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Two other reasons reflect fundamental changes in the politics of the Supreme Court confirmation process itself.

First: The “deference” approach that Senate Republicans had taken to Ginsburg’s nomination (and to Stephen Breyer’s in 1994) was no longer tenable or attractive. Most Republicans were drawn or driven to focus on a nominee’s judicial ideology.

Second: As the Senate re-sorted along ideological lines, the Senate Republican cohort was becoming much more homogeneously conservative.

***

At the end of my clerkship with Justice Antonin Scalia in 1992, I made the unorthodox decision to become a Senate staffer because I wanted to help fight on judicial nominations. Senator Orrin Hatch would be taking over as the senior Republican on the Senate Judiciary Committee in January 1993, and I wanted to assist him in supporting good judicial nominees if George H.W. Bush was re-elected or in opposing bad ones if (as I expected) Bill Clinton became president.

As I’ve recounted (in “That Sure Wasn’t in My Talking Points: Why I nearly fell off my chair”), it was quite a shock to me to discover that Hatch was eager to signal to Clinton that he wouldn’t be fighting Supreme Court nominees over judicial philosophy. Under the deference approach that Hatch applied (and encouraged other Republicans to apply), a senator deciding whether to support or oppose a nominee should ignore or demote considerations of judicial philosophy and focus primarily on whether the nominee meets some suitable standard of intellect, character, and experience.

A senator who adopts the deference approach doesn’t want a Supreme Court nomination to become controversial. He has no interest in exposing aspects of the nominee’s record that will upset his own political base. So it was that Hatch and other pro-life Republicans on the Judiciary Committee didn’t want to make Ginsburg’s record on abortion prominent.

***

I had much more success in spurring Hatch and other Republicans to fight against Clinton’s appellate nominees on the ground of judicial philosophy, especially Eleventh Circuit nominee Rosemary Barkett and Third Circuit nominee Lee Sarokin. Both Barkett and Sarokin were confirmed, as we knew they would be. But we wanted to make Senate Democrats pay a political price for supporting them, and I think that it’s clear that we succeeded.

On top of the votes against Barkett from 36 of the 44 Republican senators, Robert Byrd, the Senate Democratic leader during the Reagan and Bush 41 presidencies, also voted against her. The Sarokin vote was much more striking. With the 1994 elections one month away, six Democrats ended up voting against Sarokin. And they weren’t just any six Democrats. In addition to Byrd, they included majority whip Wendell Ford, future Democratic leader Harry Reid, and, perhaps most notably, a three-term senator from Tennessee, Jim Sasser, who envisioned becoming the Senate majority leader in 1995 after winning re-election to a fourth term.

Political novice Bill Frist made Sasser’s support of bad judges a prominent part of his campaign. He faulted Sasser for recommending Jimmy Carter’s appointment of a federal district judge in Nashville, John T. Nixon, who Frist said had “repeatedly hamstrung the courts by delaying action in death penalty cases,” and he charged that Sasser’s vote for Rosemary Barkett’s nomination showed that “he still hasn’t learned his lesson.” When Frist called on Sasser to vote against Sarokin, Sasser determined that he couldn’t afford to vote for Sarokin and, indeed, that he had to do his best to pretend that he was vehemently against Sarokin. It didn’t work. In a huge upset, Frist defeated Sasser by more than 14 points.

More broadly, Republican Senate candidates in 1994 made Clinton’s lower-court nominations part of their campaigns. Election Night in 1994 was a shocker, as Republicans won control of the Senate by gaining eight seats (as well as control of the House for the first time in decades). Senate Republicans were learning that they could score political points fighting against liberal judicial nominees.

I’ve documented in dozens of posts how Senate Republicans were driven to fight over judicial philosophy in the years from 1994 up to Barack Obama’s presidency and how they won big victories in those fights. So it was entirely predictable that they would challenge Sonia Sotomayor’s nomination on that ground, and Sotomayor’s record provided lots of ammunition. Given the force that Roe v. Wade had with the conservative base, Republican senators had ample incentive to add abortion into the mix.

***

Now that the parties have broadly polarized over ideology, it’s easy to forget how different things were at the time of Ginsburg’s confirmation hearing in 1993. Of the 44 Republican senators, a good 15 or more might be characterized as moderate to liberal. That group included Arlen Specter, Robert Packwood, and John Warner, all of whom voted against Robert Bork’s confirmation in 1987. Only four of the eight Republicans on the Judiciary Committee were pro-life and anti-Roe.

By the time of Sotomayor’s confirmation hearing in 2009, the number of moderate-to-liberal Republicans had dwindled to a half dozen or so, and all seven of the Republicans on the Judiciary Committee were pro-life and anti-Roe. The change is perhaps best encapsulated in Arlen Specter’s decision to abandon the Republican party—and his position as senior Republican on the Judiciary Committee—to become a Democrat just one month before Obama nominated Sotomayor.

It’s much easier to undertake to fight a nomination on ideological grounds when your party is broadly unified on ideology.

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When Graham joined the Senate in 2003, he became a junior member of the Senate Judiciary Committee. Over the next two decades, he took part in the confirmation hearings of eight of the nine current Supreme Court justices, including as the committee’s chairman for Amy Coney Barrett’s hearing in 2020. Graham voted to confirm seven of the eight—all but Ketanji Brown Jackson.

Graham had a striking impact on the Senate’s confirmation of four Supreme Court justices. In one case, he had to power his way past a large blunder. Without his contributions, the composition of the Court might well be very different.

***

Graham made his mark on Samuel Alito’s confirmation in two large ways.

In May 2005—barely two years into his Senate tenure—Graham was one of the architects of the “Gang of 14 Agreement.” The bipartisan Agreement preempted the effort by Senate Republicans to abolish the filibuster for judicial nominations. Its seven Republican signatories agreed not to support the effort to abolish the filibuster. In exchange, its seven Democrats signatories committed to support cloture on three specific nominees who had been filibustered as well as on “future judicial nominations” in 2005 and 2006 that did not present “exceptional circumstances.”

As we have seen, on the heels of John Roberts’s confirmation as chief justice, George W. Bush very much wanted to nominate Fifth Circuit judge Priscilla Richman Owen to the seat being vacated by Justice Sandra Day O’Connor. If the filibuster had been abolished, the Republican majority in the Senate would very likely have confirmed her nomination, and Judge Alito would never have become Justice Alito. But with the filibuster still in place, Bush was warned (in his words) that the “the fight [over her nomination] would be bloody and ultimately she would not be confirmed.” So he passed over her, initially for Harriet Miers and then for Alito.

When Bush nominated Alito, the Gang of 14 Agreement meant that the White House could avoid a filibuster by persuading its Democratic signatories (or at least five of the seven) that the Alito nomination did not present “exceptional circumstances.” Meanwhile, the division among Senate Democrats that was manifested in the Gang of 14 Agreement meant that liberal senators who opposed Alito had to take a passive wait-and-see approach on whether to try to filibuster him. As a result, the momentum for a serious filibuster effort never developed.

Graham also triggered the most dramatic moment in Alito’s hearing. As I recount more fully here, Ted Kennedy and other Democrats were seizing on Alito’s brief membership in a conservative Princeton alumni group to brand him as a bigot. When Graham repudiated their allegations of bigotry, Alito’s wife Martha-Ann was so overcome with appreciation of Graham’s simple decency that she fled the hearing room in tears.

Republican staffers on the Judiciary Committee tell me that was the moment at which the tide shifted decisively in Alito’s favor. In the words of one staffer, “It’s hard to overstate what a turning point it felt like.” Democrats also saw the episode as critical:

“Had she not cried, we would have won that day,” said one Senate strategist involved in the hearings, who did not want to be quoted by name discussing the Democrats’ problems. “It got front-page attention. It was on every local news show.” [New York Times, 1/15/06]

***

Lindsey Graham also helped pave the way for confirmation of Donald Trump’s nomination of Neil Gorsuch in 2017. He did so, first, by supporting Senate majority leader Mitch McConnell’s decision not to act on any nomination by Barack Obama to fill the vacancy that resulted from Antonin Scalia’s death in February 2016. Among other things, Graham and his fellow Committee Republicans signed a letter to McConnell on February 23 setting forth their commitment not to hold a hearing on any nominee.

If Obama had succeeded in filling the Scalia seat, Donald Trump would of course not have had the opportunity to nominate Gorsuch to that seat. Indeed, given the important role that the vacancy played in the presidential election and the tight margin, he probably would not have been elected.

When Senate Democrats tried to filibuster Gorsuch’s nomination in April 2017, Graham was influential in the successful Republican effort to abolish the remaining portion of the judicial filibuster—for Supreme Court nominees—that Senate Democratic leader Harry Reid had opportunistically left in place. Graham had special clout on this matter with undecided Republicans, both because he had prevented abolition of the judicial filibuster in 2005 and because he had voted for Barack Obama’s nominations of Sonia Sotomayor and Elena Kagan. As he put it:

Judge Gorsuch is qualified, competent and ready to serve. If he cannot get eight Democrats to vote for cloture (ending a filibuster) on his nomination, then I doubt any Republican nominee could.

I’m a traditionalist and I don’t want to change the rules of the Senate. But Judge Neil Gorsuch is going to be on the Supreme Court, and I’m prepared to do whatever it takes to put him there.

After Democrats defeated a cloture motion on Gorsuch’s nomination, Republicans abolished the filibuster for Supreme Court nominees. The Senate then invoked cloture and confirmed Gorsuch.

***

If the filibuster for Supreme Court nominees had remained in effect, it’s highly doubtful that Trump would have nominated Brett Kavanaugh in July 2018, and it’s difficult to see how Kavanaugh would ever have been confirmed.

Graham’s greatest episode came during the second phase of Kavanaugh’s hearing, when he passionately decried “the most despicable thing I have seen in my time in politics”:

As my Ethics and Public Policy Center colleague (and former Graham staffer) Michael Fragoso sums up “Graham’s finest hour”:

[Graham] gave a speech for the ages. He called out the Democrats for their outrageous character assassination. He pointed out that Chuck Schumer had said he’d try to stop Kavanaugh from the word go. He told Kavanaugh to give his regards to Sotomayor and Kagan because he voted for them but those days were behind him. It was a speech that changed the tenor and course of the hearing, getting Republicans off the back foot and ready to fight the Democrats over their unconscionable behavior.

Another senior Senate staffer recalls:

By the end of Senator Graham’s speech, I was ready to run through a wall. And I had no doubt we were gonna win. This confirmation was my formative experience in politics, and Senator Graham’s speech was the most important moment.

***
Let’s now turn to Graham’s surprising—and potentially very costly—blunder.

A defining feature of the 2016 battle over the Scalia vacancy was that President Obama and the Senate majority were from opposing political parties. It was likewise in this opposite-party context in a presidential-election year, way back in 1992, that Joe Biden, then chairman of the Senate Judiciary Committee, delivered a lengthy Senate floor statement in which he urged President Bush not to make a nomination if a Supreme Court vacancy arose, and he threatened not to hold a hearing on any nominee until after the election.

It was in this same context—anticipating a Supreme Court nomination by a president of one party to a Senate controlled by the other party—that Democratic senator Chuck Schumer publicly stated in July 2007 that the Senate “should not confirm another U.S. Supreme Court nominee under President [George W.] Bush ‘except in extraordinary circumstances.’” And, indeed, Kathryn Ruemmler, Obama’s White House counsel from 2011 to 2014, candidly acknowledged that if the political roles had been reversed—that is, a Republican president and a Democratic majority in the Senate—she would have recommended that Senate Democrats take exactly the course that Senate majority leader Mitch McConnell pursued.

It’s unimaginable that Biden in 1992 or Schumer in 2007 would have made their statements if a Democrat were president. It’s likewise unimaginable that Mitch McConnell would have committed to keep the Scalia vacancy open in 2016 if a Republican were president. None of them pretended otherwise.

Yet Graham somehow missed this fundamental point, and he did so very starkly. At a committee meeting in March 2016 (six days before Obama nominated Merrick Garland), Graham declared:

I want you to use my words against me. If there’s a Republican president [elected] in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.

In October 2018, three days before the Senate confirmed Kavanaugh’s nomination, Graham repeated that promise:

If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait till the next election.

In his evident desire to display fairness, Graham missed that genuine symmetry would mean merely that if Democrats controlled the Senate in the last year of a Republican president’s term, Graham would acknowledge that they had the constitutional power to refuse to act on a nomination to a vacancy that arose that year.

Graham became chairman of the Judiciary Committee in 2019. His position might well have made him more keenly aware of his institutional responsibilities to other Republican senators. In an interview in May 2020, he corrected course and stated that the Senate would act on a Supreme Court nomination if a vacancy arose:

Well, Merrick Garland was a different situation. You had the president of one party nominating, and you had the Senate in the hands of the other party. A situation where you’ve got them both would be different. I don’t want to speculate, but I think appointing judges is a high priority for me in 2020.

Justice Ruth Bader Ginsburg died on September 18, 2020. President Trump announced his nomination of Amy Coney Barrett on September 26. In the midst of the covid epidemic, Graham arranged for the Barrett hearing to begin 16 days later, on October 12. At the end of the hearing, Dianne Feinstein, the senior Democrat on the committee, thanked Graham for running “one of the best set of hearings that I’ve participated in.” On October 26, the Senate confirmed Barrett’s nomination by a vote of 52-48, with Susan Collins joining all Democrats in voting no.

If the filibuster for Supreme Court nominees had not been abolished, there is no way that the Senate would have been able to confirm anyone for Ginsburg’s seat unless that person had the support of at least seven Democratic senators.

***

The current Supreme Court is very much part of Lindsey Graham’s legacy. May he rest in peace.

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***

It’s instructive to compare the role of abortion in Sonia Sotomayor’s confirmation to its role in Ruth Bader Ginsburg’s confirmation 16 years earlier. In both instances, a Democratic president with a deep commitment to Roe (Bill Clinton for Ginsburg, Barack Obama for Sotomayor) had an overwhelming Democratic majority in the Senate (56 Democratic senators in 1993, 59 or 60 at relevant times in 2009). Confirmation of the nominee was as certain as anything in politics could be.

Before becoming a judge, Ginsburg strongly criticized the Supreme Court’s 1977 ruling in Maher v. Roe that the Constitution does not require taxpayers to fund abortions. Just three months before Clinton nominated her, Ginsburg gave a lecture in which she cited Roe as the “most prominent example” of a “breathtaking” decision that “may prove unstable” because its “[d]octrinal limbs [were] too swiftly shaped.” But as Clinton clearly understood, Ginsburg fully supported a constitutional right to abortion. She would have preferred a ruling in Roe that “homed in more precisely on the women’s equality dimension of the issue” and that “merely struck down the extreme Texas law and went no further on that day.” Such a ruling, she believed, “might have served to reduce rather than to fuel controversy.”

