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August 6th, 2009
05:36 PM ET

What impact will Sotomayor have on the high court?

The U.S. Senate confirmed Judge Sonia Sotomayor today, in a 68-31 vote.

The U.S. Senate confirmed Judge Sonia Sotomayor today, in a 68-31 vote.

Bill Mears
CNN Supreme Court Producer

With Sonia Sotomayor soon to fulfill her long-held dream to sit on the Supreme Court, she will have the prestige of joining the highest court in the land, lifetime job security, and a public forum as the first Hispanic on that bench.

Her formal swear-in will be Saturday morning at the high court, with Chief Justice John Roberts administering the judicial oath.

The 55-year-old judge now has the opportunity to become a influential force among her new colleagues, a legal pioneer who could help shape the law and its effect on society in any number of ways. But such a legacy will not come easily and it certainly will not come quickly. The internal dynamics of a body built on tradition and stability have long discouraged swift and sweeping forces that are regularly felt in the other branches of government, and society at large.

After her Thursday confirmation by the Senate, Sotomayor will become the junior justice, someone with the least seniority but no less authority than her eight benchmates. She brings with her a bit of history, and is sure to be the focus of public attention and political scrutiny.

"It's a step forward for the country. Having someone who's in a permanent lifetime appointment at the highest levels of the government who has this background, both economically and ethnically, is a big deal, it's a moment," said Thomas Goldstein, co-founder of ScotusBlog (at scotusblog.com) who has argued before the justices as a private attorney.

"The idea that a Democratic president did this and embraced them in this way will not be forgotten," he added.

After her swearing in, which will be attended by a small group of family and friends, Sotomayor will quickly set up shop in her high court chambers. She will have a staff of aides and secretaries, as well as four law clerks to help her jump into the caseload.

The urgency may be especially acute for her. The high court has scheduled an oral argument for an important campaign finance reform case for September 9, in the middle of its traditional summer recess, and almost a month before the justices normally begin their new term. She will have to cram in order to hear the case with her colleagues– no grace period or expanded learning curve.

Justice Stephen Breyer has said it took him a few years on the high court before he felt truly comfortable in the job, and he had already served as an appeals judge for 14 years before his elevation. It is a sentiment echoed by other justices on the high court - where the caseload, the pace of meeting deadlines, and the sheer enormity of the issues facing the court can seem initially overwhelming.

Her colleagues are sure to warmly welcome their newest member, but she will soon find herself on her own. A myth of the court is that the justices operate as a unified bunch. The reality is that they are like nine little kingdoms, free to rule - on the cases before them and in their own chambers - as they see fit. Their work entails lots of reading, researching, and writing - most of it alone in front of a computer, maybe a writing pad, even typewriter.

No wonder the seeming glamour of sitting on the Supreme Court often gives way to a sense of isolation and loneliness for new justices. "When you put on the black robe, the experience is sobering," the late Justice Lewis Powell once remarked. "It makes you more thoughtful."

Powell said the biggest surprise when he joined the high court was how the justices communicated about the cases. Memos, mostly formal in tone and presentation, remain the norm. Phone calls from one justice to another are relatively rare; personal visits to chambers even more unusual. E-mails are not embraced, even in the digital age.

But such interaction is key. After oral arguments on a case, the court votes on it, a justice is assigned at conference to write a majority opinion, another to write a dissent. The goal is to craft a majority ruling that will command the support of all the colleagues on a particular side, since that would create a unified front and make it easier to establish lasting precedent guiding future courts. That's where personal relationships matter.

Individual justices monitor what their colleagues are doing, collaborating to varying degrees on the language and scope of opinions, negotiating and engaging in a give-and-take. Sandra Day O'Connor in particular, before her retirement in 2006, was known inside the court for her backstage persuasiveness, while building a national persona as the first female justice.

"The justices learn about each other's views on the law and the Constitution, their strengths, their personalities," said Edward Lazarus, who wrote "Closed Chambers," an inside look at the court. "But that takes time. Justices Breyer and O'Connor became close colleagues on the bench because they discovered a similar approach to deciding cases, but that developed slowly over several years. Justices (Ruth Bader) Ginsburg and (Antonin) Scalia are very close personally - they have similar intellectual and musical interests - and you can't help but think that has helped bridge some disagreements in some cases, despite their deep differences on the law."

Developing and nurturing that trust among differing personalities is not easy. Justice Oliver Wendell Holmes once described Supreme Court deliberations as "nine scorpions in a bottle," fiercely protective in carving out their own agendas and power bases.

By all accounts, the current court as a group gets along very well personally. They like each other, and each can appreciate the diverse, often tough road each took to get to where they are. They all know how exclusive is the club to which they have gained entry, how random and unpredictable was their nomination.

Yet this remains a profoundly divided court ideologically. A shaky conservative majority - roughly four liberals and five conservatives, with Justice Anthony Kennedy often a swing vote - has produced a simmering tension inside the marble walls of the court. As a presumed member of the progressive faction, Sotomayor could find herself on the losing end of many a fight over hot-button issues in the near future, relegating her to writing dissents.

