Friday, July 17, 2009

Day 4 Reflections - What we can agree on

Here is something that we can all agree on. Over at PrawfsBlawg, Howard Wasserman of Florida International says that the Sotomayor hearings have been "inane and meaningless." This has been a widely shared reaction among liberal legal academics and lawyers. They are disappointed in (even if they are willing to excuse) her retreat into a caricature of judicial restraint. They are put off (even if they are willing to rationalize) the fog of platitudes and non sequiturs with which she has responded to questions.

Here's an example. Our own Senator Feingold asked her what the test is for incorporating provisions of the Bill of Rights into the 14th amendment:

FEINGOLD: But what would be the general test for incorporation?


FEINGOLD: I mean, what is the general principle?

SOTOMAYOR: One must remember that the Supreme Court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.

And so the framework established in those cases may well inform -- as I said, I've hesitant of prejudging and saying they will or won't because that will be what the parties are going to be arguing in the litigation. But it is...


SOTOMAYOR: I'm sorry.

FEINGOLD: No, no. Go ahead.

SOTOMAYOR: No, I was just suggesting that I do recognize that the court's more recent jurisprudence in incorporation with respect to other amendments has taken -- has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court's decision how it looks at a new challenge to a state regulation.

"What is the test" is a question that she could and should answer. Her response is "well, there'll be one."

Here is another response to a Feingold question.



So, I'd like to hear your thoughts a bit on whether you see any common themes or important lessons in the Court's decisions in Rasul, Hamdi, Hamdan and Boumediene. What is your general understanding of that line of cases?

SOTOMAYOR: That the Court is doing its task as judges. It's looking, in each of those cases, at what the actions are of either the military, and what Congress has done or not done, and applied constitutional review to those actions.

Her understanding of the cases is that they were cases.

When Sarah Palin responded to questions by playing a game of Scrabble, folks wondered whether she knew what she was talking about. Here we assume that Judge Sotomayor is just taking the traditional evasion of Supreme Court nominees to a new level.

This vitiates the Senate's "advise and consent" function at least if we believe the hearings should be a vehicle through which it exercises that function. There is no way that anyone, based on these hearings, could know whether Judge Sotomayor is of Supreme Court or, for that matter, district court caliber. It's an exaggeration, but only a bit of one, to say that, based only on the hearing, I don't even know if I'd hire her as an associate.

Of course, her answers at the hearings are not all we know. She has a career to point to. She graduated from a top law school and worked as a prosecutor and at an excellent law firm She has functioned as a competent federal judge for many years. Nor is it evident that hearings will lead to better consideration of a nominee. While all of the Senators' questions are not incomprehensible or ill conceived, many are both.

In addition, hearings including interrogation of the nominee have not always been thought to be part of the confirmation process. Justice William O. Douglas, during his hearing in 1939, waited outside the hearing room and sent in a message asking if there were any questions. There weren't.

But this was during a time when people really did seem to believe that judging was a mechanical function and that the measure of a judge was pretty much limited to his objective qualifications. Justice Douglas, ironically, did more than most to put the lie to that.

Given the fondness of the Congress (and the Senate in particular) for its prerogatives, I can imagine a desire for pushback. Professor Wasserman worries that it may take the form of impeachment when someone like Judge Sotomayor rules in a way that is inconsistent with what was said at the hearings. He says that such an effort is unlikely to get out of the House but that it would be an awful development. I agree.

The only real way for the Senate to pushback is to refuse to confirm someone who is insufficiently forthcoming at his or her hearing. But, in our current circumstance of relatively high political and legal division, its hard to imagine that either the Democrats or Republicans would place, depending on your view, institutional privilege or constitutional function, above a vote on the Court.

And that's the real story behind this hearing. Quite apart from the affirmations to just "apply the law" or to embrace the lessons of one's experience and in spite of the characterizations of Judge Sotomayor as a technician or an activist, everyone knows - or thinks they know - how she will vote on a variety of issues. Like Chief Justice Roberts and Justice Alito before her, that is why she was nominated. It is why she will be confirmed. Whether everyone was right will remain to be seen.

Cross posted at Marquette University Faculty Blog

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