In her opening statement at her hearing, Ginsburg declared that her testimony could offer “no forecasts, no hints” on how she “would cast [her] vote on questions the Supreme Court may be called on to decide.” But Ginsburg departed most starkly from that commitment when she spelled out her Equal Protection theory for a constitutional right to abortion (hearing transcript at 207-208):

It is essential to woman’s equality with man that she be the decisionmaker, that her choice be controlling. If you impose restraints that impede her choice, you are disadvantaging her because of her sex….

Abortion prohibition by the State … controls women and denies them full autonomy and full equality with men.

No Republican senators raised questions or concerns about Ginsburg’s views on abortion in their opening statements. Nearly all of the questioning of Ginsburg on the topic of abortion came from supporters of abortion rights (including Republican senator Hank Brown). Only Orrin Hatch (for whom I was then working) challenged Ginsburg on abortion, and he did so primarily on the question whether she would abide by the Court’s precedents that the Constitution does not require funding of abortion.

Things were very different at Sotomayor’s confirmation hearing.

Before becoming a judge, Sotomayor served for twelve years as a member of the board of the Puerto Rican Legal Defense and Education Fund, sometimes as the chairman of its litigation committee. The New York Times in 1992 described her as “a top policy maker on the board.” Another NYT article, just after Obama nominated Sotomayor, said that she “stood out” among the “active and passionate” board members: She “was an involved and ardent supporter of [PRLDEF’s] various legal efforts during her time with the group,” “frequently meeting with the legal staff to review the status of cases” and “play[ing] an active role as the defense fund staked out aggressive stances on issues like police brutality, the death penalty and voting rights.” PRLDEF’s “aggressive stances” extended to the realm of abortion. During Sotomayor’s tenure, PRLDEF submitted amicus briefs that supported taxpayer funding of abortion and “oppose[d] any efforts to overturn or in any way restrict the rights recognized in Roe v. Wade.”

In their opening statements, Senator Jeff Sessions, the senior Republican on the Judiciary Committee, and Senator Lindsey Graham expressed concerns about the PRLDEF briefs. Graham and three other Republican senators questioned Sotomayor on abortion. After the hearing, four of the Republican senators submitted extensive written questions to Sotomayor on the topic.

It’s amusing to see how Sotomayor tried to distance herself from the PRLDEF briefs. She explained to Senator Graham that at PRLDEF “a board member’s main responsibility is to fund-raise,” and she denied even being “familiar” with PRLDEF’s position on taxpayer-funded abortion. So much for NYT’s account of her “involved and ardent” support of PRLDEF’s “various legal efforts.” She even contended that the only question for her as a board member was whether there was “a good-faith basis for whatever arguments [PRLDEF’s lawyers] were making.” As if the board weren’t responsible for setting policy but was instead merely assuring that its lawyers weren’t acting unethically.

Unlike Ginsburg, Sotomayor studiously avoided any comment supporting a constitutional right to abortion. Even when a Democrat asked her whether Roe was “settled law,” she answered only that the Court in Planned Parenthood v. Casey said it was. And even that answer was rendered meaningless by her global declaration that “All precedents of the Supreme Court I consider settled law subject to the deference [which the] doctrine of stare decisis would counsel.” (My point here, I emphasize, is not to fault Sotomayor for her answers on “settled law,” which adopted the approach that John Roberts took and that other nominees have followed. It is, rather, to contrast Sotomayor’s reticence with Ginsburg’s robustness.)

***

What explains the difference between Ginsburg and Sotomayor? I’d propose three interconnected factors:

(1) The politics of the pro-life position on abortion improved considerably between 1993 and 2009.

(2) Senate Republicans had abandoned the “deference” approach to a Democratic president’s nomination of a Supreme Court justice and had instead made a nominee’s judicial philosophy a critical factor.

(3) The Senate had re-sorted along ideological lines.

I’ll address the first factor here and the other two in a follow-on post.

***

In 1993, pro-life senators were deeply demoralized. The Supreme Court had been widely expected to overrule Roe in its 1992 decision in Planned Parenthood v. Casey but had instead broadly re-affirmed it. (I was a law clerk for Justice Scalia that term.) The Court’s ruling appeared to mark the demise of the conservative legal revolution that Ronald Reagan had inaugurated, as two Reagan appointees (Sandra Day O’Connor and Anthony Kennedy) combined with a George H.W. Bush appointee (David Souter) to salvage Roe. The prospect that Roe would ever be overturned seemed lost.

By 2009, the pro-life position had become much more politically appealing. According to Gallup, the percentage of Americans who believed that abortion should be legal “under any circumstances” had fallen from 32% in March 1993 to 22% in May 2009.

Much of the shift was due to the atrocity of partial-birth abortion.

Partial-birth abortion is the name given to a method of late-term abortion in which the abortionist dilates the mother’s cervix, extracts the baby’s body by the feet until all but the head has emerged, stabs scissors into the head, sucks out the baby’s brains, collapses the baby’s skull, and delivers the dead baby.

This barbarity was inflicted up to 5,000 times a year in this country—generally on healthy babies of healthy mothers. Planned Parenthood and its allies routinely claimed that partial-birth abortion was “rare and performed primarily to save the lives or fertility of women bearing severely malformed babies” (in the New York Times’s paraphrase of a typical claim). But in 1997 the New York Times reported that Ron Fitzsimmons, the executive director of the National Coalition of Abortion Providers, admitted that he had “lied through my teeth” in parroting that claim. In truth, “the procedure was common,” and “[i]n the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along.” In Fitzsimmons’s words, “The abortion-rights folks know it, the anti-abortion folks know it, and so, probably, does everyone else.”

In the mid-1990s, Congress twice passed federal bans on partial-birth abortion, but President Clinton vetoed both of them. In 2000, the Court, by a vote of 5 to 4, ruled in Stenberg v. Carhart that a Nebraska ban on partial-birth abortion was unconstitutional. The substantive prohibition in the Nebraska law was identical to that in the federal bill, but in a healthy rejection of the myth of judicial supremacy (in which I played a bit role at the Department of Justice), bipartisan majorities in Congress enacted the federal ban in 2003, and President George W. Bush signed it into law. Among the 17 Democratic senators who voted for the law were Democratic leader Tom Daschle and senior Judiciary Committee members Patrick Leahy and Joe Biden.

In 2007, with Justice Samuel Alito having replaced Justice Sandra Day O’Connor, the Court reversed course and ruled (by a vote of 5 to 4) in Gonzales v. Carhart that the federal ban on partial-birth abortion was facially constitutional. In dissent, Justice Ginsburg predicted that as-applied challenges would “be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the [law’s] prohibition.” But as I pointed out a year later (in “The Mystery of the Missing Lawsuits”), those challenges never arose, presumably because the medical evidence that the abortion industry vaunted was in fact very feeble.

***
The Left’s extremism on abortion backfired spectacularly on judicial confirmations during these same years.

Liberal Democrats had aimed to stigmatize as unacceptable any of George W. Bush’s judicial nominees who was thought to oppose Roe. As we have seen, that’s why they filibustered the Eleventh Circuit nomination of William H. Pryor Jr., who at his confirmation hearing courageously stood by his condemnation of Roe as “the worst abomination in the history of constitutional law” and decried that it had “led to the slaughter of millions of innocent unborn children.” But when more moderate Democrats helped form the bipartisan “Gang of 14 Agreement” in May 2005, they agreed to list Pryor among the three nominees for whom they committed to support cloture. They thus expressly recognized that it was not disqualifying for an appellate nominee to hold the view of Roe that Pryor expressed.

When Bush nominated Samuel Alito to the Supreme Court in late 2005, the Gang of 14 Agreement and its protection of Pryor in turn put Democrats at a severe disadvantage in their hope of defeating Alito by filibuster. Democrats couldn’t have hoped for better ammunition to be handed them than Alito’s 1985 job application in which he declared that he “personally believe[d] very strongly” that “the Constitution does not protect a right to an abortion.” But none of the seven Democratic signatories to the Gang of 14 Agreement suggested that Alito’s nomination presented “extraordinary circumstances” that would justify a departure from their general opposition to a filibuster.

Democratic leader Harry Reid recognized that there was no point in fighting a losing battle over the filibuster, so it was left to John Kerry to earn mockery by yodeling for a filibuster from his ski resort in Davos, Switzerland.

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5. The Supreme Court Nominee Who Would Abolish Mother’s Day: How I hid Ruth Bader Ginsburg’s incendiary positions

4. Judicial Retirements and Judicial Vacancies: Exploring the Rule of 80

3. Teddy Roosevelt Quickly Regrets Appointing Justice Holmes: “I could carve out of a banana a judge with more backbone”

2. Larry Tribe Slams Sotomayor to Obama: “Bluntly put, she’s not nearly as smart as she seems to think she is”

And …

1. Ruth Bader Ginsburg’s “Inexorable Zero” of Black Employees: “What if she says yes?”

May you enjoy a wonderful Fourth of July!

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10. Joe Biden Embarrasses Elena Kagan (and I Console Her): Even an excellent teacher can do only so much with a dim pupil

9. George W. Bush Makes a Shocking Supreme Court Nomination: How it happened

8. Ninth Circuit Contender Is Exposed as Pretender: The collapse of Bill Clinton’s nomination of James Ware

7. Sotomayor’s Account of Her Judicial Philosophy Appalls Progressives: ‘If she was not perjuring herself, she is intellectually unqualified’

6. A Not-So-Wise Reflection on a ‘Wise Latina’ Judge: Sotomayor’s comment arouses controversy

Hope you enjoy these! I’ll complete the countdown next week.

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Maybe you’re a judge (or former judge) who had something amusing or appalling happen in your own confirmation process.

Maybe you worked on judicial selection in the White House or in the Department of Justice. Maybe you helped prep nominees for their confirmation hearings.

Maybe you’re a senator or Senate staffer who met with a nominee during the meet-and-greets or who observed something remarkable at a hearing.

Maybe you’re a family member or friend of someone who went through the process.

Maybe you were a candidate for a nomination but lost out.

If you have a story that you’d like to discuss with me, please email me at ethics@eppc.org, put “Confirmation Tales” in the subject line, and briefly describe what the story involves.

I promise to keep our exchange strictly confidential; I will make no use of what you tell me without first receiving your express and specific permission. If you have good reason to keep your story anonymous, I will be happy to work to accommodate you.

I especially welcome stories from those with political or judicial ideologies different from my own.

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***

In their opening statements, several Republican senators stated their strong opposition to judges’ reliance on foreign and international law in interpreting provisions of the Constitution, and two specifically criticized Sotomayor’s recent speech on the topic to the ACLU of Puerto Rico. So Democratic senator Chuck Schumer undertook to preempt hostile questioning by asking his own questions of Sotomayor.

The exchange between Schumer and Sotomayor (pp. 132-133 of hearing transcript) is remarkable in its brazenness. Schumer began by alleging that Sotomayor’s critics had “selectively quoted” her ACLU speech, and he then selectively quoted it:

You gave a speech in April that has been selectively quoted, discussing whether it is permissible to use foreign law or international law to decide cases. You stated clearly that, ‘‘American analytic principles do not permit us,’’ that is your quote, to do so.

Here’s the actual passage in Sotomayor’s speech, with the key part that Schumer omits in boldface:

I’m going to try first to understand the way that American law is structured against the use of foreign and international law. Because American analytical principles do not permit us to use that law to decide our cases. But nothing in the American legal system stops us from considering the ideas that that law can give us.

Quoting that last sentence would have required Schumer to probe the unintelligible distinction that Sotomayor had posited between “us[ing]” foreign and international law and “consider[ing] the ideas that are suggested by” foreign and international law.” Schumer instead asked:

Just so the record is 100 percent clear, what do you believe is the appropriate role of any foreign law in the U.S. courts?

Lest I be accused of selectively quoting Sotomayor’s response, I will quote it in full (and boldface some passages):

American law does not permit the use of foreign law or international law to interpret the Constitution. That’s a given, and my speech explained that, as you noted, explicitly.

There is no debate on that question. There is no issue about that question. The question is a different one, because there are situations in which American law tells you to look at international or foreign law, and my speech was talking to the audience about that.

In fact, I pointed out that there are some situations in which courts are commanded by American law to look at what others are doing. So, for example, if the U.S. is a party to a treaty and there’s a question of what the treaty means, then courts routinely look at how other courts of parties who are signatories are interpreting that.

There are some U.S. laws that say you have to look at foreign law to determine the issue. So, for example, if two parties have signed a contract in another country that’s going to be done in that other country, then American law would say you may have to look at that foreign law to determine the contract issue.

The question of use of foreign law then is different than considering the idea that it may, on an academic level, provide. Judges— and I’m not using my words. I’m using Justice Ginsb[u]rg’s words. You build up your story [sic] of knowledge as a person, as a judge, as a human being with everything you read. For judges, that includes law review articles and there are some judges who have opined negatively about that. You use decisions from other courts. You build up your story [sic] of knowledge.

It is important, in the speech I gave, I noted and agreed with Justices Scalia and Thomas that one has to think about this issue very carefully, because there are so many differences in foreign law from American law. But that was the setting of my speech and the discussion that my speech was addressing.

Far from there being “no debate on that question,” there was in fact a raging debate on whether judges may look to foreign or international law to interpret the Constitution. A good chunk of Sotomayor’s ACLU speech addressed the uncontroversial practice of looking to foreign and international law when American law directs you to do so. But the controversial part came toward the end, where Sotomayor spoke approvingly of how “We have looked in some Supreme Court decisions to foreign law to help us decide our issues”—and where she cited Eighth Amendment and substantive due process rulings as examples of using foreign or international law to interpret the Constitution.

The distinction that Sotomayor purports to draw between “use of foreign law” and “considering the idea that it may, on an academic level, provide” makes no sense when the judge is not operating as an academic but is instead drawing on foreign law to make rulings on constitutional issues. (Note that Sotomayor herself says that “You use decisions from other courts.”)

***

In an exchange with Republican senator John Coburn, Sotomayor emphatically reiterated her response to Schumer:

Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law. [Emphasis added.]

