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Diplomacy in Action

Scene Setter Prior to Confirmation Hearing for Judge Sonia Sotomayor

FPC Briefing
Professor Melvin Urofsky
Professor of Law & Public Policy, Virginia Commonwealth University and Supreme Court Expert
Foreign Press Center
Washington, DC
July 9, 2009

Date: 07/09/2009 Description: Melvin I. Urofsky, Professor of Law & Public Policy, Virginia Commonwealth University and Supreme Court expert sets the scene for Judge Sonia Sotomayor's Supreme Court confirmation hearing at the Washington Foreign Press Center on July 9, 2009. © State Dept Image

2:00 P.M. EDT


MODERATOR: Good afternoon and welcome to the Washington Foreign Press Center. Today, we have with us Professor Melvin Urofsky, who will talk about the U.S. Supreme Court and the nomination of Sonya Sotomayor.

MR. UROFSKY: Good afternoon. The United States Supreme Court is probably the most powerful constitutional court in the world. It has enormous powers. At least for the last 50 years the American people have realized what a major impact the Court can have on their daily lives ever since the decision of Brown v. Board of Education did away with legalized segregation in this country. And there’s been an ongoing debate about how “activist” should the Court be, whether or not the Court should get involved in current political social and economic events that come to it or whether it should step back whenever these questions arise and let the Executive and Legislative Branches do it.

In some instances the Court can’t avoid ruling on legitimate questions that come before it. And so whenever there is a Supreme Court vacancy, there is a great deal of attention. And you must know that at this point if Judge Sotomayor is confirmed, as I think she will be, she’ll be only the 111th member of the Supreme Court in over 200 years.

Most Presidents only get to appoint two justices, on an average 2.5. Some like Jimmy Carter never got to appoint anyone. And once a person is on the Supreme Court, they are there for life. At this point, Justice Stevens has been on the Court 33 years. And Judge Sotomayor, if she is confirmed and has good health, could expect to have a long tenure there as well.

Now in terms of getting a person on the Supreme Court, the Constitution itself is fairly simplistic about it. It says, “The President shall nominate and, by and with the advice and consent of the Senate, shall appoint judges of the Supreme Court. And Article III of the Constitution defines what the Supreme Court is, you know, what it does. The powers thus divided, the President names but the Senate has to confirm by a majority vote. And since 1789 at least 25 names sent up from the White House to the Capitol have been rejected not to mention quite a few more such as Harriet Miers whose name was withdrawn and, thus, never came to a vote.

Why does the President choose? There are essentially three reasons: Politics, policy and professionalism. Politics is very important. This is a government we’re talking about. And even though the Judiciary is supposed to be sort an insulated branch away from the popular will and the judges are elected, it is a branch of government and, therefore, it is political not necessarily partisan but political. And the only power that the Court has is that of moral suasion. So when you put someone on the Court, you really want to know -- if you’re President, which of your constituents are going to be happy with this nomination.

Well, in this case Sotomayor is the first Latino to be appointed to the Court, only the third woman. And the Latino population in the United States is the fastest growing demographic of all groups. Moreover, it is a key demographic in states -- key electoral states such as Florida, Texas, California and New York. So in terms of just crass politics, Obama is a very smart man naming an Hispanic to the Court.

The other two parts of it are equally important. The second one is policy. And here what we really want to talk about is judicial policy, what view of the Constitution and of judging does this person have. Does he or she believe that they should reach out and try and decide every single question that might come before the Court, or do they believe that they should only decide what absolutely has to be decided and nothing more, and in some instances refrain from deciding at all?

Do they believe in things such as a right to privacy? Although abortion has long been a hot button issue, that really doesn’t seem to be much of a factor in this particular nomination. Judge Sotomayor sits on the Second Circuit Court of Appeals in New York which primarily handles business cases and criminal cases. So as far as we know, she has not had any -- been a voice in any major -- in any abortion case coming out of that circuit.

