The Power of Persuasion

FORUM COLUMN

During the confirmation hearings for Judge Sonia Sotomayor's nomination to the Supreme Court, everyone will be listening intently to get a sense of what she is likely to do as a justice and the effect she will likely have on the future of constitutional law. As the hearings continue, it is a virtual certainty that she will be confirmed. She is impeccably qualified and besides, there are 60 Democratic senators. Nothing has been even hinted at in the media that should cause her any problems in getting overwhelming confirmation by the Senate.

Some Republican senators likely will use the hearings to rail against liberal judicial activism and to appeal to their conservative base. But it is unlikely that many will aggressively attack or fiercely oppose her nomination. Republicans know that doing so would risk alienating a political constituency of ever-increasing importance.

Senators will question Sotomayor to get a sense of how she will vote on the most controversial and divisive issues likely to come before the court. Based on recent experience, it is highly unlikely that her answers will be at all useful in gauging this. Every recent nominee has steadfastly refused, except in the most general way, to address matters that will be faced as a justice.

Also, recent nominees have not hesitated in saying what seemed needed for confirmation, even when it required being disingenuous. John Roberts carefully presented himself as a moderate who likely would be at the ideological center of the court. As chief justice, Roberts has been anything but moderate and has been everything conservatives could have hoped for and liberals could have feared.

The conventional wisdom is that Sotomayor will be a moderate liberal who will vote in most cases in the same way as the justice she is replacing, David Souter. At least in those matters defined by ideology, it is thought that Sotomayor's confirmation will not change the court's overall ideological balance. Sotomayor's opinions as a 2nd Circuit judge support this view. Like Souter, Sotomayor seems left of center, but nowhere as liberal as a William Douglas, a William Brennan, or a Thurgood Marshall. In fact, her experience as a criminal prosecutor and some of her 2nd Circuit opinions cause speculation that she might even be more conservative than Souter in some criminal cases.

But focusing just on how her voting will compare to Souter's obscures her potential short-term and long-term impact on the court. The key question in the short term, and it is one for which the confirmation hearings will provide no illumination, is whether there are cases in which she is more likely than Souter would have been to persuade Justice Anthony Kennedy to side with the more liberal justices.

Ultimately, this is the Anthony Kennedy Court. During the recently completed term, the court decided 75 cases after briefing and oral argument. Twenty-three were decided by a 5-4 margin. In 18 of 23, Kennedy was in the majority, more than any other justice. Indeed, in each of the four terms since Roberts became chief justice, Kennedy has been in the majority in 5-4 cases far more than any other justice. In the just finished term, Kennedy was in the majority in over 92 percent of the cases, again more than any other justice.

In 16 of the 5-4 decisions, the court split along ideological lines, with Roberts, Antonin Scalia, Clarence Thomas and Alito on one side and John Paul Stevens, Souter, Ruth Bader Ginsburg, and Stephen Breyer on the other. Kennedy sided with the conservative block in 11 of the 16 cases. The most important question as to Sotomayor's impact will be whether in some of these cases she might have succeeded in persuading Kennedy, or maybe even one of the conservative justices, to join the more liberal block.

The Supreme Court is a small group and unquestionably, decisions are often a result of interpersonal relations and individual persuasiveness. Brennan was legendary for his ability to put together coalitions through his personal charm and persuasive abilities. There are stories of how Marshall was able to persuade his colleagues, especially in race cases, with stories of his experiences.

Sotomayor, by virtue of her life and experiences, might likewise succeed at times in convincing another justice. Sotomayor is only the third woman in American history to sit on the court. She is the first Latina. She is among the few in recent years to grow up in disadvantaged circumstances. She was diagnosed with diabetes as a young child. All of this might provide insights and experiences that in some cases might persuade Kennedy or another justice. There is just no way to assess this during the confirmation process.

There is another way in which Sotomayor may make a major difference on the court: She has substantial experience as a trial lawyer and a trial judge. In recent years, it has been clear that this is something sorely lacking on the current court. The current justices have glittering academic and professional credentials, but none of them spent much time in a trial courtroom. In fact, some of the justices, such as Scalia and Breyer, apparently never appeared as lawyers in any court, trial or appellate.

The court's rulings have suffered for this deficiency. In recent years, the court has caused tremendous confusion over the standard of pleading in civil cases in federal court and the rule for when a motion to dismiss for failure to state a claim should be granted. Similarly, its decisions about jury instructions in punitive damages have caused great consternation among trial judges across the country. Having a justice with significant trial experience can really make a difference here.

In the long term, it is difficult to assess Sotomayor's impact because there is no way to know who will be on the court 10 or 20 or 30 years from now. Sotomayor is only the third Democrat to be nominated to the Supreme Court since President Lyndon Johnson nominated Marshall. If there is a succession of Demoratic presidents, at some point, Sotomayor may be part of a more liberal majority, something that has been absent on the court since President Nixon made four appointments early in his presidency.

Sotomayor is 54 years old. If she remains on the court until she is 89 years old, Stevens' current age, she will be a justice until the year 2044.

I have no doubt that the confirmation hearings will show Sotomayor to be a person of tremendous intellect and great personal charm. The most distasteful part of the confirmation so far has been when Karl Rove and others questioned her intellectual ability. Sotomayor graduated summa cum laude from Princeton University and then from Yale Law School, where she was a member of the Yale Law Journal. It is hard to imagine that such questions would have been raised if she were not a woman of color.

I have met her on several occasions, including chairing a panel at which she made one of the statements that has attracted some media attention about appellate judges being policy-makers. I have found her unfailingly warm and charming. I have had students clerk for her, including one now finishing his clerkship. They speak of her in the most glowing terms. This, too, makes it unlikely that her confirmation hearings will be anything other than a brief stop on the way to a long career on the Supreme Court.

Erwin Chemerinsky is dean and distinguished professor of law at UC Irvine School of Law.