Republican senator Jeff Sessions asked Sotomayor:

There has been a fairly robust, roaring debate over this question. There are basically two sides, one led by Justice Ginsburg and one led by Justices Scalia and Thomas. Don’t you think a fair reading of [your speech] is that you came down on the side of Justice Ginsburg?

Sotomayor denied it. (If you’re a glutton for gobbledygook, you can read her response on p. 396 of the transcript.) Never mind that in her speech she said that Scalia and Thomas had “a point that is validly taken, but I think I share more the ideas of Justice Ginsburg in thinking or in believing that unless American courts are more open to discussing the ideas raised by foreign cases, by international cases, that we are going to lose influence in the world.”

In his second exchange with Sotomayor, Coburn asked her to “affirm to this Committee and the American public that, outside of where you are directed to do so through statute or through treaty, [you will] refrain from using foreign law in making the decisions that you make that affect this country and the opinions that you write.” Sotomayor responded:

I will not use foreign law to interpret the Constitution or American statutes. I will use American law, constitutional law to interpret those laws, except in the situations where American law directs a court.

***

The categorical commitments that Sotomayor made in her live testimony did not last long. One week later, in her responses to post-hearing written questions (see, e.g., transcript at 633-634), Sotomayor retreated to the position that “American courts should not ‘use’ foreign law, in the sense of relying on decisions of foreign courts as binding or controlling precedent.” In other words, her real position—the position that she set forth in her April speech but obscured and dissembled about throughout the hearing—was that it’s fine for American judges to use foreign and international law so long as they don’t treat it as binding. (No intelligent critic of the judicial use of foreign and international law is under the misunderstanding that its proponents treat it as binding; rather, the utter malleability of its use is one of the grounds of criticism.)

***

Less than a year later, Sotomayor provided the decisive fifth vote for Justice Anthony Kennedy’s majority opinion in Graham v. Florida (2010). In holding that the Eighth Amendment does not allow a “juvenile offender” (someone under 18 at the time of the crime) to be sentenced to life in prison without parole for a nonhomicide crime, Kennedy found “support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over.” To be sure,

The judgments of other nations and the international community are not dispositive as to the meaning of the Eighth Amendment. But the climate of international opinion concerning the acceptability of a particular punishment is also not irrelevant. [Cleaned up.] …

[T]he United States is the only Nation that imposes life without parole sentences on juvenile nonhomicide offenders…. As we concluded in Roper [v. Simmons (2005)] with respect to the juvenile death penalty, “the United States now stands alone in a world that has turned its face against” life without parole for juvenile nonhomicide offenders….

The Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling but because the judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.

So much for Sotomayor’s solemn commitment to Senator Coburn and to the American people.

***

If hypocrisy is the homage that vice pays to virtue, Sotomayor’s deceptions illustrate the homage that liberal judicial nominees pay to conservative judicial principles.

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In late April 2009, just three days before Justice David Souter announced his retirement, Sonia Sotomayor gave a terribly muddled speech in which she defended resort to foreign and international law to decide legal issues generally. That speech ensured that the topic would be prominent in her battle for confirmation.

***

Justice Anthony Kennedy’s majority opinion in Roper v. Simmons (2005) and Justice Antonin Scalia’s dissent helpfully frame the dispute over use of foreign and international legal materials.

Writing for a five-justice majority, Kennedy ruled that the Eighth Amendment’s bar on “cruel and unusual punishments” prohibits the execution of a brutal murderer who was 17 years old at the time of his crime. In Part IV of his opinion, Kennedy found “respected and significant confirmation” for his conclusion that the Constitution bars the death penalty for juvenile offenders “in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Notably, Kennedy invoked Article 37 of the United Nations Convention on the Rights of the Child, which “contains an express prohibition on capital punishment for crimes committed by juveniles under 18.” Kennedy thought that the fact that the United States, alone with Somalia in the world, had not ratified Article 37 supported his conclusion that the death penalty for juvenile offenders is unconstitutional. Kennedy concluded his discussion with this declaration:

It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

Scalia in his dissent confronted head-on the remarkable “confirm[ing] role that Kennedy awarded the “world community” in his determination that the Eighth Amendment forbids the death penalty for juvenile offenders:

• “Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage.”

• As for Kennedy’s reliance on Article 37 of the U. N. Convention on the Rights of the Child: “Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position.”

• “More fundamentally, … the basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand. In fact the Court itself does not believe it.” Scalia proceeded to point out that the Court has never sought to follow foreign law on matters ranging from the exclusionary rule to church-state relations to abortion. “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”

• With respect to Kennedy’s closing oration: “I do not believe that approval by ‘other nations and peoples’ should buttress our commitment to American principles any more than (what should logically follow) disapproval by ‘other nations and peoples’ should weaken that commitment. More importantly, however, the Court’s statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our ‘fidelity’ to the Constitution, our ‘pride in its origins,’ and ‘our own [American] heritage.’ To the contrary, they are cited to set aside the centuries-old American practice—a practice still engaged in by a large majority of the relevant States—of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.” (Emphasis and brackets in original.)

***

Justice Ruth Bader Ginsburg and Justice Stephen Breyer, who both joined Kennedy’s opinion in Roper, also spoke out publicly to defend the use of foreign law in interpreting constitutional provisions generally. As it happens, I was criticizing their views in my testimony in the House of Representatives in July 2005 when I learned that George W. Bush would announce that evening that he would nominate John Roberts to the Supreme Court.

The role of foreign and international law in constitutional interpretation played only a small role in Roberts’s confirmation hearing and in Samuel Alito’s hearing some months later. Republican senators condemned the position that Justice Kennedy and his liberal colleagues had adopted. But Democratic senators had no interest in defending it, much less in pressing Roberts and Alito to embrace it.

In response to questioning from a Republican senator, Roberts observed:

In foreign law you can find anything you want. If you don’t find it in the decisions of France or Italy, it’s in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them, they’re there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent because they’re finding precedent in foreign law, and use that to determine the meaning of the Constitution.

Alito was even more emphatic:

I don’t think that foreign law is helpful in interpreting the Constitution. Our Constitution does two basic things. It sets out the structure of our Government and it protects fundamental rights. The structure of our Government is unique to our country, and so I don’t think that looking to decisions of supreme courts of other countries or constitutional courts in other countries is very helpful in deciding questions relating to the structure of our Government.

As for the protection of individual rights, I think that we should look to our own Constitution and our own precedents. Our country has been the leader in protecting individual rights. If you look at what the world looked like at the time of the adoption of the Bill of Rights, there were not many that protected human—in fact, I don’t think there were any that protected human rights the way our Bill of Rights did.

We have our own law, we have our own traditions, we have our own precedents, and we should look to that in interpreting our Constitution.

***

Now let’s take a look at the speech (see video and my AI-assisted transcript) that Sonia Sotomayor delivered to the American Civil Liberties Union of Puerto Rico on April 28, 2009. The speech is rife with confusion and camouflage, but Sotomayor’s ardent support for looking to foreign and international law to help determine the meaning of constitutional provisions is unmistakable in the end.

Sotomayor began by positing an unintelligible, but supposedly fundamental, distinction between “us[ing]” foreign and international law and “consider[ing] the ideas that are suggested by” foreign and international law:

I always find it strange when people ask me, “How do American courts use foreign and international law in making their decision?” I pause and say: We don’t use foreign or international law, we consider the ideas that are suggested by international and foreign law. That’s a very different concept.

She repeated this distinction when she explained “the way that American law is structured against the use of foreign and international law”:

Because American analytical principles do not permit us to use that law to decide our cases. But nothing in the American legal system stops us from considering the ideas that that law can give us.

I can make no sense of this distinction. And it was apparently evident to her that her audience couldn’t either, as she asked her translator “do you want to try to translate what I just said?” (It’s conceivable that Sotomayor meant to try to distinguish between treating foreign law as authoritative and looking to it for whatever insights it provides. But if that’s what she meant, her inability to express that simple contrast is astonishing. And no intelligent critic of the Court’s use of foreign and international law thought that the Court was treating it as authoritative.)

In the last third of her talk, Sotomayor embraced the position of Kennedy and Ginsburg against that of Scalia. She missed the core ground of Scalia’s opposition—i.e., that the practice is fundamentally illegitimate because it rests on the unsound premise that American law should conform to the laws of the rest of the world—and instead credited him with a “somewhat valid point” in his secondary objection that “a judge can look to the law of any country to support his or her own conclusion because they'll find somebody to approve or agree with them.” But, she declared,

I share more the ideas of Justice Ginsburg in thinking or in believing that unless American courts are more open to discussing the ideas raised by foreign cases, by international cases, that we are going to lose influence in the world.

Ginsburg is right, she said, that foreign opinions, while “not authoritative,” “can add to the store of knowledge relevant to the solution of a question.” Citing Kennedy’s majority opinions in Roper and in Lawrence v. Texas (2003), Sotomayor approvingly observed: “We have looked in some Supreme Court decisions to foreign law to help us decide our issues.” She then repeated her nonsensical distinction:

In both those cases, the courts were very, very careful to note that they weren't using that law to decide the American question. They were just using that law to help us understand what the concepts meant to other countries and to help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking.

Sotomayor ended her speech by insisting that freedom of speech means that American judges have a duty to consider international and foreign law in deciding cases:

To the extent that we as a country remain committed to the concept that we have freedom of speech, we must have freedom of ideas. And to the extent that we have freedom of ideas, international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system…. [W]ithin the American legal system, we’re commanded to interpret our law in the best way we can. And that means looking to what other, anyone has said to see if it has persuasive value.

***

If you find Sotomayor’s views head-spinning, just wait until you encounter her confirmation testimony.

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***

Patrick J. Schiltz, chief judge of the U.S. District Court for the District of Minnesota, was a law clerk to D.C. Circuit judge Antonin Scalia when Ronald Reagan nominated Scalia to the Supreme Court in 1986. Just a year out of law school, Schiltz assisted Scalia throughout the confirmation process and went on to clerk for him during his first term on the Court.

Pat Schiltz and I were friends, classmates, and law-review colleagues at Harvard law school. In organizing the recent AEI-EPPC symposium on Justice Scalia’s extraordinary legacy ten years after his death, I had the opportunity to reconnect with Pat. I was eager to talk with him about Scalia’s confirmation process, and I will draw on his recollections in a later post. But I was especially struck by his story of how he became a law clerk for Scalia.

Q. Antonin Scalia joined the D.C. Circuit in August 1982, weeks before we began law school. Barely a year later, you snagged a clerkship with him for 1985-1986. I’m not sure that I had even heard of Judge Scalia until I learned that you would be clerking for him. How did that come about?

A. The first big step for me was deciding that I should pursue a clerkship. I knew little or nothing about clerking when I started law school. I made the law review on grades at the end of my first year, turned it down because membership would preclude me from participating in the Introduction to Trial Advocacy clinical program (I was certain I wanted to be a trial lawyer), and then was persuaded to accept membership by a few professors and law-review officers. Among the arguments I kept hearing was that being on the law review would help me to get a judicial clerkship, and getting a judicial clerkship would open doors for me. I particularly remember Professor Gary Bellow—who founded HLS’s clinical programs—telling me that, as a law student, I should be opening doors, not closing doors. I’ve been giving the same advice to young lawyers ever since.

Q. How did you become interested in clerking for Judge Scalia specifically?

A. Sometime in the fall of 1983, I decided to start applying for judicial clerkships. I got advice from 3Ls who had been through the process, and they told me that I would need a professor to serve as a reference. I did not know any professors, as almost all of my first-year classes had 140 students, and as I suffered from a severe case of impostor syndrome. Somewhat illogically, I decided to ask Professor Clark Byse—my Administrative Law professor—to be my reference. He was the first-year professor I liked the most, and I figured that, if I liked him, he must have liked me.

I stopped by Professor Byse’s office. He had no idea who I was. He hemmed and hawed and said he didn’t think he could serve as a reference, as he didn’t know anything about me. But we ended up talking for 20 minutes or so, and I later realized that, in between all the hemming and hawing, Professor Byse was interviewing me without my knowing that he was interviewing me. At some point, he brought the conversation to a close and said he’d think about my request.

I walked from Professor Byse’s office to Gannett House—about a three-minute walk. As I climbed the stairs to the second floor (where the law review had its offices), the receptionist told me: “Professor Byse is on hold. He wants to talk to you.” I picked up the phone, said “Hello,” and Professor Byse said: “This is Clark Byse. Judge Scalia will see you tomorrow if you can get to Washington.”

Q. So asking Professor Byse if he would serve as a reference suddenly turned into an interview invitation from Judge Scalia. How did that happen?!?

A. When Judge Scalia was a law student at Harvard in the early 1960s, he had taken Ad Law from Professor Byse, and the two had kept in touch over the years, especially when Judge Scalia worked in the Nixon and Ford administrations. (Judge Scalia chaired the Administrative Conference of the United States for a couple of years in the early 1970s.)

It turned out that, just a couple of days before I stopped by Professor Byse’s office, Judge Scalia had called him. Judge Scalia was not satisfied with the applications he was getting from Harvard, and he wanted Professor Byse to keep an eye out for a student who would be a good clerk and a good match for him. Hence Professor Byse’s non-interview interview of me.

Q. Did you fly to D.C. the next day?

A. No. I called the Scalia chambers, and made an appointment for a couple of days later. I then put together an application and faxed it (we faxed in those days) to the Scalia chambers, as well as to the chambers of some of the other D.C. Circuit judges, explaining that I would be interviewing with Judge Scalia in a couple of days. I quickly got invited to interview with Judge Ruth Bader Ginsburg and with Judge Harry Edwards’s law clerks (he was going to be out of town), but the other chambers said they were not interviewing yet.

Q. What was the Scalia interview like? Did you interview with his law clerks?

A. Interviewing with Judge Scalia then—and during the two years I clerked for him—was nothing like interviewing with him a little later in his career. I did nothing to prepare for the interview, except read over my writing sample. I was not even sure how to pronounce his name. I thought it was pronounced SKAL-ee-ah, but when his judicial assistant referred to him as Judge Sca-LEE-uh, I thought I’d better go with that.

I talked to Judge Scalia first. We talked for about an hour. We talked about law, but mostly we just shot the breeze: about Harvard Law School, about Professor Byse, about politics, about his family, about my family, about our shared Catholic faith. My main memory is how much we laughed. We hit it off.

At the end of the interview, I talked to his law clerks for a few minutes. They pretty much just wanted to know if I had any questions. I was not interrogated. No one asked for my views about the dormant Commerce Clause. No one tore my writing sample to shreds.

