I don't know why I thought the Sonia Sotomayor hearings would be interesting, but I did. Silly me. I forgot that our Supreme Court nominees don't have any opinions about Constitutional issues, other than the few that are so blatantly obvious that nobody could ever disagree (such as the Korematsu decision, which allowed for the internment of Japanese-Americans during World War II. Sotomayor thought that one was improperly decided. How bold). If you ask a Supreme Court nominee about any relevant issues, such as Kelo, FISA, Roe, the Second Amendment, etc., what you get back from the nominee is…..nothing. The nominee starts talking about settled law, stare decisis, and not prejudging any case that might come before him/her. They avoid giving an opinion. This is not unique to Sotomayor. Justices Alito and Roberts did the same thing during their hearings. What Supreme Court nominees have learned is what to say and what not to say in order to pass through the confirmation process successfully. They are coached on what to say and what not to say. They talk about process instead of philosophy, and they avoid ideology like the plague. They make every effort to appear as blank slates with no opinions of substance, because they know anything else will be used against them politically and could diminish their chances of being confirmed.
If you doubt that Sotomayor knows exactly what she is supposed to say and has been heavily coached in how to say it, consider this excerpt from her opening statement, which addresses literally EVERY potential Republican objection to her confirmation (i.e. empathy for one group over another, wise Latina woman judges reaching better verdicts than others, activist judges making policy) while at the same time rehabbing her previous comments.
Throughout my seventeen years on the bench, I have witnessed the human consequences of my decisions. Those decisions have been made not to serve the interests of any one litigant, but always to serve the larger interest of impartial justice. In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law…My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.
This is a refrain that would be repeated over and over by Sotomayor during her Day Two testimony.
As an example of how blank slate-y Sotomayor is, when Sen. Lindsay Graham (R-SC) asked her which judicial philosophies described her best (constructionism, originalism, or realism, Sotomayor answered that she didn't adhere to labels, avoiding the question. (FYI – Sotomayor is NOT a constructionist or an originalist. No such person would be nominated by President Obama. Sotomayor is much more of the legal realist school).
Sotomayor attempting not to specifically answer questions pretty much sums up Day Two of the hearings. I have to give both Democrat and Republican Senators credit for asking her some very good questions. It's a pity she didn't answer any of them (just like Roberts and Alito didn't before her).
Day One of the hearings was nothing but Senators giving political speeches. Sotomayor had to endure that silently and try not to fall asleep as the Senators bloviated on and on. That gave me "empathy" for Sotomayor (but not to the extent that I'd vote to confirm her, if you catch my drift). Two narratives formed along political lines:
1) Democrats think Sotomayor is one of the greatest, most experienced, most qualified, historic nominees ever to come down the pike. She is brilliant and unbiased. One Dem even said Sotomayor was the best nominee in a hundred years. Sen. Schumer (D-NY) even pointed out how right-wing Sotomayor's decisions were, although he referred to it as "judicial modesty." Schumer pointed out that Sotomayor ruled in favor of the government in 92% of cases, ruled against claims of racial bias in 83% of cases, and ruled against illegal immigrants most of the time. According to Schumer, it seems to me that Sotomayor's record should disqualify her for….Schumer. I'm certain a conservative Supreme Court nominee with that same record would be vilified by Schumer for being an out-of-the-mainstream radical.
2) Republicans voiced concerns over Obama's empathy standard (best line – Jeff Sessions (R-AL) said (paraphrasing) "empathy for one party means discrimination against another party.") Republicans voiced concerns over Sotomayor's wise Latina women reaching better decisions than white males comments, over Sotomayor's comment about the appeals court making policy, over Sotomayor's comments about using foreign law standards, over Sotomayor's handling of the Ricci case. Whatever they could find in poring through Sotomayor's history.
There was a rare moment of honesty during Day One from Sen. Graham:
"No Republican would have chosen you, Judge. That's just the way it is. We would have picked Miguel Estrada…this is mostly about liberal and conservative politics more than anything else."
Yes, it certainly is about politics more than anything else. That's why Sotomayor will be confirmed, because the Democrats have the votes and the Republicans don't. That's pretty much a foregone conclusion, but I was hoping the confirmation process would at least be interesting. So far, it isn't, because Sotomayor is a blank slate when it comes to the relevant issues of the day. As Sergeant Schultz from Hogan's Heroes used to say, "I know nothing." So far, that's Sotomayor, and that's how you get confirmed to the Supreme Court of the United States. For life.
Maybe Day Three will be better.
