When a Denver student asked Justice Sonia Sotomayor on Thursday about the “biggest sacrifice” Sotomayor had made to move ahead professionally, the justice paused and told her audience in the university auditorium (and on C-SPAN) she was about to say something “more personal than you may want” to hear. I thought about how – as was  widely reported during her 2009 nomination — Sotomayor had divorced young, then broken off an engagement in her 40s, and remained single now in her 50s. She had spoken bluntly early in her career about the toll work took on her romantic life, telling one interviewer: “A man who calls you three times and all three times you answer, ‘I’ve got to work late’ … after the third time, he begins thinking ‘Gee, maybe she’s not interested.’”

But last week the justice answered a question about personal sacrifice by talking about her elderly mother, Celina, who was hospitalized recently. The sacrifice, Sotomayor said was in “taking this job when I know that I am on the tail end of my mother’s life.” Sotomayor said she regretted work demands did not let her be with her mother right now.

Celina plainly has been the single most influential person in the justice’s life. When President Obama nominated Sotomayor to the Court in May 2009, she declared of the woman who had worked six days a week as a nurse to support the family, “I have often said that I am all I am because of her, and that I am only half the woman she is.” (Sotomayor’s father died when she was nine years old.)

Justices, typically appointed in their 50s, often come into office with elderly or deceased parents. Elena Kagan’s parents died even before her confirmation to solicitor general in March 2009. Justice Antonin Scalia’s parents died several months before he was nominated to the Court in June 1986. (They passed away within days of each other during the previous Christmas season.) “It took some of the sweetness out of it,” Scalia told me about his parents’ missing his nomination.

When the late Chief Justice William Rehnquist lost his mother (in 1988, when she was in her 90s), he answered condolences from colleagues by observing that no matter how old one is, a parent’s death takes a heavy toll. Rehnquist’s mother was the driver in that family. Sotomayor’s mother represents even more.

Among the first judicial nominees I ever tracked was Vaughn Walker, when I was working for Congressional Quarterly’s weekly magazine and covering the Judiciary Committees on the Hill. In 1989, key Democratic senators, led by California Sen. Alan Cranston, along with several liberal interest groups, opposed President George H.W. Bush’s nomination of Walker to a U.S. district court in San Francisco. It was primarily because of Walker’s membership in a men-only private club.

Walker, then 45, ended up leaving the club and getting confirmed and became little more than a footnote in a year of successive battles between a Republican president and Democratic Senate over judgeships and Justice Department positions. That summer, the Senate Judiciary Committee rejected nominee William Lucas, a Detroit lawyer who worked primarily in law enforcement, to head the Justice Department’s important civil rights division, and some senators tried in vain to derail Clarence Thomas, who Bush first tapped for the U.S. Court of Appeals for the D.C. Circuit. (Thomas was confirmed in early 1990; Bush then nominated him for the Supreme Court in July 1991.)

With liberals now applauding Walker for his decision this month declaring California’s ban on same-sex marriage unconstitutional, it’s hard not to recall his nomination and be reminded of the difficulty of predicting judges based on early records or the appointing president. Ronald Reagan first nominated Walker, but the nomination stalled in 1988.

The usual pattern is that appointees meet expectations that reflect a president’s views. That’s why the liberalism of Justice David Souter (1990-2009), another Bush appointee, was so notable – and infuriating to conservatives.

We now have a new justice, Elena Kagan, whose relatively scant paper trail has spawned competing forecasts. Her time in the Clinton and Obama administrations leads some observers, including me, to believe she will be at least as liberal as the justice she succeeds, John Paul Stevens.

But it is worth observing the assessment this summer of Stanford Law Professor Michael McConnell, a conservative who previously was a U.S. appeals court judge (appointed by George W. Bush). McConnell, a thoughtful scholar respected across ideological lines, has known Kagan for twenty years, since they were on the faculty at the University of Chicago law school. “I think she will be more conservative than liberals hope, and less liberal than conservatives fear,” McConnell wrote in a detailed eight-page letter of endorsement to the Senate Judiciary Committee.

 He reviewed her writings on free speech, religion and executive power and said, “Obviously, any nominee of this (Obama) Administration will reflect the progressive political outlook of the president … . Much in Elena Kagan’s record demonstrates that outlook. But this must not be exaggerated. On a significant number of important and controversial matters, Elena Kagan has taken positions associated with the conservative side of the legal academy. … No one can foresee the future, but I would not be surprised to find that Elena Kagan, as a justice, serves more as a bridge between the factions on the Court than as a reliably progressive ideological vote.”

