be talking with Dahlia Lithwick from slate.com.
If you'd like to comment on what the judge has said or hasn't said, send us an email. The address is [email protected]. Stay with us. I'm Neal Conan. You're listening to special coverage from NPR News.
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CONAN: This is special coverage from NPR News. I'm Neal Conan in Washington. If you're just joining us, we're following the Senate Judiciary Committee hearings for Judge Sonia Sotomayor's nomination to the U.S. Supreme Court.
This morning, senators questioned Judge Sotomayor keenly on her interpretation of the law. At the moment, she's being questioned by Senator Jon Kyl of Arizona, the minority whip. Let's go down to the floor of the hearing room and listen in.
Senator JON KYL (Republican, Arizona): …whatever the cause is, not one woman or person of color in any one position, but as a group, we will have an effect on the development of law and on judging.
So you developed a theme, you substantiated it with some evidence to substantiate your point of view. Up to that point, you had simply made the case, I think, that judging could certainly reach - or judges could certainly reach different results and make a difference in judging, depending upon their gender or ethnicity.
You hadn't rendered a judgment about whether that - they would be better judgments or not. But then you did. You quoted Justice O'Connor, to say that a wise old woman and a wise old man would reach the same decisions, and then you said, I'm also not sure I agree with that statement, and that's when you made the statement that's now relatively famous: I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion.
So here you're reaching a judgment that not only will it make a difference but that it should make a difference. And you went on, and this is the last thing that I'll quote here. You said in short, I - well, I think this is important. You note that some of the old, white guys made some pretty good decisions eventually - Oliver Wendell Holmes, Cardozo and others - and you acknowledge that they made a big difference in discrimination cases, but it took a long time. To understand takes time and effort, something not all people are willing to give, and so on, and then you concluded this: In short, I accept the proposition that difference will be made by the presence of women and people of color on the bench and that my experiences will affect the facts that I choose to see. You said I don't know exactly what the difference will be in my judging, but I accept that there will be some, based on gender and my Latina heritage.
You don't, as you said in your response to Senator Sessions, you said that you weren't encouraging that, and you talked about how we need to set that aside. But you didn't, in your speech, say, that this is not good. We need to set this aside. Instead, you seemed to be celebrating it.
The clear inference is, it's a good thing that this is happening. So that's why some of us are concerned, first with the president's elucidation of his point of view here about judging, and then these speeches, several of them, including speeches that were included in law review articles that you edited that all say the same thing. And it would certainly lead one to a conclusion that: A, you understand it will make a difference; and B, not only are you not saying anything negative about that, but you seem to embrace that difference - in concluding that you'll make better decisions.
That's the basis of concern that a lot of people have. Please take the time you need to respond to my question.
Judge SOTOMAYOR: Thank you. I have a record for 17 years. Decision after decision, decision after decision, it is very clear that I don't base my judgments on my personal experiences or my feelings or my biases. All of my decisions show my respect for the rule of law, the fact that regardless about if I identify a feeling about a case, which was part of what that speech did talk about, there are situations where one has reactions to speeches, to activities.
It's not surprising that in some cases, the loss of a victim is very tragic. A judge deals with those situations in acknowledging that there is a hardship to someone doesn't mean that the law commands the result.
I have any number of cases where I have acknowledged a particular difficulty to a party or disappraproval(ph) of a party's actions and said no, but the law requires this. So my views, I think, are demonstrated by what I do as a judge.
I'm grateful that you took notice that much of my speech, if not all of it, was intended to inspire. And my whole message to those students, and that's the very end of what I said to them was, I hope I see you in the courtroom someday.
I don't know if I said it in that speech, but I often end my speeches with saying: And I hope someday, you're sitting on the bench with me. And so the intent of the speech, its structure, was to inspire them to believe, as I do, as I think everyone does, that life experiences enrich the legal system.
I use the words process of judging. That experience that you look for in choosing a judge, whether it's the ABA rule that says the judge has to be a lawyer for X number of years, or it's the experience that your committee looks for in terms of what's the background of the judge, have they undertaken serious consideration of constitutional questions, all of those experiences are valued because our system is enriched by a variety of experiences.
