American Morning anchor T. J. Holmes brought on the legal analyst to discuss the Obama nominee. Toobin first outlined that Sotomayor was “a very eminent judge....She brings a certain bipartisan aura, because she was originally appointed to the federal district court by the first President Bush....[T]his looks like a very solid pick, someone who will probably have very little trouble getting confirmed, and who will be a voice like David Souter for moderate liberalism.” Minutes before on the CNN program, Harvard law professor Alan Dershowitz referred to the nominee as “moderate and to the left.” Holmes followed up on this note, and asked, “Is that about right?”
Toobin answered, “I would say that’s -- that’s right. You never know for sure, because circuit court judges are bound by Supreme Court precedent....So certainly she will be to the left on the court, with the three other liberals on the court -- John Paul Stevens, Stephen Breyer and Ruth Bader Ginsburg. We’ll see how liberal she is. I don’t think anyone can know for sure. She probably doesn’t even know at this point.”
Over nine hours later, just after the beginning of the 6 pm Eastern hour of The Situation Room, anchor Wolf Blitzer consulted with the senior legal analyst about the Sotomayor pick. Toobin repeated many of the same points he had made on American Morning:
WOLF BLITZER: Jeff, talk a little bit about the chemistry. Assuming she’s going to be confirmed, what will it be like? What will she add to this court, for example, that David Souter didn’t necessarily have?The question that follows from Toobin’s analysis: given Ginsburg and Breyer’s record on the Supreme Court, let alone his admission that there is a “real unknown” about how Sotomayor would rule if she is confirmed, how can he label any of them “moderate liberal”?
JEFFREY TOOBIN: Well, the thing that is so different about Sonia Sotomayor is that she has a lot of street-level experience with the criminal justice system. She was a prosecutor in New York City. She was a trial judge -- a federal trial judge, in New York City. That’s something that none of the justices in the Supreme Court have done -- is had the experience with juries, with defendants, handling the traffic in a courtroom. But the thing that makes her such a formidable choice is that she also has the intellectual achievements and that -- that people expect in a Supreme Court justice -- the distinguished academic career and a decade on the federal court of appeals in New York, where she has a record that is pretty much unassailable.
BLITZER: What’s it going to be like -- her working, for example, on this court with Samuel Alito or Antonin Scalia, who might come at a lot of these issues from a very different perspective?
TOOBIN: Well, in some respects they’ll have a lot in common, because Ruth Ginsberg is from Brooklyn, Antonin Scalia is from Queens, and Sonia Sotomayor is from the Bronx, so there’ll be three New Yorkers on the Supreme Court if she’s confirmed. The real unknown about Sonia Sotomayor is -- she’s a moderate liberal, but freed of the obligation to follow Supreme Court precedent, and instead to set it -- is how liberal will she be? For example, what does she think about the death penalty? The federal appeals court where she sits covers New York, Connecticut, and Vermont. They -- they generate almost no death penalty cases. We have -- we have no idea what her record is on that. She’s decided almost nothing about abortion, gay rights -- issues that are bound to come up in the Supreme Court, and you can bet at her confirmation hearings, the senators are going to try to figure out what she thinks about those hot-button issues.
BLITZER: Is it possible that she could surprise a lot of liberals, and maybe turn out, for example, on Roe versus Wade, not so -- so liberal, shall we say?
TOOBIN: It is possible. But, you know, the myth of the surprised president is mostly a myth. It is true that David Souter surprised George Herbert Walker Bush, but if you look at all the justices since then -- if you look at the two Clinton appointments, Ruth Ginsburg, Stephen Breyer -- John Roberts and Samuel Alito, appointed by President Bush -- they’ve all turned out to be pretty much as expected, and my guess is, based on her long paper trail, Sonia Sotomayor will be a moderate liberal, like Ginsburg and Breyer.
BLTIZER: Jeff Toobin, thanks very much.