5 Minute Tute: The US Supreme Court

Why are the Supreme Court nominations important?

Just look at the Bush vs Gore (2000) decision or the murder of Dr George Tiller last weekend. The Supreme Court has carved out a very significant role (not given to it explicitly in the constitution of 1787), and decides many (but by no means all) political questions in the US – the constitutionality of abortion restrictions, the death penalty, affirmative action and presidential privilege to name just a few. Nominating a middle aged judge to the Court (with no retirement age) therefore provides presidents the potential to indirectly shape policy beyond their term in the White House and even beyond the grave. Nominations must also however be seen as a hurdle over which a president must stride. Part of the importance of this nomination stems from the delicate point of his presidency that Barack Obama finds himself at. A failed nomination would affect his personal prestige and therefore his chances of passing healthcare reforms and bank regulatory changes.

What has been Sonia Sotomayor’s track as a judge?

Her most famous case to date involved issuing the preliminary injunction to break the 1994 Major League Baseball Strike. In doing so Sotomayor came down on the side of players (and fans) over owners winning instant, if short lived, public recognition. More recently she decided in Ricci vs DeStefano (2008) on the very sensitive issue of affirmative action. The ruling in DeStefano went against a white fire-fighter who claimed that he had been passed up for promotion on grounds of race. The Second Circuit Court of Appeals (which, if successfully confirmed, Sotomayor is leaving) ruled that the fire department was in fact fulfilling its obligations under the 1964 Civil Rights Act.

Will she be confirmed by the Senate?

Recent nomination hearings have gone smoothly once it has been established that the candidate is at least qualified for the position of Supreme Court Justice (see Bush 43’s failure to get Harriet Miers confirmed). Sotomayor’s biggest remaining danger is a filibuster from the Republican minority in the Senate (still 59-40 to the Democrats until the Minnesota senatorial election is settled). Jeff Sessions, the ranking Republican on the Senate Judiciary committee, has indicated that there will not be this kind of filibuster.

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What does the nomination of Sotomayor mean for diversity?

This is the tricky issue of whether this is the first nomination of a Latino to the Supreme Court. Republican talking-heads have been trying to put a dampener on the nomination by pointing out that Benjamin Cardozo (a clue is in the name) has a good claim to being the first Latino Supreme Court Justice. Appointed in 1932 by Herbert Hoover, Cardozo had Portuguese grandparents. In any case if Sotomayor is nominated it will mean that the Court has no less than six Catholic Justices. This nomination appears to be a handy way to consolidate Latino votes for the Democrats, in states like Florida, Colorado and New Mexico which swung to the Democrats in the 2008 Presidential Election, or Nevada where Senate Majority Leader Harry Reid looks to be in trouble for 2010. However It is worth remembering that Stateside Puerto Ricans (Puerto Rico is part of the US), of which Sotomayor is one, are concentrated on the east coast.

How much would Justice Sotomayor affect the Court’s decisions?

The first question to ask in this situation is who is she nominated to replace? She is replacing David Souter who has been a reliable liberal vote. In this light Bush 43’s last nomination — Samuel Alito to Replace Sandra Day O’Connor — seems much more important. On the all important issue of state abortion restrictions (deemed unconstitutional in Roe vs Wade (1973), a decision which has been slowly rolled back) it looks as if Sotomayor has little form. Her decision in Center for Reproductive Law and Policy v. Bush (2002) concerns a different constitutional principle. Supreme Court justices also have a habit of going native once appointed. Not least the retiring Souter, who conservatives consider to be Bush 41’s worst mistake, after he turned out to be a liberal stalwart. Most famous is the case of Earl Warren who was a Republican governor of California appointed to the court by Dwight Eisenhower, and who went on to orchestrate, as Chief Justice, the most liberal period of decision making in the court’s history. Only Sonia Sotomayor knows how she will play things.

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Tom Lubbock and Andrew Stockley are running a seminar series in Michaelmas Term.
‘Lessons in Government’ has confirmed speakers including Sandra Day O’Connor, Alan Johnson and Lord Phillips (the Lord Chief Justice).