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2009-05-27

Obama Nominee Sonia Sotomayor Poised to Become First Hispanic Supreme Court Justice

Guests

Cesar Perales, President and general counsel of Latino Justice PRLDEF, formerly known as the Puerto Rican Legal Defense and Education Fund. Sotomayor served for many years on the group’s board.

Juan Manuel Garcia-Passalacqua, independent political analyst in Puerto Rico. He publishes a weekly political analysis column for El Vocero. He is a graduate of Harvard Law School and a former professor at Yale University.

Tom Goldstein, an attorney, he founded the SCOTUS Blog that is devoted to the Supreme Court.

Marjorie Cohn, president of the National Lawyers Guild and a professor at Thomas Jefferson School of Law.

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President Obama has nominated federal appeals court judge Sonia Sotomayor to the Supreme Court, putting her in line to become the country’s first Hispanic justice. The fifty-four-year-old Sotomayor is the daughter of Puerto Rican parents who raised her in a public housing project in the Bronx. We host a roundtable with Marjorie Cohn of the National Lawyers Guild; attorney and SCOTUS Blog founder Tom Goldstein; Cesar Perales, general counsel of Latino Justice; and Juan Manuel Garcia-Passalacqua, an independent political analyst who knows Sotomayor personally. [includes rush transcript]

Transcript

This is a rush transcript. Copy may not be in its final form.

JUAN GONZALEZ: President Obama has nominated federal appeals court judge Sonia Sotomayor to the Supreme Court, putting her in line to become the country’s first Hispanic justice.

The fifty-four-year-old Sotomayor is the daughter of Puerto Rican parents who was raised in a public housing project in the Bronx. A graduate of Princeton and Yale, she served as a prosecutor, corporate litigator and federal district judge before joining the United States Court of Appeals for the Second Circuit in New York in 1998. If confirmed to the Supreme Court, she would become the nation’s 111th justice and the third woman to hold a seat on the court.

President Obama introduced her in the East Room of the White House yesterday morning and hailed her compelling life story and her experience on the bench.

    PRESIDENT BARACK OBAMA: Over a distinguished career that spans three decades, Judge Sotomayor has worked at almost every level of our judicial system, providing her with a depth of experience and a breadth of perspective that will be invaluable as a Supreme Court justice. It’s a measure of her qualities and her qualifications that Judge Sotomayor was nominated to the US District Court by a Republican president, George H.W. Bush, and promoted to the Federal Court of Appeals by a Democrat, Bill Clinton. Walking in the door, she would bring more experience on the bench and more varied experience on the bench than anyone currently serving on the United States Supreme Court had when they were appointed.

JUAN GONZALEZ: Judge Sotomayor thanked the President for what she called “the most humbling honor of my life” and went on to speak about her background and experience.

    JUDGE SONIA SOTOMAYOR: Although I grew up in very modest and challenging circumstances, I consider my life to be immeasurably rich. I was raised in a Bronx public housing project but studied at two of the nation’s finest universities. I did work as an assistant district attorney, prosecuting violent crimes that devastate our communities. But then I joined a private law firm and worked with international corporations doing business in the United States. I have had the privilege of serving as a federal district court trial judge and am now serving as a federal appellate circuit court judge.

    This wealth of experiences, personal and professional, have helped me appreciate the variety of perspectives that present themselves in every case that I hear. It has helped me to understand, respect and respond to the concerns and arguments of all litigants who appear before me, as well as to the views of my colleagues on the bench. I strive never to forget the real world consequences of my decisions on individuals, businesses and government.

JUAN GONZALEZ: If confirmed, Judge Sotomayor would replace Justice David Souter, who was considered a reliable member of the court’s liberal wing.

Senate Minority Leader Mitch McConnell said Tuesday the Senate would not be a “rubber stamp” to confirm Sotomayor and said Republicans would, quote, “examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences.”

President Obama tapped New York Senator Chuck Schumer to lead the confirmation effort. White House officials told the Washington Post they hope to confirm Sotomayor by August 7th.

AMY GOODMAN: To discuss Sotomayor’s nomination, we’re joined by a roundtable panel of guests.

