Senate Debate on Empathy
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Justice Sotomayor and the Supreme Court

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Legal scholars spoke about the upcoming U.S. Supreme Court term and the possible impact that Justice Sotomayor would have on the court.
Following their remarks they answered questions from the audience.

 Time

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00:00:12

Good evening, ladies and gentlemen. I can promote our enterprise, i am the supreme court correspondent for scotus blogger, and we also have a sister blogs, scotuswiki, a research tool with all the filings in all the cases every term. So we welcome your attention and welcome you to our blog, but most of all, we welcome your attention to this panel. We are corn to talk about what may of been the least surprising subprime -- supreme court nomination in several generations. President obama had no one else in mind from day one, and the instinct to choose justices sotomayor was never wavering. Apparently it was also one of the least suspenseful senate did judiciary committee prophecies -- processes. I'm joined by wonderful panel. We have one member of our panel who is going to be operating under a little inhibition. Professor michael gearhart was a part of the process advising the chairman of the senate judiciary committee and other members of that committee and was therefore privy to some of the shady deals that went on to try and find a place to hide charles grassley. Without success. . But he will not be able to join as fully in dark injectants -- in our conjectures, because he knows what went on. And in any case, this panel, when it is concluded, you know the definition of an unscripted enterprise. We have not planned anything at all except to announce the names of those participating and their affiliations. Michael is a professor of law at the university of north carolina where as they say for posterity, my son teachers in the college of medicine. To my immediate right, never to my immediate right, is the senior editor of sleep -- "slate," and i say with sincerity to most gifted correspondent to cover the supreme court that i've ever encountered in terms of her literary gift. She's a wonderful addition to our precious -- press corps and a delightful human being, as well. To my left is carter phillips, a seasoned advocate before of the advocate supreme court. He is truly a long time, very talented member of the supreme court's distinguished bar. On my far left as did its cross of the university of chicago -- david strauss of the university of chicago, himself a distinguished scholar. We are in good company, and we will start by a general question, but what in the world was president obama thinking about when he chose to justice sotomayor?"

00:03:45

Thank you, and thank you for having me. This is always one of my favorite parts of the fall, this conference. We are going to head jill level of what we're going to say by saying that we're looking back and we're going to try to go through the dregs of the coffee of what happened in the sotomayor nomination but we're also concerned on this panel looking for work. I think it is fairly clear and has not been refuted anywhere that john paul stevens has only hired one clerk for next year, and all the reporting of the world confirms that he is at least thinking seriously that we're going to have one or maybe two more confirmation hearings in the near future. So this is a look back, but also trying to triangulate forward into the near future about what happened and what is going to happen next. So it is not just about the wisely team anymore -- the wise latina anymore.

I want to frame remarks as to rise and fall of judicial empathy. The brief, meteoric career of empathy as a way of talking about the court. No matter what happens in the future, you will not hear that word again. And i use it not entirely to be flipped, because i think that when president obama used the word, and he used it on the campaign trail, in the audacity of hope, he was describing a particular quality that he really values and judges -- in a judge. It quickly more into something that was a form of mental illness, almost. But obama's construction, and certainly, if you read his book, all he means is the ability to walk into someone else's shoes. Whenever that might mean for a jurist, i leave to my colleagues on the bench, but i think that is what he was saying, trying to telegraph, trying to reframe the conversation that had gotten boring about the judicial activists, humble moderation, balls and strikes. He was trying to create -- break through the wall, if you will, to create a third wave talking about this that will bring us out of the stale and not very helpful conversation we're having about whether courts are activists or they construe the law or smoked pot and make it up as the go along. He was trying to go along with that, but it proved to be a disaster. I think that the other thing about which obama was equally clear from the beginning is that while he admires thurgood marshall and justice brennan very much, he has no interest in putting anything like them on the court, and he made that clear. He has a very, very different view of what needs to be on the roberts court right now.

And part of the problem with a conversation about empathy is that it got portrayed uncomfortably in the media with a conversation about gender. So very quickly, all of the complaint people how about judges who had some sort of surplus of empathy get bound up in a conversation about sotomayor and whether it was talking about her as someone with a terrible temper problem or somebody who did not deserve to be in a high-end position but was there because she was a woman. It got deflator very quickly. In some ways, that conversation setter up for a harder conversation.

