The Unenlightening Confirmation Hearings

Confirmation hearings are painful to watch or listen to. Ever since Robert Bork’s nomination, the aim of the nominee has been to be non-controversial at all costs and the aim of his or her opponents have been to try and find a way to trip the nominee up. The entire thing sheds little or no light on the important issues of constitutional interpretation about which the public should be educated and informed during these hearings.

It makes no sense to me why a nominee should be forbidden from even discussing, in hypothetical terms, how they would rule in a given case. Yes, they need to say, as Sotomayor said a hundred times yesterday, that the facts of the case, the briefs presented, and the precise issues involved all would affect her ruling. But, that doesn’t mean she should be barred from explaining how different facts might alter the outcome and affect her decision. The words "if, for instance" are most serviceable in any job interview, and the hearings are essentially one big job interview. I do not think answering these hypothetical questions would force the justice to excuse herself in the future from deciding cases where those issues are no longer hypothetical but real.

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Instead, we get posturing by the nominee which produces a similar posturing from the senators. Yesterday, in the car, I could not tell who was grilling Judge Sonia Sotomayor about whether or not the rulings of foreign courts should be consulted by U.S. judges. The purpose of the question was not to elicit any intriguing judicial theory. Nor, was the purpose even to trip Sotomayor up because this was a softball question. The purpose was to show the senator as the kind of upstanding avatar of American Exceptionalism that he wants his constituents to see him as.

Of course, foreign rulings have no official status as precedent in American courts. But, why should a judge facing a novel issue consult how a foreign court ruled in a similar case? It is like saying – oh, I want traditional music at my wedding but we can’t come in to Clark’s "Trumpet Voluntary" or Wagner’s "Here Comes the Bride" from "Lohengrin" and Lord knows we can’t have Mendelssohn’s "Wedding March" because these musical selections were all produced by foreigners. Or, at a restaurant, better not have the escargots to start or the tartufo to finish lest anyone question your patriotism. Anyone remember "Freedom Fries?"

I know it would be unfair to the first jurist to go through the process, but if I were a Senator I would refuse to confirm anyone who did not tell me where they stood on the outstanding judicial issues of the day. Of course, they all have opinions about Roe v. Wade and we should know what those opinions are. Of course, Republicans are in a bind because they repeat the mantra "apply the law" as if the job could be done by a computer, as if judges of equal intellect and good will don’t often disagree. In this view, a person’s intellectual opinions don’t matter. But, they are fooling themselves and once Sotomayor is on the Court, it will only require a few rulings for us to find out what we should know now.

The hearings are – or, better, should be – a teaching moment. Most Americans do not know enough about how the Judicial branch works, about why certain cases are decided in certain ways. (The senator who raised the issue of foreign courts did not seem to know that very few foreign courts follow America’s Common Law tradition.) Most Americans know how a courtroom works from watching "Law & Order" but that’s fiction. Instead, we have a process that is a caricature of itself, a series of postures and counter-postures designed to conceal rather than to elucidate the outstanding judicial issues of the day. Here is an opportunity for a little bi-partisanship: Change the unwritten rules. Make senators ask real questions and make the nominees answer the questions. We might learn something.

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9 years 1 month ago
On Roe, you couldn't handle the truth.  Just because you don't like the result, the ruling is not essentially incorrect under the plain language of the Constitution, primarily the 14th Amendment.  Most on the far left or the far right could not handle the truth either, since it would require that they actually do something besides use Roe as an electoral issue.
9 years 1 month ago
Kevin,
1) It is excessively meanspirited to attribute a "barely repressed sense of racial superiority" to someone when you have, or at least cite, no evidence of it.  Are we to assume racism because they are white Republicans from the south?  If it is so easy to assume that someone holds a sense of racial superiority, how should we view those who actually express a sense of racial superiority? 
2) Regarding socialism: the small end of the wedge is small for a reason. 
9 years 1 month ago

I couldn't disagree with your characterization of the Sotomayor hearings more.  As several mainstream commentators (such as Tom Goldstein of Scotusblog) have indicated, I think these hearings are a departure from the Bork-Alito hearings for several reasons.  One, they have been devoid of the grandstanding usually associated with them.  I think its no coincidence that these are the first hearings Biden & Kennedy have not participated in.  Those two did everything they could to smear nominees with whom they disagreed with.  They smeared them for the simple reason, as these hearings reinforce, that Americans decidely reject the liberal narrative about judging and the legal process (let's just call it the 'Living Constitution/Empahty Standard'), and liberals know that they can't change the dominant conservative narrative re: the legal process.  The Republicans have attacked Sotomayor's statements as a means of attacking that Lliberal Standard, and they have been very successful in doing so.  She has had to back away from Obama's soft empathy nonsense faster than a dog from cold water.  The Republicans have intellectually dominated the hearings, and the liberals know this.  I think these hearings have been very good, and I think she should be confirmed, even though she'll be a reliable liberal vote, as Graham (who has been simply wonderful in the hearing) said, she's within the mainstream.