Marjorie Cohn is the president of the National Lawyers Guild, a professor at Thomas Jefferson School of Law. She joins us from San Diego.

On the phone from Washington, DC, Tom Goldstein, an attorney who founded the popular SCOTUS Blog that’s devoted to the Supreme Court.

Joining us here in our firehouse studio is Cesar Perales, president and general counsel of Latino Justice, formerly known as the Puerto Rican Legal Defense and Education Fund. Sonia Sotomayor served for many years on the group’s board.

And on the phone with us from Puerto Rico is Juan Manuel Garcia-Passalacqua, an independent political analyst who publishes a weekly political analysis column for El Vocero. He is a graduate of Harvard Law School, a former professor at Yale University. He knows Judge Sotomayor personally. And according to Juan, who just discovered her Yale Review piece, he is extensively quoted in her piece in the Yale Law Review.

JUAN GONZALEZ: Yes, and welcome to all of you. I’d like to start with Juan Manuel Garcia-Passalacqua. Your reaction to the nomination by President Obama?

JUAN MANUEL GARCIA-PASSALACQUA: Hi. My hair stands. My hair stands, because I have been, as you know, attentive to the relationship between Puerto Rico and the United States for years — fifty years, to be exact — and I never expected — never expected — that the diaspora would produce the first Hispanic Puerto Rican judge in the Supreme Court of the United States.

What to me is the crucial element of what we are today celebrating is that, for the first time, the census issued last summer said that there were more Puerto Ricans in the United States than in Puerto Rico. Now, the diaspora has produced a Supreme Court judge of the United States of America. And now, a bill has been filed in Congress by ninety members of the House of Representatives, finally solving the relationship between Puerto Rico and the United States and providing the opportunity of rejecting colonialism in the ballot next year.

So, again, I must confess that it is one of those days in one of those years in which the whole relationship between Puerto Rico and the United States is being transformed before our own eyes.

AMY GOODMAN: How did you come to know Judge Sotomayor, Juan Manuel Garcia-Passalacqua?

JUAN MANUEL GARCIA-PASSALACQUA: Well, it’s fascinating, that story, because we have been friends in the judiciary, because, again, I have been part of the political analysis of the relationship, and the judiciary is part of the relationship. And both Judge Sotomayor and Judge Jose Cabranes, who are the two Puerto Ricans that, since ten years ago, have been seen as the potential candidates, the potential Puerto Rican candidates to the Supreme Court of the United States — so, it was in that sense that our relationship developed, and it was in that sense that, I guess, you have discovered I’m being quoted by her in some instances.

JUAN GONZALEZ: I’d also like to bring in Cesar Perales, who also knows Judge Sotomayor personally. And interestingly, Cesar, in the long biography today of Judge Sotomayor that was published by the New York Times, one of the things that they do not mention is that for eleven years she served on the board of directors of the Puerto Rican Legal Defense and Education Fund, from 1980 until 1991, when the first President Bush named her to the federal bench. You were the director at the time. Could you talk about your experiences with her as your boss, in effect, at the Puerto Rican Legal Defense and Education Fund?

CESAR PERALES: Well, the one thing one immediately learns about Sonia Sotomayor is that she is very smart. She joined the board when she was about — I think about twenty-six, twenty-seven years old. She was the youngest member we had. We brought her on because she was very interested in getting young Latinos to enter the legal profession, and that’s one of our mission, part of our mission. But Sonia immediately impressed all of us, has certainly held her own against the older members on the board. She is very smart. She’s insightful.

And to me, who was the guy that had to carry out the wishes of the board, she was very practical in her approach to issues. I can’t cite particular anecdotes, which I’m continually asked about, but I can just tell you that my own sense, when I was at board meetings, was that Sonia was going to be on my side, because she’d know that — the effects of what her decisions would be and that she was very careful about that.

And I think these are attributes that are going to make a big difference on the Supreme Court. This is a woman that, while we spend a great deal of time talking about her intellect and about her youth and everything she’s overcome, but she is very much a practical person. And I think that makes a big difference, when you’ve got the Supreme Court making decisions that affect the lives of everybody in this country.