CONAN: Sonia Sotomayor, responding to questions from Jon Kyl, live at the Senate Judiciary Committee. Ari Shapiro is still with us here in Studio 3A, and Dahlia Lithwick joins us now. She's a senior editor at slate.com, a contributing editor at Newsweek Magazine. She's with us from Capitol Hill, and good of you to join us today.
Ms. DAHLIA LITHWICK (Editor, slate.com): Thank you for having me.
CONAN: And will we ever hear the end of that wise Latina quote?
(Soundbite of laughter)
Ms. LITHWICK: You know, what makes me a little bit sad is that the speech itself is actually a really interesting speech. I mean, every line of it you can probably grapple with. It's a complicated speech, but I think what's unfortunate is if you read the speech in its totality, here is a person talking to a bunch of outsiders about how outsiders influence the law, and now she's being called upon to explain to insiders why she said what she said to outsiders.
It's incredibly fraught, but I do feel - I always say this to listeners. If you did nothing else but read that 2001 Berkeley speech, you'd have a really good sense of who she is and how it is she tries to approach judging, and how she tries to subordinate all these life experiences, and just… It's a complicated speech that just cannot distilled down into a soundbite for her or against her, but it doesn't, it just doesn't work to talk about it in these very, very cartoonish term.
CONAN: Ari?
SHAPIRO: Yeah, you know, I think what we heard in the tape just then was a pattern that we have seen throughout the last two days, where a Republican senator says I'm going to read you this comment you made off the bench, and I'd like you to respond to it, and she comes back and says well, if you look at what I did on the bench, you'll see that my rulings were mainstream, middle of the road, etcetera, etcetera, and then the Republican comes back again and says yes, but if you're confirmed to the Supreme Court, you're not going to be bound by the same constraints that you're bound by on the Second Circuit Court of Appeals, and that's why we're looking to all of these statements that you've made off the bench that we find troubling.
CONAN: And let's turn to some specific issues now, where some senators had concerns, and this is a brief exchange with Senator Kohl of Wisconsin, who asked about the right to privacy.
Senator HERB KOHL (Democrat, Wisconsin): As you know, Judge, the landmark case of Griswold versus Connecticut guarantees that there is a fundamental constitutional right to privacy as it applies to contraception. Do you agree with that? In your opinion, is that settled law?
Judge SOTOMAYOR: That is the precedent of the court, so it is settled law.
CONAN: And Senator Kohl went on to ask the obvious question next.
Sen. KOHL: Judge, the court's ruling about the right to privacy in Griswold laid the foundation for Roe versus Wade. In your opinion, is Roe settled law?
Judge SOTOMAYOR: The court's decision in Planned Parenthood versus Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled in terms of the holding of the court.
Sen. KOHL: Do you agree with Justices Souter, O'Connor and Kennedy in their opinion in Casey, which reaffirmed the core holding in Roe?
Judge SOTOMAYOR: As I said, Casey reaffirmed the holding in Roe. That is the Supreme Court's settled interpretation of what the core holding is and its reaffirmance of it.
CONAN: Dahlia Lithwick, should we read that as, well, an affirmation that the Roe v. Wade decision is a settled part of law?
Mr. LITHWICK: Well kinda, sorta. I mean, if she weren't wearing the red suit, we'd think she was Alito. I mean, this is just a formula that Alito and Roberts, you know, everybody's perfected this way of, when you're asked about your opinion of a case, you say that - you summarize the case and say that you understand it, or you say it's settled law.
I mean, this is just a way to sidestep opining on something. Now, different justices are willing to go to different lengths to say something is settled law, but pretty much on the abortion cases, Senator Feinstein also asked her a long colloquy about the abortion cases, and her response was, it's settled law.
So you know, I don't - you can read as much or as little as you want into that, but I think this is the two-step that gets you confirmed is that you don't ever say oh, hey, you know, I thought the dissenters had the better of it in that case. That would be a Bork-style move that nobody does anymore.
CONAN: Just to illustrate, we'll take this up from the other side.
Here's Republican Senator Orrin Hatch, asking about late abortions.
Senator ORRIN HATCH (Republican, Utah): If a holding in the Supreme Court means it is settled, do you believe that Gonzales v. Carhart, upholding the partial-birth abortion ban, is settled law?
