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Mike BarryEye on the Island

By Mike Barry
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Supreme Screening

Judge Sonia Sotomayor’s confirmation hearings in the U.S. Senate start on Monday, July 13 and, for the first time since 2005, Frank Scaturro of New Hyde Park won’t be at the center of the action as a president fills an opening on the U.S. Supreme Court.

Scaturro, who will soon turn 37, was Counsel for the Constitution on the staff of the Senate Judiciary committee and lived in Washington, D.C. for the past four years. He has returned to Long Island, having been appointed a visiting professor at Hofstra University’s School of Law. Scaturro begins that job next month, and his prospective students will certainly gain from hearing an insider’s perspective on how the U.S. Senate scrutinizes high court nominees.

“I prepared the chairman for the process’s three major stages: the hearing, the markup, which is when the Senators debate among themselves, and then the floor debate,” Scaturro explained, when talking about his responsibilities for the Judiciary Committee chairman at the time, Pennsylvania Senator Arlen Specter. The two worked closely on the successful nominations of Chief Justice John Roberts and Associate Justice Samuel Alito.

“We knew there was a strong desire to defeat both nominations, if possible,” Scaturro said, referring to the then outnumbered Democrats on the Senate Judiciary Committee and in the Senate as a whole. For years, New York Senator Charles Schumer “took it upon himself to attack judicial nominees based on their ideology,” Scaturro said, while Massachusetts Senator Ted Kennedy threw everything but the kitchen sink at Alito, to no avail.

In a 78-22 vote, the Senate confirmed Roberts as chief justice in September 2005. Alito’s confirmation came by a 58-42 margin in a January 2006 vote. Then-Senator Barack Obama voted against both Justice Roberts and Justice Alito.

With the Republicans holding only 40 of the U.S. Senate’s 100 seats, Judge Sotomayor’s prospects for confirmation are exceptionally good, Scaturro believes. Not even the U.S. Supreme Court’s decision last week to overturn her ruling while part of a three-judge panel on the U.S. Court of Appeals for the 2nd Circuit, which dismissed a white firefighter’s claim of discrimination in a suit against New Haven, Connecticut, is likely to be an effective GOP argument against Judge Sotomayor, he added.

“Judge Sotomayor’s position was similar to that taken by four justices in dissent,” Scaturro noted. In fact, Justice David Souter, whose retirement created the vacancy President Obama is now trying to fill, was among the dissenters.

The 69-year-old Souter was seen by many in the D.C. legal community as the only justice inclined to leave the Supreme Court for reasons other than health concerns, Scaturro said. Indeed, most of the other sitting justices are older than Souter.

Scaturro envisions the Republican senators’ line of attack next week will be that Judge Sotomayor “does not understand the proper role of the judiciary” and “puts her thumb on the scale” for certain litigants when deciding cases, letting her personal attitudes override precedent and a case’s facts. Barring some momentous last-minute disclosure which casts doubt on her fitness for the job, however, all signs point to Judge Sotomayor joining the U.S. Supreme Court when it reconvenes in October.

Mike Barry, a corporate communications consultant, has worked in government and journalism.

Mike Barry, a corporate communications consultant, has worked in government and journalism. Email: MFBARRY@optonline.net