AMY GOODMAN: Your reaction when you heard that President Obama had nominated her to the Supreme Court?

CESAR PERALES: I was ecstatic. And I can tell you, hearing and watching the ceremony, tears welled up in my eyes. As a macho Latino, I shouldn’t admit this, but there were many of us standing around this television set in our little kitchen in our office, and there were people bawling. I mean, people who knew her. She’s just a regular person. And to see her there and to see her mother, to see the reaction of everybody in that room, I said to myself, “Barack Obama likes to make history; he’s doing it again today.”

This is the most important appointment ever made to a Hispanic in this country. And we are very, very pleased. And I think it’s going to — you will see that during the confirmation process, because I think if she gets a particularly hard time, people are going — in our community are going to react very negatively.

AMY GOODMAN: We’re going to go to break. Then we’re going to come back to this discussion about the nomination of Judge Sonia Sotomayor to the Supreme Court. We’ll also talk about the confirmation hearing, what is expected. But we also want to look at her record, what has been her record, the cases that she has presided over.

This is Democracy Now! We’ll be back in a minute.

[break]

AMY GOODMAN: We’re talking about the nomination of Judge Sonia Sotomayor to the Supreme Court, confirmation hearings to follow. If confirmed, she will be the first Latino justice, the third woman on the Supreme Court.

Our guests are Cesar Perales, president and general counsel of Latino Justice, formerly known as the Puerto Rican Legal Defense and Education Fund; Juan Manuel Garcia-Passalacqua joins us from Puerto Rico, an independent political analyst, knows Sonia Sotomayor well. In a moment, we’re going to be going to Marjorie Cohn, president of the National Lawyers Guild, professor at Thomas Jefferson School of Law in San Diego.

But we want to look right now at Judge Sotomayor’s record. Tom Goldstein, you founded the SCOTUS Blog, Supreme Court of the United States, devoted to the Supreme Court, and you’ve summarized her cases. Can you go through what you feel are the most important ones and how she’s ruled?

TOM GOLDSTEIN: Well, the thing about a judge like Sonia Sotomayor, who’s been on the court of appeals for more than a decade and then was a trial judge for a long time, is that she has an unbelievable body of work. You can — there are literally hundreds of opinions. And we could talk about particular ones, but I think the sort of the overarching point for your listeners is that she is on the left, but far from the radical left.

You’ll hear a lot of complaints about conservatives that she is an ideologue and a judicial activist. And I think there’s really no evidence at all that that’s correct. She seems to take each case as it comes to her, and she sometimes rules for plaintiffs, sometimes for defendants, sometimes for the government, sometimes for companies. And you get a sense that she’s just very thorough and very balanced. And it’s been said, and is obvious from how well she did academically, she’s very smart.

AMY GOODMAN: And go through what you think are some of the principal cases.

TOM GOLDSTEIN: Well, I think that one case that — maybe we could talk about cases that will receive a lot of attention, so that your listeners, as they hear more about Judge Sotomayor, will know what it is that — a little bit more about what people are talking about.

There is — the case that’s talked about the most is the so-called New Haven firefighters case. This is a case out of New Haven, Connecticut, where the city had a promotional exam of four firefighters, and after the exam was administered, it turned out that white firefighters did much better than black and Hispanic firefighters, particularly black firefighters, and that promotions in the city, as a consequence, would be skewed. And the city decided not to use the results of that test, but to find another promotional exam. And Judge Sotomayor was part of a three-judge panel that said that the white firefighters didn’t have a legal claim against New Haven. So, this is a very difficult case about the balance between trying to have diversity in the workforce versus not discriminating against the white firefighters. And that case is now in front of the Supreme Court right now.

Another case that tells you a little bit about where Judge Sotomayor stands versus the rest of the Supreme Court, that is an issue in front of the justices right now, the justices have a case involving a strip search of a young girl at school, because the school had some concern that maybe she had aspirin or some other drugs on her body. And it looks like the Supreme Court is going to rule for the school that that kind of search is OK. Judge Sotomayor had a case in the Second Circuit where she said, no, that’s far too intrusive for this poor little girl. And both Judge Sotomayor and Justice Ginsburg in the Supreme Court seem much more attentive, from their own personal experiences, to what that kind of search would be like for a young child, for a young girl.