Justice Kagan is 50 years old. If she serves to 90, Stevens’ age, she will have four long decades to fulfill the vision of President Obama – or not.

An editorial assistant from Farrar, Straus & Giroux wrote last week to say he was clearing out old correspondence and drafts associated with American Original and to ask whether I wanted anything saved. With the Antonin Scalia biography securely in hard-cover and about to be in paperback (September 1), I said don’t bother. But, I said, if you come across the original Herblock cartoon I acquired for the photo insert, save it.

I worked with the legendary Washington Post cartoonist Herb Block for eight years and was a fan of his work and even greater admirer of the man himself. He died in 2001 at age 91. I used an iconic drawing of his in the Sandra Day O’Connor biography. The cartoon showed Lady Justice lifting her blindfold to see a robed woman ascending the Court steps. “Well, it’s about time,” Lady Justice is saying. The Herblock I used in the Scalia book was drawn in 1996 after the justice appeared at an event sponsored by the Christian Legal Society at a Mississippi law school. Scalia criticized the “worldly wise” who might mock “true believers.” As controversy over Scalia’s speech boiled up, Herb sketched him on the bench reading the Bible and fuming about “worldly wise guys.”

Recalling that cartoon last week nicely coincided with a question from Touro law professor Marty Schwartz, who was a panelist with me at a recent legal conference in New York. Marty, who has an extensive collection of law-related cartoons, asked me about a Jim Morin drawing I had cited in a chapter on Scalia’s views related to affirmative action and other racial policies. The cartoon was published in the Miami Herald in 1988 after a conservative Court majority had voted to reconsider the reach of a longstanding civil rights law. Morin linked the action to President Reagan, who had appointed most of the justices in the majority, and drew a caricature of Reagan sticking his tongue out at Abraham Lincoln in his chair at the memorial. Under the headline “Supreme Court Votes to Reconsider Major Civil Rights Law,” Lincoln looks distressed. (The Court’s action had come in a case of Patterson v. McLean Credit Union. As it turned out, the justices in 1989 did not significantly scale back the civil rights law in question, even as they voted against the African American woman alleging harassment on the job.)

After reading about the cartoon in American Original, Marty tried to find the Morin work in various Internet cartoon-banks. He turned up other Morin cartoons on race and even one related to the Patterson case, yet not the cartoon I mentioned.

I knew it was unlikely that I had personally clipped the 1988 cartoon, but I also knew I wouldn’t have referred to a drawing I hadn’t actually seen. I suspected I had found and copied it from a justice’s files during research.

In a quick search of the plastic bins stacked in the basement under the ping pong table (the Library of Congress I am not), I found my Patterson files. And there was a cartoon Justice Harry Blackmun had included among his personal conference papers on the case. Blackmun had saved Morin’s cartoon along with newspaper editorials denouncing the conservatives’ vote to review the longstanding law. It endures, even beyond the Internet. I made a copy for Marty and dropped it in the mail.

Justice Ruth Bader Ginsburg opened a speech at the American Bar Association in San Francisco this week by observing, “I have lived long enough to see great changes in our profession.”

A question I’ve heard many times in my travels this summer is how much longer Justice Ginsburg, age 77, a cancer survivor and now a widow, will serve. Watching Justice Ginsburg on Monday (see the ABA video here) and following her activities since the death of her husband, Martin, I believe she will not step down in the next two years and is ready for the long haul, eager to see more changes in the law and profession.

That means it is likely President Obama’s Supreme Court nominations for a first term are over and that, after four appointments in five years (John Roberts, Samuel Alito, Sonia Sotomayor, Elena Kagan), we will see a new period of stability at the Supreme Court.

Justice Ginsburg has been saying for years (most recently in an interview this month with the Associated Press’s Mark Sherman) that she wants to serve as long as Justice Louis Brandeis. Brandeis, who sat 1916-1939, racked up nearly 23 years and retired at age 82. Now age 77 and a 17 year veteran of the Court, Ginsburg has survived two rounds with cancer, most recently pancreatic cancer in 2009. Through her treatments, she kept up an energetic speaking schedule and remained one of the most active justices on the bench.

At the ABA, she looked healthy and seemed as spirited as ever, despite the June death of her husband of 56 years. She addressed the great change in the profession since the 1960s with the influx of women, who are no longer rare “curiosities at the bar.” Ginsburg graduated from Columbia law school in 1959, after first attending Harvard 1956-58. (She transferred when Martin graduated and got a job in New York.)