I then went back into Judge Scalia’s office, and he said: “I’m not sure what to do. I’d really like you to clerk for me, but I’m afraid if I make you an offer now, you’ll think I’m desperate. So should I make you an offer or not?” We discussed the matter and concluded that, if he wanted me to clerk for him, he would have to offer me a clerkship. So he did.

Q. Did you immediately accept the offer?

A. No. I was going to talk with Judge Ginsburg in a few minutes, and it didn’t seem right to accept an offer from one judge when another had agreed to interview me later that day.

Q. What was the RBG interview like?

A. Nothing like the Scalia interview. When I interviewed with Judge Scalia, he was not wearing a suitcoat, his top button was undone, his tie was askew, his sleeves were rolled up, the top of his desk was a mess, and he was animated. There was, as I said, lots of talk about non-legal matters, and lots of humor.

The top of Judge Ginsburg’s desk was clean, save for my resume, which she had in front of her, and which seemed to be perfectly centered. She sat straight up in her chair during the entire interview, with her hands folded on my resume. She was very nice, but the conversation was formal and almost entirely related to law. After about 20 minutes, she offered me a clerkship, and asked me to get back to her in a day or two. I thanked her and left. I never spoke to her clerks.

Q. So mission accomplished. You had two offers. Time to zip back to Cambridge?

A. No. I then interviewed with the Edwards clerks. They, too, were nice, and they told me that Judge Edwards would be grateful if I would wait until he could interview me before accepting a clerkship offer from another judge. I told them of my offers from Judges Scalia and Ginsburg and that I did not think I could put off a decision. (And although I did not mention this, I could not afford to fly back to Washington. I was dead broke.) They understood.

Q. When did you accept Judge Scalia’s offer?

A. Judge Scalia asked me to stop by his chambers after the other interviews. I told him that I had received an offer from Judge Ginsburg. He spoke highly of her, and told me I could not go wrong choosing between the two offers.

What was most striking, though, was that he asked if there were any other judges for whom I might like to clerk. Idiotically, I told him that the only judge who came to mind was Judge Malcolm Wilkey, who was the leading (really, only) conservative feeder judge on the D.C. Circuit. Rather than being offended, Judge Scalia called Judge Wilkey, told Judge Wilkey that I was sitting in Judge Scalia’s chambers, and encouraged Judge Wilkey to interview me. Imagine one of today’s hyper-competitive appellate judges doing that.

Q. Did you interview with Judge Wilkey?

A. No. In that phone call, Judge Wilkey told Judge Scalia that he was going to retire and therefore he would not be hiring any law clerks. That was the first time Judge Wilkey had told any of his colleagues that he had decided to retire. Judge Scalia seemed startled.

Q. What next?

A. I told Judge Scalia that I wanted to clerk for him. I liked Judge Ginsburg, but I felt a stronger personal connection with Judge Scalia, and he and I were both judicial conservatives. I was worried, though, that accepting Judge Scalia’s offer so soon after talking to Judge Ginsburg would seem insulting.

Judge Scalia told me not to worry. He picked up the phone, called Judge Ginsburg, and said: “Ruth, I’ve got Patrick Schiltz in my office. I told him that he can’t leave until he accepts my offer. He has a plane to catch, so he accepted. Blame me.” I could hear her on the other line telling Judge Scalia that she thought the two of us (that is, Judge Scalia and me) were a great match. She was gracious. Years later, I sat next to her at a dinner for new federal judges. She didn’t remember me, but she was relaxed and candid and funny. Despite our jurisprudential differences, I think I would have enjoyed clerking for her.

Q. It seems that the D.C. Circuit was collegial in 1983.

A. It was remarkably collegial. The judges were smart, they worked hard, they loved the back-and-forth of oral argument and writing opinions, and they got along well. Judge Scalia really missed that when he arrived at the Supreme Court. But that’s a story for another day.

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Why did Sotomayor fail to use her hearing to provide a robust defense of progressive judicial ideas? Why did she instead appall progressives by setting forth a ridiculously wooden description of the judicial role?

The answers provide some broader lessons about Supreme Court confirmation battles.

***
There is an enormous temporal mismatch between the political costs and benefits that a White House perceives a Supreme Court nomination to have, on the one hand, and the value that a Supreme Court appointee has for a president’s political base over the long term, on the other.

The president doesn’t benefit politically from how a justice he appointed performs after the president leaves office. He wants the confirmation process itself to deliver political dividends.

Every White House is replete with staffers who reinforce the president’s bias toward short-term political calculations. That bias affects the president’s selection of a Supreme Court nominee. It also plays out in how the nomination battle is waged. White House and Department of Justice staffers have an incentive to dodge controversy. They are generally focused on getting the nominee confirmed as quietly as possible, not in having the nominee engage in a prominent public debate over judicial philosophy.

The nominee has the same short-term incentives to avoid even remote risks to being defeated. That perspective is reinforced by the many hours that the nominee spends with White House and DOJ staffers preparing for meetings with senators and doing practice sessions for the confirmation hearing.

Consider a few illustrations of this phenomenon:

1. When Ruth Bader Ginsburg showed up for her confirmation hearing in 1993, she had every reason to know that she would be confirmed. My boss Senator Orrin Hatch, the lead Republican on the Judiciary Committee, had literally hugged Ginsburg at the White House ceremony at which Bill Clinton announced her nomination. No significant controversy had arisen in the five intervening weeks. Democrats had a 56-44 margin in the Senate, and lots of Republicans were already on board.

Ginsburg could have fully answered every question posed to her. Instead, in her opening statement she declared that her testimony could offer “no forecasts, no hints” on how she “would cast [her] vote on questions the Supreme Court may be called on to decide.” On that basis, she declined to answer many questions about specific cases and issues.

Ginsburg’s approach, which has come to be known as the Ginsburg Rule, has been a great gift to subsequent nominees. That gift has been especially valuable to nominees of Republican presidents, who benefit from the shelter it provides from a generally hostile press.

2. When George W. Bush nominated John Roberts in 2005, news articles widely reported that Roberts had been a member of the Federalist Society. Roberts’s confirmation team raced to contest these reports:

[T]he day after Bush announced Roberts’s nomination, the officials working on the nomination asked the White House press office to call each news organization that had reported Roberts’s membership to tell them that he did not recall being a member.

As I’ve recounted, a Washington Post reporter told me that she and her colleagues were laughing at how eager the White House was to distance Roberts from the Federalist Society. Why should his involvement with it be controversial? But the White House press office found it more convenient to try to run to the middle than to defend conservative judicial principles.

3. A large factor in Bush’s shocking nomination of Harriet Miers in 2005 was, ironically, the supposed ease of getting her confirmed. Karl Rove states in his memoir that “Senate Democratic leader Harry Reid told Bush he would support Miers and felt other Democrats would as well.” Never mind that the Senate had 55 Republicans and had just confirmed Roberts by a margin of 78 to 22. The White House didn’t want a fight.

Consider also a converse illustration: With the benefit of twenty years of hindsight, many conservatives sensibly hail Bush’s subsequent appointment of Samuel Alito as perhaps his greatest act as president. Conservatives celebrated Alito’s appointment at the time, but no one could have clearly foreseen how monumentally important it would prove to be. So whatever credit Bush received at the time was comparatively modest.

***
One big reason why Sotomayor would be dissuaded from trying to make a vigorous case for progressive judicial concepts like “living constitutionalism” is that over the preceding fifteen years or so Republicans had been winning the public political battle over judicial philosophy.

You don’t have to take my word for it. That’s how liberal law professors saw things. In this interesting summary five days after the Senate confirmed Sotomayor’s nomination, one professor observed (in the blogger’s paraphrase) that conservatives

have done a much better job of articulating a jurisprudential philosophy than have liberals over the last generation, and the philosophy they have articulated--some version of judicial restraint plus originalism plus formalism--fits the lay public's view of judging. By contrast, the notion of a “living Constitution” is held up as a code word for judges imposing their preferences on society.

Another law professor’s complaint that conservatives have “oversimplifying and misleading slogans” (again, a paraphrase) was itself a testament to the effectiveness of conservative rhetoric. And a third law professor (the blogger himself) agreed that “conservative dogma has broader public appeal” and urged liberals “to come up with a set of slogans that captures the core of the philosophy and resonates with the public.”

Sotomayor’s own nomination was framed by Barack Obama’s much-mocked “empathy” standard for selecting Supreme Court justices. Obama sought justices who would indulge their own “deepest values” and “core concerns” in determining the meaning of constitutional provisions and federal laws. Sotomayor’s controversial “wise Latina” comment signaled that she satisfied Obama’s standard, and her scandalous mishandling of the race-discrimination claims brought by New Haven firefighters showed that the ugly flip side of empathy for some litigants is antipathy to other litigants.

Sotomayor and her advisers didn’t want to give her opponents any more ammunition, and they didn’t want to raise the political costs of getting her confirmed. That would amply explain why she repudiated Obama’s empathy standard, why she resisted Democratic senators’ invitations to criticize the umpire simile that John Roberts had used to convey the judicial duty of impartiality, and why she absurdly described her “philosophy of judging” as nothing more than “applying the law to the facts at hand.”

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That was liberal law professor Louis Michael Seidman’s blunt condemnation of Sotomayor’s account of her judicial philosophy at her confirmation hearing. (Seidman was taking part in an online debate with me and others).

Let’s take a look here at how Sotomayor described her judicial philosophy. In my next post, I will ponder why.

***

When Barack Obama nominated Sonia Sotomayor to the Supreme Court, all the elements seemed to be in place for an exhilarating triumph for the Left:

• A charismatic president who trumpeted the critical role of empathy in a judge’s determination of what the law means.

• A “wise Latina” nominee with a genuinely inspiring life story and strong ties to the left-wing “public interest” community.

• An overwhelming Democratic majority in the Senate.

• A sympathetic media.

Progressives eagerly awaited Sotomayor’s robust presentation of their judicial vision. But that’s not at all what they ended up witnessing.

In her opening statement, Sotomayor defined her “judicial philosophy”: “The task of a judge is not to make law, it is to apply the law.” She repeated this mantra throughout the hearing:

• “[J]udges must apply the law and not make the law.”

• “[T]hat is my philosophy of judging, applying the law to the facts at hand.”

• “The job of a judge is to apply the law…. The judge applies the law to the facts before that judge.”

• “I apply the law to the facts before it [sic].”

• “We cannot remedy the ills of society in a courtroom. We can only apply the law to the facts before us.”

• “Judges apply the law, they apply the holdings of precedent, and they look at how that fits into the new facts before them. But you’re not creating law.”

More strikingly, Sotomayor emphatically repudiated the empathy standard that Obama committed to use in selecting his Supreme Court nominees:

Senator KYL: Do you agree with [Obama] that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided what’s in the judge’s heart?

Judge SOTOMAYOR. No, sir. That’s—I don’t—wouldn’t approach the issue of judging in the way the President does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it’s not the heart that compels conclusions in cases. It’s the law. The judge applies the law to the facts before that judge.

Sotomayor likewise rejected (or at least appeared to reject) the Left’s concept of a “living Constitution”:

Senator GRAHAM. Do you believe the Constitution is a living, breathing, evolving document?

Judge SOTOMAYOR. The Constitution is a document that is immutable to [sic] the sense that it’s lasted 200 years. The Constitution has not changed, except by amendment. It is a process—an amendment process that is set forth in the document. It doesn’t live, other than to be timeless by the expression of what it says. What changes, is society. What changes, is what facts a judge may get presented.

She instead seemed to argue that the original meaning of constitutional text ought to prevail over mistaken precedent:

Senator HATCH. Which is more important or deserves more weight? The actual wording of the Constitution as it was originally intended or newer legal precedent?

Judge SOTOMAYOR. The intent of the founders were set forth in the Constitution. They created the words, they created the document. It is their words that is the most important aspect of judging. You follow what they said in their words and you apply it to the facts you are looking at.

Sotomayor also rebuffed the invitations by multiple Democratic senators to slam the umpire simile that John Roberts had famously used in his confirmation hearing to convey the judicial duty of impartiality. She instead embraced the simile (while acknowledging the obvious fact that “analogies are always imperfect”):

What judges do, like umpires, is to be impartial and bring an open mind to every case before them.

***

I certainly don’t mean to suggest that anyone should have believed Sotomayor’s statements. As I wrote at the time (in the next round of that same online debate), Sotomayor “deserves an A+ for brazen doublespeak.” But the confirmation hearing was an excruciating fiasco for all the legal progressives, like Seidman, who were reasonably hoping and expecting that Sotomayor would provide an ardent defense of their constitutional vision.

As I will explore in my follow-on post, two larger (and interrelated) lessons emerge from this episode:

(1) By 2009, conservatives had resoundingly triumphed in the public rhetorical battle over the proper role of the courts.

(2) Even when confirmation is a virtual certainty, the White House and a Supreme Court nominee have a strong incentive to play it safe.

In July 2009, two weeks after the Supreme Court rendered its decision in Ricci v. DeStefano, the case was front and center at Sonia Sotomayor’s confirmation hearing. Senator Patrick Leahy, the Democratic chairman of the Judiciary Committee, badly mischaracterized Sotomayor’s role in the case, and Sotomayor embraced his mischaracterizations.

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***

In his opening statement, Senator Jeff Sessions, the senior Republican on the Judiciary Committee, charged that Sotomayor’s shoddy handling of the Second Circuit appeal in Ricci illustrated the unsoundness of Barack Obama’s “empathy” standard for selecting justices and of Sotomayor’s own celebration of the “wise Latina” judge who draws on the “richness of her experiences”:

Judge Sotomayor has said that she accepts that her opinions, sympathies, and prejudices will affect her rulings. Could it be that her time as a leader in the Puerto Rican Legal Defense and Education Fund, a fine organization, provides a clue to her decision against the firefighters?

While the nominee was Chair of that Fund’s Litigation Committee, the organization aggressively pursued racial quotas in city hiring and, in numerous cases, fought to overturn the results of promotion exams. It seems to me that in Ricci, Judge Sotomayor’s empathy for one group of firefighters turned out to be prejudice against another.

That is, of course, the logical flaw in the ‘‘empathy standard.’’ Empathy for one party is always prejudice against another.