On the other hand, people shouldn’t get the impression that she’s, you know, always on the left or radical, as I say. She had a case involving accidental mistakes by the police, where she said that those don’t justify suppressing the results of a search by the police. And the Supreme Court came out the same way this year in a case called Herring. So, she’s dealt with a huge number of issues, seems to be quite balanced in them, and her decisions are very thorough.

JUAN GONZALEZ: Tom Goldstein, didn’t she also have a case, a key case, on environmental issues, on the — whether the — how the EPA could use cost-benefit analyses in determining limits on pollution?

TOM GOLDSTEIN: Yes. This is the Riverkeeper’s case. She said that when the EPA was making determinations about what kind of equipment should be used in plans, it shouldn’t be evaluating sort of whether this way of protecting the environment was too expensive, that Congress hadn’t told the EPA to do that. And so, her decision was more pro-environmental.

The Supreme Court reversed that decision. So she has been in front of the Supreme Court in opinions that she has written five times. That’s not that many over a very long career. You’re talking about somebody who’s been in the court of appeals for eleven years. And that’s a decision that was reviewed that was reversed.

JUAN GONZALEZ: And you also write, Tom, about the cottage industry that has developed around Supreme Court nominations and how sides, from both the left and the right, gear up for these nominations. Could you talk about that a little bit?

TOM GOLDSTEIN: Sure. It’s as with Chief Justice Roberts and Justice Alito, who are really smart people. They are more conservative than me, to be sure, but they have a lot of integrity. They are, you know, good judges. And when they were nominated by President Bush, they were attacked mercilessly by the, you know, folks on the left. And same with Judge Sotomayor, a person of incredible integrity, great intelligence, and now attacked from the far right.

And the cottage industry point is that these groups gear up now, and this is their principal fundraising mechanism, to say, “The President now is trying to either destroy the Supreme Court or save the Supreme Court. You need to support us.” And that’s not to say that those groups don’t have really good-faith disagreements about the law. There are incredibly important debates. But what happens, unfortunately, is that we lose sight of the debate, and these individuals, who are public servants — Sonia Sotomayor started as a prosecutor. She has been a trial judge and then a court of appeals judge for decades now. She doesn’t have two dimes to her name. She could have made so much money. And they get attacked mercilessly and personally, rather than having the big debates over how the Constitution should be interpreted.

So, even though it’s certain that Judge Sotomayor is going to be confirmed, absolutely certain, absent some totally unexpected ethical transgression, she is going to go through the wringer now, so that these groups are able to fundraise.

AMY GOODMAN: Marjorie Cohn, you’re president of the National Lawyers Guild. Your response to the nomination of the first Latina justice, of Judge Sotomayor, to the Supreme Court?

MARJORIE COHN: Well, Amy, I think it’s very significant that she would be the first Latino on the Supreme Court, and she certainly would bring the number of women on the Supreme Court to two, and that’s also very significant. She will not appreciably change the political balance on the court. She will probably be a reliable liberal, very much in the vein of David Souter.

Cases about executive privilege will invariably come before her, such as interrogation policies, preventive detention, state secrets, and her views are largely unknown on issues of executive privilege.

She is a mixed bag. I would not call her a left liberal. She will not be a William Brennan or a Thurgood Marshall or an Earl Warren. Yes, she has ruled in the ways that Tom said on the firefighters case, on the environmental case, but she is a career prosecutor. She was a career prosecutor. And I’m hoping that she has empathy for criminal defendants and their constitutional rights. She ruled in two significant cases to uphold searches where the search warrants were unlawful. She ruled — she upheld the Bush global gag rule that made it harder for women to get abortions. She ruled against plaintiff correctional officers who were retaliated against for making complaints. And she also has a significant background as a corporate lawyer. She dissented in a 2-to-1 decision, ruling against the families of victims of the TWA plane crash in New York. So I think she will be a mixed bag. She will probably be more on the liberal side, but I would not call her an unabashed liberal.

