writing -- sotomayor's writing style is fairly characterized as workman-like rather than ideological. she's not an overly rhetorical writer. i don't think she's fairly characterized as someone who writes in, say, the narrative style that for instance, judge posner typically writes. her opinions are fairly straightforward, as far as structure goes. she'll often state the law and simply -- state the law and then apply the law to the facts. that said, i don't think i'm going out on the limb to say it's likely that a justice sotomayor would align herself with the liberal block on the supreme court. everything in her background suggests she's likely to share many of the views that justice souter had and she's likely to join justices stevens and ginsburg and breyer, particularly in a lot of hot button cases involving

constitutional law issues or other issues where in recent years we've seen that familiar 5-4 split on the court. i think one aspect of her record that will get close attention in the confirmation process is the decision in the ritchie case. many of you are familiar with that case but this was a case involving an aptitude test given by the city of new haven, connecticut, for fire fighters to determine which firefighters were eligible for promotion. a bunch of hopefuls took the test and when the city saw the result they determine an insufficient number of african american candidates qualified for a promotion based on their he's results, so they decided the best approach was to jettison the test completely, thereby denying the plaintiff group, a group of white

firefighters, denying them the opportunity for promotion. judge sotomayor decided it should be uphold. it went to the supreme court, i think there's a likelihood the court is going to reverse the second circuit. i think that the ritchie case raises concerns on a number of fronts. one is it does appear the case was wrongly decided. chief justice roberts quite correctly said, the way to stop discriminating on the basis of race is to stop discriminating on the basis of race. another reason that it raises concern is the way it was issue the second circuit court issued the decision as an unpublished, summary order and didn't engage in merits of the wailingty constitutional issues at stake. this is a criticism lodged by another clinton appointee on the

second circuit who expressed deep concern that the way the panel handled it wasn't appropriate under the circumstances, given, again, the very important constitutional issues that were at stake. the fact that the case had been brief and argued extensively. i very much expect that this is a decision that will be front and center in the confirmation hearings. with regard to judge soto minor's -- sotomayor's position, i think she'll generally take a liberal approach to a lot of cases. i think she'll align herself on those issues for the most part with the four-justice liberal bloc. that said, it's interesting to note that if you go back and look at justice sotomayor's written questionnaires and answers she's given to interview questions, when people ask you, what are the most important cases you've handled or been involved with in your career, more often than not she idefinite fis a number of

criminal cases she's handles, either as prosecutor or judge, that involved crimes against children. she's spoken about it repeatedly. it's clearly an issue where she feels passionate about it. though i think she'll generally take a liberal position on a lot of criminal law issues, there may be areas where she takes a more conservative issues. as far as immigration policies go, here's a statistic that you may not know, when i learned about it it was shocking to me. 40%, about 40% of the second circuit's docket today is immigration cases. 40%. that's a remarkable number. second only to the ninth circuit which is approach 50g%. but what it means is a few things. one is that it means that jouge toe soto mayor has a lot of experience in this area, had a steady diet of these cases for years an years, know this is

area of law well. the other way it may impact her service on the supreme court is that this explosion of immigration cases is a relatively new phenomenon in the sense that it only began in the last few years. because the only other justice who has had a comparable experience during his tenure on the circuit court wuss justice alito, it means justices sotomayor and ali to are the only justices with personal, tangible experience with the modern day immigration system, as far as being a judge go, and they are going to be very aware of many problems that plague our system. i know that in a numb of immigration cases the supreme court has handled in recent years, justice alito played an active role in argument, asking questions. it's clear he brings to these cases his perspective as a judge who for the last few years had been hearing increasing numbers of these cases and is, i think, flummocksed about what to do with it and how to aprotch the

law, given the deluge of these cases. i think that's something judge sotomayor will bring to the court. as far as her position on business issues go, business is a very interesting area of law. i spent a lot of time reading her cases on business issues. i'm primarily a business litigator. it was interesting to me to see her approach to these issues. it's hard to pin down. she has a mixed record. there are some cases where she stakes out what is a very prose--- pro-business position in terms of limiting the rights of plaintiffs. on the other hand, there's no shortage of cases where she's gone the other way, employment discrimination cases, it's hard based on her corporate -- her corpus of opinion so to speak, it's hard to pin her down. i think the best way to think about it is if you look at the way the modern supreme court has addressed business issues, those