In San Francisco, Justice Ginsburg referred to the support for her career that she received from her husband, who died June 27, the day before the last sitting of the Supreme Court’s 2009-10 term. Even in her grief, Ginsburg took the bench that last day. I could not help but recall all the other times she had been so tested in her family life. Her mother died of cancer the day before her high school graduation. And while she and Martin were at Harvard, he was diagnosed with cancer. She helped him complete his studies as he recovered. She was also caring for their infant daughter at this time.

As she received the ABA Medal, the group’s highest honor, Ginsburg noted that “my only sadness” is that Martin did not live to see the day. But the justice said that her husband had known of the award before his death and had said “he would be cheering for me.”

Justice Scalia was not on the bench last Thursday, when the Supreme Court, nearing the end of its term, handed down five decisions. When I inquired, I discovered that he had been at Langley High School in McLean, Va., to speak at the graduation of a grandchild. I was curious about his remarks, especially because I had just given the commencement address to graduates of the National Cathedral School in Washington, D.C. 

My audience at the all-girl private high school was different from Justice Scalia’s and my approach more personal. I didn’t expect much overlap in the speech themes, yet I was curious about what Justice Scalia had said and the voices of wisdom he drew on. 

Justice Scalia opened with his signature brand of humor: “Giving a commencement address is not as safe an enterprise as it used to be. I am told that the graduating classes in some schools, to while away the time as the speaker drones on, have devised a kind of contest, with an appropriate prize, to see who can write out in advance the greatest number of the platitudes that the speaker will deliver.” He said the exercise has been likened to playing Bingo. 

Justice Scalia then sought to debunk several platitudes, beginning with that students today face “unprecedented challenges.” Not true, he said. Things have always been pretty bad. “Today, to be sure, we have the capacity to destroy the entire world with the bomb. I suppose you can consider that a new problem, but it is really new in degree rather than in kind. If you were a teenager graduating from the Priam Memorial High School, in Troy, about 1500 B.C., with an army of warlike Greeks encamped all around the city walls; and if you knew that losing the war would mean, as it did, that the city would be utterly destroyed, its men killed, its women and children sold into slavery – I doubt that that prospect was any less terrible to you than the prospect of the destruction of the world.” 

My remarks were specifically addressed to young women about to make their way in the adult world. I invoked the experiences of Justices Sandra Day O’Connor and Ruth Bader Ginsburg and other “firsts” I’ve known in law, publishing and academia. While I reminded the graduates of the sex discrimination that still exists even in 2010, there probably was little I said that would have been deemed cynical. (I have to admit that I did find a way to work in one of my favorite New Yorker cartoons, one that captures the zero-sum-game attitude of Washington. In it, one dog says to another, “It’s not enough that we succeed. Cats must also fail.” This, I heard later, amused the lawyer-parents in the audience.) 

Justice Scalia quoted English philosopher Lord Acton and, from the Federalist Papers, James Madison. I gave the most air time to some thoughts from the late lyricist and Broadway producer Oscar Hammerstein, whose essay from the original “This I Believe” series I’d recently heard on the radio. Hammerstein opened his essay this way: 

“I have an unusual statement to make. I am a man who believes he is happy. What makes it unusual is that a man who is happy seldom tells anyone. The unhappy man is more communicative. He is eager to recite what is wrong with the world, and he seems to have a talent for gathering a large audience. It is a modern tragedy that despair has so many spokesmen, and hope so few.”

Having experienced the death of loved ones and much despair about his work, Hammerstein said he could easily present a case to prove he was not happy.

“I could,” he said, “but it would be a false picture, as false as if I were to describe a tree only as it looks in winter. I would be leaving out a list of people I love, who have not died. I would be leaving out an acknowledgement of the many successes that have sprouted among my many failures. … I would be leaving out my faith that the goodness in man will triumph eventually over the evil that causes war.”

Hammerstein earned a law degree from Columbia University. But fortunately the man who went on to produce such shows as South Pacific, Carousel, and Showboat left the law for the theater. He gets the last word.

For years, Supreme Court justices, lower court judges and law professors have argued over the merits of Scalia’s approach to constitutional interpretation. Yet last weekend in a commencement speech at Harvard, retired Justice David Souter offered a powerful counterpoint to “originalism” that might eclipse those arguments by virtue of the setting and timing.

 “Even a moment’s thought is good enough to show why it is so unrealistic,” Souter said in his dry, direct manner. “The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. … But this explanation hardly scratches the surface.”

Speaking before thousands of graduates under a blue sky, he added that, “The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time. Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony.”

It is precisely that tension that brings cases to the marble steps of the nation’s highest court. Scalia has always professed that his approach — tied to the 18^th Century understanding of the text — is straightforward, even easy, because the answers are right there and judges’ values need not enter the mix.