Now, I think that it’s important for us to respond to this whole issue of activist judges and judicial activism, because this is what the right wing is bringing up all over the media waves and throwing at her, that she’ll be a judicial activist. All judges are judicial activists. I mean, the quintessential judicial activism was Bush v. Gore, where a conservative majority of the Supreme Court handed the election to George W. Bush. That was judicial activism. On the other hand, if it weren’t for judicial activism, the civil rights movement would not have achieved the gains that it achieves — that it achieved. So judicial activism is a red herring. Certainly, when a Justice Scalia interprets the Second Amendment or Justice Roberts rules in an abortion case, they are being judicial activists. And although nominated justices come before the Senate Judiciary Committee and the Senate and swear that their views on abortion and the death penalty and gun rights will not affect how they rule, they don’t rule in an ivory tower, and judges do make policy, and, yes, they interpret the law, but they interpret it through their own political lenses. So I think that’s important.

AMY GOODMAN: Let’s go to that clip that is being played everywhere of Judge Sotomayor speaking at a conference in 2005. It’s available on YouTube. It’s been played repeatedly on the networks in the last day. In it, Judge Sotomayor says, quote, “a court of appeals is where policy is made.” Well, she is now coming under criticism from some Republican lawmakers for the comment. Well, I want to play a slighter longer version of what she had to say. She was at Duke University, where she goes on to clarify this statement.

    JUDGE SONIA SOTOMAYOR: All of the legal defense funds out there, they’re looking for people with court of appeals experience, because it is — court of appeals is where policy is made. And I know, and I know this is on tape, and I should never say that, because we don’t make law, I know. OK, I know, I know. I’m not promoting it, and I’m not advocating it. I’m — you know.

    OK, having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating, its interpretation, its application. And Judge Lucero is right. I often explain to people, when you’re on the district court, you’re looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law, because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so, you’re always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, “I don’t care about the next step,” and sometimes we do. Or sometimes we say, “We’ll worry about that when we get to it.” Look at what the Supreme Court just did. But the point is that that’s the differences.

AMY GOODMAN: Judge Sotomayor. Tom Goldstein, your reaction?

TOM GOLDSTEIN: I do think that this quote, this one sentence, has been really played far too much out of context. I’m glad you’ve given the broader context. It’s an indication that those who are attacking her have not much to work with. They focus on this one sentence in a panel where she’s kind of making a light joke about, you know, something that’s absolutely realistic, as your other guest said, that on some level, there are so many holes in the law and ambiguities in the law that you can’t ignore the fact that there is some policymaking made at the court of appeals level. And then there is this one sentence from a law review article that’s taken from a speech she did out at Berkeley. And, you know, when you have somebody who has a career of eleven years, I don’t think the public is going to think much of, you know, what she said in these one individual sentences.

JUAN GONZALEZ: I’d like to bring back Juan Manuel Garcia-Passalacqua on both this issue of judicial activism in the federal courts, as well as, again, going back to Judge Sotomayor’s own history. I mentioned in my column in the Daily News today the particular irony of Judge Sotomayor being named to the Supreme Court, because it was the Supreme Court that, in effect, legalized the holding of colonies by the United States government back in the early twentieth century in what’s been known as the Insular Cases —-

JUAN MANUEL GARCIA-PASSALACQUA: Fascinating.

JUAN GONZALEZ: —- most Americans are not aware of, but now you have the daughter of colonial subjects, in effect, her parents, now being named to that very court. Could you go over some of those — what those Insular Cases represented, in terms of judicial activism by the Supreme Court itself?

JUAN MANUEL GARCIA-PASSALACQUA: Juan, this is the crucial issue that I think the United States should address, through your program, from today on. Judge Sotomayor is not a daughter of the American Revolution, OK? Judge Sotomayor was a member of the board of directors of the Puerto Rican Legal Defense Fund, which meant three things: number one, that she was an ethnic national, a Puerto Rican; number two, that she felt that ethnic Puerto Rican deserved and needed a defense; and third, that she dedicated twelve years of her life to that defense, the defense of the Puerto Rican ethnicity within the United States of America.