Judge SONIA SOTOMAYOR (U.S. Supreme Court Nominee): All precedents of the Supreme Court I consider settled law, subject to the deference to doctrine of stare decisis would counsel.
CONAN: And stare decisis again deference to previous positions of the Supreme Court, except when the Supreme Court decides it isn't.
Ms. LITHWICK: That's exactly right. In fact, Feinstein expressly asked her - Dianne Feinstein - you know, when is it appropriate to overrule a case, and she had a long colloquy with her this morning about this question of Scalia criticizing Roberts and Alito for kind of overruling cases without expressly overruling them cases, I think, hoping to tease out some clear line in the sand, bright-line rule, that, you know, somehow, Sotomayor was going to say, oh, here are some cases that should be overruled.
Again, it doesn't happen, you know? Essentially, she said we should be very deferential. And stare decisis means something it's important to respect precedent. But sometimes it's not so much.
So, you know, this is not a terribly illuminating constitutional process.
CONAN: And, Ari Shapiro, as we're talking with Dahlia Lithwick, sometimes this is battles over the past. We heard a senator will say, when Justice Roberts was here, or when Justice Alito was here, he said so and so and so and so. And therefore, we would not have thought that he would have ruled this way or that way. Therefore, we want to ask you to pin you down as much as we can pin down anything. And generally, the nominee declines to be pinned down.
SHAPIRO: Absolutely. And in addition to Roberts and Alito, we've heard a lot in the last two days about Miguel Estrada, who was President Bush's Hispanic judicial nominee, who never came up for a vote. And Republicans have been bringing his name up again and again in part, I think, as a way of showing look Hispanic voters. We do support some Hispanic nominees, just maybe not this one. And our opposition to this one may have nothing to do with race. It just has to do with ideology, the statements, the fact that President Obama nominated her.
And so, we've got the specter of Alito, Roberts, Estrada and many others that I'm sure I'm missing.
CONAN: We're talking with Ari Shapiro, justice correspondent for National Public Radio News, and Dahlia Lithwick, who's the senior editor at Slate.com and a contributing editor at Newsweek magazine.
You're listening to Special Coverage from NPR News.
And let's go on to another of the hot gun issues, and this has to do with the Second Amendment and the individual right to bare arms.
Here is Democratic Senator Herbert Cole, again, of Wisconsin.
Senator PATRICK LEAHY (Democrat, Vermont): Is it safe to say that you accept the Supreme Court's decision as establishing that the Second Amendment right is an individual right? Is that correct?
Judge SOTOMAYOR: Yes, sir.
Sen. LEAHY: Thank you.
CONAN: Yes, sir. Obviously, that was Senator Leahy and not Senator Cole, my mistake there.
Ari, that's about a short an answer as you ever going to get.
SHAPIRO: Yeah. You know, in the last couple of months, Dahlia and I and many others have been scouring Sotomayor's record, talking to people who know her to paint a picture of this person legally, personally, biographically. And the woman who is sitting in front of the senators in the heart Senate hearing room, there's almost no resemblance to that woman we've been painting a portrait of for months because she is so restrained, so, you know - she's giving these answers that, frankly, Alito and Roberts said the exact same things at their confirmation hearings. It's striking how little of her we're seeing.
CONAN: And, Dahlia Lithwick, we're also seeing some political process and markers being drawn by the minority here in terms of, well, there could be other nominees before them shortly to the Supreme Court.
Ms. LITHWICK: That's absolutely right. I think if you accept what we're - all three of us, I think, lining up to say, which is we don't - this isn't about Sotomayor. We're not learning anything more about her than we would learn if we read her Berkeley speech.
This is about framing. This is about both sides taking the opportunity to talk about the court to their base and to say, okay, base, we know guns are important to you. We know property rights and Takings Clause cases are important to you. We know abortion is important to you.
And for the Democrats to do the same, to sit on their side and say, framing. Look, we don't like the Roberts court. We think that there's a real access to justice for normal Americans, you know, real problem for them to get into courts. We don't like the Roberts court because they're bad on abortion and they're bad on guns.