are the issues that have split the modern court in nontraditional and atypical ways. by that i mean, there are a number of business issues where the conservative justices have gone against the interests of business and the liberal justices are business' biggest protector. for instance, the area of punitive damage, the question whether the constitution imposes substantive limbs on the amount of punitive damage awards, there was a doctrine developed by the liberal justices of the supreme court over the objection of justices scalia and thomas, typically regarded as the pro-business justices but they viewed the constitutional limits as the latest improper manifestation of due process. another issue is preemption where liberals and conservatives take different views as to whether preemption is infringing on the prerogatives of the

state. it will be interesting to see how she approaches business cases, and she's staked out liberal position bus there are some positions where it wouldn't surprise me if she takes a pro-business approach. let me say a few words about her temperament and demeanor. i have argued a number of cases before her. there is absolutely no question she is a very forceful, direct questioner. i've argued before i think almost all the judges on the second circuit and in my experience, she was far and away the most active of any judge on the court in terms of her questions, many of which give some inclination as to the way she's approaching the case. all that said, i did not find she was in any sense abusive or that her questions were inappropriate.

that's not to say she's not direct and forceful enough and makes her views known. there was one case, unique in my experience, where the lawyer on the other side had in judge sotomayor's view presented such a deficient brief that in the course of the argument, she ordered the lawyer removed from the case and replaced with a court-appointed lawyer. unique in my experience. i can only imagine what the lawyer would tell her client when she returned. how did the argument go? i got fired. it was certainly an unusual experience and we'll see if he tries on that on the supreme court, my guess is probably not. one last point i'd like to make before we open up to questions, one question often raised with regard to judge sotomayor and others as to whether or not they could fill a consensus building

role on the supreme court. whether their personality is such to forge consensus, build coalitions on the court. when people say this, often i think what they mean is, can she persuade justice kennedy. as far as that, obviously, who knows. i think one thing that i will note is that it's hard to predict these things in advance. the history to have the supreme court in many respects has been a history of individual personalities. and it's very difficult for an outsider to predict that once you got a new justice in the mix and it's a very closed court in the sense of their conferences are closed and no one can ever be sure of the internal dynamic of the court, but it may well be she forges relationships with other justices that may way -- we may not anticipate. even if she does, it's still an open question of whether that would result in different

outcomes. my prediction at that point would be that judge sotomayor will fit in fairly seamlessly as a replacement for justice south for the terms of her ideology, her approach to the law. i think that it may -- there may well be some differences on individual issues but i do not think we're in for any sort of radical restructuring of the court or massive shift in ideology one way or the other. i think that in many cases, particularly those hot button constitutional cases, i think that we'll see that familiar 5-4 split recurring again and again at least until the next vacancy on the court arises. thank you very much. as i said, i would love to entertain questions and in fact our friends from c-span asked me to hold off to make sure we reach people with a microphone to make sure the question is heard. let's start over there. >> thank you for your presentation. i'm wondering if you have an

inkling of what judge sotomayor might rule on the national security cases and you know issues involving things like guantanamo and whether she feels that foreign law or international law should have the same sway as the constitution as other liberal judges like justice breyer have that same view. >> let me address quickly the second part of the question, with regard to international law issues, my best guess is that she will take the view that international rulings will have some relevance, i believe she's spoken or written on that issue, and that although she does not view the rulings and bind, they may be relevant authorities. in any given case whether a court is treating something is relevant or persuasive may be a matter of debate. but my guess is she will take

the view that these authorities have some relevance to the cases before the supreme court. with regard to the question on national security issues, it's a very good question and i wish we had more cases from which to draw conclusions. there are two relevant data points i will note. one is that she had a case some years ago that involved searches on a ferry that operated, i think, between vermont and maybe canada. the question was the extent of the search you could subject passengers to. she sided with the government in that case, that it was reasonable under the circumstance, that the threat of a terrorist attack warranted a more thorough search than warned in other cases. i think the she got that one right. there's a case spending -- pending right now in the second circuit that involves a challenge by an individual who said that u.s. government made a decision to improperly transfer him to another country where he

was subjected to abuse. this was a case that was argued before an en banc panel of the second circuit and all the judges participated. judge sew tai -- sotomayor also participated, though she wasn't in new york and marties pated by video conference. it's thoord predict which way a judge will go based on his or her questions during an argument. it seemed from her questions that she did not agree with the government's position. that she was taking a more restrictive view of executive power and authority than the government advocated. based on those two data points, it appears she might take a more liberal view on national security issues, but as the vermont case i mentioned showed she has an interest and appreciation for concerns of the state.