So, in that sense, you are absolutely correct in your column today: this is a child of colonialism. This is a woman that is a member of the Supreme Court of the United States because the United States invaded her country — invaded her country — and, as a matter of fact, took her parent to war, but that’s another issue. The issue is — as you posit, the issue is, the irony of it all, that deserves to be discussed, is how the daughter of the Bronx gets to be a Supreme Court justice in a colonial relationship between her country and the United States of America. It’s going to be a long dialogue, let me tell you. I think we’re going to be talking about this for years.

JUAN GONZALEZ: But those Supreme Court Insular Cases, could you summarize for our listeners and viewers what they involved?

JUAN MANUEL GARCIA-PASSALACQUA: OK, I’m sorry. The Insular Cases, decided in 1917, the United States Congress granted American citizenship to all those persons born in Puerto Rico. And the Supreme Court in 1922 decided that granting American citizenship to Puerto Ricans did not incorporate Puerto Rico into the American union on the way to statehood and created something called the unincorporated territory, which is what Puerto Rico is now, according to the Insular Cases, precisely Balzac v. Porto Rico that was decided in 1922.

The fascinating thing is that, again, an entity, an island, eight million people — four million in Puerto Rico, four million in the United States, let’s call it a people — eight million people are part of an unincorporated relationship to the United States at a moment in which the President of the United States appoints justice of the Supreme Court of the United States one of those people. One of those people of their unincorporated territory has been appointed Supreme Court justice. Fascinating.

I assure you, Juan, that your book about the consequences of imperialism will have to be reissued after the discussions around the nomination of Sonia Sotomayor go around the block, as they are going to go around the block for months.

JUAN GONZALEZ: I’d also like to ask Cesar Perales, one of the early cases that the Puerto Rican Legal Defense and Education Fund took up when Sotomayor was on your board was the famous Gerena-Valentin v. Koch case. I think it was 1981, when a series of lawsuits over the elections, local elections in New York City, led to a federal court decision to cancel the New York City elections or postpone the New York City election. Could you talk about that?

CESAR PERALES: It’s fascinating what happened at that time. It was the post-1980 census period in which the districts were being reapportioned in New York City and elsewhere in the country based on that census. And there had been a dramatic growth in the Latino community in New York, but the members of the city council drew lines that made it impossible for any new members to be elected. In other words, it was a protection of incumbency, but with clear racial impact.

And the board wholeheartedly supported my efforts to challenge those lines. And we devoted a great deal of time to it. We won a decision at the district court level, went to the court of appeals, and finally the city tried to get us to the Supreme Court. And the Supreme Court ultimately, the day before the New York City elections in 1981, which included a mayoral election, issued an order and said they would not intervene. And that, in essence, stopped the election that year. That was a shot heard around the world in terms of voting rights.

And I think it speaks to her own commitment to — she supported that action. She obviously is against racial gerrymandering. Now, who isn’t? But she very clearly was in a situation in which she encouraged the program, in which she served as a board of directors, to challenge the government to ensure that the voting rights of Puerto Ricans were maintained. And it was not just Puerto Ricans; I guess there were a number of other minorities involved in the race, including African Americans.

AMY GOODMAN: Judge Sotomayor’s view on statehood or independence or commonwealth for Puerto Rico, do you know it, Cesar Perales?

CESAR PERALES: I don’t know it. It’s something that we avoided discussing on our board, because there are so many facets and it’s so volatile that we’ve tried to stay away from that. And I have absolutely no idea what Judge Sotomayor’s position is on the status of Puerto Rico.

AMY GOODMAN: Juan Manuel, do you know?

