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Baylor Law professor examines Sotomayor hearings

July 15, 2009

As supreme court nominee Sonia Sotomayor begins to wind down her testimony in front of the Senate, Baylor law professor Mark Osler takes a look at some of the issues specific to her nomination.

Mark Osler finds Sotomayor to be a particularly interesting nominee due to some shared experiences. They both come from district attorney's offices in major cities; he in Detroit, she in New York. They also both received their law degree from Yale, and shared many of the same classes and professors. Osler, who gained attention by winning a case in front of the Supereme Court last winter, says he's struck by how calm she has been in the face of intense scrutiny, a product, he believes, of disparate aspects of her background--the nitty-gritty world of law in the city and the ivory halls of academia.

Osler says he believes that, beyond the life-story that has been consistently discussed and praised, and beyond the historic aspect of a potential first Hispanic justice, she's also very qualified and that he respects the nomination. Part of that qualified background includes experiences very different from those of her potential peers.

That criminal background appeals to Osler, a former federal prosecutor and assistant D.A. But more than her background, it's been statements--by both President Obama and Judge Sotomayor--that have drawn media attention. President Obama used the word "empathy," a word seized on by opponents as perhaps indicating bias from a nominee towards a group of people. Osler said that the word made it easy for opponents to be critical, but hopes Obama meant it differently than it's being portrayed.

Two other controversial quotes by Sotomayor were addressed by the nominee in testimony yesterday. One, saying that a "wise Latino woman" could use her experiences to reach a better conclusion than white male judges. She said she meant it to inspire young people, and that it was a bad choice of words. Another quote scrutinized by Senate Republicans came when she hinted that appeals courts were where policy is made, prompting fears that she would legislate from the bench. Sotomayor said her record indicates otherwise.

The hearings, Osler notes, are where politics and the law mingle, and emotions can obviously be high on both sides. The left and the right approach the candidates from their unique angles, and opinions from either side can be somewhat predictable. But Osler says that, looking at her career and the decisions that she's made that, much like David Souter--the man she would be replacing--she could surprise people.

Sotomayor's testimony winds down today, with a chance she would wrap up tomorrow if any additional time is needed. But to a legal observer like Mark Osler, each hearing is part of a broader context. Republican grilling of Sotomayor, who is a near certainty to be confirmed, is designed to send a message for the next go-round.

When that next go-round occurs, the court will certainly look different, with the presence of it's first Hispanic judge expected. And Osler says it won't just look different, but could work differently when they discuss things behind closed doors. And that's why the nominee of a Hispanic is so important to that minority gorup in America.

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