She probably ended the use of the word empathy forever when she threw it and the president under a bus at her confirmation hearing and said it was nothing she was interested in at all, that gender should be humble, -- judges should be humble and moderate and apply the law. One thing worth pointing out about what happened better hearing was that i thought that the democrats in the a judiciary committee, whether they were willing to embrace the obama model -- collet empathy, i do not know what you want to call it, but something that went beyond john roberts' robotic view of mechanically applying law, and it was interesting watching democrats on the committee even as amongst themselves and within themselves they toppled back- and-forth between describing sotomayor as a restraint, formal minimalist -- restrained minimalist to does nothing because she does nothing at all , and on the other hand, she is important because of where she came from, her history does informed and she is, and i thought that that confusion really played out to the detriment of sotomayor and other democrats because you came away from what could be a teachable moment about a different way to talk about what is democrats want in a judge. What i came away with, and i wrote this, was that democrats want john roberts in pumps.

They just do not know what they want, but they kind of wine and women. They want an umpire with a good story. That cannot possibly be the totality of what democrats are progressives want from the supreme court. So my sense of it as a rise and fall question to his dad is an interesting language choice, this word, and it's the, with the possibility to inform and change a complicated question about what the roberts court has been doing, what it stands for, what we want our judges to do, and if we want them to do something different, what that would look like. And it almost collapsed before it started. It seems to me that it started a rocky road for the nominee itself, and the fact she had to distance herself became complicated. As a consequence we saw pretty -- ultimately, not very --

00:10:25

Why did you guys blow it? [laughter]

00:10:29

It was funny. I was sitting here thinking to myself that those would have been interesting hearings. Those were not the hearings i saw or heard. My recollection was that it was 68-31, a pretty decisive margin of victory. There is more to it than that. Dahlia mentioned a couple-.

The-bashing of empathy. Perhaps the-bashing of liberal and that the. But the significance of those things should not be overstated. The significance of these hearings is that she got confirmed. Somebody with those features, but without out book, somebody who was a bit like third marshall is confirmed by the senate. She was, like marshall, somebody who broke left field. Those nominees draw opposition. Those nominees are viewed as people who will upset the status quo and therefore are somewhat thought of prematurely or improperly as activists. She said some of that to rest, and the reason she did that and how she did it is something we should pay attention to, because the ultimate aim is simple. It is not to be dramatic. It is not together attention. The basic purpose of the confirmation hearing is to get somebody confirmed, and that is exactly what happened. As i was describing earlier today, in a trial, everyone is fully prepared for what is going to happen. Simple trials, depositions. No great surprises. It is going to be fairly dry and boring and fairly predictable. That is pretty much what we saw. I would not necessarily draw a negative inferences from it at all because the significance of this event is not going to be defined necessarily by what happens during a, but what follows a. What follows it will be perhaps another argue similar kind of nomination. Another thing i would say on the positive side is that what the democrats did before it was an entirely different alternative to judgment, and again with the president, he did not just mentioned empathy. He mentioned you wanted a judge that would be immersed in the real world.

So real world judging was mentioned 22 times but the democrats and the judiciary committee. Moreover, their entire focus was on record, and it wanted to stress, i believe, that this was a nominee who paid attention to the facts, would not be ideologically rigid or bound but instead would pay attention to a particular nuances of cases in front of her. That is very different, a different alternative to what we have seen before. That is what the president was trying to do, to reshape our expectations about judges. It was not a coincidence that she was a district judge, one of four nominated in our history. She had a different record, and that would make her different. She really was operating in the real world, with the consequences of what she was doing. That is a very different case than somebody who is just an umpire.

00:13:53

A couple thoughts. As far as how the hearings proceed, there is a script. These nominees sounds too much alike. It is clear what the script says. And the system, which was out of equilibrium for a while, is reaching equilibrium, and people know what they need to say, and the incentive of the nominee is to be confirmed. That means not to alienate people. And you say you will not alienate people, but the example of the nominee is not to spark a national conversation about the constitution. Why would you want to do better? Bad vibes -- the last thing you want to do is stirred up. I think that accounts for some what the nature of that hearing.

You will see people not talking about empathy anymore in terms, but to give you things -- one is a cheap shot. A lot of people screaming about empathy were talking about the firefighters out there, and what was that about? That is a cheap shot. They expected people to be empathetic with the new haven fire fighters.

 Fair enough. But the other cheap shot is this. To the extent the hearings influenced popular opinion, i think a lot of the influence depends on how people react and whether people think something like this -- if i got in trouble and got wheeled into court and they are hitting the bench from that person, how would i feel? If it is sotomayor, the way she came across, you would think he would be ok. John roberts, said my. -- john roberts, same way. I think people want empathetic judges.