JUAN MANUEL GARCIA-PASSALACQUA: About it either, but I have an indicia that I think the people of Puerto Rico should recognize at this point. In other words, her career, her whole judicial career and legal career, has been in defense of the rights of Puerto Ricans, of the eight million, the four million there and the four million here. So, there is no doubt whatsoever that on what we call the status issue, we don’t know what her position is, but what we know about the rights of Puerto Ricans, of all Puerto Ricans, those living here and those living there, she is adamantly, as the name of the organization itself defines, the Puerto Rican Legal Defense Fund, so her effort is to defend the rights of Puerto Ricans. Whatever the status of Puerto Rico may be — a republic, a monarchy, statehood, whatever the right — the status of Puerto Rico, she is going to be on the right side of the rights, as defined by the Constitution of the United States.

JUAN GONZALEZ: I’d like to ask Tom Goldstein, on the issue of the most famous case that’s often cited — President Obama cited it, as well —- the baseball case, what exactly did Judge Sotomayor do there?

TOM GOLDSTEIN: Judge Sotomayor called a halt to the strike that threatened to disrupt or seriously wound baseball. This is when she was a trial judge, before she was a court of appeals judge. And she forced baseball to begin its operations again, rather than keeping the players off the field. And so, it’s really regarded as, you know, a crucial bit of baseball history, because the game was in jeopardy.

JUAN GONZALEZ: But when you say a strike, as a former labor activist, it was actually an owners’ lockout, wasn’t it?

TOM GOLDSTEIN: Yes. Right, exactly, exactly.

JUAN GONZALEZ: —- of the ballplayers?

TOM GOLDSTEIN: Right.

JUAN GONZALEZ: So she was actually stopping the owners from locking out the ballplayers.

TOM GOLDSTEIN: Exactly.

AMY GOODMAN: And also significant that she grew up right in the shadow of Yankee Stadium. She grew up in the public housing project. I just want to also mention her parents came from Puerto Rico to New York, but her father died at the age of nine, so she was raised by her mother, something that she brought up yesterday, honoring her mother in the White House when she was nominated.

Marjorie Cohn, the New York Times quotes a lecture she gave in 2001 called "A Latina Judge’s Voice," where she said, “My hope is [that] I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

Can you wrap up for us?

MARJORIE COHN: Yes. Judges certainly make decisions through the lens of their experience and of their background. And the fact that she is a woman, the fact that she is a Latina, is going to invariably figure into her decision making and make her, I think, perhaps more sensitive than she might have been otherwise.

AMY GOODMAN: And in terms of the composition of the court, you sound somewhat disappointed.

MARJORIE COHN: Well, I’m thrilled that there will be the first Latina on the Supreme Court and that there will be another woman. But I really would have liked to have seen a real progressive counterweight to radical rightists on the court, such as Scalia, Thomas, Roberts and — Scalia, Thomas, Roberts and — why am I blanking? Scalia, Thomas, Alito and Roberts, four of them, yes.

I would have liked to have seen an Erwin Chemerinsky, for example, or a Harold Koh, even though they’re not women — Erwin Chemerinsky is a white male — but real giants in the area of constitutional rights, civil rights, human rights. I am very supportive of her nomination, and she should be defended, and she should be confirmed, but she is not going to be another Thurgood Marshall. She will not leave an indelible mark on the court, ultimately, the way Earl Warren did or Oliver Wendell Holmes. I could be wrong about that. I think that perhaps Obama missed an opportunity here, aside from all of the incredible qualities that she brings with her, but hopefully — or, hopefully, I guess one would say — he will have more opportunities to appoint justices.

AMY GOODMAN: Well, we want to thank you all for being with us. Marjorie Cohn, president of the National Lawyers Guild, a professor at Thomas Jefferson Law School in San Diego. I want to thank Juan Manuel Garcia-Passalacqua, independent political analyst in Puerto Rico, knows Judge Sotomayor well, publishes a weekly column, is on radio, as well. Tom Goldstein, attorney, founded the SCOTUS Blog, devoted to the Supreme Court. And thanks so much, Cesar Perales, president and general counsel of Latino Justice, formerly known as the Puerto Rican Legal Defense and Education Fund.

This is Democracy Now!, democracynow.org, the War and Peace Report. We’d like to know your views, as well. You can email us. Just go to our website. Also there, you can follow us on Twitter, and you can make suggestions for stories at stories(at)democracynow.org.

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