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Panelists Weigh Issues Surrounding Sotomayor

June 5, 2009 – As Supreme Court nominee Sonia Sotomayor continued to meet with senators on Capitol Hill on June 3, a panel of experts a few blocks away at the Law Center debated issues raised by her nomination.

Georgetown law professors Susan Low Bloch and Richard Lazarus joined Supreme Court litigators Roy Englert and Patricia Millett ,as well as journalists Adam Liptak of The New York Times and USA Today’s Joan Biskupic for Supreme Court Institute’s panel.

Panelist sorted through the pros and cons voiced since President Obama’s May 26 nomination of Sotomayor to replace retiring Justice David Souter. She would be the first Hispanic to sit on the Supreme Court if confirmed.

The move is historic, but not without criticism. GOP conservatives call Sotomayor underqualified to serve on the High Court, but the panel said those claims are unfounded.

“Does anybody recall anybody impugning Justice [Samuel] Alito’s intellect…when he was a nominee?” asked Millett, who co-heads the Supreme Court practice at Akin Gump Strauss Hauer & Feld. “How does this even happen? … It’s the women, it’s the minorities, who [are still questioned].”

Alito attended Princeton University and Yale Law School – the same schools attended by Sotomayor, who is a 10-year veteran of the U.S. Court of Appeals for the Second Circuit. She has been a federal judge for 17 years and will be the only former trial judge on the Supreme Court if confirmed.

Past Cases Scrutinized

Panelists looked at length at Sotomayor’s Second Circuit cases – among them Ricci v. DeStefano, a discrimination case brought by white firefighters in New Haven, Conn., who claim they were denied promotions by the city. A three-judge panel that included Sotomayor affirmed a district court ruling against the firefighters last year; the Supreme Court is currently reviewing the matter.

The panel also explored Didden v. Port Chester, a case accusing the village of Port Chester, N.Y., of abusing eminent domain power. A lower court dismissed the case on limitations grounds and the the Second Circuit affirmed that ruling on appeal.

“This may well be the sleeper,” said Lazarus, who predicted that Didden could receive much attention during the confirmation hearings. “This is a case that could take enormous political legs, and it doesn’t have any kind of racial or diversity [aspects].”

Panelists said some of the cases should have received more detailed explanations by the Second Circuit, but they did note the court’s workload is heavier in comparison to the Supreme Court.

“[Didden is] another example of an opinion that should have been written,” said Lazarus.

Prepping for Confirmation

The White House is busy preparing Sotomayor for the confirmation hearings, and releasing information to the public about her. The nominee’s writings, speeches and rulings have been released – plus her credit card debt, dental bills and even food preferences. The release indicates the inevitable level of intrusiveness into her life, panelists said. Even the nominee’s food preferences have become fodder for public discussion, according to one member of the panel.

“Unless she’s a cannibal,” Millett said, “I don’t care what she orders for takeout food.”

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