Scrutinizing the upcoming Supreme Court nominee — Senator Sessions looks ahead

Senator Jeff Sessions, the ranking minority member of the Senate Judiciary Committee, held a conference call this afternoon to express his views on the process of evaluating President Obama’s nominee to fill the vacancy of Justice Stevens. Obama is expected to make his nomination within the next two weeks, and possibly as early as the end of this week.
Sen. Sessions said that the nominee will need to be scrutinized closely, given Obama’s stated views of the kind of Supreme Court Justice he is looking for. Last year, Obama said he wanted a Justice who is empathetic. This year, in the same vein, he said he wants a Justice who will consider the impact of decisions on ordinary Americans. Obama has also been described by his own press secretary as a pragmatist who is more concerned with outcomes than with process.
Sessions is of the view that cases should be decided objectively based on the law (and in particular the plain meaning of its words) and the facts, not on a results oriented basis. Since Obama seems to disagree, it is fair to suspect that his nominee also disagrees, and thus to provide a high degree of scrutinty.
In this connection, I asked the Senator to compare the kind of scrutiny that should be applied to (1) a judge with a long record of opinion writing and (2) a nominee who has never been a judge. Sessions said that a nominee with no judicial track record should be held closely to his or her writings and public statements. He seemed receptive to my suggestion that little weight should be accorded to the attempts of such nominees to walk away from these utterances during the confirmation process.
Sessions expressed particular concern with the writings and public statements of Goodwin Liu, Obama’s nominee for the Ninth Circuit Court of Appeals. He characterized them as quite extreme.
Justice Sotomayor had a long judicial record to interpose as evidence (whether fully persuasive or not) that her famous “wise Latina” remarks did not reflect the way she judges. Goodwin Liu has no such record, and Sen. Sessions seemed disinclined to give much credence to Liu’s attempts to modify his past extreme positions. Sessions also noted that in some instances Liu has not walked very far from those postions in any event.
Sessions pointed out that the political climate has changed since Sotomayor’s confirmation last year in two respects. First, the public has become more concerned about government encroachment into the affairs of citizens; second, the public has become more aware of Obama’s big government outlook. Sessions suggested that these changes could make it more difficult for this year’s nominee to sail through with the relative ease that Sotomayor did, depending of course on who that nominee is.


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