But back in the 1930s, for example, after the Supreme Court had struck down a number of Franklin Roosevelt’s economic reform measures, his primary policy consideration when appointing judges was, do you think Congress has the power to deal with this economic emergency? And that was the policy he was looking for.

The third area is professionalism. Is the person a good lawyer? Do they have a sense of the law? Here, the ABA rating, the American Bar Association, rates nominees. President Bush decided not to listen to them because he thought the ABA was too liberal. The ABA is far from being a liberal organization, but he was worried that some of his appointees wouldn’t make muster with them, and they didn’t. But Sotomayor has gotten their highest rating, a unanimous decision by the committee that she is very well qualified.

She has 17 years on the bench at both the District Court and Appellate Court levels. She was Suma Cum Laude from Princeton, Yale Law School, Editor of the journal up there. And, if she is confirmed, as I expect she will be, she will be the only member of this current court that has prosecutorial experience. She was a public prosecutor. In the Morgenthau Office in New York, which is about the most difficult of the U.S. Attorneys Offices there is, a very high profile office. So, by any stretch of the imagination, this woman meets all of the various criteria that you would want.

But the process is not automatic. At least since the 1950s there have been some long, drawn out fights. Robert Bourque in 1987 is the most memorable. But the President here made a very smart decision.

You’ve got to remember that this is a man who went to Harvard Law School, was Editor of the law review up there and then taught Constitutional Law unlike George Bush who had practically no experience in matters of the law. He had an MBA from a business school.

Obama knows this area far better than most Presidents do. In fact, the last President who had any experience teaching common law was William Jefferson Clinton. So that in this area Obama pretty much knew whom he wanted and, in fact, Sotomayor’s name was being bandied about even before he was elected. So she’s sort of had an inside track here.

Now, that’s the easy part. Okay? There’s two things that you really need to sort of watch for next week when the hearings open, one of which is -- and this is really boring for the most part -- the speeches that the Senators are going to make. I mean theoretically this should be a hearing where Judge Sotomayor is going to be answering questions. But you will find that she gets to say very little. She’ll read her opening statement, which won’t tell you very much other than I’m delighted, you know, I’m honored that the President nominated me, dada, dada, dada, dada, dada. And then the Senators will start making speeches. Some will be highly flattering about her. Others -- none of them will be attacking her, but they will be questioning court decisions.

The nomination hearings process is a way for Congress to tell the Supreme Court what they’re concerned about. It doesn’t happen very often. Remember, the Supreme Court is insulated. The only way to remove a judge is to impeach them, and that hasn’t happened in two hundred and some odd years. And then the judge wasn’t convicted. It showed that it was very hard to do.

So this is a way that Congress gets to say we’re unhappy about certain decisions. When current Chief Justice Roberts was up for confirmation, even though he had absolutely nothing to do with the case that had allowed a city to take over a private house, you know, for a development, the Keelo* case, he got an earful on it. He had had nothing to do with that case, not down in his district or circuit or anything. What the Congress wanted to do was send a message to the Court we don’t like where this is going.

So if you will listen to some of those speeches and you can hear them complaining we don’t like this or what about that, that’s the message that they hope (a) she will take to her knew colleagues or (b) they will be paying attention also.

On a more subtle level, the Republicans here are trying to lay down markers. They know they cannot stop this nomination, and they can’t stop it for several reasons. One, she is highly qualified. And two, she is a woman and a Latino which, as I said, is the fastest growing demographic. The Republicans are in enough trouble. Only 35 percent of the people in the country identify as Republicans at this point, and that’s about 1 in every 3. And in key states, for the Republican Party to be known as anti-woman and anti-Latino will be the kiss of death.

So for a variety of reasons, they will tiptoe around this. And in the end, my guess is only a handful will actually vote against her. Some might abstain but she should win easily. There’s not going to be any filibuster because the Democrats have enough votes and the Republicans really are very leery of this.

But they’re going to lay down markers because if you look at the Court -- let’s assume that Obama’s popularity continues and he gets a second term, that means that he’s going to be in office seven more years. At this point Justice Stevens is 89 years old, the oldest member of the Court. And while he could live to be, in the biblical phrase, 120, the chances are that he may be going off the Court during the next seven years.

