No doubt, the judge was subjected to plenty of scrutiny and tough criticism on Monday. There were accusations that the judge’s thinking was far out of the mainstream, and senators pointed to past comments as examples of sloppy thinking and inappropriate metaphors. After a couple of hours, the opposition was clear, and the argument from a handful of implacably hostile senators was unmistakable: John Roberts is unfit for the Supreme Court.
Of course, the Senate confirmed Supreme Court Chief Justice Roberts almost four years ago. But that didn’t stop Democrats on the Senate Judiciary Committee from giving him second billing on the first day of Sonia Sotomayor’s confirmation hearing, repeatedly invoking him as an example of a justice failing to live up to his professed principles.
The opening statement from Sen. Sheldon Whitehouse (D., R.I.) was surprising for the degree to which he focused on Roberts’s decision-making instead of on the nominee sitting in front of him. Citing CNN legal commentator Jeffrey Toobin, Whitehouse argued that in every major case since becoming chief justice, Roberts has sided with “the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.” He didn’t provide any details on how Toobin picked “major cases,” how many cases were involved, whether these were decided narrowly or by wide majorities, or even whether Roberts was in the majority or the minority.
Whitehouse went farther, suggesting that Roberts is not merely predictable but partisan, repeating Toobin’s charge that every decision “has served the interests, and reflected the interests of the contemporary Republican party.” When Whitehouse referred to the “right-wing justices,” there was little doubt as to whom he was talking about, and he continued the list of misdeeds to include “ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights.” He specifically mentioned the Heller case, suggesting that the conclusion that the Second Amendment protects an individual’s right to own a gun was a new and radical interpretation of the Constitution. “Some balls and strikes,” he sneered.
Roberts’s “umpire” metaphor came under heavy fire from Democrats all day. When they weren’t understating the role of the judiciary, they were insisting that, even if it did describe the judiciary in a manner the average American could appreciate, the chief justice wasn’t acting like an umpire, anyway: “Many can debate whether during his four years on the Supreme Court he actually has called pitches as they come — or has tried to change the rules,” Sen. Chuck Schumer (D., N.Y.) said. “But any objective review of Judge Sotomayor’s record on the Second Circuit leaves no doubt that she has simply called balls and strikes for 17 years, far more closely than Chief Justice Roberts has during his four years on the Supreme Court.”
“It showed me that Supreme Court justices are much more than umpires calling balls and strikes, and that the term ‘activist’ is used to describe the rulings of only one side,” Sen. Dianne Feinstein (D., Calif.) said. Sen. Richard Durbin (D., Ill.) extended the baseball metaphor, saying, “It’s a little hard to see home plate from right field.” He did not elaborate on the view from left field.
By the time Sen. Tom Coburn (R., Okla.) had his turn for an opening statement, he remarked to the nominee, “I thought this was your hearing, not Justice Roberts’s hearing.”
Judging from a day taken up entirely by opening statements, the biggest obstacle to Sotomayor is her repeated use of the “wise Latina” trope. Despite the fact that he’s hardly a fire-breather, Sen. Lindsey Graham (R., S.C.) may have put it most clearly when he observed that if he uttered a similar statement, his political future would implode.
Senate Democrats attempted to preempt criticism of those remarks with two counterarguments — contradictory arguments, but they paid that no mind. The first was that no matter how many times Sotomayor offered a variation of the “wise Latina” theme, the public should not worry, since that language doesn’t reflect her thinking in any significant way. Despite the nominee’s numerous statements to the contrary, Sotomayor doesn’t really believe that Latina judges will come to better decisions than old, white, male judges. Judiciary Committee Chairman Patrick Leahy (D. Vt.) declared, “She has said that ‘ultimately and completely’ a judge has to follow the law, no matter what their upbringing has been. That is the kind of fair and impartial judging that the American people expect. That is respect for the rule of law. That is the kind of judge she has been. That is the kind of fair and impartial justice she will be and that the American people deserve.”
“Her story is about how race and class are not supposed to predetermine anything in America,” Senator Schumer said, introducing her to the committee.
The second argument was that emotion is good, and that Sotomayor’s critics were demanding a bloodless, callous, robotic mentality from judges. As Democrat Russ Feingold of Wisconsin put it, “The great constitutional issues that the Supreme Court is called upon to decide require much more than mechanical application of universally accepted legal principles.” Sen. Herb Kohl (D., Wis.) invoked a statement from Justice Clarence Thomas at his confirmation hearing arguing, “It is important that a justice can walk in the shoes of the people who are affected by what the Court does.”
With Roberts criticized both for using the umpire metaphor and for allegedly not living up to it, and with Sotomayor’s references to empathy and personal experience simultaneously justified and denied, the panel’s Democrats seemed to be throwing everything against the wall to see what sticks.
The fight before them a foregone conclusion, it appears that hubris, boredom, or unresolved issues with Roberts’s 2005 confirmation vote has driven Senate Democrats to refight old battles. Confident that Sotomayor will sail through the confirmation process, they can now focus on tearing down John Roberts.
— Jim Geraghty writes the Campaign Spot for NRO.