***
Senator Patrick Leahy, the Democratic chairman of the Judiciary Committee, used his first round of questioning to attempt to preempt any further attack on Sotomayor over Ricci. Leahy appears to have been unburdened in this endeavor by any scruples about getting things right. Here’s what he asserted:

Now, the legal issue that was presented to you in that case was not a new one—not in your circuit. In fact, there was a unanimous, decades-old Supreme Court decision as well. In addition, in 1991, Congress acted to reinforce that understanding of the law…. So you had a binding precedent. You and two other judges came to a unanimous decision. Your decision deferred to the district court’s ruling allowing the city’s voluntary determination that it could not justify using that paper-and-pencil test under our civil rights laws, you say it was settled judicial precedent. A majority of the Second Circuit later voted not to revisit the panel’s unanimous decision; therefore, they upheld your decision.

So you had Supreme Court precedent. You had your circuit precedent. You were upheld within the circuit. Subsequently, it went to the Supreme Court, and five, a bare majority of five Justices reversed the decision, reversed their precedent, and many have said that they created a new interpretation of the law.

Leahy’s contention that “binding precedent” dictated the Second Circuit panel’s decision in Ricci is flatly wrong. Sotomayor and her panel colleagues didn’t make that claim in their opinion, and the district-court ruling that they essentially adopted went no further than to claim (sloppily) that a previous circuit case holding was “quite relevant and instructive.” As Judge José Cabranes wrote in his dissent from the denial of rehearing en banc:

This appeal raises important questions of first impression in our Circuit — and indeed, in the nation — regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices.

Leahy either didn’t understand what the “legal issue” in Ricci was or didn’t want anyone watching the hearing to understand. The “unanimous, decades-old Supreme Court decision” he was referring to is Griggs v. Duke Power Co. (1971), which ruled (as I explained more fully in my Part 3 post) that Title VII plaintiffs may pursue claims of “disparate impact.” Leahy was correct that the 1991 amendments to Title VII “reinforce[d] that understanding of the law.” But no one disputed that in Ricci. The legal issue instead was whether and when (as Justice Kennedy put it in his majority opinion in Ricci) “an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact.” The Supreme Court had never decided that issue before, and neither had the Second Circuit. So Leahy’s claim that Sotomayor was just following “binding precedent” is poppycock.

It is appalling to see that Sotomayor, in responding to Leahy, embraced his mischaracterization of precedent:

You are correct, Senator, that the panel, made up of myself and two other judges, in the Second Circuit decided that case on the basis of a very thorough, 78-page decision by the district court and on the basis of established precedent.

The issue was not what we would do or not do, because we were following precedent, and you—we’re now on the circuit court—are obligated on a panel to follow established circuit precedent.

You might charitably think that Sotomayor was contending only that the panel decision was consistent with circuit precedent—i.e., was a defensible extension of that precedent. But she immediately extinguished any integrity-salvaging ambiguity that might have existed:

Chairman LEAHY. But when you were deciding it, you had precedent from the Supreme Court and from your circuit that basically determined the outcome you had to come up with. Is that correct?

Judge SOTOMAYOR. Absolutely.

Leahy (as I document near the end of this post) then proceeded to ask Sotomayor about her “wise Latina” remark but doctored her quote to eliminate what rendered it controversial.

***
Senator Sessions, when it was his turn, corrected Leahy’s misquotation of Sotomayor’s “wise Latina” comment and probed her apparent willingness to accept—rather than guard against the danger—that her “sympathies, opinions, and prejudices” might influence her decisionmaking. He invoked her decision in Ricci as an example. But he did not push back against Leahy’s misrepresentations of precedent and Sotomayor’s embrace of those falsehoods.

It was only two days later that another Republican senator, Jon Kyl, challenged Sotomayor’s testimony:

No Supreme Court case had decided whether rejecting an employment test because of its racial results would violate the civil rights laws. Neither the Supreme Court’s majority in Ricci nor the four dissenting judges discussed or even cited any cases that addressed the question. In fact, the Court in its opinion even noted—and I am quoting here—that ‘‘this action presents two provisions of Title VII to be interpreted and reconciled with few, if any, precedents in the court of appeals discussing the issue.’’

In other words, not only did the Supreme Court not identify any Supreme Court cases that were on point; it found few, if any, lower court opinions that even addressed the issue.

Isn’t it true that you were incorrect in your earlier statement that you were bound by established Supreme Court and Second Circuit precedent when you voted each time to reject the fire fighters’ civil rights complaint?

In response, Sotomayor misstated the legal issue at stake in Ricci:

The issue was whether or not employees who were a member of a disparately impacted group had a right under existing precedent to bring a lawsuit. Did they have a right to bring a lawsuit on the basis of prima facie case and what would that consist of?

As I’ve spelled out in detail, Justice Kennedy’s opinion in Ricci stated that the “degree of adverse impact reflected in the results” sufficed to establish “a prima facie case of disparate-impact liability.” That was not the issue in Ricci. The issue was whether (as Kennedy put it) a prima facie case—mere “threshold showing of a significant statistical disparity, and nothing more”—provided a lawful basis for the City of New Haven to discriminate on the basis of race against the plaintiff (white and Hispanic) firefighters.

Kyl pressed on at length, and Sotomayor continued to dissemble. (See pp. 414-419.)

***

After Sotomayor finished her testimony, several panels of witnesses offered their own testimony.

The first witness was Kim Askew, chair of the American Bar Association’s Standing Committee on the Federal Judiciary. Askew presented the ABA committee’s unanimous rating of Sotomayor as “Well Qualified” (its highest rating).

Faithful readers of Confirmation Tales might recall Askew’s scandalous role three years earlier in leading the ABA committee’s investigation of Fifth Circuit nominee Michael B. Wallace that resulted in a “Not Qualified” rating. Among other things, Askew was serving at the same time on the board of trustees of the Lawyers’ Committee on Civil Rights, which occupies the hard Left on matters of race and which fervently opposed leading nominees of the Bush administration. Askew argued that Wallace’s representation of the Mississippi Republican party in a 1984 congressional redistricting case somehow indicated that he was not committed to equal justice. Plaintiffs’ counsel in that case was none other than … the Lawyers’ Committee for Civil Rights. Thus, Askew was assessing the weight and credibility of comments made by those associated with the same left-wing group on whose board she served.

Askew, as it happens, also appears to have had a stark conflict of interest in taking part in the rating of Sotomayor. The Lawyers’ Committee on Civil Rights, which continued to identify her as a member of its board of trustees, submitted an amicus brief in the Supreme Court in Ricci that argued that Sotomayor’s ruling should be affirmed. Given how prominent the Ricci case was as a focus of concerns about Sotomayor’s impartiality, it’s very strange that the ABA’s evaluation of Sotomayor would be led by a member of the board of trustees of an organization that submitted an amicus brief (on either side) in Ricci.

***
Two other witnesses were Frank Ricci and Benjamin Vargas, two of the plaintiff firefighters in Ricci v. DeStefano. Ricci rebutted the misconception that “firefighters just fight fires”:

Technology and modern threats have challenged our profession. We have become more effective and efficient, but not safer. The structures we respond to today are more dangerous, constructed with lightweight components that are prone to early collapse, and we face fires that can double in size every 30 to 60 seconds….

Too many think that firefighters just fight fires. Officers are also responsible for mitigating vehicle accidents, hazardous material incidents, and handling complicated rescues. Rescue work can be very technical. All of these things require a great deal of knowledge and skill.

Lieutenants and Captains must understand the dynamic fire environment and the critical boundaries we operate in. They are forced to make stressful decisions based on imperfect information and coordinate tactics that support our operational objectives. Al most all our tasks are time-sensitive. When your house is on fire or your life is in jeopardy, there are no time for do-overs.

He described his intensive preparation for the promotional exams:

I studied harder than I ever had before, reading, making flash cards, highlighting, reading again, all while listening to prepared tapes. I went before numerous panels to prepare for the oral assessment. I was a virtual absentee father and husband for months because of it.

He highlighted that the City’s action penalized minority firefighters other than Vargas. And he lamented that reducing firefighters to racial statistics “could result in injury or death.”

On top of describing his own hard work preparing for the exams, Vargas addressed his own Hispanic ethnicity:

I am Hispanic and proud of the heritage and background that Judge Sotomayor and I share, and I congratulate Judge Sotomayor on her nomination.

But the focus should not have been on me being Hispanic. The focus should have been on what I did to earn a promotion to captain, and how my own government and some courts responded to that. In short, they didn’t care. I think it important for you to know what I did, that I played by the rules and then endured a long process of asking the courts to enforce those rules….

In our profession, the racial and ethnic make-up of my crew is the least important thing to us and to the public we serve. I believe that countless Americans who had something to say about our case understand that now. Firefighters and their leaders stand between their fellow citizens and catastrophe. Americans want those who are the most knowledge and qualified to do the task. I am willing to risk, and even lay down, my life for fellow citizens, but I was not willing to go along with those who placed racial identity over these more critical considerations.

He expected impartial justice but did not receive it from Sotomayor:

I expected Lady Justice with the blindfolds on, and a reasoned opinion from a Federal Court of Appeals telling me, my fellow plaintiffs, and the public that the court’s view on the law—what the court’s view on the law was, and do it in an open and transparent way. Instead, we were devastated to see a one-paragraph, unpublished order summarily dismissing our case, and indeed even the notion that we had presented important legal issues to that Court of Appeals.

He succinctly made the commonsense case against Obama’s empathy standard:

I expected the judges who heard my case along the way to make the right decisions, the ones required by the rule of law. Of all that has been written about our case, it was Justice Alito [in his concurring opinion] who best captured our own feelings. We did not ask for sympathy or empathy, we asked only for even-handed enforcement of the law, and prior to the majority Justice opinion in our case, we were denied just that.

***
To add insult to injury: When the White House held a reception in August 2009 to celebrate Sotomayor’s appointment to the Court, one surprising party guest was New Haven mayor John DeStefano Jr., the named defendant in Ricci v. DeStefano and, as Justice Alito’s concurrence documented, the driving force—in collusion with a local racebaiter who was his longtime ally—behind the racial discrimination against the firefighters.

Abonnez-vous maintenant

As you will see, a French version of Confirmation Tales—Histoires de confirmation—would not have any content.

***
The French Fifth Republic has been in effect since 1958. The president serves a term of five years. (The French constitution was changed in 2000 to reduce the term from seven years to five.)

The French parliament consists of two houses, the Senate and the National Assembly. The Senate consists of 348 senators. They serve six-year terms, staggered into two classes. The National Assembly has 577 deputies, who serve five-year terms, except that the president has broad power to dissolve the Assembly and to call for new elections.

The president has unilateral authority to appoint the prime minister. But the National Assembly can force the prime minister to resign by passing a motion of censure.

***
France has three high courts with distinct responsibilities: the Conseil d’État, the Cour de Cassation, and the Conseil Constitutionnel.

The Conseil d’État operates as France’s supreme court for administrative law. The Cour de Cassation operates as its supreme court for civil and criminal law. Each hears and decides appeals from lower courts.

The Conseil d’État has seven divisions and more than 200 judges. It typically operates in panels of three to seventeen members. It decides more than 10,000 cases a year.

The Cour de Cassation has six separate subject-matter divisions and some 200 judges. Its panels usually have three or five judges. It decides more than 25,000 cases a year.

Neither of these bodies can decide open constitutional questions. Since 2010, they refer serious unresolved constitutional questions (questions prioritaire de constitutionnalité, or QPCs) to the Conseil Constitutionnel for decision. When the Conseil Constitutionnel resolves a constitutional question, the Conseil d’État and the Cour de Cassation then apply its resolution in the cases before them.

Beyond its new role in deciding QPCs, the Conseil Constitutionnel maintains its traditional function of ruling on the constitutionality of legislation after it has been enacted by the parliament but before it has been signed into law by the president. The Conseil Constitutionnel generally can exercise this function only when a specified authority refers the legislation to it for review.

***
The members of these three bodies are selected through different means, but none involves confirmation.

The Conseil Constitutionnel has nine members (in addition to former presidents, who seldom take part). They are appointed for nonrenewable nine-year terms. Three new members are appointed every three years. The appointment authority is divided among the president, the president of the Senate, and the president of the National Assembly. Each appoints one new member every three years.

The parliament has a sort of veto power over the French president’s appointments to the Conseil Constitutionnel. Specifically, it may block an appointment by a three-fifths majority vote of the combined membership of the constitutional-law committees of the Senate and the National Assembly. But if the committees do not act to block the appointment, it becomes effective. (By contrast, in the American system, Senate confirmation of a nomination is a prerequisite to an effective appointment.) The committees of the Senate and the National Assembly each also have a veto power (again by a three-fifths majority) over appointments made by their chamber presidents.

No appointment to the Conseil Constitutionnel has ever been blocked by these parliamentary committees. Just last February, the committees fell one vote short of blocking President Emmanuel Macron’s appointment of Richard Ferrand.

Members of the Conseil d’État are appointed by the Council of Ministers (which consists of the prime minister and other ministers). They do not have fixed terms. Members of the Conseil d’État have civil-service protections, are eligible for regular advancement based on seniority, and are subject to discipline or revocation via internal disciplinary mechanisms rather than political checks.

Judges on the Cour de Cassation are appointed by the president, but the president is constrained to act only on the recommendation of another body, the High Council of the Judiciary (Conseil Supérieur de la Magistrature). They have strong protections against removal or reassignment, but are subject to a mandatory retirement age (ranging from 67 to 70, depending on their positions).

***
France remains very foreign.

(I have drawn on various sources for this post, including Claude AI and Wikipedia, but I have undertaken to verify what I have learned from those sources. I am of course responsible for any errors and will undertake to correct them.)

No Supreme Court case has ever loomed more ominously over an aspiring Supreme Court justice than Ricci v. DeStefano did over Sonia Sotomayor in 2009.

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Oral argument in Ricci took place just before Justice David Souter announced his retirement. The case weighed on White House lawyers during the weeks that Barack Obama took to select Sotomayor for Souter’s seat, and it hung over the first month of her nomination. When the Court did rule, a five-justice majority emphatically repudiated Sotomayor’s position, and even the four dissenters disagreed with the standard that she adopted and with her bottom-line judgment. Even more starkly, the careful and extensive consideration in the majority and dissenting opinions contrasted sharply with Sotomayor’s dismissive one-paragraph treatment of the legal claims.

***

As we have seen, Sonia Sotomayor and her Second Circuit colleagues tried to bury the claims of twenty firefighters—nineteen whites and one Hispanic—that the City of New Haven had discriminated against them on racial grounds by discarding the results of promotional exams. It was bad enough for Sotomayor that Judge José Cabranes—her onetime mentor and fellow Puerto Rican—exposed the shenanigans in his extraordinary dissent from denial of rehearing en banc. It got even worse in January 2009 when the Supreme Court granted certiorari in the case.