Souter dismissed that out of hand and concluded: “The fair reading model fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do. The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another. …. Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.”

Now, debate over originalism is hardly new. Justice Breyer wrote a whole book, Active Liberty (2005), countering Scalia. And two years ago, in a case testing whether the Second Amendment holds an individual right to bear firearms, District of Columbia v. Heller, originalism was the backdrop. Scalia prevailed with his reading for an individual right to handguns. In dissenting opinions, both Justice Breyer and Justice Stevens (from different angles) wrote at length against Scalia’s interpretation. Justice Souter, who was still on the Court then, dissented but did not write separately.

Yet now, retired and shed of his robe and the yoke of a particular case, Souter in a single speech may be more effective against Scalia’s originalism.

Washington Post columnist E.J. Dionne, who wrote admiringly of Souter’s Harvard speech, says it has received far too little attention. But I would bet that changes.

Souter’s timing seems just right. We are entering a confirmation season (Elena Kagan’s Senate Judiciary Committee hearings begin on June 28), and large constitutional questions will be in the air. We are also nearing the end of another Court term. Among the many awaited cases is one (McDonald v. City of Chicago) requiring further interpretation of the Second Amendment.

Souter’s sharp words, delivered while wearing a cap and gown, rather than a black robe, are likely to reverberate louder.

After I wrote last week about the justices and graduation speeches, a longtime Supreme Court employee reminded me of the late Chief Justice William Rehnquist’s advice for graduates: Stop and smell the roses. “Do not let the law be too jealous a mistress,” he used to say. “You must give yourself time not only to do a variety of things, but to allow yourself time to appreciate and enjoy what you are doing.”

A leader of the Court’s conservative revolution, Rehnquist cut a stern, sometimes cold, figure in the courtroom. Yet he had plenty of friends, liberals among them, outside the marble columned building. He was a man of many interests, travels and recreational pursuits.

Some of Rehnquist’s best tales were recalled against the backdrop of a party, charade game or travel adventure. He told me that the offer to be an assistant attorney general in the Nixon Justice Department (the job that first brought him to Washington) was made by his old Phoenix pal Richard Kleindienst (deputy to Attorney General John Mitchell) at a Christmas party. One of Rehnquist’s favorite stories of time with Sandra Day O’Connor’s family arose from a shared two-week pack trip along the Gila River. The Rehnquists and O’Connors also played regular charades and bridge together in Phoenix.

In Washington, Rehnquist took up painting and once missed a State of the Union address because it conflicted with his evening art class. In 1995, when he had four gold stripes sewn on each sleeve of his black robe, he was copying a character in Gilbert and Sullivan’s “Iolanthe.” Rehnquist drew on a set of “Iolanthe” lyrics for one of his favorite quips, too: “I did nothing in particular, and I did it very well.”

Rehnquist, in fact, lived large and beyond his legal interests.

Earlier this month, NBC’s Norah O’Donnell asked me on the Chris Matthews’s show if I thought — as some critics did — that Elena Kagan was too “programmed,” too ambitious and calculating in her climb up the legal ladder. My response was that no one gets to the Supreme Court without ambition and that Washington is filled with such focused people who never step outside predictable lines. But in recalling Rehnquist, I’m thinking that maybe it wasn’t always that way.

When I was doing research some years back in the files of the late U.S. Appeals Court Judge Skelly Wright, of the District of Columbia Circuit, I came across an exchange between Wright and Justice William Brennan in which they shared their apprehension about giving Commencement speeches. These two giants in the law had regular-Joe worries about boring the graduates and having their words fall flat.

I’ve been thinking about their Commencement aversion this season because I am giving two speeches and have found that for those of us down some rungs, the mental burden is much lighter. We can plumb their most intriguing thoughts to make our points.

I spoke Saturday at Marquette University Law School’s Hooding Ceremony, and – focused on the importance of preparing to be challenged ethically and avoiding the fallacy that you automatically make the right choices – I turned to something Chief Justice William Rehnquist had told me related to the Watergate scandal. The break-in at the Democratic headquarters that led to the cover-up and fall of President Richard Nixon in 1974 occurred in June of 1972. Only five months before that precipitous incident, Rehnquist had left the Justice Department and taken his seat on the Supreme Court.

Several of Rehnquist’s former colleagues ended up embroiled in Watergate, indicted and convicted. In fact, when the Watergate tapes case came to the Court in summer 1974, Rehnquist recused.

Rehnquist told me he was relieved to have been gone from the Justice Department when the Watergate cover-up occurred. And he said something interesting about the temptations he might have faced if he had remained behind. “You presume you will do the right thing,” he said, “but you never know how you might handle the pressure at the time.” Rehnquist spoke of potential pressure from his bosses and of simply being caught up in a bad situation while thinking you are doing good.