Justice Ginsberg is the next oldest member at 76, and she’s had health problems. Scalia is 73. Kennedy is 73. Breyer is 71. Now it turns out that the oldest members of the Court are the most liberal. So even if he gets four appointments, it’s not going to make too much difference if they’re all on the liberal side of the court. But he could get more than that. It’s hard to say. And what they’re worried about -- what the Republicans are worried about is that he might try to get somebody even more liberal as his next appointment.

Now I don’t consider Sotomayor to be exceedingly liberal, but that may tell you more about my politics than about hers. But every analysis I’ve read of her puts her pretty much in the mainstream center, a little bit left of center, which is pretty much where David Souter, the man that she’s schedule to replace.

And with that, I think I’ll stop and just answer any questions you all may have.

QUESTION: Can you tell a little bit about the firefighter case that might come up?

MR. UROFSKY: The Ricci case, okay. The City of New Haven gave an exam for promotions within the Fire Department. And when they got the results back, not a single African-American had scored high enough to qualify for promotion. The City of -- now from all indications, this was not in any way, shape or form a rigged examination. It was a neutral, third party examination. But it had, under the terms of the Civil Rights Act of 1964, a disparate impact, i.e. blacks seemed to be impacted negatively more than any other group.

The City of New Haven was worried that if they let the test go forward, they were going to be sued under the Civil Rights Act by black firefighters who hadn’t qualified. So they threw -- they decided to throw the results out and start all over again at which some of the white firefighters, led by Frank Ricci, said that they were being discriminated against on the basis of their color being white because they had qualified, they had passed the exam.

The lower courts upheld the City of New Haven on the basis that prior case law said that if a city feels there has been a disparate impact, then they should remedy the situation, which is what New Haven did. It came up before a three judge panel of the Second Circuit, New Haven being in the Second Circuit, and Sotomayor was one of the three judges. And they essentially approved the lower court decision which had upheld the city without much comment. It was sort of yeah, the city got it right and they went on. And that’s what they’re being criticized for, that this was such an important case. After all, eventually the Supreme Court did decide it, that she and the other two judges should have said a lot more about it.

But there was good law on her side. And in fact, at the Supreme Court four members of the Court voted to uphold that decision. So it’s a pretty close vote on it. What will now happen is the city will have to use the results of that test and Ricci and others who did qualify will be promoted.

It was one of these no win situations in many ways because if you voted for the city, then black firefighters lost on the basis of a disparate impact; if you voted for the white firefighters, then the city lost. So you had a problem either way on this.

But the Supreme Court has decided there will probably be other cases, though, that come up. The Supreme Court has been moving away from the -- the country has been moving away and as a result the Supreme Court also. It used to be that almost any case involving race that came before the Supreme Court was fairly simple because you could almost always find some legacy of legalized discrimination. But that’s more or less past at this point.

And now what you’re getting are cases like the one out of New Haven of disparate impact where there’s very hard to tell whether there’s been any real discrimination or not. But because of the wording of the 1964 Civil Rights Act written 45 years ago when there was legalized discrimination, you still have a law on the book that warns about disparate impact. And my guess is that over the next several years, the Court is going to somehow refine this and see if they can strike a better balance.


QUESTION: What about the abortion, do we know how she stands regarding that issue and how relevant it will be on Monday or for the future?

MR. UROFSKY: Well, for some Senators there will -- this is always an issue. There is a block in the Republican Party for whom this is “the issue.” And Senators who are responsive to that block will at least try to get something on the record. She’ll say nothing about it and legitimately so because one thing if any perspective judicial candidate should not make any comment on an issue that’s liable to come before the Court. She can’t say, you know, I’m going to vote against it or I’m going to go for it because she doesn’t know what the case will be.