So what you're seeing, really, is both sides positioning themselves to talk not only to us about how it is that they see the courts and the Constitution, and what the courts are doing right, what they're doing wrong. But their teeing up the next nominee so that when a nominee comes down the pike who isn't quite so temperate and moderate and technocratic, who's a little bit more exciting one way or another, we're going to have framed it already, laid it all out, mapped out. These are the host flash points, and I think Ari's point is a good one.
We've been looking at her opinions for weeks and weeks and weeks. And it's fascinating that we're taking about guns and Takings Clause and abortion because these are issues on which she is utterly and completely unknowable based on her doctrine, that the cases that she's decided on these particular hot-button issues are absolutely boring and uninteresting.
So the fact that we're extrapolating from them says that this is more about the senators than it is about her.
CONAN: And finally, you talked about her demeanor there a little bit. In one of the most controversial pieces, in fact, before her nomination, questions were raised about her manner, her deportment in a court room, where some anonymous sources who practiced before the Second Circuit Court of Appeals in your New York described her something of a bully. We've not seen that.
SHAPIRO: No. No, no. Anything but. Actually, I was told by somebody close to her that when she gets nervous, she tends to speak very slowly. And so, you could either consider her comportment in today's hearing as evidence that she's nervous or just as evidence that she realizes it's to her advantage to run out the clock on these 30-minute questioning sessions and speak as methodically, precisely, slowly and monotonously as possible.
CONAN: And Dahlia Litwick, we have every reason to believe that's what she was told to do in preparations for this hearing.
Ms. LITWICK: I think she was told to be the opposite of the hot-headed hysteric that we were warned of. And I think what she's doing is showing us that she is more or less John Roberts kind of robotic, mechanical, and as Ari says, just utterly boring.
CONAN: Okay. Well, Dahlia Litwick, we'll let you get back to the hearing. They're actually just taking a break. So, you have chance to run out for a cup of coffee or three. Thank you very much for being with us today.
Ms. LITWICK: Thank you for having me.
CONAN: Dahlia Litwick, senior editor at Slate.com, a contributing editor to Newsweek magazine. Stay with us. And if you'd like to ask questions about what Judge Sotomayor has said or hasn't said, or about the process of this nomination, give us an email. The address is [email protected].
And when we come back, we'll be talking with a critic and with a supporter of Judge Sonia Sotomayor with Laurence Tribe and with Michael Carvin. Stay with us. I'm Neal Conan. Ari Shapiro will be with us here as well.
You're listening to Special Coverage from NPR News.
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CONAN: Today, as we continue talking about the nomination hearings for Judge Sonia Sotomayor, she's been answering questions about her judicial philosophy. In a moment, we'll hear from a law professor who agrees with that philosophy and from a lawyer who does not. NPR justice correspondent Ari Shapiro is with us. And we want your questions. Email us: [email protected].
Laurence Tribe is a university professor at Harvard and the author of "The Invisible Constitution." He joins us now from a studio on the Harvard campus in Cambridge, Massachusetts. Larry Tribe, thanks very much for being with us today.
Professor LAURENCE TRIBE (Constitutional Law, Harvard University; Author, "The Invisible Constitution"): My pleasure, Neal.
CONAN: And Michael Carvin is a partner at Jones Day, a law firm here Washington. He was a member of the legal team that represented President George W. Bush after the 2000 election. He's with us here in Studio 3A. Nice of you to take the time to be with us today.
Mr. MICHAEL CARVIN (Partner, Jones Day): Thank you.
CONAN: And let me begin with you, Michael Carvin. Have you heard anything that surprises you today?
Mr. CARVIN: I'm ecstatic about what I'm hearing today. It seems that Scalia and Roberts have completely converted every one from the president to Sotomayor.
For 30 years, we've been arguing you should interpret the law according to its plain terms and not have empathy for poor and gays and African-Americans - as President Obama said - and discrete and insular minorities. And apparently now, Sotomayor has totally abandoned the president's philosophy and agrees with us.
And they've also abandoned this obsession with diversity, which is premised on the notion that Latinos and women think differently than others, and now they said that has absolutely no effect. Now, as you can probably tell, I'm being a bit sarcastic, this is all…
CONAN: Hard to see the (unintelligible).
Mr. CARVIN: Yeah. This is all a confirmation conversion where they're mouthing these platitudes, which of course they don't believe. President Obama is totally devoted to people who he voted against - Chief Justice Roberts, precisely because he didn't side with the powerless and wasn't empathetic, and he interpreted the law according to the way it was written.
