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The emptiness of the Sotomayor hearings

In the current New Yorker, Jeffrey Toobin nailed the essential emptiness of the recent Judiciary Committee hearing into the nomination of Judge Sonia Sotomayor (and also the emptiness of all recent Supreme Court confirmation hearings.

Sotomayor, like Bush nominees John Roberts and Samuel Alito before her, adopted the canard that there is no such thing as judicial philosophy other than to “apply the law,” as if applying the law is a fundamentally mathematical exercise in which there are rules to lead to the one correct answer. (If that’s true, how to explain all those 5-4 decisions?)

It’s easy to understand, in the post-Bork era, why all nominees have embraced the I’m-just-a-neutral-umpire-calling-balls-and-strikes dodge. And it works. But it’s a fairy tale, as Toobin (who is consistently on target with his legal/judicial commentary) explains:

“In fact, Justices have a great deal of discretion—in which cases they take, in the results they reach, in the opinions they write. When it comes to interpreting the Constitution—in deciding, say, whether a university admissions office may consider an applicant’s race—there is, frankly, no such thing as “law.” In such instances, Justices make choices, based largely, though not exclusively, on their political views of the issues involved.

In reaching decisions this way, the Justices are not doing anything wrong; there is no other way to interpret the majestic vagueness of the Constitution. But the fact that Judge Sotomayor managed to avoid discussing any of this throughout four days of testimony is indicative of the way the confirmation process, as it is now designed, misleads the public about what it is that Justices do.”

Comments (4)

  1. Submitted by Tim Walker on 07/24/2009 - 11:36 am.

    What’s interesting to me in all this is that every single person in those Senate chambers and every semi-educated person with a moderate knowledge of the legal system knows that every judge — right, middle, or left — lets their political opinions sway their decisions. Presented with mountains of case law and precedent to choose from, much of it contradictory, judges merely select from that mountain the precedent and case law that puts them on the path they wish to take.

    The simplest way to do this is to declare up front that the case at hand is at heart, say, a privacy case. With this done, a judge can frame the debate and cite privacy statutes, case law, etc. that decide the case in the way the judge wants. Another judge might decide up front that the same case is about discrimination, labor relations, civil rights, or whatever. The choice is made at the onset to provide a judge to cite the laws that will result in the desired outcome, which is, again, determined by a judge’s political philosophy.

    But any SCOTUS nominee must go through the charade of pledging “fidelity to the law” and swear not to let political philosophy influence his or her decisions, yet everyone knows it’s complete bull.

    Consider that every time, say, a gun control issue is heard by the SCOTUS, everyone pretty much knows how each judge will fall on the issue before the case is even presented. The only interesting elements of the decision come in analyzing how each judge used the law to justify his or her pretty much pre-determined decision.

    One of the most telling moments in American jurisprudence occurred at a Washington, D.C., election night party in 2000 when Associate Justice Sandra Day O’Connor exclaimed ”This is terrible” when she saw TV reports showing that Gore had just pulled ahead in the vote count.

    So, I truly believe that Sotomayor believes that a person’s ethnicity and upbringing can influence a judge’s decisions, be it through empathy or whatever. And when she made her “wise Latina” remark, she was just admitting an obvious truth, but one that judges are inclined to never admit because it doesn’t fit with the public image of impartiality that they want to project. But now, of course, Sotomayor must keep this fiction up if she wants to be confirmed.

    In summary (if anyone is still reading) every judge tries to be an activist judge, and to use the law to make policy to advance his or her political and social philosophies. But they just can never admit it.

  2. Submitted by John E Iacono on 07/24/2009 - 02:59 pm.

    I completely agree with Mr. Walker.

    I would only add that it has been the Senate itself that has forced this false performance in confirmation hearings by applying political litmus tests unheard of until recent years.

    Confirmation hearings used to be about whether the nominee was competent for the position sought, and it was understood that the President would nominate those of his political bent.

  3. Submitted by Ron Gotzman on 07/27/2009 - 06:40 am.


    Sotomayor acknowledged here sexism and activism in previous speeches. The Dems on the committee were guilty as well in covering up her real agenda.


  4. Submitted by John Clawson on 07/27/2009 - 06:57 am.

    We are SO screwed politically as a nation/people with this required ballet of bull that SCOTUS candidates have been required to dance since, probably, the disastrous Bork nomination. Without frank and candid discussions/debates, with fiction and make-believe being required of the candidates I fear for my country. there was nothing healthy for us about the Sotomayor nomination and eharings, nothing to strengthen the political health of our republic.

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