The dispute that Sotomayor had tried to dispose of in an unpublished summary order with a single substantive paragraph would now be teed up for national attention. The Supreme Court would be addressing for the first time how to resolve the statutory clash between the City’s duty not to engage in intentional racial discrimination against the plaintiff firefighters and its duty to avoid employment practices that had a “disparate impact” on minority firefighters.

***

Let’s clarify what was at stake in Ricci.

Title VII, as originally enacted in the Civil Rights Act of 1964, prohibits discrimination “because of” race (as well as “color, religion, sex, or national origin”)—i.e., intentional discrimination, also referred to as “disparate treatment.” In its unanimous ruling in Griggs v. Duke Power Co. in 1971, the Supreme Court held that this prohibition also applies to any practice that, although not intentionally discriminatory, “operates to exclude [minorities and] cannot be shown to be related to job performance.” A practice that unintentionally “operates to exclude” minorities beyond some (arbitrary) benchmark is said to have “disparate impact.”

In 1991, Congress effectively ratified Griggs by amending Title VII to spell out how the burden of proof in disparate-impact cases shall operate. In brief: The plaintiff establishes a prima facie case that an employment practice is unlawful by showing that it “causes a disparate impact on the basis of race.” The employer then has the burden to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” If the employer meets that burden, the plaintiff may still succeed by showing that the employer has refused to adopt an available alternative employment practice that has less of a disparate impact and that serves the employer’s legitimate needs.

Let’s make this concrete.

By tossing out the results of the promotional exams, the City of New Haven engaged in racial discrimination against (i.e., disparate treatment of) Frank Ricci, Benjamin Vargas, and their fellow plaintiffs. The City would not have tossed out the results if the racial composition of those qualifying for promotion had pleased it more. The City tried to justify its racial discrimination by claiming that it was acting to avoid disparate-impact liability to those minority firefighters who did less well on the exams.

The issue in Ricci was what standard the City had to meet in order to allow its disparate-impact concerns to trump its duty not to engage in intentional racial discrimination against the plaintiffs.

Consider the polar alternatives.

On one extreme—the position adopted by Sotomayor and her panel colleagues—the City should have broad rein to commit racial discrimination in order to avoid disparate-impact concerns. In the panel’s words, “because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.” It sufficed that the potential disparate-impact plaintiffs could meet the minimal prima facie threshold of showing that the exams had a racially disparate impact. It did not matter whether such plaintiffs had any plausible prospect of actually succeeding on their disparate-impact claims. As Judge Cabranes correctly observed, under the panel’s approach, “municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome — i.e., failed to satisfy a racial quota.”

On the opposite extreme, the City could be required to certify the exam results even when it was certain that doing so would make it liable for disparate-impact discrimination to minority firefighters. This would put the City in a Catch-22 and would seem to put Title VII at war with itself (though one resolution to the war would be to hold the disparate-impact provisions unconstitutional in such instances).

Between these extremes were various other alternatives.

***
Oral argument in Ricci was set for April 22, 2009. As the argument date approached, attention to the case increased. As a savvy and aggressive aspirant for a Supreme Court nomination, Sotomayor knew that a vacancy was likely to arise that spring or summer. She also surely recognized that her escapades in Ricci made it more difficult for Barack Obama to nominate her.

Five days before the oral argument in Ricci, Sotomayor did some extraordinary public cheerleading for Obama. In a speech she delivered to the Black, Latino, Asian Pacific American Law Alumni Association, she proclaimed:

“The power of working together was, this past November, resoundingly proven.”

“The wide coalition of groups that joined forces to elect America’s first Afro-American President was awe inspiring in both the passion the members of the coalition exhibited in their efforts and the discipline they showed in the execution of their goals.”

“On November 4, we saw past our ethnic, religious and gender differences.”

“What is our challenge today: Our challenge as lawyers and court related professionals and staff, as citizens of the world is to keep the spirit of the common joy we shared on November 4 alive in our everyday existence.”

“It is the message of service that President Obama is trying to trumpet and it is a clarion call we are obligated to heed.”

If you don’t think that such comments from a sitting judge are problematic, imagine another judge making similar comments about Donald Trump’s election.

***

Nine days after oral argument in Ricci, Justice David Souter announced his retirement. It took Obama 25 days to select Sotomayor.

As Joan Biskupic recounts in her biography of Sotomayor, White House lawyers were working through their concerns about her actions in the Ricci case. They knew that the Court would issue its decision before the confirmation hearing on Obama’s nominee took place, and they expected the Court to reverse Sotomayor. Indeed, the Administration’s own brief in the case, while broadly supportive of the City, took the position that Sotomayor and her colleagues were wrong to affirm the district court’s grant of summary judgment for the City. But White House lawyers figured that a reversal of Sotomayor could be blamed on conservative justices, and that, with 59 Democrats in the Senate, any controversy over Ricci would not imperil Sotomayor’s confirmation.

***

The Court announced its decision in Ricci in the last announcement session of the term, on June 29—just two weeks before Sotomayor’s confirmation hearing would begin. The Court divided 5 to 4. Justice Anthony Kennedy’s opinion rejected the City’s position that “an employer’s good-faith belief that its actions are necessary to comply with Title VII’s disparate-impact provision should be enough to justify race-conscious conduct.” That “minimal standard,” he explained, would be satisfied “even where there is little if any evidence of disparate-impact discrimination” and “would amount to a de facto quota system.” Drawing on racial-discrimination cases arising under the Equal Protection Clause, the Court instead declared:

We hold that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. [Emphasis added.]

In this case, “the record makes clear there is no support for the conclusion that [the City] had an objective, strong basis in evidence to find the tests inadequate.” While the “degree of adverse impact reflected in the results” sufficed to establish “a prima facie case of disparate-impact liability,” that was merely “a threshold showing of a significant statistical disparity, and nothing more.” That prima facie case “is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results.” The City “could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt,” but, as Justice Kennedy went on to document in detail, there was “no strong basis in evidence to establish that the test was deficient in either of these respects.”

Justice Ruth Bader Ginsburg, joined by Souter and her two other liberal colleagues, dissented. Justice Ginsburg would have adopted the test whether the employer had “good cause” to act. Notably, she distinguished her standard from that applied by the Second Circuit panel and the district court, who in her view mistakenly “focused on [the City’s] intent.” She also explained that her preferred disposition would be to remand the case to the district court to apply her standard.

Sotomayor’s defenders tried to claim vindication from Ginsburg’s dissent. But beyond the fact that Ginsburg disagreed with Sotomayor’s standard and with her affirmance of summary judgment, Ginsburg’s dissent does not remotely suggest that Sotomayor’s effort to dispose of the case in an unpublished one-paragraph summary order was appropriate.

***
Justice Ginsburg also shadow-boxed with Justice Samuel Alito over Obama’s empathy standard. Justice Ginsburg stated in her dissent that the “white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy”—as if the majority was indulging its empathy for them (and for the Hispanic plaintiff, Benjamin Vargas, whom Ginsburg somehow ignores). Alito responded:

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision.

The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.

***
As we shall see, Ricci would play a prominent role in Sotomayor’s confirmation hearing. Unable to defend her actual course of conduct, Sotomayor and the Democratic chairman of the Senate Judiciary Committee would resort to falsehoods.

But as Second Circuit judge (and Clinton appointee) José Cabranes would spell out in his extraordinary dissent from denial of rehearing en banc in June 2008, the panel dismally failed to give plaintiffs’ legal claims the serious attention that they deserved.

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***

In February 2008, Sotomayor and her panel colleagues Rosemary Pooler and Robert Sack issued an unpublished “summary order” rejecting the firefighters’ appeal of Arterton’s ruling. That order (available as Appendix A to Cabranes’s dissent) had only this single substantive paragraph:

We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

As Joan Biskupic recounts in her celebratory biography of Sonia Sotomayor, Breaking In, Judge Cabranes learned of the ruling by reading his local New Haven newspaper. He was surprised that the panel would deal with a case of such magnitude by a summary order, and the deeper he dug, the more aghast he was. He urged the panel to withdraw its order and issue a full opinion. But the panel refused. He then requested that the Second Circuit rehear the case en banc, but the full court rejected rehearing by a vote of 7 to 6. To compound the damage, the panel re-issued its order as a published ruling that (unlike its summary order) would qualify as binding Second Circuit precedent.

In his dissent from the denial of en banc rehearing, Cabranes vigorously objected to his colleagues’ burial of the firefighters’ claims:

This appeal raises important questions of first impression in our Circuit — and indeed, in the nation — regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices. At its core, this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another? In a path-breaking opinion, which is nevertheless unpublished, the District Court answered this question in the affirmative, dismissing the case on summary judgment. A panel of this Court affirmed in a summary order containing a single substantive paragraph. Three days prior to the filing of this opinion, the panel withdrew its summary order and filed a per curiam opinion adopting in toto the reasoning of the District Court, thereby making the District Court's opinion the law of the Circuit.

Cabranes found Arterton’s reasoning implausible on its face:

Although it is not disputed that the decision to discard the examination results was based on racial considerations, the District Court determined as a matter of law that no racial discrimination had occurred “because [all of] the test results were discarded and nobody was promoted” and because “nothing in the record in this case suggests that the [defendants] acted because of discriminatory animus toward plaintiffs or other non-minority applicants for promotion.” [Citations omitted; cleaned up.]

The panel’s brisk dismissal of the firefighters’ claims, he explained, was very surprising:

On appeal, the parties submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages; plaintiffs' reply brief was thirty-two pages long. Two amici briefs were filed and oral argument, on December 10, 2007, lasted over an hour (an unusually long argument in the practice of our Circuit). More than two months after oral argument, on February 15, 2008, the panel affirmed the District Court's ruling in a summary order containing a single substantive paragraph.

Even worse was the decision of the panel, once it knew that it had escaped en banc review, to re-issue its order as a published and precedential opinion:

This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.

And then this killer understatement:

This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.

Cabranes objected that under the panel’s approach, “municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome — i.e., failed to satisfy a racial quota.”

Cabranes (and his five colleagues who joined his dissent) clearly believed that the Second Circuit panel members acted as they did in order to prevent en banc or Supreme Court review of the firefighters’ claims that they were victims of racial discrimination. Cabranes expressed his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.”

***
The firefighters surely did not take any solace from the statement by Sotomayor and her colleagues that “We are not unsympathetic to the plaintiffs’ expression of frustration.” They were not undertaking to make an “expression of frustration.” They were advancing legal claims that they had been discriminated against on the basis of race. And they expected those legal claims to be addressed seriously.

For Sotomayor at least, it is also difficult to believe that she was “not unsympathetic” to the firefighters’ claims. Sotomayor was deeply distrustful of tests. As her biographer Biskupic writes, she “attributed differences in test scores between well-off whites and disadvantaged minorities to the cultural biases built into testing.” She declared herself “the perfect affirmative action baby”: “My test scores were not comparable to that [sic] of my colleagues at Princeton or Yale,” she acknowledged, so if there had been heavy reliance on those scores, “it would have been highly questionable whether I would have been accepted.”

Unlike some other beneficiaries of racial preferences, Sotomayor was deeply wedded to the system of advantages they conferred on her. Per Biskupic:

She had climbed the ladder of the law not just because she was smart and worked hard but because people in positions of power … sought to hire and promote blacks and Hispanics. Sotomayor understood that she was sometimes chosen over white candidates because of her ethnicity, but she objected to contentions that she was not as qualified or as competent because of the boosts she received.

In short, this “wise Latina” seemed to have learned from “the richness of her experiences” that claims by whites that they had been victimized by racial discrimination did not deserve to be taken seriously.

***

I took a special interest in Judge Cabranes’s dissent (and highlighted it at the time) precisely because Sonia Sotomayor was one of the three members of the Second Circuit panel that buried the firefighters’ claims. The 2008 presidential election was some months away, and, as I observed, “Sotomayor is mentioned often as a likely Supreme Court pick in an Obama administration.”

Barack Obama would of course win that election. Eleven days before his inauguration in January 2009, the Supreme Court granted review of the Second Circuit’s ruling.

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The case likewise revealed the danger of Sotomayor’s belief that a “wise Latina” judge should draw on the “richness of her experiences” to “reach a better conclusion than a white male who hasn’t lived that life.” Sotomayor, a self-regarding “wise Latina,” drew on the richness of her own experiences to trample the rights of whites not to be victimized by racial discrimination.

As it happens, Second Circuit judge José Cabranes, Sotomayor’s onetime mentor and fellow Puerto Rican, would expose Sotomayor’s shenanigans in an extraordinary dissent from denial of rehearing en banc.

The saga of Ricci v. DeStefano, with its cast of lots of villains and some heroes, is far too large to be packed into a single post. I will tell the beginning of the story here.

***
In 2003, the New Haven Fire Department administered examinations for promotion to the ranks of captain and lieutenant. Expert consultants hired by the City of New Haven carefully designed the examinations to be race-neutral. But the City was not happy with the results.

Forty-one applicants took the test to be captain. Of the twenty-two applicants who passed, 16 were white, 3 black, and 3 Hispanic. The percentage of white applicants who passed was markedly higher than the percentage of black and Hispanic applicants who did. Further, the top scorers, who would be eligible for immediate promotion to the existing vacancies, consisted of 7 whites and 2 Hispanics.

The results were roughly similar on the test to be lieutenant. Of the thirty-four who passed, 25 were white, 6 black, and 3 Hispanic. More than half of the white applicants passed; fewer than one-third of the black applicants did; and only one-fifth of the Hispanic applicants. The top scorers who would be eligible for immediate promotion were all white (though new vacancies would arise for the lieutenants who were promoted to captain, and three black applicants would have been eligible for those positions).

The test results triggered intense and racialized political controversy in New Haven. The City responded by declining to certify the test results, so no promotions were made.

Twenty firefighters—nineteen whites and one Hispanic—sued the City and City officials for discriminating against them on racial grounds. I’ll highlight here the two who ended up testifying at Sotomayor’s confirmation hearing.

Frank Ricci was the lead plaintiff. Ricci studied 8 to 13 hours per day to prepare for the lieutenant’s test and spent more than $1000 purchasing books and paying for them to be read on tape (because of his dyslexia). As he told the Senate Judiciary Committee:

I studied harder than I ever had before, reading, making flash cards, highlighting, reading again, all while listening to prepared tapes. I went before numerous panels to prepare for the oral assessment. I was a virtual absentee father and husband for months because of it.

