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Tuesday, July 14, 2009

Why CNN’s Wolf Blitzer Needs to be a Jennings Fellow

Watching CNN’s Wolf Blitzer anchor the coverage of the Sotomayor hearings Tuesday, I was surprised to see an opportunity lost, one that could have made his interview with Sen. Pat Leahy, chairman of the Senate Judiciary Committee, a bit more vigorous. Noting that Leahy had begun the hearings by giving the nominee a chance to answer charges relating to her “wise Latina” comment, Blitzer asked, facetiously, if the Judge showed evidence of a "split personality," since she had so often cited her background as a recipe for better judicial decision-making but now sat before the committee saying that she had used a poor choice of words in her previous comments and that in fact when making decisions the only guide she wishes to consult is the law itself.

Leahy’s response was to point out that he found the Republican senators’ questioning on this subject disingenuous since “we politicians” all make references to “our” upbringings and backgrounds when out on the stump, building support for election. Okay, fine, but Blitzer then missed the chance for the obvious follow-up: “Senator, you are a member of a political branch of our government. We expect you to bring your background and experience to your work in writing the laws and you no doubt have been elected to do so. Judge Sotomayor, on the other hand, has been nominated to the judicial branch, to the highest court in the land, an un-elected position where she will be charged with interpreting the law. Maybe we just want to be reassured that she is not acting like a politician when she does."

Similarly, in the same segment, the Republican strategist on CNN’s panel, Alex Castellanos, appeared confused on how the law works. Sitting next to Maria Echaveste, a faculty member of the University of California at Berkley Law School and a former official in the Clinton White House, Castellanos seemed to say that because Sotomayor’s decision in the Ricci case was overturned by the Supreme Court, that she had in fact decided it wrongly and perhaps tipped her hand on how she would decide any other affirmative action, reverse-discrimination case. Echaveste correctly informed Castellanos that the Supreme Court made new law when it reversed the lower court's decision in Ricci ; that is, that the Court in effect overturned its previous decisions on this topic, the very decisions that Sotomayor, as a circuit judge, is bound as a judge to follow (see Harold Schramm’s post on the topic here on our blog). The real question for Sotomayor is not whether Ricci was decided correctly by the Second Circuit (bound by precedent, how else was it to decide?), but whether she feels that the Supreme Court decided it correctly when it made, in effect, new law. Circuit judges are obligated to follow the decisions of the higher court, but only Supreme Court justices, who occupy seats on a court of last resort, are free to explore new paths of interpretation.

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