I understand and I certainly assume that Sotomayor is going to judge pursuant to Obama's philosophy when she's on the court and not pursuant to any kind of neutral application of the law.
And so it's actually very strong vindication, I think, that the Democrats really can't say out loud, in a nationally televised debate, that they do think that the court is another political institution that delivers results to discrete insular minorities and it's supposed to be neutral umpires. Again, it's, I think, a telling affirmation of the wisdom of what Justices Scalia and Roberts and Alito have been saying.
CONAN: And Larry Tribe, let me bring you in here. You've described this - maybe not your precise language - but there's obviously a large element of Kabuki here.
Prof. TRIBE: Well, I do think it's Kabuki. It is, as Dahlia Litwick said I think in an understatement, it's not a terrible illuminating process. And as Ari, I think, said, robots could have conducted the confirmation hearings.
How Mike Carvin can extract from this pre-packaged theatrical event, any information whatsoever, is a mystery to me. Justice Scalia after all has said, just as Judge Sotomayor has, that his own background and upbringing necessarily influence how he decides cases. How could it be otherwise?
We might have robots conducting the hearings, but robots are not the people that we trust to judge. And when President Obama said that he was looking for someone who was not simply a robot, but who understood and cared about the consequences of his or her decisions for people, he was not saying, contrary to what Mike Carvin suggests and to what some of the caricatured questions from some of the senators would imply, that there is supposed to be some thumb on the scale for people of a certain ethnicity or a certain economic class.
He was simply saying that we might as well be more candid and recognize that the law is a living thing, that fidelity to the law does not mean some mechanistic adherence to some supposedly mechanical literal process, but a recognition that life is complicated, that one has to consider the consequences of one's judgment, that fidelity to text doesn't answer all of the hard questions, and that we might as well get down to cases.
It's a shame, in terms of the education that could be provided for the nation by a serious discussion of constitutional philosophy, that we have people like Mike, whom I know and respect, speaking in these caricatured terms, Scalia and Roberts follow the law and the other guys do what they want. That's, to be blunt about it, utter nonsense.
CONAN: And Michael Carvin, as I remember, the Alito hearings, wasn't he talking about his background as the son of small shopkeepers in Queens and how that would of course influence his decision on the bench.
Mr. CARVIN: No. No. These are complete misquotes. Thomas talked about his background. Alito talked about his background and Scalia about his background. But what they immediately did, and what got president, then-Senator Obama so upset was saying that they strip off all of those preconceived notions and don't let it influence their decision making.
Now, Larry says that there's some magical spirit out there that's not found in the words of the law. Well, if it's not your own personal experiences and it's not your empathy for a particular group, I have trouble figuring out what it is. There is…
Prof. TRIBE: Well, what it is…
Mr. CARVIN: There is two schools of thought. One of which says there is a rule of law that's written down and that can be perceived, and that's how we judge things, by the dry and boring text that Larry is so disdainful of. Then, there is the others that view empathy for the poor and powerless women in a patriarchal society as the driving decision making on a host of controversial issues from abortion to gay marriage.
Now, the notion that there's no difference between the two is silly. Just compare what Ginsburg and Breyer have done on the court with respect to abortion, affirmative action, the death penalty, compared to what Roberts and Alito have done. And the notion that there's no difference, that we're all engaging in fidelity to laws is simply laughable.
Prof. TRIBE: No, no. I'm not suggesting that there's no difference. I'd be the first to concede that there are serious differences among different ways of looking at the Constitution. But most of what people differ about is not written down either way. The conservatives believe in state's rights - not mentioned in the Constitution. They're not inventing it. It's part of our history, part of our tradition, part of the structure of the document but so is privacy, so are family rights.
Most of what ultimately divides the court closely are things on which the text is merely suggestive. And I'm not at all implying that regardless of what sort of person you put on the court, the result is the same. That's why elections have consequences. I think I do agree with Mike that the confirmation hearings don't tell you very much. They don't tell you very much in the case of Roberts who says that Roe v. Wade is a precedent of the court, or in the case of Sotomayor who uses almost the same language.
