Sunday, July 19, 2009

Confirmation Hearings: Poor Reviews, but Show Must Go On

      The Founding Fathers did not decide that the Supreme Court would have nine justices. That goes back to 1869. They did not decide that the court would begin each term on the first Monday in October. That goes back to 1917.
      The Framers also did not decide that Supreme Court nominees would appear in front of a Senate committee before a vote on their confirmation. That practice goes back only to 1925. And only since the 1960s have senators made extensive use of the procedure to try to learn the nominee’s legal views and to air their own views on the hot legal issues of the day.
      So the constitutional design does not depend on the Supreme Court confirmation hearing. We would not break faith with the Framers to dispense with a practice with so much evasion and circumlocution by the nominee and so much political posturing by the senators.
      Despite the bad reviews, however — and the reviews for Judge Sonia Sotomayor’s four days on the witness stand were poor at best — the show must go on. President Obama and his advisers took all the time they needed to explore the nominee’s record and views before making a selection. Both the Senate and the public were entitled to their chance to see and hear the nominee for themselves before entrusting her with lifetime appointment to the Supreme Court.
      There’s no denying that, despite her impressive academic and professional qualifications, Judge Sotomayor was less than stellar on the Broadway of the political stage. She may have been “disciplined and good humored” (Jeffrey Rosen of The New Republic in The New York Times), but to many she appeared to be “over rehearsed” (David Broder, Washington Post)
Perhaps Sotomayor “accomplished her goals” (attorney Andrew Pincus in The Wall Street Journal, emphasis added). But “it is not at all clear what all this accomplished” (law dean Erwin Chemerinsky, also in the Journal). “A kabuki dance,” (Mark Shields, PBS NewsHour).
      Sotomayor and her White House handlers bear principal responsibility for this lifeless performance. It was a decision born of politics, not judicial ethics, to present herself as a legal automaton who simply follows precedent as long as stare decisis says to. No wonder that one senator asked her whether judging amounts to nothing more than following a recipe in a cookbook.
      Sotomayor rightly began with and returned often to her life story: a good one, to be sure. But again it was nothing but politics that led her to emphasize her early years as a prosecutor and then to claim all but complete ignorance of the legal positions that the Puerto Rican Legal Defense and Education Fund took during her 12 years with the organization, including service as chair of the litigation committee.
      Senators on both sides of the dais, however, must share in the responsibility for the unedifying spectacle. Veteran Democrats Herb Kohl of Wisconsin and California’s Dianne Feinstein opened by complaining about the limited information from the most recent nominees: John Roberts and Samuel Alito. But among all the Democrats only Feinstein succeeded in eliciting a nugget of useful information: Sotomayor’s agreement that the woman’s health remains a “compelling consideration” in testing the validity of abortion regulations.
      For their part, Republicans went on and on and on about the “wise Latina woman” speeches, well after the questions were yielding any useful information or perspective. One longed for Judiciary Committee Chairman Patrick Leahy to bang the gavel and say, “Asked and answered. Let’s move on.”
      More substantively, no Republican senator recognized the patent inconsistency in stressing the power of elected legislators, not courts, to make laws but at the same time pressing Sotomayor to interpret the Second Amendment to limit gun control laws enacted by elected state and local governments. And no Republican senator gave Sotomayor credit for her decision in the New Haven firefighters case to follow the apparent precedent and to uphold the decision by local officials in the case.
      Of course, the show lacked drama from the outset. Sotomayor’s nomination by a still popular president was assured of confirmation in a Senate with a 60-vote Democratic majority. Republicans found no smoking guns in her record apart from the “wise Latina” speeches. By the end, even her critics were conceding her to be a mainstream judge with no evident problems of temperament in this setting at least.
      What kind of justice will Sonia Sotomayor be? Democrats hope and Republicans expect that she will fit in comfortably with the court’s liberal bloc — still only four strong in most instances. Perhaps. But University of Texas law professor Sanford Levinson may be quite right in his end-of-show prediction to the New York Times that Sotomayor will be the same “basically cautious person” on the bench that she was on the stand. The hearings may not have told us what we wanted to know, but they quite possibly told us all there is to know about Justice Sonia Sotomayor.


  1. I thought the first confirmation hearing was in 1916 after President Wilson nominated Louis Brandeis, although he did not appear. I think Frankfurter was the first to appear in 1939, although he stood on his record and would not answer questions. I believe it was Potter Stewart who began answering questions a little. And we all know how Judge Bork doomed his nomination by saying too much.

  2. The first Supreme Court confirmation hearing was indeed for Louis Brandeis in 1916. But Harlan Fiske Stone was the first Supreme Court nominee to testify before a Senate committee, in 1925, according to multiple sources, including my "Supreme Court From A to Z." He is said to have made an impressive appearance in answering insinuations that he was too close to Wall Street. The recent story on NPR's "All Things Considered" (July 12) that Frankfurter's mute appearance in 1939 was the first time for a nominee to go before a Senate committee is incorrect.