COVERITLIVE.COM

1:04

Fred Barbash-Moderator - Good afternoon. Walter Dellinger, one of the nation's most distinguished Supreme Court litigators and law professors, will be with us at 1:30 to take some questions about today's Supreme Court nomination. Walter is an Arena contributor, but more significantly, a former U.S. Solicitor General and former head of DOJ's Office of Legal Counsel. Walter is the first of many guests we will have here on this topic--reflecting the entire spectrum of thinking on this nomination. If you'd like to be notified of future chats, email me here.

You are invited to submit questions now. He'll take as many as he can. And thanks for participating.

1:35	Fred Barbash-Moderator - Walter: Thank you so much for doing this, especially on such short notice. Welcome to all of our readers and thanks for participating. Let me start, Walter, by asking you your general reaction to today's appointment..

1:36

walter dellinger - I think its an excellent appointment. She brings a great deal to the Court. She will be one of only two justices with experience as a prosecutor; she will be the only justice with experience as a trial court judge; she has an excellent academic background, and rich judicial experience

1:37	[Comment From Jen] Mr. Dellinger. Thanks for doing this. As you have argued so many cases at the Supreme Court, what, in your view, makes for a good justice and does Judge Sotomayor possess those qualities?

1:38	walter dellinger - Well, an openness and a willingness to be persuaded by cogent argument is essential. Judge Sotomayor has shown that she can be persuaded by the better legal argument, even when you might think her 'sympathies" were with the other side.

1:38	[Comment From Gloria L.] Why would he choose someone knowing that he's going to get a fight from Conservatives? Isn't it just asking for trouble? Couldn't he have made a safer choice?

1:41

walter dellinger - Why would he want to make a 'safe' choice? One presidential candidate said (privately) "there are a lot of things you do to get elected; there are some things you get elected to do." This is one of those you get elected to do. That said, this should not be a controversial choice. She was named to the District Court by George W. Bush based on her record as a prosecutor and private lawyer. She has more judicial experience than any Justice now sitting had at the time of appointment. She will be confirmed

1:41

[Comment From Alan T.]
Professor Dellinger: Conservatives are making a great fuss over a comment she made about appellate judges making "policy." My sense is she wasn't talking about public policy in the sense that they're trying to suggest but policy for the courts to follow as they adjudicate cases. Is that your impression or am I wrong?

1:45

walter dellinger - The "appellate judges make policy" comment is as controversial as saying the earth is round. 1. She was advising students on whether to clerk on a district court or on an appellate court. District courts apply law to facts of a particular case. Issues are appealed because the law is unclear. Where the law is unclear, appellate judges make legal rules -- policy, if you will -- of general applicability. As Holmes recognized, law is not mechanical. Appellate judges have to decide questions like: is it an "unreasonable" search to strip search a 13 year old girl suspected of carrying ibuprophen? To answer that is to set legal policy

Page 1 Next >