00:16:02

On the pragmatic practitioner, i am so bored with these hearings. I've got to tell you. At least until kennedy stepped down, all bets are off. Whoever gets that slot blot of one extraordinary confirmation hearing. It is a situation where you are essentially ideologically replacing one just as with another who is almost certainly going to be very close and to purchase the balance of how the court will approach the vast majority of cases. As a practitioner, it is hard for me to get excited about it. The president gets to make a choice, and he was happy to pick somebody. I can only worry about whether the person will read the materials, think about the case sisterly, be well-prepared, and hopefully asked reasonably good questions. After that, it is sort about my hands at that point. Certainly, justice sotomayor is going to be fine. I'm sure she will be relatively active participant in the court and will almost certainly express reduced fairly forcefully. -- express her views forcefully. One point i want to make is that if you analyze the role of the justice, it is worth taking a second to look at what she replaces. One way that a practitioner will be lost is that justice souter had come to my mind, and we'll give 4% is questioning -- and real precise gift for questioning. He may not have written precise opinions, but when it came to finding the toughest part of your argument, and he had an unerring ability to identify it, articulate the problem with it, and frankly, if he stayed on the bench lager, just not let it go. You might say as a practitioner it is good to get that water system and deal with somebody who is less precise and more difficult, but to me, at least, it was quite exciting when you grapple with justice souter. I do not know if i convinced him to change his mind ever about anything, but at least to know that someone understand your argument with care, has spent a lot of time thinking about it, and takes you to task on your weakest point. Please to have an opportunity to weigh it out and make your best argument. Sometimes, your best argument may not be all that persuasive. I remember thinking, i do not want this question, but i will, because justice souter will ask that. I hope that justice sotomayor can do the same. Suter was one out of nine, as far as i'm concerned. Others have skills in questioning, but it will be hard to replace him in that role.

00:19:08

Speaking about justice souter's literary style, we thought in the press that it was the closest modern appreciation of chaucer. We already know a little bit about justice sotomayor as justice sotomayor in the first death penalty protest ricci joined with three progressive. Can i use that term? The radicals on the left. She joined them in voting for a --

00:19:45

Inaudible

00:19:50

A stay of execution is this summer, and she has participated in one case already, citizens united versus federal election commission, a major case on campaign finance law in which justice sotomayor was really quite actively involved and in fact she probably asked the most difficult question underlying all of this, did we get off on the wrong foot when we started treating corporations as if they were persons? It is very difficult to look at

00:20:23

[laughter]

00:20:29

[laughter]

00:20:34

It is very difficult to imagine the more difficult question in campaign finance law when you were talking about first amendment rights of corporations. What do we think? This is a fast bench, probably the brightest i have ever covered in terms of raw native intellect. Is she up to it? [laughter]

00:21:00

Yes. Yes.

00:21:04

Let's move on. [laughter] mature, it will be interesting to see how this plays out, actually. One argument is one thing, and everyone will get all of their adrenaline through that first argument. It will be more interesting to see how is out over the course of, i would hope, 100 arguments. But it will probably be closer to 75 or 80. In terms of day in and day out, i remember talking to justice alito during the transition on three-judge panels as opposed to nine-justice panel. There's a pace to it you have to get used to. At times to make sure the junior justice, even when you think you have your opening, you can get trumped and that can disrupt the flow to some extent. It will be interesting to see how about -- how that plays out. I thought back to win justice altio went to the court and thinking about how more than half of the justices were quite inactive during that period of time, and then he came on the court and it was an unbelievable explosion. It was a tsunami change, and it has not changed since. Almost everyone since then has been more active than the justices they replaced. For the most part that is true. You end up with remarkable activism, and everybody getting put into that one, even with the same energy and desire to get at the advocates, they are going to have a harder time trying to figure out how to slot it in and not get cut off and also how to beat respectful. One of the big changes that happened when the chief justice take over, he might let the advocate and serb but once or twice in the course of the dirty manage their of their -- answer a question once to twice in the course of the 30 minutes they are up there. It will take for a while to be able to go to that.

00:23:21

One can say that justice scalia has not changed much since 1787. [laughter] i wonder if we can say on another aspect, when justice ginsburg came on the court, statistics now show that she voted much, much less often to grant cases than her previous predecessor, byron white. The cloak is now in the habit of deciding fewer than 80 cases every turn, whereas when i was in middle age in the early 1980's, the court decided twice that number. So can we expect that justice sotomayor will want the court to become involved in more cases, or will she at rest on the semi- retirement for a scheduled date maintain now -- a schedule that they maintain now?