She will operate in the shadow of Justice John Paul Stevens – at 89, the oldest member of the court and the undisputed leader of his liberal colleagues. That authority is built on his nearly 40 years of seniority, his quiet skills as a tactician, and his sharp writing prowess. Many liberal legal activists hope Sotomayor eventually follows the O'Connor model in crafting a power base inside and outside the court.

As a group, the justices have wide experience. All served as federal appeals court judges, so they know well the intricacies of interpreting constitutional and legislative precedent. "They are well-prepared, active, informed, engaged, with tough questioning (of lawyers) from the bench," said David Garrow, a Pulitzer Prize-winning historian and high court expert.

But the current court has by no means become a predictable group.

One vote can tip the delicate ideological balance. Of the 79 full opinions issued last term, 23 were 5-4 votes, or about 29 percent. Most involved major issues such as workplace discrimination, broadcast indecency and DNA testing.

Kennedy's views often proved decisive, and his influence remains undimmed.

Sotomayor will quickly discover the Supreme Court under Chief Justice John Roberts has not shied from taking on tough, timely cases. The fall 2009 docket includes appeals on religious displays on public land, Miranda rights, life sentences for underage criminals, and international child abductions.

This judicial confidence, said Garrow, gives "this court no second thoughts that it knows better than anyone else, especially the Congress, what is right."

Sotomayor will leave behind her family and friends in her native New York. She is not married, and observers say her work as a judge consumes much of her life. Colleagues say she has managed to find time for herself and pursue interests off the bench, but she has admitted that has not been an easy balance to maintain.

Lazarus, a former law clerk for Justice Harry Blackmun, remembered his former boss "carved out for himself a distinctly solitary existence. From 8 to 9 every morning, Blackmun would breakfast with us clerks in the court cafeteria," he remembered. "But as 9 o'clock approached, the justice's attitude and demeanor changed radically. As he shifted into work mode, Blackmun became unapproachable, a man consumed by a mantle of professional duty that fairly seemed to crush him."

While Blackmun was known by his colleagues for a prickly personality, his sense of struggling to live up to the responsibilities of the job rings familiar.

Sotomayor will bring a unique life experience - personally and professionally - to the job. She comes to it at a time of significant political and social change. The justice will have just one vote, and one voice. Whether she will thrive in the long run at her new home will depend to a large extent on her intellect, work ethic, and interpersonal skills.

But forces outside her control - namely the future ideological makeup of the court and the unforeseen hot-button issues that will confront her - will ultimately shape the legacy she will leave.


Filed under: 360° Radar • Sonia Sotomayor • Supreme Court
soundoff (9 Responses)
  1. Dean D. Ellis Lake Worth, Florida

    I have read the closing more than once:

    "But forces outside her control — namely the future ideological makeup of the court and the unforeseen hot-button issues that will confront her — will ultimately shape the legacy she will leave."

    The entire article and especially those words were well written. I have not researched the "shelf-life" of the current justices and the '
    "annointment process" for the top spot. Hoever, I do not believe that we will have a female "Chief' in my lifetime. However, I am permitted to dream a little dream.

    August 7, 2009 at 7:19 am |
  2. SandraWI

    Yeah. Bravo.

    August 7, 2009 at 2:09 am |
  3. Mr.Suane B. Huff

    Lou why be scared that the Judge is going to take away your right to bear arms, things like automatic weapons and machine guns all that's telling me is that I might be pulling out my wallet one night and you and your friends have the right to massacur me so the only thing between me and death is a ruling by Justice Sotomayor, you can use that for an excuse, that the first amendment will cease to be, but it's not going to hold water. Stop being the party of NO, just because the majority of the country according to republican polls don't seem to realize what it means to have a President that is caring if everyone has access to health care or not and trying to be bipartisan and a man that the rest of the world respects. I guess that they would prefer to still have Bush and Cheney run things how mess up is that. I fault the media for alot of this because they have let Fox news and Russ Limbaugh take over the air waves with all of the most divisiveness and hatred that I've heard in a long time. Why can't you all see that this man, President Obama,is trying to bring this country together so give him some time and some support he's going to work it out. Another thing that you need to be looking out for is when you come back home is that your Hispanic constituents are not going to be pleased with the fact that you decided to vote against Justice Sotomayor and think about this one she doesn't owe you a thing, am I right. Mr Huff.

    August 7, 2009 at 1:12 am |
  4. Mr.Suane B. Huff

    A note to Sen. Mike Cropo, Do you really believe that you or anyone has a right to own a machine gun if not why be scared that the of Justice Sotomayor, you can use that for an excuse but it's not going to hold water. Stop being the party of NO, just because the majority of the country according to republican polls don't seem to realize what it means to have a President that is caring if everyone has access to health care or not and trying to be bipartisan and a man that the rest of the world respects. I guess that they would prefer to still have Bush and Cheney run things how mess up is that. I fault the media for alot of this because they have let Fox news and Russ Limbaugh take over the air waves with all of the most divisiveness and hatred that I've heard in a long time. Why can't you all see that this man, President Obama,is trying to bring this country together so give him some time and some support he's going to work it out. Another thing that you need to be looking out for is when you come back home is that your Hispanic constituents are not going to be pleased with the fact that you decided to vote against Justice Sotomayor and think about this one she doesn't owe you a thing, am I right. Mr Huff.