So you’re going to get a lot of questions where if they are too pointed she will say “judicial propriety precludes me from answering that,” which is only right. I mean if she says I’m going to vote for X before she even gets on the Court, that’s not the sort of judge you want. You don’t want someone who has already made up their mind.

Also, I think that for some members of the Senate, and certainly for a number of the Court itself, abortion is not the issue of the day anymore. I’ll tell you why I think that. First of all, the main issue on most American’s minds is the economy. Are they going to be able to make their mortgage payment? Are they going to lose their job? How are they going to put food on the table? It’s not abortion.

Secondly, we’re moving into a world in which technology is becoming a much more controversial issue. I’m not just talking about computer types, although a number of cases has come before the Court involving computer technology. Some of it is copyright issues; some of it is can you do this, can you do that.

You know, there was a very interesting, believe it or not, pornography case that came before the Court and the issue was computer generated child pornography. Is this really pornography? Now normally we think of it is as, you know, we try to protect children, but we try to protect real children. But now, you know, you can do with the computer -- what is it Photoshop I think is the thing. You can take anybody’s body, put in anybody’s face. You can go to movies like 300 and have everybody looking one way or the other. And this has raised a number of issues that the justices are starting to deal with.

There’s biotechnical questions. Cloning. We’re going to get a cloning case up there eventually. This whole human genome problem, I mean this thing is ripe with materials. And in the United States the important questions always wind up before the Supreme Court.

So while there’s a chance that abortion will -- an abortion case will come, I think the justices at this point have said what they want to. And since they don’t have the fifth vote, they’re just going to let it sit for a while.

QUESTION: Why is abortion a question of privacy when it was decided in the case Roe vs. Wade?

MR. UROFSKY: Because Roe v. Wade came out of a series of privacy decisions, and it was based partly on that. It’s -- the original Roe decision talked about privacy. Since then we’ve talked more about something called bodily autonomy which is a variation of privacy.

In American common law and English for that matter, too, bodily autonomy has long been an accepted thing. At least -- when I was in law school, one of the first court cases I read was a Wisconsin case in the 1890s where a doctor took a patient in to operate. She had a lump in her left ear. He operated on her right ear, found there was a lump and removed that as well. She sued him because she hadn’t given him permission to operate on her right ear only on her left ear. She wins.

So the idea of an unwanted touching, which is at the basis of sexual harassment suits, it’s also at the basis of a lot of medical malpractice suits, and the idea that your body is yours to do with as you wish in many instances. You don’t have to take -- even if it’s a life-saving operation, you don’t have to have it.

The Court has held, for instance, if you’re on life support and you don’t want to continue to live that way, you can have it removed. So the real basis for abortion decisions these days is bodily autonomy, but that’s closely related to privacy.

QUESTION: I work for a foreign service, and I always have to explain what the Supreme Court is in this country and I (inaudible) with that as opposed to (inaudible) to other countries. I mean why is the Supreme Court so important here and not in other countries?

MR. UROFSKY: The Supreme Court is the last word in the United States on constitutional issues. Now the Supreme Court decides essentially two different types of cases. One is a constitution case involving a right found in the Constitution, whatever that might be, okay, freedom of speech, right to a lawyer, things like that.

When the Supreme Court has handed down a constitutional decision, that is involving a clause in the Constitution, that is the final word. The only way to overrule that is to pass a constitutional amendment, and that’s only been done a couple of times in 220 years.

The other type of decision that the court handles down is statutory. That is the interpretation of a law of Congress or of the states if it involves certain issues. When that happens, the Congress can override the Court by correcting the defect.

For instance, the Lilly -- what’s her last name -- Ledbetter case came before the Court a few years ago. Ledbetter was a woman who discovered after she had been working for this company many years that she was getting paid far less than men were for the same job. So she brought a lawsuit. And the Equal Employment Opportunities Commission said that she didn’t have to date the lawsuit from the time that she was first discriminated against but only from the time she found out. The Court said that the way the language of the statute says, it has to be from the very first one which, of course, made absolutely no sense because she didn’t know for years that she was being discriminated against.

