Horizon, Host: Ted Simons

May 26, 2009

Host: Ted Simons

Supreme Court Nominee

  • ASU law professor Paul Bender talks about Judge Sonia Sotomayor, President Obama‚Äôs nominee to replace Justice Souter on the U.S. Supreme Court.
  • Paul Bender - ASU law professor

View Transcript
Ted Simons:
Good evening, and welcome To "Horizon." I'm Ted Simons. President Barack Obama's choice to replace Justice Souter on The U.S. Supreme Court is Federal Appeals Court Judge Sonia Sotomayor. If confirmed by the Senate, She will become the first Hispanic, and only the third woman, to serve on the nation's high court. Joining me to talk about the President's nominee is A.S.U. law professor Paul Bender. Always good to see you. Thanks for joining us.

Paul Bender:
Nice to be here today.

Ted Simons:
Who is Sonia Sotomayor?

Paul Bender:
You just said. She is a judge on the United States Court of Appeals to the Second Circuit. She has been there for what, ten years. Before that she was a district court judge, which is really important, because there is nobody on the current Supreme Court who has any significant experience as a trial judge or a trial lawyer. And since so much of what the court does is -- has got to be enforced, applied by trial judges, I think it is really useful to have somebody on the court who has that kind of background.

Ted Simons:
It is surprising that none of the other justices have experience in trial.

Paul Bender:
Not only in trials, but in litigation. I remember when Ruth Ginsburg got on the court; she had argued five cases before the Supreme Court. She had argued more cases before the Supreme Court than the whole rest of the court combined.

Ted Simons:
My goodness.

Paul Bender:
John Roberts, current Chief Justice, he is really the only one, active chief litigator before the court. The court has turned into a collection of professional federal judges, most of whom who have very little real-world experience, even as corporate lawyers. These are people who have been in the federal system and as judges for a long, long time.

Ted Simons:
What does she now bring to the court?

Paul Bender:
Well, she brings, I think, primarily her background. She was born and grew up in the South Bronx in a public housing project. Raised by a single mother. Her father died when she was nine years old, basically an inner city ghetto. And she did very, very well at school and got a scholarship at Princeton, and did very well and went to Yale and did very well there. There is no one on the court that has that background. Clarence Thomas grew up in a relatively poor area, but it was a rural area. There has been nobody on the court who has shared that experience at all. I can't think of anybody, anything like that. So that, to me, that's the main thing she brings, plus her perspective as a member of a minority group that has suffered a lot of discrimination and that is now a very sizable minority group in the United States. She has that. And her experience as a judge, people think she is a very good judge. All of that stuff. And she is a woman, and, you know, a lot of legal questions affect women differently from the way they affect men. It would be nice to have more than one woman on the court. She brings all of that kind of stuff.

Ted Simons:
Early criticism. Let' start from the left. She is not the intellectual force, if not in terms of, you know, legal expertise, vocal, up front, she doesn't look like she would be that match for Scalia.

Paul Bender:
He likes to entertain the crowd for oral arguments and -- so far as I know, her intellect is easily the match of his. She is not a spectacular person, that is not her personality, but that does not have any effect on what goes on in terms of the court's decisions. I think the people on the left who are a little disappointed with her would hope that she would be much more of a liberal, much more jurisprudential to the left. No one on the court has a liberal kind of agenda since Justice Brennan and Justice Marshall left the court. By that agenda, I mean the agenda that resulted in things like the Miranda case, and Roe against Wade, reapportionment decisions, Brown and Board of Education. Those are all things that were revolutionary in their time, and I think people who think that she is not liberal enough wanted somebody who would do that kind of thing. Nobody in the court now who you could imagine being a leader and getting the court to rule school segregation is unconstitutional. If that issue had come before today's court or these judges had been the judges then, they wouldn't have done it. It took some creativity and some -- and some real feel for real-world problems to do that. So I think those people probably would rather have somebody more that way. It wouldn't make a difference in terms of the decisions today. That would be the only person going there and might attract one or two other votes. Might make a difference five or ten years from now.

Ted Simons:
Critics from the right, early argument seems to be a quote she made a few years ago that courts are where policy is made. Looking her up, I have seen that mentioned a few times. A lot of question marks coming from the right. Your thoughts.

Paul Bender:
I don't know the quote. And I don't know what context she did it in. Courts obviously, policy has something to do with courts because courts have to interpret the law. Interpretation is not a mechanical process; it is a process of judgment. Interpreting your ideas of what societies should be like -- does the equal protection call for racial school segregation -- it is those kinds of judgmental calls that judges have to make. I hope that is what she meant. I can't believe she thinks of herself as a principle policy maker, but interpreting the constitution, more importantly, interpreting statutes. Most of her cases do not involve the constitution, they involve federal statutes. Those statutes are not clear as crystal, as they say, and they need some interpretation, and you need to know what they do, where they're coming from, what the purpose of them is, and that's where policy comes in, or your understanding of the policy comes in.

Ted Simons:
What does this decision by President Obama say about his ideas on the Supreme Court? What he sees the court as being or what it should be?

Paul Bender:
I think, you know, one appointment doesn't tell you a lot. It tells you something. I think it shows that he was quite sincere when he said he was looking for people that not only had the intellectual horsepower to be on the court but had empathy, but had an ability to see things from other people's point of view, to understand what the law did to other people, and I think this is a person like that. I think it shows that he really meant that, and that he is very interested in having a diverse court membership, having a Hispanic on the court, having another woman on the court. I think the most important thing, as I said before; someone coming from an inner city background that had all of the problems that people from those backgrounds had that are not shared by people who grew up in upper middle class circumstances. I think it shows that he is alert to all of that. I would expect that his future appointments would be people of similar kinds.

Ted Simons:
Does it indicate what his next appointment might be? Taking care of this one now, what is he going to take care of next?

Paul Bender:
No, it really doesn't. There used to be a New York seat on the court, and a southern seat, and a New England seat, but that is not true anymore. So, who the next appointment will be is a product of a whole lot of things. First of all, who is leaving the court? You know, if Clarence Thomas were leaving the court, there would be a strong feeling that there ought to be a black person. If there were another black person on the court and then Clarence Thomas left, that would be something else. That kind of thing comes into play. And what is going on in the world at the time. Some issues are lively at a time, and a president might want to stay away from somebody who has an interest in those because they would be a lightning rod for -- how popular the president is. This president is very popular right now. If he is ever going to -- that's interesting, because if he was ever going to put something over that might be criticized, this would be the best time to do it. His popularity is not going to go up, I don't think. He hasn't done that. He picked somebody very moderate, maybe liberal, but quite moderately liberal. That is the way he has been governing.

Ted Simons:
Always a pleasure. Thank you for joining us.

Paul Bender:
Thank, you Ted.

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