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.”