00:24:22

Are you asking me? I hope she is inclined to grant more cases rather than fewer. It is interesting. I hope that -- roberts and alito testified that the court should take more cases and then they proceeded not to do that. So you look at it and think that maybe the court ought to be more involved, if but when you are on the bench and your back in chambers, maybe less. It was crazy when the court was deciding 160 cases. If you think about how the term plays all out, you end up with 24 cases in april, many of which were very important that you had to get out by the end of june, it is a pretty remarkably difficult situation to put yourself in your in, year out. The one-year i was cooking, june was just an unbelievably horrible month. I think that to some extent, the court actually made a nice switch in my mind so they had more cases and arguments, fewer in april, because nature says that it will work better if you give yourself a little more time. As an advocate, you know that if you're in their march and april, the likelihood is good that the courts are going to try and figure out the easier way to resolve those cases than they necessarily will in october and november. So if you want a broad ruling, my suggestion is to try to get your case argued in november if you want the most superficial look, get there in april. I do not think there is any way to predict how any individual justice going on to the court will respond. Justice white was great. Not only did he vote to grant the time, but he also said that he thought the court erred in not granting cases. At least to consider klein, we did not get a grant, but at the somebody noticed that we had something to do here. As it stands there, but lack of satisfaction coming from it 1-1 circuit 9 is palpable. On the other end of the phone, the voice is always a little underwhelming. But there is no way to know. Certainly this summer order list does not fill me with great optimism that there will be a huge influx.

00:26:58

The reality is that the court has just released their december calendar, and there are no afternoon argument schedule despite the court having nine cases that were still left on schedule before the additional 10 were granted on september 30. So the court goes into the january session with 19 cases, seven more than the usual maximum. So it is front end and it stopped loading. Apparently, john is 89 and he is still going with great regularity. Let's talk more if we can about the participation of justice sotomayor. We know justice scalia has always been frustrated because there is not enough discussion in conference. When the court selected new cases september 30, that was the announcement that day. The preceding day, they had a conference in which he supposedly had before them to a dozen cases -- 2000 cases of which they chose 10 and lasted until 10:08, demonstrating nothing more than efficiency, perhaps. But at least we move forward with 10 new grants. So it could at least go into the early part of february and perhaps they go and recess until the summer. But let's talk about sotomayor. She had some reputation on the second circuit of the big bad -- of having a sharp elbows. Do we expect sharp elbows in the conference, or is that a misnomer?

00:29:06

Let's take a swing a bat. I think that is a wonderful sexist thing to say. It came up during the hearings, the suggestion that because she was tough in the second circuit in oral arguments that that merited some kind of special description out of the ordinary, other than the fact that her people anonymously gaper nothing but brief reduce. We're already seeing early signs that she is somebody who prepares extremely well, she works extremely hard, i think that will be the case, and she is not shy. In other words, i think she will be quite prepared to express herself whenever that might a tail. But i think that because she acts tough questions that merits some kind of less than positive reputation does not do her any service. I think actually that it is true that she happens to be really tough, holding people to a tough standard which at that level is probably preferred.

00:30:20

I completely agree. I thought nobody called john roberts a bully and step on the bench, also. I think that questions about her being a bully were simply sexes. There was not another way to look at that. I think another where she's going to have an effect on the court and conference in just on the bench, and this goes to the point agreement about being a real world judge, it is hard to say someone is a real world federal judge when they have been on the court for 16 years. Are we ever going to have somebody who does not have a 16- year record to scrutinize ever again? That notwithstanding, one of the quality she brings to the table, and i always reminded of justice pallia -- scalia saying that conferences are different when thurgood marshall is in the room. They're different members bitter -- when ruth dater ginsberg is in the room. I think it will matter that a hispanic woman is in the room. It is not inconsequential. You cannot measure that. But i think it is terrifically important that her story that is part of what the court hears about.