You remember that the very first law that Obama signed when he came into office was the so called Ledbetter, which overruled the Supreme Court by saying no, the interpretation is from the time you discover the discrimination.

Now there are very few other courts anyplace in the world that have that constitutional power. They are literally the last word, and they are at the apex of a judicial system that has not only federal courts at three or four levels but also the whole state court system because you can appeal from a state court, and there are 50 state court systems, on certain issues to the Supreme Court if a federal constitutional issue is involved.

So the judges are there for life, very difficult to remove the. Jefferson said a few die and none resign. So once you’re on, they’re there usually until they get carried out or they’re very sick. I mean Souter is extremely unusual in that he’s leaving. But he’s always hated Washington, so at this point he’s finally had enough. And I won’t speculate on why he waited this long rather than four or five years ago --

QUESTION: Well, Sandra O’Connor went, too.


QUESTION: Sandra O’Connor went, too.

MR. UROFSKY: Well, that -- yeah, but she had another reason and that was her husband was very sick. So essentially she left the Court because of illness in the family. But other than that you don’t get very many -- Rehnquist died on the bench. And if you go back, most others if they resign don’t live very long afterwards because they’re already ill, so they’re resigning when they feel they can no longer carry the burden of the office.

So that’s why it’s powerful. It is literally the last word. And there is no recourse except constitutional amendment.

QUESTION: And what about the international implications of this powerful institution regarding the United States as a global player?

MR. UROFSKY: Well, a number of countries that re-wrote their Constitutions after World War II adopted in some measure parts of the American constitutional system, those parts that made sense to them. And a number of countries that came out of a dictatorial system that overthrew a dictatorial system looked to the United States Supreme Court as a model of how one protected rights because essentially what rights we have in the United States today are defined by the Supreme Court.

I mean we know the Constitution says Congress shall make no law abridging freedom of speech or of the press, but what does that mean? It says that you’re entitled to an attorney. What does that mean? The meaning is what the Supreme Court says it is. And when the Supreme Court said that the equal protection clause meant that you could no longer segregate people on the basis of the color of their skin, that was a social revolution in this country that succeeded.

What I tell my students is that for all the violence that occurred between 1954 and 1976, this is nothing compared to what happened in South Africa when they overthrew their system of apartheid in which thousands and thousands of people were killed. Here the number of dead numbered 10 to 20. I’m not saying it was a good time because it wasn’t. But compared to what happened in a number of other countries, the rule of law here managed to get us through that.

But part of it is also our traditions. A number of years ago I was -- the Marshall Fellow’s Program brings people from Europe to the United States for a variety of reasons. And I was on a panel at the University of Virginia and I can remember somebody from the former Soviet Union saying, you know we got rid of the communists, we’ve created a court, now we’re going to have rights and the Americans getting up there saying it’s not that easy. You don’t just set up a court and then everything happens, bing, bing, bing. We’ve had 200 years to get this court to where it is now, and it didn’t all happen so easily.

But at this point the Supreme Court, as I said, has the power of moral suasion and it’s a very powerful force in a democracy, but it took a long time to develop that.

QUESTION: But I mean in the sense that with all international institutions like the international criminal court and so on and sometimes or always the United States says no one or no institution is (inaudible) over lower institution. So in that regard if you can comment, please, on that.

MR. UROFSKY: We’re a little leery of that. Part of the problem, I think, is just nationalism. You know, we’re fussy people and sometimes a bit full of ourselves. But we have gotten to the point where our Supreme Court is so powerful and we let it be. We are not willing to let anything come in that would be more powerful.

When we have troops stationed in foreign countries, we almost always negotiate a status agreement in which troops very often are -- if they commit a crime are very often tried by American courts rather than by foreign courts. Part of this is in foreign countries we’re very leery of what the laws are there. We’re not about to have an American soldier stoned to death if he wound up having an affair with a woman in a country where adultery is punished, you know, by being stoned to death.

