We will know before the August recess whether Senate Judiciary Committee Republicans achieved their only plausible goal in the confirmation battle of Judge Sonia Sotomayor. When a still relatively popular president nominates a judge with 17 years’ experience to be the first Latina Supreme Court Justice, and his party holds 60 seats in the Senate, the final result is not hard to predict. But considering that the eminently qualified and comparatively uncontroversial John Roberts received 22 “no” votes, it seemed reasonable to think that the panel’s Republicans could persuade their colleagues that Sotomayor deserves a few more noes than Roberts.
From Tuesday afternoon to Thursday afternoon, the seven Republicans on the panel did their best. But past nominees had drawn the blueprint for avoiding controversy, and Sotomayor followed the plan precisely: When discussing an issue that has a legal precedent, say that the issue is decided because of that past precedent. When discussing an issue that has no legal precedent, decline to give any hint of an opinion by emphasizing that one doesn’t want to prejudge the issue. Smile and filibuster as necessary.
The resulting portrait offered a nominee who was pleasant, bright, affable, and absolutely inscrutable.
“I have yet to decide where I’m going on this [nomination], because I’m deeply troubled by the answers I couldn’t get in the 50 minutes I’ve had,” Sen. Tom Coburn (R., Okla.) said to Sotomayor Thursday morning.
Sotomayor avoided giving Republicans, and the few potentially shaky Democrats, anything more to worry about. Her nomination could hardly have carried more baggage; her past speeches, decisions, and affiliation with controversial briefs had given the Senate plenty to chew over. Her nomination would be unthinkable if the Senate were split 50–50.
On Wednesday afternoon, Sen. John Cornyn (R., Texas) noted that the question before the panel was whether they were voting to confirm Sonia Sotomayor the Judge — whose record he called within the mainstream — or Sotomayor the Speech-giver. In one of his last opportunities to question Sotomayor, on Thursday, he put it to her directly: “What should I tell my constituents who are watching these hearings and saying to themselves, ‘In Berkeley and other places around the country, she says one thing, but at these hearings, you are saying something which sounds contradictory, if not diametrically opposed, to some of the things you’ve said in speeches around the country’?”
Sotomayor said that Cornyn’s constituents should “look at my decisions for 17 years and note that, in every one of them, I have done what I say that I so firmly believe in.” But that answer simply ignored the contradictions. Before posing the question, Cornyn had laid out several examples in which Sotomayor’s current position was the opposite of her past remarks — on whether she agreed with Justice Sandra Day O’Connor’s view that a wise man and a wise woman would reach the same decision, on whether ‘capital L Law’ was a public myth, on whether innate physiological differences of judges would or could affect their decisions, on whether she rejected the approach of Justices Samuel Alito and Clarence Thomas with regard to foreign law.
Michael Kinsley’s most quoted observation is that “a gaffe is when a politician tells the truth,” and the tone of one of Sotomayor’s controversial comments suggests that she was indeed acknowledging a truth that she and the rest of the legal community are supposed to avert their eyes from. “All of the legal defense funds out there, they are looking for people with court of appeals experience, because the court of appeals is where policy is made,” she said in a 2005 appearance at Duke University Law School. She laughs a bit through the following sentence. “And I know this is on tape and I should never say that because we don’t make law. I know. Okay, I know. I’m not promoting it. I’m not advocating it. I know.”
Interestingly, in neither that appearance nor her testimony before the committee this week did Sotomayor dispute the notion that judges’ “making policy” — or effectively rewriting it by ruling how it is to be applied and enforced – is a bad thing. At the heart of the “judicial activist” argument is the notion of accountability. If bad lawmakers pass a bad law, the public can toss them to the curb in the next election, but a judge who puts in effect a bad law, or strikes down a good one, may never need the approval of his fellow citizens. Most judges don’t have term limits, and Supreme Court justices serve until voluntary retirement or death, meaning that they are free to spend decades dragging the American system of laws, kicking and screaming, in any direction they choose.
If there’s a silver lining for legal conservatives in all this, it’s that the Obama administration and Sonia Sotomayor didn’t even try to defend her past speeches; every glimpse of “legal realism” or potential radical views was explained away as a misunderstanding, a poor word choice, a rhetorical flourish that was a bad idea, or others’ completely misconstruing what she meant. It is a strange habit for a highly regarded judge who told the committee she so prizes clarity that she dislikes metaphors. (When she earlier said that foreign law includes ideas that “set our creative juices flowing,” she must have meant it literally.)
Under the lights, the nominee even walked away from the president’s rhetoric about “empathy” being a key quality in a judge. In 2007, Obama put it clearly: “We need somebody who’s got the heart to recogni– the empathy to recognize what it’s like to be a young, teenaged mom; the empathy to understand what it’s like to be poor or African-American or gay or disabled or old. And that’s the criteria by which I’m going to be selecting my judges.”
Perhaps the most unexpected moment of Sotomayor’s testimony came when she clearly rejected that line of thinking:
KYL: [President Obama] talked once about the 25 miles — the first 25 miles of a 26-mile marathon. And then he also said, in 95 percent of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge’s heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what’s in the judge’s heart?
SOTOMAYOR: No, sir. That’s — I don’t — I wouldn’t approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can’t rely on what’s in their heart.
To those who think Sotomayor the Judge is the façade, and the country can expect Sotomayor the Speech-giver on the nation’s highest court, the hearings have been extraordinarily frustrating. It is not merely a conservative complaint. Harvard law professor Lawrence Tribe lamented that “these rituals are structured to reveal as little as possible about the kind of justice a nominee will make.” Georgetown law professor Mike Seidman caused a stir when he wrote that he found her testimony unbelievable and concluded, “If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified.”
But their irritation ought to trigger some conservative satisfaction: This week demonstrated that Sotomayor the Speech-Giver is impossible to confirm, even by a Senate where Democrats have 60 votes.
– Jim Geraghty writes the Campaign Spot for NRO.