It is a shame that we have a kind of silent agreement in society that because each side is talking to its base, no one has the courage to say out loud what their inclinations are. I would hope that Roberts continues to maintain the possibility of open-mindedness, but his record so far suggests that the confirmation hearings in this case were somewhat misleading.
CONAN: Let's let…
Prof. TRIBE: I would hope that Sotomayor is open-minded. But I don't think the confirmation hearings tell us very much one way or the other.
CONAN: Ari?
SHAPIRO: You know, I think everybody more or less agrees that much of these confirmation hearings is a Kabuki dance, to use the safer term. But I've noticed one exception, at least in the first day of hearings, which was Senator Sheldon Whitehouse, the Democrat from Rhode Island, was the only person I saw actually engaging on the issue of empathy and personal background. And he made a pretty full-throated case yesterday that empathy is a good thing and that it is proper for a judge to see through the eyes of the less advantaged. Now, you can disagree with that. But he was the only one who I saw yesterday actually making that argument and engaging in what I found to be a really interesting debate about what the proper role of a judge is in interpreting the Constitution and applying the law.
CONAN: And it was Lindsey Graham of South Carolina who said elections do matter, even though his side lost the last one. But…
Prof. TRIBE: And I think Ari is right. I do think it's - there's a powerful intellectual case to be made for the proposition that a major function of courts, which are not after all responsive to the passing majority, is to protect values and interests which may be underrepresented in the political process and groups who may be disadvantaged and dispossessed, that that's a particular role of courts and that they ought to be sensitive.
But the sensitivity ought to run really to all of the litigants and all of the interests that are there. That is, one ought to become sensitive to the real-life consequences of what one is doing. That's where President Obama's pragmatism comes in. That is, he was not looking simply for analytic expertise and perfection. That's something that Sotomayor's extraordinary record as a judge and her wonderful academic record assures one she will provide. He was also looking for a personal history that suggests a kind of practical mindedness which will make the court more responsive to reality.
CONAN: And it's probably fair to say also, Mike Carvin, that looking at a political reality that makes her imminently confirmable.
Mr. CARVIN: Oh, I mean, to paraphrase Edwin Edwards, she's going to be confirmed unless they find her with a live girl or a dead boy. I mean, she's obviously going to get confirmed. I'm just pointing out, and I certainly agree with Larry, by the way, that this discussion is inherently on illuminating on these nuance questions we've been discussing. The only point I'm making is that this is a lot of confirmation packaging that's designed to conceal rather than reveal her obvious leanings towards an empathetic and non-literal view…
Prof. TRIBE: You know, when you say that that's obvious - I think one thing that's important to look at is the fact that her record shows that she is enormously mainstream. I mean, there are about 430 or 435 published panel decisions where at least one judge appointed by a Republican president was on the panel. In those cases, she went along with the Republican appointees 95 percent of the time. This is no flamethrower. This is no bleeding heart. This is not somebody who is very far from the absolute center.
Mr. CARVIN: But all of that was true of Alito and Roberts, and obviously you opposed their nominations because you did view them…
Prof. TRIBE: I...
Mr. CARVIN: …as rigid ideologues or who were pushing their own…
Prof. TRIBE: I don't know where you - I don't know quite…
Mr. CARVIN: You testified against…
Prof. TRIBE: Roberts - that's wrong. That's wrong. Roberts was a student of mine, and I didn't testify.
Mr. CARVIN: Against…
Prof. TRIBE: With Alito - with Alito - no, I kept telling Senator Specter that I was trying to inform the Senate that I was not taking a position…
(Soundbite of laughter)
Prof. TRIBE: …because I thought it was a tough case. You can laugh, but that's what I testified.
CONAN: Larry Tribe is with us from Harvard. Here in the studio, Mike Carvin, a partner at Jones Day. You're listening to Special Coverage from NPR News.
At the moment, the Senate Judiciary Committee is just coming back into session. Senator Leahy, who is a camera bug, just putting his Nikon away as he gets back into the chairman's seat. Judge Sonia Sotomayor has taken her seat back in the witness table. She's sitting by herself with her family and friends behind her. The crowd has thinned out as the various senators have had their opportunity for a half-hour of questions today - the more senior senators. And then there you see a bunch of empty chairs there, and it's coming back down to Senator Schumer of New York, who can be, I think, safely predicted to be the most enthusiastic supporter of his fellow New Yorker, Sonia Sotomayor.