But also international law in some places is very different from hours. For instance, take capital punishment. There aren’t a lot of countries left with capital punishment. And most of the countries that are members of the International Court of Justice are countries that have done away with capital punishment. We haven’t. And the Supreme Court has whittled the way around the edges, but they have never held that capital punishment violates the Constitution.


QUESTION: (Inaudible) what you have just said, that powerfulness of the Supreme Court, understand that it can have final say, that’s why everybody pays so much attention to the (inaudible) of the --


QUESTION: But having said that, some other countries have the same system including Japan. I mean the Japanese Supreme Court also has the final say, but the nomination process never gets this much attention. Do you think it’s got something to do with partisan nature of this country --

MR. UROFSKY: Oh, yes. It’s a political thing. I don’t know too much about the Japanese political system, but whenever read that a new Prime Minister has come in, most of the commentary is that the shift, if it’s going to take place, is relatively small, that most of the major parties are centrist as opposed to the fringe parties. But if I’m not mistaken, I think that your constitutional court was not put in until after World War II; isn’t that correct?

QUESTION: They have changed (inaudible) even though we used to have it before (inaudible).

MR. UROFSKY: Part of it is -- and here again I don’t know what cases come before your court. The French traveler, Alexis Tocqueville back in the 1830s toured the United States and he wrote that there is no question in the United States that does not at some point become political. And when it comes political, it comes before the Supreme Court.

Now the good news about this is we don’t take to the streets. We don’t riot and we don’t shoot each other over these questions. We go to court which is why we have more lawyers than -- per capita than any other country in the world. That’s how we resolve our difficulties; we sue. And we keep a lot of lawyers, including my son, busy that way. But we decide some very contentious issues.

One would think, for example, if you have a court in India -- just to take an example -- that suddenly ruled that the cast system was unconstitutional, one could imagine that that would create quite a, even though India’s moving into the 21st Century and all that, that I would imagine would create quite a storm.

Well, we did this in 1954 in which, you know, 40 percent of the country was polled that your system of legalized segregation is unconstitutional. We didn’t have a war. We didn’t go to the streets -- there was some rioting in the streets, but not much and most of it was fought out in the courts. And I think -- and abortion -- the abortion decision, the re-zoning decision, up until the 1960s most American states now had now apportioned legislatures which meant that a rural minority could control the whole state government. And the Supreme Court said you can’t do that anymore, and overnight it went away. That’s a very -- you know, sometimes after -- somebody asked Earle Warren what was the most important decision your court handed down, everybody expected him to say Brown. And he didn’t, he said it was the apportionment decision because that changed the whole political landscape in America.

So we get very, very important questions there that are unlike many questions that would come up in other places. Part of that I think is the result of the rather screwy political system we have.


QUESTION: There is one major discussion about the impact of international law and the Supreme Court. And while this question has not been finally decided yet, but you could see when it comes to capital punishment or even to the Guantanamo question that some of the judges cite international decisions.

MR. UROFSKY: For a long time that was not unusual. Back in the early 19th Century this country looked to England for a good part of its law. And if you look at early reports both in the state reporters and in the federal reporters, you’ll see citations of English law galore.

Right now I think Justice Breyer is probably the leading advocate of looking to international law, whereas, Justice Scalia is the leading opponent. Now, there is no member of the Supreme Court who says that international law should decide an American case. The debate is what happens when we get an issue that has either international ramifications beyond our own borders such as the Guantanamo cases or cases involving international finance which come before the Court periodically. And so what you have is somebody like Breyer saying if it has international implications, we ought to at least look at what other countries have said about this not to determine what we do but to -- just to get a broader picture of what’s going on. Whereas Scalia says I don’t care what any other country does. We decide, you know, our questions by itself.

Sotomayor has, at least as far as the piece I read on her this morning, not made a commitment one way or the other on this but, undoubtedly, that would be one of the questions that come up. And my guess is she’ll finesse it saying we should always use our law but maybe every now and then we can learn something.

QUESTION: Now in the case of the firefighters I guess there was so much attention because she sort of fell into the impression that she was favoring some Hispanics or minorities and so forth, and that’s sort of the impression that (inaudible) create. How is that going to play out in the hearings?