    August 7, 2009 at 12:34 am |
  5. Mr.Suane B. Huff

    A note to Sen. mikw Cropo, Do you really believe that you or anyone has a right to own a machine gun if not why be scared that the of Justice Sotomayor, you can use that for an excuse but it's not going to hold water. Stop being the party of NO, just because the majority of the country according to republican polls don't seem to realize what it means to have a President that is caring if everyone has access to health care or not and trying to be bipartisan and a man that the rest of the world respects. I guess that they would prefer to still have Bush and Cheney run things how mess up is that. I fault the media for alot of this because they have let Fox news and Russ Limbaugh take over the air waves with all of the most divisiveness and hatred that I've heard in a long time. Why can't you all see that this man, President Obama,is trying to bring this country together so give him some time and some support he's going to work it out. Another thing that you need to be looking out for is when you come back home is that your Hispanic constituents are not going to be pleased with the fact that you decided to vote against Justice Sotomayor and think about this one she doesn't owe you a thing, am I right. Mr Huff.

    August 7, 2009 at 12:33 am |
  6. RLWellman

    Let's hope she does what she said during the hearing. That she will follow the Constitution and not her feelings!

    August 6, 2009 at 11:20 pm |
  7. Annie Kate

    Sotomayor hopefully will do as well as the judges already sitting on the Court. Historically I can only identify 2 decisions that were arguably totally wrong – the Dred Scott decision and the decision on the 2000 election recount. The court played politics in the latter case and they should not do this – this is the one place where we can go and be able to make the assumption that partisanship does not walk its hallowed halls. In the 2000 decision on the recount that assumption was totally in error and it shouldn't have been – even the judges seemed to understand that – they did the decision anyway but they limited it to that one particular election. Hopefully Sotomayor will help keep the court on the tracks and keep decisions based on the law, the constitution, and tradition.

    August 6, 2009 at 9:50 pm |
  8. Jo

    Congratulation to Judge Sotomayor. She is well qualified for the position, despite of her controversial remarks. I am glad to see the diversity of the Supreme Court. In the same time, I am also sadden by the racial (and gender) consideration make her standing out from others who may have similar qualifications. More and more in Obama administration, the major minorities were given better opportnities for prestigious appointments than whites as well as other minorities. If the gorvenment truely wants to balance the racial diversity, so can we assume the gorvanment requires to nominate more well-qualified people from Mid East, Asia and Pacific Islanders to fit the racial profile in USA? When US President considers the qualification of the candidate first, their life experiences second, we may see the racial disturbing issues slowly disspate.

    August 6, 2009 at 9:06 pm |
  9. Maximiliano Trujillo-González

    Hispanic tradition, of which Justice Sotomayor is a part of, includes not only the food "rice and beans", the music "bomba, plena, salsa", but a reach and ancient legal tradition. "Hispania" the roman name for Spain (which included Portugal in roman times), was part of the Roman (Latin was the language) Empire. Which developed the most notable juridical system in antiquity. The "Twelve Tables" was a WRITTEN LAW, demanded by the downtrodden of the time the "plebeians" which made the "revolutions" of Mont Sacro and Mont Aventino. The people gathered in "comitia" enacted laws, the elders "senes" in the Senate enacted "senato-consulta", and the lower echelons of society their "plebicites". The "pretor", elected by the people said what was the law to the judges "jurisdictio", hence our own word jurisdiction. And the jurist ("jurisconsultus") gave their legal opinions. Roman law was compiled by a mandate of emperor Justinian in the imperial constitution "Deo Auctore", circa, Decermber 15th, 532, and the Digist was entacted by the imperial constitution "Tanta", circa December 15th, 533.
    Justinian took back part of the Western Roman Empire, including southern Spain, so his laws were in force in Spain.
    The greater part of Spain was under the visigoths, which enacted laws throught the councils of Toledo (the gatherings of the catholic bishops, which were elected at the time, and were mostly hispano-roman), and during the reign of King Sisenando the "Liber Judiciorum" (in Spanish "Fuero Juzgo") was enacted (this code included women's rights like the community property, which is a right that is enjoyed by women in the US in those states that were part of the Spanish Empire). In the middle ages King Alphonse X, the "Wise" had a code of roman law with Spanish traditions enacted (and written in Spanish "castillian" as it was called at the time) by 1,265 A.D.
    Judge Sotomayor can draw from this magnificent latin tradition which is shared by only two jurisdictions in the US: Lousiana and Puerto Rico.
    Justice Sotomayor's heritage is certainly much more than "rice and Beans".
    Maximiliano Trujillo-González

    August 6, 2009 at 9:05 pm |