Monday, June 1, 2009


Let's talk about the upcoming Senate hearings on whether Sonia Sotomayor will be confirmed as an Associate Justice of the Supreme Court.

Today's Newswire from, includes this article from the National Law Journal exploring issues members of the Senate Judiciary Committee should, but almost certainly will not, vigorously pursue with Judge Sotomayor during the confirmation hearings. It's a useful reminder that her views (and votes) on the hot button social issues that Senators get points for asking about may well have less day to day consequence than what she'd say about less sexy topics like business regulation, ERISA, criminal procedure, and standing (not a complete list).

We all know how the hearings will go. The Senators from New York will explain that she's the finest person ever to be nominated. A few law professors and fellow judges will weigh in. Then it will be time for the real show. Judge Sotomayor will read a prepared statement in which she explains how honored she is and what a fine and decent judge she'll make and so forth. Then it will be time for the ostensibly serious business.

Cue the kleig lights:

Senator ___________ pontificates for a bit, then asks a complicated, nearly incoherent question, which pared down to its essence is, "Will you overrule Roe v. Wade or declare the death penalty unconstitutional or something?" Sotomayor refuses to answer because someday she might actually have to answer the question as a Justice and therefore it would be improper for the members of the Senate or for the American people to know what she might do before deciding whether she should be allowed to do it. [Note that the Supreme Court has already said that people seeking judicial positions via election have an absolute First Amendment right to answer such questions as long as they don't actually promise how they'll vote. Republican Party of Minnesota v. White, here.]

Democratic Senators ask if she'll apply the law fairly, without allowing any personal views she might have to lead her to make decisions at odds with the Constitution. She agrees to obey the Constitution.

Republican Senators demand that she repudiate any personal views she might have and agree that well-programmed computers will surely be better justices than she could ever be because the Constitution is entirely clear and only a fool could think it actually needs to be interpreted rather than applied. She finesses the answer to that one.

Everyone agrees that courts shouldn't make policy and that wise, old, white millionaires are just as able as poor Latinas to make good decisions.


You know, I care how she'll vote. And I've got my hobby horse issues, too. But if you're looking for the Platonic ideal of a Justice (as opposed, say, to seeking the Justice you'd most like to have voting in any given case), what you want to talk about is judicial philosophy, intepretive methodology, analytical models, jurisprudence. And, of course, wisdom.

Don't hold your breath.

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