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With nomination, some reflect on Sotomayor's comments at Duke

This morning, President Barack Obama nominated Second Circuit Court of Appeals Judge Sonia Sotomayor to the seat on the Supreme Court vacated by retiring Justice David Souter. Her critics, in trying to conceive of the type of justice Sotomayor would be, are pointing to comments she made at Duke during a panel discussion at the School of Law in 2005.

"All of the legal defense funds out there, they are looking for people with court of appeals experience because the court of appeals is where policy is made," she said at the Judicial Clerkship Information Panel.

She qualified the statement, going on: "And I know this is on tape and I should never say that because we don't make law. I know. Okay, I know. I'm not promoting it. I'm not advocating it. I know."

It drew laughter from the audience at the time, but now  some are interpreting the tape to mean that Sotomayor would be an "activist" judge. Media Matters argues that the comments have been taken out of context.

For those who were there, the statement was harmless, and not indicative of a larger activist approach.  Erwin Chemerinsky, who moderated the panel, dismissed the hubbub grounded in those comments.

"I think that is much ado about nothing," he wrote in an e-mail to The Chronicle Tuesday. "Of course, judges' life experience influence how they see the issues and matters before them. Judge Sotomayor's statement was innocuous and true. I think that this is grasping at straws to try and paint her a liberal."

Chemerinsky taught constitutional law at Duke for several years and is now the founding dean of UC-Irvine's School of Law. He added that he expected it to be an "easy confirmation." The Senate will now have four months to complete those proceedings.

"She’s a brilliant political choice.  A president always wants a nominee who will please the base, but not require a great deal of political capital," he said. "I can’t imagine Republicans will want to try to oppose the first Latina to be nominated, especially with the growing political strength of Hispanic voters."

Political leaders and others reacted to the announcement Tuesday, highlighted online in an NPR segment. Note that Chemerinsky--though not generally among Obama's short-list of potential nominees--is cited by the National Lawyers Guild's Marjorie Cohn as an intellectual who would have been a strong selection.


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