00:31:53

She was a district court judge, the only person on the sprint corp. Who has ever tried a case. Justice alito had some experience as a lawyer. I think that will be something she will add to to the court that is useful. Sirius, sober. Do not look to her four grand theories. That is not what she does. I think that is the nominee we can expect to see the rest of obama's nominations that he gets. Maybe this history is that moving the supreme court is not a party for democrats or president obama. If you think about what they want to accomplish, they can accomplish it if they stay where they are. They cannot move in a hostile direction, but with health care and legislative priorities, abortion, that is fine, affirmative-action is the same. The calculation is, why do we need to expend political capital appointing someone to the supreme court to either has views pushing the edge or that will come across as a kind of person who is interested in doing something big. Why should we spend capital on that? We are trying other things. I think there is asymmetry here, because the republican party voters is on anything. This is just a period in history where that is true. The public is interested in abortion, guns, property rights, federalism -- those are court issues, and it is sensible for republican president to think, you know, if i have to take a hit, that is what i will do. But i do not think that is for president obama, and it does not mean everyone will be uncontroversial, but i think that they will not make the choice to push the envelope.

00:34:36

The problem was in washington -- i am uncomfortable talking about wisdom in washington, not the most of his colleague prevailing there regularly, but -- not the foremost quality there, but with the next nomination, it will go to a non-judge, john and paul tunnel, currently the secretary of homeland security -- janet napolitano, currently the secretary of common security. I do not know how strongly you can credit that speculation, but it would look to me as if a rather bold stroke had been made to bring a different professional diversity into the corporate it would be. I think it would be salutary. I agree that we will get more and more experienced judges. The next one cadet 18 years of experience -- that is not the way to stop the court. -- the next one could have some 18 years of experience. That is not the way to stop the court. She could come across as scary to the people who oppose her. The protective public life is a conservative for a democrat, and i think that is one reason she will command herself as an appointee to the president.

00:36:00

Before we move part of the way to the point to which neil gets nervous, can we look at the possibility that when john paul stevens to parts, whether at the end of his term or another one, who is going to work on anthony kennedy after john paul stevens is gone, and will it be

00:36:18

[inaudible] [laughter]

00:36:28

I think that i have never been quite persuaded that it will produce one atom or the other. But i think that justice sotomayor is one who would not be shy about talking to people about issues, that kind of thing. That has been a lost art for some kind of reason. Bad boy bad bad -- one thing the president can clearly do is set the terms of the confirmation proceeding and recast the dynamics, and it is something that the president once mused about. If the president wants to change the dynamic, going with a non- sitting judge with a political background is one way to do it. A lot of the questions about what to do in this case or that case, whatever, it is much easier to say, well, like chief justice roberts, this is stuff as an elected official, said the hearings have a different dynamic, bringing a different dynamic. So having that perspective makes for a more enriching discussion.

00:38:23

You might want to remember that between the justice roberts and the other, there was not a nominee, and it did not go successfully. There is a risk. You have access to a significant amount of information, how someone will hold up under intense scrutiny, transitioning from one lifestyle to another, not that easy to accomplish. While i personally think there's a lot to be set for finding somebody not on the bench, i can understand why there is some reluctance to jump too quickly in that direction as well, at least some risk going with it.

00:39:24

I would not dominate too much with the nomination of harriet miers. Imagine a senator being nominated. That is a different dynamic. Somebody who has a rich, long public life, for example, is janet napolitano. It is very different.

00:39:45

I am not comparing them. But there are risks going off the bench, drifting away. There are people who would be easy to get confirmed in that direction, but i understand at least some of the reluctance that exists historical going there. If you go back and look at justice is souter and thomas, their record on the bench was exceedingly thin. Justice souter had been on the supreme court for a while, but most people reading those opinions came away completely and convinced about what -- i mean, those were short opinions, straightforward, and they did not give insight into what he would think any major constitutional issue would do.

00:40:31

Doesn't this go back to what david said about the script? It is so tight right now. You talk about cases, you talk about when you have years and years of cases to talk about, was that an act of his decision? Yes or no? That is the script. What do talk about with the paul tunnel? Her speeches? It just becomes -- what do you talk about with janet napolitano? Her speeches? It is difficult for me to imagine with this piece of peter that we do having any conversation that is not about even if your record is thin, at least we can talk about your record and tarp about griswald again. I have no quarrel with that. But at least we're talking about cases. I do not know what that confirmation hearing under this looks like.

00:41:35

We have to go back to 1971 to even have some recollection what that might be. It is a very different thing. If you want to change, this is one way to do it. We can predict the nature of some questions. Some produce problems. If you're a governor and appointed judges, that will likely become the source of scrutiny. So we can predict some of those lines. But we can also predict that the person might be able to say quite credibly that they fully appreciate the difference between legislating and judging because they have literally been involved in the former, giving an idea how the latter is different. Is a different thing, and it

00:42:19

[inaudible] [laughter] john roberts, most questions did not concern his cases. Thomas was not judged. And with justice souter, there was a state court record, but there were no questions about that record. This is something i'm not trying to think about. A lot of these questions, this theory in constitutional -- a seminar in constitutional theory questions, to what extent do you have a regional understanding, you know. It is something for people, kind of a boring question for people who have real jobs. What do you make of that question? I expect stuff like that. Things like that. As you said, the script. The court has said that will be the script.