Benjamin Vargas was the Hispanic plaintiff. Like Sotomayor, he was Puerto Rican and proud of his heritage. He and his family likewise sacrificed so that he could study hard to prepare for the captain’s test:

I am the proud father of three young sons. For them, I sought to better my life and so I spent 3 months in daily study preparing for an exam that was unquestionably job-related. My wife, a special education teacher, took time off from work to see me and our children through this process.

Vargas was badly beaten in 2004 in an attack that (as the New York Times reported) he believed was in retaliation for his joining the lawsuit. Other potential plaintiffs, including the black applicants who passed the tests and who would have been in line for promotions down the road if the tests had been certified, faced severe pressure not to sue.

***
Federal district judge Janet Bond Arterton probably beats out Sonia Sotomayor as the worst judicial scoundrel in this saga. The firefighters moved for summary judgment on their claims that they had suffered racial discrimination in violation of the Equal Protection Clause and Title VII. The City defendants likewise moved for summary judgment in their favor. Among other things, they claimed that they refused to certify the test results in order to prevent a Title VII disparate-impact lawsuit by minority test-takers.

In a long—but, oddly, unpublished—opinion, Arterton granted summary judgment for the defendants. (Arterton’s opinion is Appendix B to Cabranes’s dissent.) I’m going to give Arterton’s opinion special attention because, as we shall see, Sotomayor and her colleagues on the Second Circuit panel on appeal, instead of presenting their own analysis of the legal issues, simply “affirm[ed], substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below.”

On plaintiffs’ Title VII claim, Arterton acknowledged that “Plaintiffs’ evidence — and defendants’ own arguments — show that the City’s reasons for advocating non-certification were related to the racial distribution of the results.” She further concluded that a “jury could infer that the defendants were motivated by a concern that too many whites and not enough minorities would be promoted were the lists to be certified.” Arterton further conceded that defendants hadn’t proven that the very tests they arranged to provide were racially biased and that there were “shortcomings in [defendants’] evidence on existing, effective alternatives” to the tests.

You might reasonably think that all of this would mean that plaintiffs had presented enough evidence to go to the jury (i.e., to get beyond summary judgment) on their Title VII claim. But Arterton somehow determined that “Defendants’ motivation to avoid making promotions based on a test with a racially disparate impact, even in a political context, does not, as a matter of law, constitute discriminatory intent.” In other words, it simply didn’t matter that there was ample evidence that the City had refused to certify the test results because it didn’t like the racial distribution of the results. Such a motivation must be deemed not to have been racially discriminatory.

Arterton, I’ll note, found a Second Circuit ruling from 1999 to be “quite relevant and instructive.” But as Judge Cabranes would observe in distinguishing that ruling:

Neutral administration and scoring — even against the backdrop of race-conscious design of an employment examination — is one thing. But neutral administration and scoring that is followed by race-based treatment of examination results is surely something else entirely. [Boldface added.]

Even more amazingly, Arterton maintained that the “result” of the City’s decision not to certify the test results “was race-neutral”: “all the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion.” Never mind that the failure to certify disadvantaged those who would have been eligible for promotion.

If I’m reading her convoluted opinion correctly, Arterton concluded that the City’s “desir[e] to comply with the letter and spirit of Title VII”—and to avoid a Title VII lawsuit by test-takers who didn’t pass—provided a “legitimate non-discriminatory reason” for not certifying the test results. But as Judge Cabranes objects:

Under the District Court’s rationale, it appears that any race-based employment decision undertaken to avoid a threatened or perceived Title VII lawsuit is immune from scrutiny under Title VII. This appears to be so, moreover, regardless of whether the employer has made any efforts to verify that a valid basis exists for the putative Title VII suit.

Arterton similarly concluded that the firefighters’ Equal Protection claim failed because they supposedly could not show that City officials “acted out of an intentionally discriminatory purpose.” In her view, showing discriminatory “animus” was essential to showing intentional discrimination. Thus, she found it exculpatory rather than incriminating that City officials, in her words

acted based on the following concerns: that the test had a statistically adverse impact on African-American and Hispanic examinees; that promoting off of this list would undermine their goal of diversity in the Fire Department and would fail to develop managerial role models for aspiring firefighters; that it would subject the City to public criticism; and that it would likely subject the City to Title VII lawsuits from minority applicants that, for political reasons, the City did not want to defend.

In sum, while there are many adjectives that could be used to describe Arterton’s opinion, “thorough, thoughtful, and well-reasoned” would not be among them.

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Second Circuit judge Sonia Sotomayor offered that comment on the “difference” that “our gender and national origins may and will make … in our judging” in a 2001 lecture at Berkeley law school titled “A Latina Judge’s Voice.” Her remark would become national news within two weeks of Justice David Souter’s announcement of his retirement in 2009, and it would dog her throughout her confirmation process.

The intense controversy that Sotomayor’s “wise Latina” comment aroused stands in sharp contrast to the lack of attention that Ruth Bader Ginsburg’s incendiary positions received during her confirmation process sixteen years earlier. The difference arose from two dramatic and interrelated changes that had occurred in the meantime.

***
Back in 1993, the Internet did not exist for most Americans. As a Judiciary Committee staffer for Senator Orrin Hatch, I received Ruth Bader Ginsburg’s Senate questionnaire response, with its voluminous attachments, only on paper. The American public did not have easy access to a list of her law-review articles and other writings, much less to the writings themselves. No one—myself included—was in a position to review much of her record beyond her judicial opinions in the extraordinary 86 days that Bill Clinton took to select her.

So during the three weeks between Ginsburg’s nomination and her hearing, it was a big surprise to me to run across a 212-page report that Ginsburg (and her co-author) wrote in 1974 that set forth these explosive propositions:

“Replacing ‘Mother’s Day’ and ‘Father’s Day’ with a ‘Parents’ Day’ should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles.” [p. 133]

“Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions.” [p. 72]

A statutory restriction on political rights of bigamists “is of questionable constitutionality since it appears to encroach impermissibly upon private relationships.” [pp. 190–191]

“Sex-segregated adult or juvenile institutions are obviously separate and in a variety of ways, unequal.... If the grand design of such institutions is to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society, then perpetuation of single-sex institutions should be rejected…. While the personal privacy principle permits maintenance of separate sleeping and bathing facilities, no other facilities, e.g., work, school, cafeteria, should be maintained for one sex only…. [G]ender should not be a relevant factor in determining institutional assignments [for prisoners].” [p. 75]

“The Boy Scouts and the Girl Scouts, while ostensibly providing ‘separate but equal’ benefits to both sexes, perpetuate stereotyped sex roles to the extent that they carry out congressionally-mandated purposes.” [p. 131]

The age of consent for statutory rape should be lowered from 16 to 12.* [pp. 69-71 and the specific recommendation regarding 18 U.S.C. § 2032 on page 76.]

Not a single reporter made any mention of this report during the entire confirmation process, and Ginsburg received only one mildly worded question about it during her hearing.

Communications technology had been revolutionized by 2009. Vastly more information was available to anyone looking for it, and any nugget could be shared quickly and broadly.

A diligent researcher at an obscure blog called Verum Serum discovered Sotomayor’s “wise Latina” remark and wrote about it on May 5, 2009, a mere four days after Souter’s announcement. New York Times reporter Charlie Savage ran across the Verum Serum blog post. On May 14, he published an article on Sotomayor’s 2001 speech and observed that she had “described her view of judging in terms that could provoke sharp questioning in a confirmation hearing.” He also posted the full speech, which had been published in the Berkeley La Raza Law Journal.

***
Nearly all Republican senators back in 1993 embraced the “deference” model on Supreme Court nominations. Under that model, they would support a nominee selected by a Democratic president if that nominee met some suitable standard of intellect, character, and experience. The nominee’s judicial philosophy was at best a modest factor in their assessment.

It should seem very strange that Republican senators would abide by the deference model even after Democratic senators had clearly abandoned it, first in their defeat of Robert Bork’s nomination in 1987 and then in their opposition to Clarence Thomas’s nomination in 1991. (Even before Anita Hill surfaced, most Democratic senators were expected to vote against Thomas’s confirmation.)

The explanation I’ve offered is that Republican senators perceived that deference served their individual electoral interests. Their path to re-election was easier if a Supreme Court nomination didn’t become controversial. By invoking the deference approach, a senator acted to preempt any controversy: he sought to ensure that his own party wouldn’t punish him for his support for the Supreme Court nominee of an opposite-party president, and he aimed to win credit from voters of the opposite party and from independents.

Under this deference approach, Republican senators were looking for reasons to be able to vote yes on Ginsburg.

By 2009, many Republican senators would risk a serious primary challenge if they tried to hide behind the deference model. Both political parties had mobilized over judicial nominations and over competing judicial philosophies. Senate Democrats had escalated the battle over lower-court nominations by their unprecedented campaign of partisan filibusters. They had also vigorously contested George W. Bush’s nominations of Chief Justice John Roberts and Justice Samuel Alito.

So Republican senators were now looking for reasons to be able to vote against whomever Obama would nominate. And reasons grounded in judicial philosophy were especially attractive.

***

The National Journal’s Stuart Taylor published an early prominent critique of Sotomayor’s “wise Latina” remark. Taylor acknowledged that part of Sotomayor’s speech “was an unexceptionable description of the fact that no matter how judges try to be impartial, their decisions are shaped in part by their personal backgrounds and values, especially when the law is unclear.” But he powerfully condemned her “wise Latina” sentence:

So accustomed have we become to identity politics that it barely causes a ripple when a highly touted Supreme Court candidate, who sits on the federal Appeals Court in New York, has seriously suggested that Latina women like her make better judges than white males.

Indeed, unless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: “I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn’t lived that life” — and had proceeded to speak of “inherent physiological or cultural differences.”

Sotomayor’s supporters rushed to defend Sotomayor, or at least to try to explain away her comment. One White House ally contended that Sotomayor “misspoke.” Justice Ruth Bader Ginsburg offered the same feeble defense shortly before Sotomayor’s hearing began: “Think of how many times you’ve said something that you didn’t get out quite right, and you would edit your statement if you could.” But Sotomayor read from a prepared text, and she later published that text as a law-review article.

Others misstated what Sotomayor had said. Judiciary Committee chairman Patrick Leahy was especially brazen. At Sotomayor’s confirmation hearing, Leahy purported to ask her about her comment:

You said that, quote, you “would hope that a wise Latina woman with the richness of her experiences would reach wise decisions.”

Leahy doctored the quote to eliminate the very elements of Sotomayor’s comment that rendered it controversial.

Still others went on the racial offensive by ludicrously contending that critics of Sotomayor’s remark were disputing that a “wise Latina” could exist.

***

The phrase “wise Latina” appears 27 times in the transcript of Sotomayor’s confirmation hearing. Here’s what she had to say about her remark:

The context of the words that I spoke have created a misunderstanding … and to give everyone assurances, I want to state up front unequivocally and without doubt, I do not believe that any ethnic, racial, or gender group has an advantage in sound judging.

Sotomayor implausibly claimed that the “words that I used” were “agreeing with the sentiment that Justice Sandra Day O’Connor was attempting to convey …, which is that both men and women were equally capable of being wise and fair judges.” In fact, in her speech Sotomayor expressly contrasted her position with O’Connor’s. She noted that O’Connor had often been cited for the statement that “a wise old man and wise old woman will reach the same conclusion in deciding cases,” and she stated that “I am … not so sure that I agree with the statement.” That was her set-up for her “wise Latina” comment.

* I learned years later that it appears that Ginsburg made a drafting error and that she instead meant to make the somewhat more modest recommendation that the age of consent for statutory rape under federal law be reduced from 16 to 12 for offenders who were less than five years older than the target.

***
The two most obvious battles were over Sotomayor’s previous nominations as a federal district judge in 1991 and as a Second Circuit judge in 1997. Let’s start with the first.

It might seem curious that it was President George H.W. Bush, a Republican, who nominated Sotomayor to the Southern District of New York in 1991. But that curiosity is explained by the massive power that the Senate Judiciary Committee’s blue-slip privilege gave (and continues to give) home-state senators over district-court nominees.

New York’s two senators, Democrat Daniel Patrick Moynihan and Republican Al D’Amato, had established a power-sharing arrangement over district-court nominees in New York. The senator who was the same party as the president would dictate three of every four nominees, while the senator of the opposite party would get one of four picks. So it was that Moynihan selected the 37-year-old Sotomayor—and (as his aides would recount years later) he did so in the conviction that he was setting her on the path to the Supreme Court.

Lawyers in the Bush White House tried to resist: they saw Sotomayor as too left-wing, and they knew too that she was being groomed for higher office. But D’Amato’s own power rested on ensuring that Moynihan got his picks.

Sotomayor had her confirmation hearing in June 1992. As I’ve recounted, Senator Richard Shelby of Alabama, who was then a Democrat, was angry at his fellow Democrats over their mistreatment of Eleventh Circuit nominee Ed Carnes. He retaliated by holding Sotomayor’s nomination hostage: if Carnes didn’t receive a cloture vote on his nomination, Shelby wouldn’t free Sotomayor’s nomination. Democratic Senate majority leader George Mitchell promised Shelby that Carnes would get a cloture vote, and Sotomayor was confirmed without a roll-call vote in August 1992.

Sotomayor became the youngest federal judge in the Southern District of New York as well as the first Hispanic federal judge in New York. She also acquired the moderate camouflage of being a George H.W. Bush appointee whom the Senate had confirmed unanimously.

***

In June 1997, President Bill Clinton nominated Sotomayor, age 43, to the Second Circuit. Republicans controlled the Senate. Al D’Amato of New York could well have used his blue-slip privilege (which was then also robust on appellate nominees) to block any action on her nomination, and he could have used the threat of a negative blue slip to deter Clinton from nominating her in the first place. But D’Amato, facing a tough re-election contest and seeking the votes of Hispanic constituents, was instead a big backer of Sotomayor.

Sotomayor had her confirmation hearing in September 1997, and, over the objections of Senator Jon Kyl and Senator John Ashcroft, the Judiciary Committee reported her nomination to the Senate floor in March 1998. But in June, amid rumors that Justice John Paul Stevens might resign, her nomination became (in the words of the New York Times) “embroiled in the sometimes tortured judicial politics of the Senate”:

Some Republicans did not want to consider the nomination because, they said, putting her on the appeals court would enhance her prospects for elevation to the Supreme Court.

In October 1998, the Senate confirmed Sotomayor’s Second Circuit nomination by a vote of 67-29. In November, D’Amato lost his re-election bid to Chuck Schumer by more than ten points.