MR. UROFSKY: I don’t think that’s going to matter very much. It’s going to -- look, the woman is Hispanic. There’s absolutely -- can’t get away from that. She doesn’t want to get away from that. She’s very proud.

She is probably going to have to explain that wise Latino comment. But the context in which she made that statement was dealing with cases of discrimination against minorities in which she said that as Latino and a woman who has faced discrimination, I think I would have more to say on this than some white man who never faced it, which makes perfectly good sense.

I think that a woman might have something far more apt to say about cases of sexual harassment than a white man might have to say about it. I know that when I teach a class, especially when I get to the section where I’m teaching about the revolution of civil rights in the 1950s and ‘60s and the woman’s movement in the ‘70s I feel lost if I don’t have some black students and women students in the class because they do have something to say about it.

When I -- I can remember teaching a course on -- that involved Vietnam, and I had some veterans in the class, and I was very, very grateful for what they brought. When I was -- many, many years ago when I was first starting out, I lectured up in Canada one summer and I was working -- it was my first set of lectures and I worked very hard on the lecture the Great Depression. And I gave it and at the end of the class -- you know I always left time for -- this old guy in the back of the room said, “That wasn’t bad sonny. Now let me tell you what it was really like.” And I appreciate that because he had lived through it. And so I think it’s a better class that way.

And I think she’s -- she could -- she doesn’t have to apologize for that comment, but some people I think will try to make -- the other comment she made that you’re probably aware of is the one that she said “policy is made at the Circuit Court level.” She’s absolutely right. Only people who believe that the court shouldn’t make policy at all would argue with that. And in fact, courts make policy every day. If you get a question of what does a statute mean, and the court says it means X, that’s making policy.

Now the Supreme Court hands down between 75 and 90 written full opinions a year. That’s all. Okay? The Circuits hand down thousands of opinions each year. Most of those cases are denied appeal to the Supreme Court. Only a very few get up there, which means that for most American law, if there’s been a judicial hearing it’s been at the Circuit Court level. That’s where judicial policy is made.

Now what you sometimes will have is one Circuit will say this law means X, and another Circuit will say this law means Y, and then the Supreme Court will take the case to resolve it which one is correct. But only a very, very small number of cases come up to the Supreme Court that way.


QUESTION: Is there a theory like the American exceptionalism that has been taken up by the Supreme Court or is it -- can you only read that between the lines?

MR. UROFSKY: I think you can read that between the lines. There’s lots of American history, but -- you know, they take an oath, as does every federal officer, to protect and defend the Constitution of the United States. Their job is to interpret the Constitution of the United States, and there is a perfectly legitimate school of thought of which Scalia is perhaps the chief proponent on the Supreme Court that that’s all we should be looking at. Okay?

Then you have others who say well, we live in an interactive world and while it is our Constitution that we have to interpret, there are times when we might better interpret it if we had some better interpret it if we had some idea of what other courts have said about these issues which go beyond national lines.

You could read exceptionalism into it. You could also just say it’s a legitimate difference of opinion. That’s been blown out of proportion in many ways with conservatives yelling liberals want to look elsewhere. Liberals just want to see what else they can find out. That’s all.

Any other questions?

QUESTION: On Guantanamo --

MR. UROFSKY: Yes. What?

QUESTION: On Guantanamo, I mean do you think that’s going to come up in the hearings? Or do you know anything about Sotomayor’s opinion to that?

MR. UROFSKY: There was one case that she had that bore on it slightly, but it’s not so much Guantanamo itself, it’s the status of the people who are there. And part of the problem is we don’t have good legal precedents to determine this.

