- The Washington Times - Wednesday, July 22, 2009

While Supreme Court nominee Judge Sonia Sotomayor has been characterized ideologically as a likely even swap for retiring liberal Justice David H. Souter, she could be just like him in another way, as a “stealth candidate” for the high court.

Justice Souter was often described as a “stealth” pick by President George H.W. Bush, one whose confirmation hearings gave little indication of his subsequent opinions on abortion and other contentious issues.

Judge Sotomayor, who spent last week largely ducking hard questions about some of the most controversial cases she would likely face on the high court, told senators she would “abide by the rule of law” and not prejudge cases.

Legal scholars said the Sotomayor hearings provided little insight on what she would do once she reaches the nation’s highest court.

“The truth is, it’s anyone’s guess how her confirmation will affect the Supreme Court and its place in American life,” said Laurence H. Tribe, Harvard Law School professor and one of the legal scholars who advised President Obama on his first Supreme Court pick.

“I think the hearings were uninformative as to how a Justice Sotomayor would affect either the Court’s internal chemistry or its external output,” he said. “And her 17 years as a careful and altogether mainstream federal judge likewise tell one very little because she has operated within well-defined constraints in following precedent as she understood it.”

Judge Sotomayor, who would be the first Hispanic and third woman on the high court, will have to wait a week for the Senate Judiciary Committee to vote on her nomination, after committee Republicans exercised their right to call for a short delay.

But with another Republican, moderate Sen. Susan Collins of Maine, saying Tuesday she will support the nomination, Judge Sotomayor’s confirmation seems a foregone conclusion before the Senate adjourns for its August recess.

Supreme Court candidates have largely given vague answers to pointed questions from lawmakers since Judge Robert H. Bork, who came into his 1987 Senate hearings with an extensive background as a conservative legal scholar but was shot down by liberal interest groups and Democratic lawmakers.

Judge Sotomayor appeared to keep that in mind during her three days of questioning last week, dodging questions about abortion rulings and gun rights, frequently citing American Bar Association standards designed to keep a judge from talking about a case or issue that might come before them.

“I don’t know there’s much you could take away,” said Carl Tobias, professor at the University of Richmond School of Law. “I don’t think she committed to much, and she followed the lead of her predecessors, including Justice [Ruth Bader] Ginsburg and others.”

Lower court jurists such as Judge Sotomayor are largely bound by precedents set by the Supreme Court, Mr. Tobias said.

Despite Judge Sotomayor’s unrevealing answers and relatively restrained judicial record, interest groups have pretty much pegged the Bronx-born judge as a liberal jurist likely to follow in the Souter mold and match his voting stands on the high court.

The National Rifle Association announced last week it would oppose her confirmation, while the abortion rights group NARAL Pro-Choice America said Tuesday it would support her.

Other scholars have said that, while Judge Sotomayor is hard to read from her record on the bench, she is likely to fall somewhere on the political scale in the middle of the court’s three other liberal members: Justices Ginsburg, Stephen G. Breyer and John Paul Stevens.

“If you want a guess, and this is just a guess, Obama has been influenced by Cass Sunstein, who believes in a certain form of left-wing judicial minimalism,” said Mark Graber, a constitutional law specialist at the University of Maryland Law School.

Mr. Sunstein was picked by Mr. Obama to lead the White House Office of Information and Regulatory Affairs in January.

Mr. Graber said that given the careful confirmation performances of past Supreme Court nominees, a better question for frustrated lawmakers might have explored how long Judge Sotomayor would likely serve on the court if approved.

“My only question would be: ‘How old are your parents?’ ” Mr. Graber said.

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