>> as you indicated in your remarks, elections have consequences. from the perspective of a rank and file federalist society member i think it was a fair assumption we would not be enchanted with any supreme court nominee that president obama would put forward. but there's a continuum from bad to worse that those nominees could fall on. i was wondering where, in your view, judge sotomayor falls on that continuum? >> my view is that she is a reasonable choice for the president to have made. you know, in a world where i could say i would choose this justice or not, i might have chosen a different justice but i do recognize that elections have consequences and certainly if you look at her background and experience, i do think she's perfectly well credentialed, i think the president is fully entitled to choose someone who shares his views. one of the great frustrations

that i and many people had during the bush administration was seeing nominees we had put up who were just impeccably credentialed, impeccable experience, excellent judgment treated unfairly by the senate or by certain senators. we put up a number of judicial nominees, people for executive branch positions who by any stretch were qualified, displayed impeccable judgment, and were opposed on partisan, political grounds where people said, we might -- he may be experienced and credentialed but we don't like your philosophy, so we're not going to vote for you, i think that's improper. as far as the other candidates who were the so-called finalistings he had some good people to choose from. i have a lot of respect for judge diane wood, i've argued before her, she's a smart judge.

elena kagen, extremely smart, extremely talented. judge sotomayor was a reasonable choice to make. as far as senators' evaluations of her, that will be determined by the process where she gets to answer, or i hope she gets to answer their questions. my view is she was a reasonable choice for president obama to make. >> you mentioned early on that one of the factors that may have weighed in to president obama's decision to choose judge sotomayor among the different finalists you mentioned was she had a long tenure as a circuit court judge and that was one of the results of judge souter, justice souter's tenure on the court, the president might want to have someone with more record to examine to see how they'd make a decision. do you think we've reached a point where if someone has not only not had a long record as a

circuit court judge maw but maybe hasn't served as a judge, we're not going to see that person nominated, we won't see people who are governors or who have other kinds of experience nominated as justice for the court and do you think that's a good thing or bad thing? >> tangse relevant factor in this day and age. i think the fact that judge sew tai tomeior had nominees, my guess is it was an important consideration to the president. whether or not it was -- whether to have that record, i don't think you have to go so far. had the president appointed secretary napolitano or governor grant hom, it would be a surprise. i wouldn't rule out the that someone with no track record would get appointed. president obama spoke many times that he was atracked to the notion of choosing someone who didn't fit the typical profile

that is to say a circuit court nominee or judge. i think that he may also have in mind, for instance, the model of earl warren, where you appoint someone with a long track record as a politician and might approach issues in a way someone who hasn't been would. whether that's a good thing or bad thing depends on the person. certainly i think you want to have someone who has an appreciation for the notion that a judge's role is different in kind than the role of a politician. the judge is applying the law. the judge is applying the constitution. a judge can't pay attention to poll numbers or what the popular outcome would be. so while i would say that a politician -- politician may make an excellent supreme court justice, you need to make sure that that person, whoever he or is is, has a feeling for the disting role of the rule.

>> [inaudible] future topics such as regional topics, illegal immigration, gun control and any affect she might have on tax policy in the future. >> let's see. let's see, i guess taking the first one, the illegal immigration first, as i mentioned, she has vast experience in this area. she knows the law exceedingly well. my guess, from having argued cases before her, she probably takes a fairly liberal view in the sense that i think she might be more sympathetic than say justice thomas or scali would be to claims of illegal aliens fighting removal. i know from my personal experience, having argued some of these case before her, that certainly seemed to be the way she would approach a lot of cases, she would hold the government to a demanding standard, not saying it was an inappropriate or wrong standard, but she would make sure the

government had its argument right and the alien in the case at issue was being treated fairly. nothing wrong with that. but that was generally her approach. with regard to gun control, she has had some cases she actually was on a panel that resolved a case recently where some people said, oh, she takes a more laberal perspective. then someone pointed out a conservative panel reached the same result. it's hard to say basted -- base on that. my guess is she'd take a more liberal view of gun control. i would be surprised if she sided with justice scalia and thomas on that. but you're not bound by supreme court precedent in the same way you are as an appeals court judge. so the jury is still out on that. as far as her role in tax formation and capital formation -- >> [inaudible]