It occurred to me then, and many times since, what a wise thought this was. None of us can presume we are immune from the pressures of politics or money or any of the enticements that come to people who have power — but that especially come to lawyers.

Since President Obama’s nomination of Elena Kagan last week to succeed retiring Justice John Paul Stevens, there has been a lot of talk about whether she would be a persuasive force in moving Justice Anthony Kennedy to the left. I’ve felt that much of this discussion ignores the limits of a new, junior justice, and I think Monday’s decision in the juvenile sentencing case offers a reminder of Justice Kennedy’s own force.

Kennedy wrote the Court’s decision that declared for the first time that juvenile offenders cannot be locked up without a chance of parole for crimes that do not involve homicide. (Read stories on the ruling here and on Kennedy here.) The decision in Graham v. Florida demonstrated Kennedy’s continuing role as the crucial fifth vote on the Court, as well as his dominant voice on the Eighth Amendment, which prohibits cruel and unusual punishment.

Monday’s decision flowed from two earlier Kennedy opinions, the 2005 Roper v. Simmons, which forbade the death penalty for juvenile criminals, and the 2008 Kennedy v. Louisiana, which prohibited the ultimate punishment for the crime of child rape.

As Kennedy, joined by the Court’s four liberals, extended the reasoning of Roper v. Simmons beyond the realm of capital punishment Monday, he wrote, “It is true that a death sentence is unique in its severity and irrevocability, yet life without parole sentences share some characteristics with death sentences that are shared by no other sentences.” Life without a chance of parole, he said, “deprives the convict of the most basic liberties without giving hope.”

Chief Justice John Roberts tried to make the case – beginning with his remarks at last November’s oral argument and then in his separate opinion in Graham – for an individualized approach, rather than a blanket rule against life-without-parole. But Roberts could not persuade Kennedy. And while senior liberal Stevens can often be credited with convincing Kennedy to join those on the left, in this Eighth Amendment dispute over penalties for young offenders, Kennedy was – more likely than not — already there.

With only two women among the nine justices, one line of thinking goes, President Obama will pick a woman. No, another argument goes, he would not feel so compelled and, anyway, he should save his strongest woman candidate for when pioneering feminist Justice Ruth Bader Ginsburg, 77, retires.

The president needs to go young, for his own legacy at the Court. No, age doesn’t matter, and isn’t 60 the new 50 anyway? What about religion? With the one Protestant (John Paul Stevens) retiring, the president can’t appoint another Catholic or Jewish justice, can he? But who these days would object to a nominee based on her (or his) religion? What about a nominee beyond the “judicial monastery,” as Senate Judiciary Committee Chairman Patrick Leahy likes to say? Yet what about all the baggage a governor or other politician might bring to the confirmation hearings, not to mention the problem with getting up to speed on the Court. And on that score, shouldn’t President Obama choose someone who can win over centrist conservative Anthony Kennedy? Or, should he focus on finding a “Scalia of the Left”?

Such are some of the many scenarios that preoccupy journalists these days. Just as I am at the point that all theories spawn counter-theories and I have over-thought the whole thing, I am reminded that President Obama likely knows more about constitutional law than any president and is coming at this in his own distinct way. Obama is one of only two U.S. presidents who graduated from Harvard Law School. Rutherford B. Hayes was the first. Obama was elected to the top editor position (president) of the Harvard Law Review, the first African American to attain such an honor, and he went on to teach constitutional law at the University of Chicago.

“Overall, Obama has, and had then, a problem-solving orientation,” Harvard Law Professor Laurence Tribe, a mentor to Obama in Cambridge, told David Remnick for his new book The Bridge. “He seems not to be powerfully driven by an a-priori framework, so what emerges is quite pragmatic and even tentative. It’s hard to describe what his presuppositions are, other than that the country stands for ideals of fairness, decency, mutual concern, and the frame of reference that is established by our founding and the critical turning points of the Civil War and the New Deal, as a frame to identify who we are. When Earl Warren was Chief Justice, he would ask, after an oral argument, ‘But is it fair?’ For Barack, the characteristic question is, ‘Is that what we aspire to be as a country? Is that who we are?’”

Last year, President Obama made the choice of Sonia Sotomayor essentially on his own. He weighed advice from staff, interviewed finalists, made a preliminary choice, and then spent a weekend making sure he was satisfied. No doubt he’ll follow a similar pattern this time, whatever narrative most appeals to him and whoever best meets the question of “who we are.”