9 years 1 month ago
Sean: granted that members of the Judiciary Committee spent far too much time either asking “gotcha” questions or serving up softball inquiries. But do we really want to invite Senators to probe future nominees with one hypothetical “what if” after another in the manner of a professor quizzing a first year law student?  Senators posturing like law school professors would be unbearable!
 
You are correct that the public knows little about Supreme Court procedures, which share little in common with the courtroom interactions seen on “Law and Order.”  Supreme Court “insiders” tell us that when the nine judges gather in judicial conferences, they challenge and probe each others’ legal reasoning in order to convince one another that one legal principle rather than another ought to apply in a particular case.  
 
From the confirmation hearings, we may not have learned how Judge Sotomayor will weigh and assess alternative competing legal principles in any particular case. But I would suggest that we have learned something more fundamental. She demonstrated that measured judgment, systematic reflection and disciplined legal analysis are qualities deeply embedded in her intellectual makeup.
9 years 1 month ago
"Of course, foreign rulings have no official status as precedent in American courts. But, why should a judge facing a novel issue consult how a foreign court ruled in a similar case?"
How about, for starters:
1) Different countries have different laws, both statutory and foundational/constitutional.  Decisions are made under those laws, not our laws.  If a judge can't fairly say that our law resolves the issue, they should say only that.  Thus, if our Constitution doesn't fairly clearly prohibit a law passed by Congress, the Court must let the law in question stand, rather than grope about for some scintilla of a reason to strike it down.  Similarly, if a criminal statute doesn't clearly apply to a defendant's activity, that defendant must be found not guilty; there is no call for the courts to look for a reason in another legal system to punish them if they cannot find one in ours.   
2) Judges who "look to foreign law" have almost 200 other legal systems to choose from, and which they choose makes a big difference in what they find, something they know well when doing the choosing.  As Justice Thomas pointed out in a lecture I attended this spring, none of these internationalists are looking to Africa for enlightenment on capital punishment, they pick and choose those nations that will buttress the reasoning and result they favor, to cloak their policy prescriptions with an aura of legal authority.  That, Mr. Winters, is not their job, and pointing that out has nothing to do with a dislike of foreigners, it has to do with fidelity to law. 
9 years 1 month ago
Forgive me, but the notion that Senator Graham has been wonderful and that the Republicans have intellectually dominated these hearings seems, to put it as kindly as I can after several deep breaths, far-fetched.    Another interpretation of the hearings might be the projection of their own barely repressed sense of racial superiority by a group of men jealous of their privileges.  Graham seems distinctly a light weight, thought that does give him the edge over his fellow Senator from South Carolina, Jim DeMint, who claims that the United States now is starting to resemble Germany in the 1930s.  Presumably we are on the brink of fascism because of health care reform, though eight years of torture, spying on citizens, unjustified war, and untrammeled presidential power claims were perfectly OK.
The Democrats are a deeply disappointing party, but at least they seem connected to reality.  The Republicans, with their incessant claims of incipient socialism and or fascism appear increasingly delusional.
9 years 1 month ago
Generally the nominee will be in agreement with the president nominating her.  Duh.  Everyone involved knows this.  So the proceedings are mainly posturing and hoping for a Bork moment, which of course the nominee is well-schooled to avoid.  As exciting as a soccer team stalling out the game to protect a lead.   
9 years 1 month ago
I agree with Kevin.  And then some.
Intellectual dominance?  In your dreams.  The Republicans appeared to have done little serious homework and no detailed study in preparation for the hearings.  They chose the half dozen (was it that many?) out of thousands of cases they harped on for four days because the rulings, in the most superficial way, appeared to be at ideological odds with the failed conservative agenda which was voted out of office last November.  Were they hoping that a Latina judge wouldn't be able to remember the actual issues in play in those cases?  Surprise! 
As for theater, the Republicans more than made up for the absence of Biden and Kennedy in their own special ways.  Crass condescension (indeed, self-assigned racial superiority), however thickly wrapped in a fake smile and Southern drawl, is still crass condescension.  The only success the Republicans had was in collectively stomping on a molehill (''wise Latina'' comment) with wild abandon.  A visual delight, indeed!  I was embarrassed by how they smeared, talked down to and lectured Judge Sotomayor.  Would they have done the same to a man?  As an ethnic female myself, I had a negative reaction to what I saw and heard that brought back some very bad memories of people who considered themselves my ''betters.''  The judge's patience, grace, reserve and intellectual depth so outclassed the smallish behavior of the Republican senators.
My hope is that the Republican Party has forfeited the entire Hispanic vote for at least three generations. 
 
 
9 years 1 month ago
Regarding condecension: Are you kidding me?  Did you even watch the Roberts or Alito hearings at all?
Regarding her repeated invocation of her race-based wisdom: Trent Lott was run into the ground for far less. 
At least be honest.
9 years 1 month ago
Jason,
Comments by Sessions on race were what sunk his own nomination, and the Republicans' attacks on immigrants provide a good deal of evidence about their racial attitudes.
Personally, I wish you were right about the thin wedge of socialism, but I fear we'll continue to be ruled for the sake of corporate interests, not the sake of the people.  The Democrats are far too beholden to corporate money to be socialists.

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