Look, every other war that America has fought against, it has been a recognizable enemy that has been a state, a country. Whatever that was right up through -- even in Vietnam there was, you know, we considered North Vietnam and the Viet Kong to be one in the same, so that if you captured an enemy soldier, that soldier was almost automatically a prisoner of war. And there are -- we’ve signed on to various Geneva Conventions. We knew what to do with a prisoner of war. We don’t know what we’re doing here. And I don’t say that negatively because we’re learning as we go, but we are not fighting a state. The war against “terror” doesn’t involve states, it involves groups and -- who don’t have the legitimacy of a state and, therefore, raises questions if you capture someone, a bomber, what status does that person have?

Now you could argue, as many people have, that the Bush Administration got it all wrong. Maybe. But in its defense, they also had absolutely no precedent to guide them in where to go. And they may have chosen the wrong path, but they didn’t necessarily -- but that might not necessarily have been the wrong path. We don’t know. And that’s still being worked out.

Now in a speech he gave a couple of weeks ago at the Archives, President Obama tried to divide the people we’re holding into five different groups. And if I recall correctly, the first two or three of them will be relatively easy to deal with. They’ll go before American courts and they’ll be charged with crimes against particular American laws the same as anybody who might have violated it.

Four and five, if I remember, were the difficult ones including especially five where we have evidence that these people are, in fact, dangerous but we cannot bring them to trial for one reason or another. We don’t know what to do with those people, and he admitted this. We’re trying to figure it out what to do.

International law doesn’t really help very much because international has been primarily about prisoners of war, relations between states. Whatever you might want to view al-Qaida as, it hasn’t signed the Geneva Convention. You know, so we don’t have that body of law to guide us in this.

Whether Obama will be able to come up with a better solution than Bush did remains to be seen. I certain hope so. And the Supreme Court, by the way, has been involved in this almost from the beginning where they’ve been telling the government you cannot go down that path that you know even though these are not American citizens, there are certain basic rules of due process that must be followed. And the Bush Administration in many ways did its best to wiggle out from around that. The Obama Administration seems willing to confront it but at the same time admitting that this is a very difficult question to resolve.


QUESTION: You mentioned that the Supreme Court is very powerful. Do you recall any situation in which the -- it was close to a crisis among powers here, legislative, executive and judiciary powers?

MR. UROFSKY: Oh yes, we’ve had several of those in our history. Dred Scott v. Sanford in 1857 is considered one of the precipitating acts of the American Civil War. The last major constitutional crisis we had was in 1937 when Franklin Roosevelt tried to attack the Supreme Court because its ruling had practically gutted his entire economic program.

There have been many instances where the Court has spoken and then had to wait for the executive and Congress to catch up. For instance Brown vs. Board was decided in 1954. It took 10 years before Congress passed the Civil Rights Act. So sometimes there’s a lag.

The three branches are not always on the same page and they’re not supposed to be. Louie Brandeis once said, “Democracy is not the system we choose because of its efficiency.” I can remember going around when I traveled for the State Department and somebody said well, what’s democracy like? And the answer is it’s sloppy. It’s very sloppy and it’s supposed to be sloppy. What you want are people talking at one another with one another. You want to argue things out, and that’s not always the efficient way to get things done but, in the end, what was -- Churchill said, “Democracy is not a good system but it’s the best we have” or something along those lines.

QUESTION: Did (inaudible) from all the other.

MR. UROFSKY: Right. Yeah. But you know, and it takes longer for us to do things. But usually the benefit is that when we finally do get onto a path, we’ve talked it out; we’ve argued it out; we’ve voted it out whatever it is and that seems to work for us, at least for us.

QUESTION: What is your forecast about a timeline on this procedure on Sotomayor?

MR. UROFSKY: I don’t think it’s going to take very long at all. Unless there is a smoking gun that people are going to find in her background, my guess is that the hearings probably won’t last more than a week. Probably not more than a week.

QUESTION: Just one week?

MR. UROFSKY: Yeah, that’s my guess. Now remember I’m a historian. I’m better off looking backwards than I am predicting the future. But my guess is that it may not take more than a week unless there’s something that we don’t know about her. And as of this morning’s paper, we haven’t found that yet. And as I said, the Republicans are going to have to be very, very careful on this one.

Thank you very much.