>> she -- there, too, she'll have an immense amount of experience. she was in the drirkt of new york, they hear a lot of these. from what i've seen, she's taken more of a pro-plaintiff view, more of a pro-shareholder view in some of these cases. so based on her past record, that's where i'd anticipate her coming in, stouget the usual qualifications of once again on the supreme court all bets are off but based on her track record that's the approach she seems to have taken to date. any other questions? i think there's one in the back there. >> you mentioned judge wood and kagen. do you think they're on the short list, looking down the road, for when justice stevens retires or justice ginsburg, what's the scuttlebutt about who would be on the short list for those spots? >> let me first say i think it's

reasonably likely that president obama will have another opportunity to make an appointment. i think that question of who is the next one going to be is certainly something i'm sure the white house has thought about and frankly it wouldn't surprise me if they made the sotomayor appointment in light of people they might appoint to a subsequent vacancy. as far as who might be a future appointee, if you were on the short list for the first vacancy, i think it's a fair assumption that you're on the short list for the second vacancy. during the clinton administration, justice breyer was widely perceived to be the runner up for the slot that went to justice ginsburg and when the next vacancy arose, breyer got it. there's precedent for a runner up to get the next opening. but there are a few qualifications. you never know what the political environment will be. you can imagine a situation where the political dynamic in the country has shift, the republicans have greater strength in the senate and

accordingly that might affect people the president thought he could get confirmed or put through the process. the other variable is, whose vacancy he's feeling. the sotomayor nomination is less controversial than it otherwise would be because the appointment is to fill justice souter's seat. you can imagine a circumstance where, not that i anticipate say justice thomas resign, but if we were during the obama administration and the president was filling that spot, you might see a different reaction from conservatives or republicans because the appointment would have much greater consequence to the balance of the court. i think subject to the political qualification about changing environment in america and actual vacancy that president obama would be filling, we'll see what happens. i would start with the current short list as the next short list, at least the presumptive short list. terrific. i think that's it.

thank you very much for your hospitality. >> the u.s. supreme court in a 5-4 ruling overturned a decision in ricci v. destef ne. the case has been watched closely because supreme court nominee sotomayor was one of the judges who decided that case at the appeals court level. joins us to talk about this is greg stohr. before we get into details of the ruling, can you outline what this case was all about. >> what it's about, the city of new haven had a test for fighter promotions to captain and lieutenant. when they gave out the case, it turned out that no blacks qualified for more than a dozen promotions. and the city decided what it would do is cancel the test and cancel the promotions and when

it did so, a group of mostly white, including one hispanic firefighter, sued. >> at what level was there suit reversed basically? >> the appeals court said that they could not sue, that the city basically acted in good faith because it was concerned tfs going to be sued by black firefighters because the tests on the surface at least had what's known as a disparate impact. it had -- it allowed -- it favored white firefighters in terms of the bottom line. the supreme court today reversed that lower court ruling and said no, actually, the city does not have a good defense. and the white firefighters win the case. >> what did judge sew tai -- sotomayor, she sat on the second circuit court, what did she say in their ruling? >> she did not say very much. a couple of technical point the second circuit ruling was issued

by the court as a whole. there were three judges there. what they essentially said was the way the district judge analyzed the case, to say that new haven won, was correct. they didn't engage in much of any independent analysis of their own. they said, we adopt the reasoning of the district judge. we have sympathy for the white fire fighters who lost their chance at promotion but the city was justified in canceling the promotions. >> in the supreme court's majority ruling overturning the second circuit court decision, what did the majority coalesce around as far as making that overturning ruling? >> the majority said that the city's actions in canceling the propotion -- promotions violated title 7 of the civil rights act they said the city -- in any employer, when presented with this sort of situation, needs to have a strong basis in evidence that it would be violating title 7 to go ahead with the

promotions and the majority said the city didn't have that in this case. it pointed to a couple of factor, it said that the city hadn't shown any flaws with the test, hadn't found any reason to think the test wasn't adequately measuring important criteria for senior firefighters and also said that the city hadn't shown that there was some other alternative out there they could have used rather than this test. and the majority said because of that, the city did not have an objective a good faith -- a strong basis in evidence to believe that it was susceptible to being sued by the black firefighters. >> there was a 5-4 ruling. who were the five in the majority on the supreme court? >> this was along the ideological lines we've seen, justice kennedy wrote the opinion, ginned by scalia,

thomas, alito and chief justice roberts, what we think of the as the more liberal ring. justices stephens, breyer, ginsburg an souter were in the dissent. >> what did the dissent say? >> justties ginsburg said the city had adequate basis to fear it would have been pseudoby the black firefighters. she had a somewhat different standard for an employer to meet. she said that the -- that the majority's strong basis in evidence test she said went too far. the city, she said, had a. evidence that -- had ample evidence that its test might p flewed. her reasoning was a little bit different from that of jouge sotomayor and the lower courts. e