Watching the two days of quasi-questions and pseudo-answers I formed conflicting impressions of the Sotomayor confirmation hearing. First of course is the falsity of the process, in the sense that the outcome is more or less pre-ordained. The Democratic senators luxuriate in that; the Republicans try vainly to pretend that their votes matter. At the same time, one thinks, how admirable. How American. British readers, I ask you: can you imagine Britain's Law Lords put through a similar grinder? Despite the bloviating self-importance of the senators (most of them anyway) and the elaborate evasions of the nominee, the process is more than mere theater. It's a chance for the public to see the people who rule them tested, and put in danger of making fools of themselves. That's good.
The nominee was composed and impressive. She gave a convincing show of welcoming the opportunity to explain her thinking. She was more likable than I had expected as well, for what that is worth. But she got off easy, don't you think? It seemed to me she did not so much clarify the liberal-sounding speeches and remarks ("wise Latina woman" and so on) that have so preoccupied her critics as simply retract them. And both sides let her do it. In my mind, these serial disavowals kept raising the question: well, what does she actually believe?
Again and again when substantive issues were posed, her answer was the same: "Congress makes the laws. The job of a judge is to apply the law." Oh please. "The law", as she repeatedly observed, embodies precedent. So when the court laid down those precedents, it was making law on her own definition, was it not? This is not a conservative v liberal thing. Supreme Court justices, conservatives and liberals alike, make law. The worrying thing is that they increasingly strive to make different politically-freighted laws, and have settled into a pattern of closely split decisions along predictable ideological lines. If she was asked about that, I missed it.
Moreover, there are only nine Supreme Court justices and they sit for decades. If confirmed, the unelected and unaccountable Sonia Sotomayor will be a more powerful lawmaker than any of the senators who questioned her. We think we know from her speeches what she thinks about various policies she will be asked to rule on, but this week she wasn't telling, and out of a misguided sense of judicial propriety the senators failed to insist.
On points of substance, almost her entire testimony could have been delivered by John Roberts or Samuel Alito. With names and personal reminiscences redacted, who could tell the difference? It will be interesting to see how often Sotomayor is on the other side of a 5-4 decision from them, despite their purportedly identical "judicial philosophies".
Well, we all know that confirmations like this are political theater. As for Sotomayor's remarks, they really are pretty innocuous, which is why the GOP recognizes that trying to make them into a big deal would be more damaging than it is worth. Her record as a judge is fairly conservative, at least in terms of following precedent. Yes, the confirmation system, as with the overall political system in the US, is a mess, but no-one is likely to admit it.
Agreed. This whole charade where Senators avoid asking questions about how a judge would rule and why and judges avoid answering them is ridiculous. Let's have the substance.
And let's also make these ten year terms rather than lifetime appointments.
Each justice might sing a song that the great musical comedy composers Goldberg and Solomon (I think that was their names) wrote:
The law is the embodiment
of everything that's excellent
It's absolutely without a flaw
And I, me luds embody the law
You are looking at this nomination without understanding much of the history of the Supreme Court of this country. That is certainly understandable, as my knowledge of British history is largely confined to the greatest quotes of Winston Churchill.
We are already in a depression, so it is instructive to refer to the Great Depression itself. On May 27, 1935, on what was known as “Black Monday” to the administration of FDR, came the decision of Shechter Poultry Corporation v. United States, the so-called “sick chicken” case, in which the justices unanimously declared the National Recovery Act to be unconstitutional. What was significant about this opinion was that it jeopardized the very concept of lawmaking authority of independent regulatory agencies like the SEC or the NRLB, the very agencies designed to protect investors and working people. (See “Freedom from Fear,” p 328, David M. Kennedy, Oxford Press)
Almost 75 years later, we are still debating what is allowed to the states regarding the protection of investors and labor, and what will be allowed for individual rights, and a host of other issues that have become accepted law over the last half century. Now we are in a discussion that devolves to notions of empathy, ethnicity, and diversity, all of which is a distraction from the fundamental shift desired by the right wing of this Supreme Court: that the laws passed by the Federal government and the Congress can be ultimately circumscribed by a so-called majority of five. That is the issue. The rest of is Senate puppet theatre.
As you say, her confirmation was foregone. Which makes me ask why did she so easily flee from all of her prior assertions about judicial principles? Why not mount a spirited defense? Plus, she completely fumbled the basic Fundamental Rights Doctrine, which is a bit disconcerting in an appelate judge. And, I always come back to this paragraph, not its assertion but its construction:
“While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”
First, She writer “agrees” with Cedarbaum that people should aspire to objective reasoning. Next, she wonders if its acheivable. Third, she “wonders whether … we do a disservice” if people aspire to objective reasoning. That’s not offensive to me, it just sounds like incomprehensible thinking.