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.
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.