Published May 26, 2009
Sonia Sotomayor will face some tough questions on her path to the Supreme Court, but President Obama's nominee to replace Justice David Souter is likely to sail through her Senate confirmation nonetheless, legal experts said Tuesday.
Constitutional law experts said Sotomayor's confirmation will be met with little resistance from lawmakers -- even from Republican senators and conservative judicial activists.
Harvard law professor Mark Tushnet, who called Sotomayor an "obvious" choice to replace Souter, who is retiring from the Court, said Sotomayor will be grilled by Republican senators who feel obligated to "go through the motions of opposition."
"They have constituents they have to satisfy," Tushnet said.
Among the chief questions facing Sotomayor will be the role of a federal judge, issues of affirmative action and discrimination, the Voting Rights Act and the effect of Sotomayor's judicial philosophy on her rulings on the bench.
Top of that list may be questions on comments Sotomayor made at a Duke University forum in 2005 in which the federal judge said, "The court of appeals is where policy is made."
"The Senate will want to know what she meant by that," said Lori Ringland, constitutional law professor at the University of Georgia School of Law.
"The Senate wants to see how she responds to questions that don't have crystal clear legal answers," Ringland added. "They want to see how she exercises her judgment."
Sotomayor will also face grilling over her role on a three-judge panel that declined to address the constitutional issues at stake in Ricci v. DeStefano, a case involving white firefighters in Connecticut who claim they were denied promotions because of "reverse discrimination." The high court heard the case this season and has yet to issue its ruling.
Tushnet said the case "will be of great concern because it's a significant affirmative action case."
"If the Supreme Court affirms her decision, it will simply go away. If the Supreme Court reverses her decision, it will not," he said.
Jonathan Turley, constitutional law professor at George Washington University Law School, said the case of the firefighters "raised very important and troubling questions" that the panel on which Sotomayor served "dismissed out of hand."
"Many questions were dismissed on a cursory basis -- she didn't actually write an opinion. [The ruling] did not do justice to the claims and, in my view, the litigants," he said.
Past questions asked of Supreme Court nominees have covered a host of controversial topics: the "Living Constitution," the death penalty, domestic surveillance, executive power, cameras in the courtroom, the court's legitimacy if Roe v. Wade is overturned and the use of foreign law as precedent.
Turley claims the "driving force" behind Sotomayor's nomination is her life story. The would-be third woman on the nation's highest court is Puerto Rican, lost her father at age nine, was raised in a Bronx, N.Y., project and was diagnosed at age 8 with childhood diabetes.
He said the question of "intellectual depth" is likely to get the least attention at the hearing.
"I don't believe the body of her work justifies this nomination," Turley said. "I've read about 30 of her most important decisions and they do not suggest someone with a profound understanding of the law. But that does not mean that she will not surprise us."
Robert Bork, who was nominated by President Ronald Reagan for the Supreme Court in 1987 and later denied confirmation, told FOXNews.com that Sotomayor will "face very few tough questions."
"I don't think that Republicans will put up much of a fight. They never have," he said.
Bork suggested that Republicans are likely to back away from tough questions because of the "sympathetic nature of her life experience."