***
Other nomination battles helped keep Sotomayor’s path clear.

José Cabranes, who had won admiration for his work as a district judge in Connecticut since 1979, was prominently mentioned as a leading contender for the two Supreme Court vacancies that arose during Bill Clinton’s first two years as president, 1993 and 1994. On top of Cabranes’s strong qualifications and his relative youth (52), Clinton would have relished appointing the first Hispanic justice.

As Cabranes recounted to me, the White House invited him on short notice for an interview. But as Cabranes was preparing to head to the airport, a call came from the White House scrapping the interview. Cabranes soon heard that some feminist activists who were close to Hillary Clinton made clear that they would never find it acceptable for Bill Clinton to nominate Cabranes—who had in their eyes the dangerously macho combination of being male, Hispanic, and Catholic.

Another mischievous development complicated Cabranes’s candidacy in 1994. Yale law school dean Guido Calabresi informed colleagues that word was spreading among the liberal Hispanic groups supporting Cabranes’s candidacy that Cabranes’s daughter, as an aide to Vice President Dan Quayle, had written a memo assuring the George H.W. Bush White House that Cabranes was pro-life. The story was an utter fiction.

If Clinton had appointed Cabranes to the Supreme Court, it is unlikely that Obama would have been interested in nominating Sotomayor. The Hispanic first would already have been achieved. To be sure, Sotomayor would still have made history as the first female Hispanic justice. But in the diversity competition on the Left, there would have been much more interest in getting a liberal African American on the Court than a second Hispanic (indeed, a second Puerto Rican).

***
The biggest reason that Senate Democrats targeted George W. Bush’s nomination of Miguel Estrada to the D.C. Circuit in 2001 is that they soundly saw that nomination as a stepping stone to the Supreme Court. The Left wanted to prevent Estrada from becoming the first Hispanic justice. As an aide to Democratic senator Dick Durbin put it in a memo to Durbin, liberal interest groups

identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible.

Estrada had superb credentials. A partner in the appellate practice at a leading D.C. law firm, Estrada had worked for five years—nearly all of it in the Clinton administration—as a line lawyer in the Department of Justice’s Office of the Solicitor General (OSG), where he briefed and argued cases on behalf of the United States in the Supreme Court. He had also worked for two years as a federal prosecutor in the vaunted U.S. Attorney’s Office for the Southern District of New York. On top of his sterling academic achievements—graduate with high honors from Columbia University and Harvard Law School—Estrada had distinguished clerkships with Second Circuit judge (and Carter appointee) Amalya Kearse and Supreme Court justice Anthony Kennedy. Over the course of his career, Estrada had earned a reputation for dazzling brilliance.

In brief, he outshone Sotomayor. He was also seven years younger than she was.

Senate Democrats were so determined to defeat Estrada that they dramatically escalated the confirmation wars by deploying the filibuster against his nomination. their historic campaign of partisan filibusters. After seven unsuccessful cloture votes in 2003, Estrada withdrew his nomination.

If Bush had succeeded in appointing Estrada to the D.C. Circuit in 2003 (or earlier), there is a very good chance that he would have nominated him, at the age of 43, to one of the two Supreme Court vacancies that opened up in 2005. And if Bush had made history by appointing such an outstanding candidate as the first Hispanic justice, Sotomayor would have been much less attractive for Obama to select.

***
What William Faulkner wrote of “webs spun long before we were born” is true as well of confirmation battles from years ago: “The past is never dead. It’s not even past.”

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Tribe’s letter did not make waves during Sotomayor’s confirmation process for the simple reason that it did not become public knowledge until I received it and published it some 18 months later. But it provides interesting insight into the behind-the-scenes maneuvering that can take place as advocates of the competing contenders push their favorite.

***
Larry Tribe taught law at Harvard law school for more than 50 years, from 1968 until 2020. In his mid-30s, he wrote a magisterial treatise on constitutional law, American Constitutional Law. He argued frequently in the Supreme Court, and he was a close adviser to liberal senators on judicial confirmations and issues of constitutional law. His tenure included the six years (2003-2009) in which Elena Kagan was the law school’s dean, and he was surely deeply grateful to her for her controversial kid-gloves treatment of plagiarism charges against him.

Barack Obama studied constitutional law with Tribe (as, to much lesser renown, did I), and worked for him as a research assistant. When Obama was running for president in 2008, Tribe hailed him as “the most impressive student I’d ever worked with.” Tribe and Obama remained close during Obama’s remarkable political ascent.

Tribe’s relationship with Obama enabled him to be very candid about how Obama should fill David Souter’s vacancy. Tribe began by emphasizing that it is “very important that you view the vacancy created by Justice Souter's resignation as an opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction”:

Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy's mind. David Souter did, and it will take a similarly precise intellect, wielded by someone with a similarly deep appreciation of history and a similarly broad command of legal doctrine, to prevent Kennedy from drifting in a direction that is both formalistic and right-leaning on matters of equal protection and personal liberty.

He then turned directly to the presumptive frontrunner Sonia Sotomayor and stated that he was “concerned that [her] impact within the Court would be negative in these respects”:

Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court. [Emphasis added.]

Tribe then discussed possible candidates for a future Stevens vacancy and pointedly didn’t mention Sotomayor even for that vacancy.

As for the Souter seat:

I can't think of anyone nearly as strong as Elena Kagan, whose combination of intellectual brilliance and political skill would make her a ten-strike, if you’ll forgive my reference to bowling. I’ve known and worked with her ever since she was my student and research assistant in the 1980s, have watched her become a scholar of the first rank and a star as a teacher, and have marveled at how skillfully she transformed a school that had long been considerably less than the sum of its parts into a vibrant and wonderful place for students to learn and for faculty to teach, write, and collaborate. Her techniques for mastering the substance of the many fields in which we have made important new faculty appointments during her tenure as dean and for gently but firmly persuading a bunch of prima donnas to see things her way in case after case—techniques she has deployed with a light touch and with an open enough mind to permit others to persuade her from time to time—are precisely the same techniques I can readily envision her employing not just with justices like Kennedy but even with a justice like Alito or, on admittedly rare occasions, with a justice like Scalia or Roberts.

Tribe praised another contender, Seventh Circuit judge Diane Wood, as “more powerful intellectually than Sonia Sotomayor or any of the others mentioned as plausible prospects at the moment with the sole exception of Kagan, who is even smarter.” But he observed that Wood, who was ten years older than Kagan, “would be likely to serve nearly a decade less than Elena and doesn’t appear to me to have the dynamic personality or the extraordinary diplomatic gifts for inspiring confidence and for moving others that have made Elena Kagan the best dean of any major law school in memory.”

***
When Obama ended up not following Tribe’s advice, Tribe deftly finessed. Two days after Obama announced his selection of Sotomayor, a New York Times article addressed concerns that she “has a blunt and even testy side” that (at least “to detractors”) “raises questions about her judicial temperament and willingness to listen.” In giving the White House’s answers to those questions, Tribe left the impression that he had supported her selection:

Laurence H. Tribe, a Harvard law professor who served as an adviser in the process that led to Judge Sotomayor’s selection for the Supreme Court, said the White House had found concerns about her temperament unfounded, concluding instead that her background and her concern with the consequences of court rulings would be a “healthy antidote” to more formalist legal theories advocated by the Supreme Court’s conservative wing.

“The president’s inquiries into the way she interacts with others,” Professor Tribe said, “convinced him that she would be a positive force in the chemistry of the Supreme Court.”

It would seem that Tribe’s main role “as an adviser in the process that led to Judge Sotomayor’s selection” was to send his letter to Obama vigorously opposing her.

Tribe would go on to sign his name to a letter from more than one thousand law professors that described Sotomayor as a “brilliant, careful, fair-minded jurist” who was “an exceptionally well-qualified nominee to the Supreme Court.”

***
When I published Tribe’s letter in October 2010, I received a lot of inquiries about how I had obtained it. The short answer is that someone anonymously emailed it to me—or, more precisely, emailed it to someone else who emailed it to me. How that anonymous person obtained the letter is another matter.

It’s a very safe bet that Tribe contemporaneously sent a copy of his letter to Kagan in order to win credit for it. He probably sent it to other supporters of Kagan for the same reason. My guess—and it’s no more than that—is that my anonymous source obtained the letter downstream from one of the original recipients.

***
After I published Tribe’s letter, Tribe claimed that “the reservations I expressed about Justice Sotomayor prior to her nomination were amply refuted by the closer study I was able to give her record before the president made his decision.”

If that were true, Tribe would surely have raced to retract his advice to Obama, right? There is no evidence that he ever did.

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***

The news that Justice Souter would retire leaked on April 30, 2009. The following day, May 1, Justice Souter sent his letter to President Obama.

Second Circuit judge Sonia Sotomayor, Seventh Circuit judge Diane Wood, and Solicitor General Elena Kagan quickly emerged as the top contenders for the nomination.

Sotomayor, then 54, had served on the Second Circuit since 1998. She had an inspiring life story and would be the first Hispanic justice ever (if you don’t count Benjamin Cardozo, a Sephardic Jew of Portuguese descent). She had been groomed for this possibility ever since Senator Daniel Patrick Moynihan of New York, as part of his power-sharing arrangement with his Republican colleague Al D’Amato, forced George H.W. Bush to appoint Sotomayor to a federal district court seat in 1992.

Wood, 58, was a liberal intellectual powerhouse on the Seventh Circuit, which she joined in 1995. She had clerked for Justice Harry Blackmun and before taking the bench had been a professor for over a dozen years at the University of Chicago law school, where Obama also taught.

Kagan, just turned 49, had been dean of Harvard law school before Obama selected her to be Solicitor General. She had been a law clerk for Justice Thurgood Marshall, taught at the University of Chicago law school, and worked in the Clinton White House.

***

When a nomination is up for grabs, the contenders will be tempted to advance their candidacies, especially if they can do so without leaving fingerprints. Their supporters, whether or not urged on by them, will also look for opportunities to do so. One way to promote a candidate ahead of her competitors is to tout her virtues. Another way is to highlight the shortcomings of her competitors.

On May 4, just three days after Souter’s announcement, Jeffrey Rosen, the influential Supreme Court commentator at the then-influential New Republic, published a piece that the New Republic titled “The Case Against Sotomayor.” The essence of Rosen’s article was that Democrats who had worked with her and who wanted Obama “to appoint a judicial star of the highest intellectual caliber” believed that Sotomayor fell far short of the mark:

They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.”

Rosen’s piece ignited a firestorm of anger and infighting on the Left over the weeks that followed. How dare anyone suggest that Sotomayor wasn’t of the “highest intellectual caliber”? Who was feeding this line to Rosen? Who was behind it? What was Rosen’s own hidden agenda?

Kagan ran into different—gentler but still potent—concerns from the Left. As the New York Times reported, “a number of liberals say they are suspicious that she may lean too far toward the middle.”

***

The weeks of delay also enabled conservative critics to expose the records of the contenders. That was the mission I assigned myself. My goal wasn’t to favor one candidate over another. I aimed, rather, to continue to make the case for conservative judicial principles and to illustrate how far afield the contenders strayed from those principles. I hoped to raise the political costs to Obama of whomever he ended up picking.

I won’t burden you with an account of my many posts during this limbo period. I’ll simply observe that I and others succeeded in highlighting and stigmatizing Sotomayor’s “wise Latina” declaration—“I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life”—in a way that I think framed the entire confirmation process.

***
The Obama White House had ample reason to anticipate that a Supreme Court justice would retire in 2009. John Paul Stevens was 89 years old, Ruth Bader Ginsburg was 76, and David Souter, though only 69, was known to hate living in Washington, D.C. and to relish returning to New Hampshire. But it wasn’t prepared to move quickly when Souter informed Obama of his retirement. Obama took a full 25 days before he announced that he would nominate Sotomayor.

Some time will be needed for review and deliberation. But there are always excuses for more dithering. A White House should recognize that delay has its downsides.

A year later, Obama would take 31 days to announce his nomination of Elena Kagan to John Paul Stevens’s seat. And most momentously, upon Justice Scalia’s death in February 2016, Obama would take 32 days to select Merrick Garland—enough time to enable Senate Republican opposition to filling the seat to set in concrete.

***

More broadly, there is an interesting partisan divide on how quickly presidents act: On the Democratic side, in addition to Obama: Bill Clinton took an excruciating 86 days to pick Ruth Bader Ginsburg and another 41 to pick Stephen Breyer. Joe Biden took 28 days to select Ketanji Brown Jackson. Across six nominations, that’s an average of 40 days.

On the Republican side:

• Reagan took 19 days to pick O’Connor.

• Thanks to Chief Justice Burger’s private advance notice of his intention to retire, Reagan was able to nominate William Rehnquist to Burger’s seat and Antonin Scalia’s to Rehnquist’s on the same day that Burger announced his retirement.

• Reagan took 5 days for Bork.

• George H.W. Bush took 3 days to announce Souter and 4 days to announce Clarence Thomas.

• George W. Bush announced his first nomination of John Roberts 18 days after Sandra Day O’Connor declared her retirement.

• And Donald Trump took 12 days to pick Brett Kavanaugh and 8 days to pick Amy Coney Barrett.

So even if you exclude the immediate Rehnquist and Scalia nominations, that’s an average of fewer than 10 days for a nomination by a Republican president. And the slowest nomination by a recent Republican president is faster than the fastest nomination by a recent Democratic president.

(I’ve excluded the selections of Douglas Ginsburg, Anthony Kennedy, Harriet Miers, Samuel Alito, and Neil Gorsuch on the ground that their situations aren’t comparable to first nominations. But I’m not slanting the data. If you want to include them: Reagan announced his intention to nominate Ginsburg 6 days after Bork’s nomination was defeated, and he announced the Kennedy nomination 4 days after Ginsburg withdrew. Bush 43 didn’t want to have two Supreme Court nominations pending at the same time, so he announced Miers 4 days after the Senate confirmed Roberts. He then announced Alito 4 days after Miers withdrew. Trump announced Gorsuch 11 days into his presidency. So these average fewer than 6 days.)

One possible, if partial, explanation for the disparity is that the vacancies during these Democratic presidencies all were announced or arose no later than the spring, so the president may not have felt any urgency in getting a justice in place for the Court’s next October term. By contrast, the vacancies during the Republican presidencies all arose after the Court had recessed for the summer, so a president couldn’t dillydally if he wanted his nominee to be hearing cases as soon as possible.