00:43:25

We have reached the point where we want you to join the conversation. We have about eight minutes to have some questions. Does anybody want to fire away at any member of the panel? Yes, go ahead.

00:43:44

You mentioned at the obama administration expanding political capital to come up with strong liberals to maybe go back and forth with sculley and whatever -- with scalia and whoever. By the same token, the republicans are some of privilege what is going on and they did not want to expend political capital either. What i'm wondering is that in light of everything, would things have been different if the confirmation hearing was in september and the vote was in late september like it was with roberts, o'connor, and souter, where they did not do the hearings in the summertime, they waited until september. Has the landscape changed enough that political capital might have been expended?

00:44:58

What is pertinent about the calendar is the matter of time that goes by. If you make the nomination in may and hearings did not happen until september, you are robert bork. That is the problem. There's a longer period of time going by and that could be the problem. That is the period in which people go in, a pertinent time. It depends bad, it's time has to go by, because it has to do with creating that dynamic. Along virgos, the more you leave the nominee out and it is hanging, subject to whatever possible problems might arise from the internet. So you want to move as quickly as you can. We have this myth we participate in debt everything changed after bork. The reason that is a myth is that bork was the exception that proves the rule prettier before he was nominated, we had another judge, scalia, who said nothing in his confirmation hearings. So the norm has been always to savory little. Bork tried to change the process and failed. Some things reverted back to where they are. But there are all sorts of things you could send, but what it means in practice is that i think we can expect that people will be probably wanting to shorten the time. On the president's side and lengthen it on another.

00:46:57

Joe biden was asked if there was something he changed his mind about, and he changed his mind about the supreme court proclamation and they led the opposition to bork. That is what he said. And obviously, they did not know anything about it and did not have the answer. But obviously, something.

00:47:28

One thing that the vice president was talking about was how the senate shifted control. He became president of the committee, so it could perform differently. But the patterns remain the same.

00:48:02

I'm just wondering if he had the ability to explain fully what he did. If this was a corporate case. Basically, will you be empathetic to the labour units -- unions. When i talk about empathy, the question now is is a favorable to corporations, to unions? If they had more empathy to the people i care about, this would be a better country. What if he said that? I am just saying that it is enough to do that.

00:49:05

I think that obama does have a slightly conflicted view of the role of the court, and i think he holds the notion that the court has some responsibility to minority groups. But i think that his larger world view is not bad. I think this was argued a couple weeks ago. He thinks the court should not be the engine. He believes in the political branches. To say that is to sound like bill brennan, right? He is not bad guy. And i think that what we're seeing now is the fallout of a vestigial notion that in his view, the roberts court is doing something wrong, but there is no way to talk about it. It is that junction that plays out. What the courts traditionally protect is wrong, but we do not know how to say that. [inaudible] suitor did it quietly.

00:51:08

John j.. [laughter]

00:51:13

[inaudible]

00:51:28

Let's give someone a chance.

00:51:35

I think biden handed himself very well. He was facing a democratic senate as a republican nominee, and the democratic senators were suspicious. You might remember that when suitor was first nominated, the talk among democrats was that he was a stealth nominee, really a hard core right winger. But they found him with no record that betrays that. So he was facing the other party and had to convince them that he was not that guy. Sotomayor is in a different position. Democrats have a majority. She just has to make sure she does not blow it. When you are in that position, why engage the issues? If she said, i think i would like to take a stand, empathy is good, and when i said i was a wise latina, i was telling the truth -- should i say that? Your best advice to her is "ix nay." why would you do that? Invite that kind of trouble?

00:52:53

Some of you are probably old enough to remember that this is the point where the university of north carolina sports analogy comes into play. You protect your lead if you have got it. You do not need to open yourself up to unnecessary inquisitions.

00:53:14

It is really getting bored at this stage. [laughter]

00:53:24

Ladies and gentlemen, we thank you for your participation. We're gong to move -- [applause] we are going to move directly into the next couple of decades. If you stay in your seats, we will move right ahead. Thank you.

04:57:32