And Ari Shapiro, he has squired her around through these proceedings.
SHAPIRO: He even seemed to get a little misty-eyed as he was introducing her yesterday. I was mentioning Senator Whitehouse earlier. It's interesting to contrast his defense of empathy with Senator Schumer's approach to defending Judge Sotomayor.
Senator Schumer took the approach of: She has agreed with her Republican colleagues. She has been completely center of the road. This is a judge that any mainstream centrist could get behind, in contrast to the argument that, well, yes, she is empathetic and that is a good thing.
CONAN: Here's an email question that we have about process from JM(ph) in Colorado. We're wondering how the seats on this committee are divvied up. Didn't we hear both senators from Minnesota have a seat? It would seem to us the seats should be more evenly spread out.
Well, in part, Ari, the seats are divvied up by the basis of who has the majority, and of course that's the Democrats this time around. They have 12 seats to seven for the Republicans. They get to decide how many.
SHAPIRO: Right. And that makes a huge difference in terms of comparing this to the Alito and Roberts hearings. In general, when you have one party doing defense and one party doing offense, when two-thirds of the committee is made up of defense - the Democrats in this case - the hearing is going to take on a very different tone from the way it went in the Roberts and Alito hearings.
CONAN: We're just going to give you a sample of that. Here's Chuck Schumer, the senior senator from the state of New York.
(Soundbite of judicial hearing)
Senator CHUCK SCHUMER (Democrat, New York): But we've heard precious little about the body and totality of your 17-year record on the bench, which everybody knows is the best way to evaluate a nominee. In fact, no colleague has pointed to a single case in which you said the court should change existing law, in which you've attempted to change existing law explicitly or otherwise, and I've never seen such a case anywhere in your long and extensive record.
So if a questioner is focusing on a few statements or, quote, "those few words," and doesn't refer at all to the large body of cases where you've carefully apply the law regardless of sympathies, I don't think that's balanced or down the middle. And by focusing on these few statements rather than your extensive record, I think some of my colleagues are attempting to try and suggest that you might put your experiences and empathies ahead of the rule of law. But the record shows otherwise and that's what I now want to explore.
Now, from everything I've read in your judicial record and everything I've heard you say…
CONAN: Now, you will know that opening statements by every member, every senator on in this panel or yesterday's, sometimes the questions can closely resemble opening statements…
(Soundbite of laughter)
CONAN: …if they ramble on and on. And we may hear an extensive examination of Sonia Sotomayor's record from Charles Schumer before we go - we just have a couple of minutes left.
I'd like to ask you, Mike Carvin, what, if anything, have we learned?
Mr. CARVIN: Not very much. And again, I think I'll echo Professor Tribe on this point. Look, it's a very difficult decision for a judge to make. Because if they do engage in the kind of candid discussion of these controversial issues, everyone knows that those cases are going to be coming in front of the justice in the near future, and there's inherent pressure on them to trim their sails to accede to whoever happens to be in the majority at the time in the Senate. And that's a very serious danger in terms of judicial independence.
So while I certainly join in the course of this-is-boring-and-unenlightening, I don't think we should lose sight of the fact that there's a reason that these things are generally not candid academic discussions of first principles, because there's going to be real people having to decide real cases in the very near future.
CONAN: Sometimes, the more interesting discussions are in fact when the rounds of questions get a little closer and a little shorter. So we'll be back with more testimony tomorrow in this hour. Thanks very much for your time today.
Mike Carvin, a partner with Jones Day, who argued on behalf of George W. Bush in the 2000 Florida recount controversy, with us here in Studio 3A. We thank you very much. We'd also like to thank Larry Tribe. Professor Tribe, the Carl M. Loeb university professor at Harvard and author of the "Invisible Constitution" and joined us today from a studio on the Harvard campus. Thank you for your time. And of course, Ari Shapiro, NPR justice correspondent, with us here also in Studio 3A. You've been listening to special coverage from NPR News. More on the Sotomayor hearing later today. Stay tuned for that.
I'm Neal Conan, NPR News in Washington. Transcript provided by NPR, Copyright NPR.