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Supreme Court Kabuki
David Savage sums up Sonia Sotomayor's testimony before the Senate Judiciary Committee:
Supreme Court nominee Sonia Sotomayor maneuvered through three days of an often-antagonistic confirmation hearing by portraying herself as a legal mechanic who would stick to precedent and never "make law." But in doing so she revealed almost nothing about the philosophy that would guide her on the high court.
It is not clear whether this play-it-safe strategy was a political calculation, perhaps dictated by the White House, or an accurate reflection of her background as a lower court judge who has not formed broader views on the law.
"It is not clear"? Spare me. It's crystal clear. Back in the pre-culture war era, senators asked nominees questions and nominees more or less answered them. And then, unless someone produced incriminating photos with a sheep, the nominee was confirmed. A mere 20 years ago, Antonin Scalia, now a bête noire of the left, was confirmed unanimously after Ronald Reagan nominated him to the court in 1986.
But then things changed. Robert Bork got borked in 1987. David Souter and Anthony Kennedy turned out not to be as conservative as conservatives had hoped. Clarence Thomas blasted his nomination hearings as a "high-tech lynching" and was only barely confirmed. And everybody learned their lesson from this: nominate candidates whose views are clear (no more Souters!) and then make sure they say absolutely nothing about those views (no more Borks!). Ginsburg and Breyer invented the technique, Roberts and Alito honed it, and as near as I can tell, Sotomayor has taken it to its reductio ad absurdum apex. If it's something that might come before the court in the future (and everything comes before the Supreme Court eventually), tell 'em it would be inappropriate to answer. If someone asks a more general question, say that you can't really answer in the abstract. If more details are provided, switch gears and say that you can't engage in hypotheticals. As near as I can tell, Sotomayor was barely willing to admit that she had a law degree, let alone that she had any opinions whatsoever regarding the law.
But look — that's the way the game is played these days. Of course it was a political calculation. Does anyone really seriously doubt this?
Is that really true? The
Is that really true? The Johnson/Nixon stuff was before I was born but it doesn't seem like the senate was a rubber stamp.
"Of course it was a
"Of course it was a political calculation. Does anyone really seriously doubt this?"
Hmmm. Such a subtle political calculation would require intellectual discipline and a capacity for abstract thought, neither of which I'm convinced Sotomayor possesses....
Let's see her LSAT scores! The Republic demands it!
It's a real loss for America
It's a real loss for America and near as I can tell much of the progressive response has been to say booyah, we can out republican Republicans!
Is that really true?
Back in the pre-culture war era, senators asked nominees questions and nominees more or less answered them.
Is that really true? I'm not really doubting, just asking if you really remember this or you just think it might have been that way. I honestly have pretty much no memory of the senate hearings before Bork, even though O'Connor was pretty big news I don't remember the hearings being all that important. And from what I've read, Carswell and Haynsworth weren't knocked down by anything they said in the hearings (I assume they both testified) but by their previous actions.
In other words, is it the nominees who have changed? Or is it that the senators in the TV era have started showboating with stupid "gotcha" questions, which has then led to the nominees standard non-answers.
Sessions
When Sen. Jeff Sessions bats lead-off AND clean-up, the discussion with the nominee is not intended to exempify intellectual heft. The Republicans had telegraphed their entire body of evidence against the nominee, the White House knew it without the telegraph and so it became a matter of staying within the outline. Had the Republicans exhibited any curiosity about the nominee, they would have likely discovered she has more in common with the Roberts' wing than with "the Left."
Ooooh, scary monsters!
A Star Is Born
How about Frank the Fireman, now that Joe the Plumber is acknowledged to be a worthless jackass?
If it's something that might
tagged as:- result
If it's something that might come before the court in the future (and everything comes before the Supreme Court eventually), tell 'em it would be inappropriate to answer. If someone asks a more general question, say that you can't really answer in the abstract. If more details are provided, switch gears and say that you can't engage in hypotheticals.
Don't forget - if it's something that has already come before the Supreme Court, say that it's settled law that will be granted due respect under stare decisis.
My main objection is that
My main objection is that the carefulness of Sotomayor's confirmations strategy made her look dumb.
Give me a break. What
Give me a break. What everyone is dancing around is the obvious ambition of whomever is the President to nominate someone from his side of the political divide. Bush got Alito and Roberts and anyone who thinks those two do not ideologically line up to the right is loony.
So now Obama gets to choose and he is going to chose from the left. Big shocker, that. Then they go through the motions of trying to **expose** that she is liberal. What exactly, do you expect the nominee to say? Each side is going to go nuts if they say anything that truly reveals their ideology -- so they say as little as possible. And then people freak out that they say as little as possible. The whole thing seems so unnecessarily juvenile, but then again, it's politics.
Oh, and that picture kind of freaked me. Where is the rest of her?
If you don't believe that
If you don't believe that political affiliation is the overwhelming consideration in Supreme Court nominations, I have three words for you:
Bush vs. Gore
We still operate under this preposterous notion that the SCOTUS is a forum in which dispassionate legal theorists consider politically charged questions without prejudice and render impartial justice. Of course it isn't. Law is simply the continuation of politics by other means.
But we can't admit to ourselves that this is true, so we continue with the sham discussions of "judicial activism" or "strict constructionism" or other twaddle meant to hide the fact that judges (and the politicians who appoint them) shape interpretations to fit desired outcomes, not the reverse.
Does that it bother me that SCOTUS nominations are now political battles royale? No, it's mere honesty. Sotomayor hardly seems to be the most liberal appointment Obama could have made, but then he has other fish to fry. Let's hope the next nomination is a little more confrontational.
Jesus Christ!
If anyone wanted, they could, you know, actually *read* her decisions and ask questions about her reasoning in those specific cases. That isn't about something that will come before the supreme court -- it is already past. And there's no point in pussyfooting about something you've already put out in public.
Of course, reading decisions sounds like work, so only Al Franken took a crack at it. Clearly he hasn't learned how to be a senator yet.
Kabuki
Kevin, Your Kabuki theme has been taken up across the media. Boston Globe, Wall Street Journal, LA Times, National Post, Associated Press.
I'd applaud you, but I'm afraid they're actually slyly insinuating she looks like a Japanese man in drag. So a wag of the finger it is.
Odd Man Out
I guess I'm the odd man out here. Considering the game being played of not being able to discuss cases that might come before the court or cases that are pending there or in lower courts, I thought her answers were clear and informative about her views on precedent and the law in general. Her constant return to the theme of 'each case is different' in a given area of law gave me hope that indeed she would judge in a freer, more individualized way than simply relying on precedent. She, of course, had to pay homage to the principle but did allow that precedent could override an opposing opinion in some cases. I personally was quite impressed by her knowledge and general demeanor. She's a tough lady, a necessary quality to stand up to the likes of Scalia, Roberts and Alito. Of course I may be all wrong. But for the moment at least I'm feeling optimistic.
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Oh, sheesh. I've got to start previewing my comments. I meant to say that she allowed that precedent COULD BE OVERRIDDEN in some cases. That's not necessarily good news in all cases but opens the door to her being a more activist judge than people might expect, given her testimony. I'm interested in hearing comments from liberal lawyers about her testimony.