The Sotomayor Hearings

The Senate Judiciary Committee hearings on Sonia Sotomayor begin tomorrow.  Two learned scholars have offered their opinions as to how Republicans should approach the hearings, and what topics should be explored:

Hadley Arkes:

No roughing up of Sonia Sotomayor: She should be treated as we would wish our own sisters to be treated. But a gentle course may actually provide a greater political yield and be far more illuminating for the general public...

So the Republicans should simply invite her to explain the state of the law, as she sees it, on a range of subjects that have been particularly vexing of late in our politics: abortion (of course), but also matters like racial preferences, same-sex marriage, and the role of judges in overseeing military action on the battlefield.

There is no need to ask Judge Sotomayor how she would rule in any of these cases. She could simply display her learning by explaining the state of the law as she understands it, and reveal in that way the furnishings of her mind...

The Republicans can simply ask Judge Sotomayor to explain what Roe v. Wade and Doe v. Bolton established. If she just says those cases established a right to abortion for the first three months of the pregnancy, the Republicans can correct her, and correct her on national television. For the right to abortion actually extends through the entire length of the pregnancy. For most Democrats, that right to abortion would cover even partial-birth abortions, with the body of the child dangling out of the birth canal...

And as it turns out, the law that has been shaped by the Supreme Court could be read as quite open to such restrictions on abortion in particular cases. It is arguable also that five of the justices now sitting would be willing to sustain those restrictions, depending on the case at hand. Does Judge Sotomayor understand the law in that way? Or does she think that the law springing from Roe v. Wade mandates nothing but abortion on demand, for any reason at all, at any time?

And Matthew Franck muses on the excessive manner in which we have regarded the concept of "judicial supremacy" in recent times, and offers the following:

Because of the nature of the Supreme Court’s work—initiated by aggrieved litigants and not the justices themselves, carried on in esoteric language, and seeming to matter much even to politically aware citizens only two or three times a year—the public occasions and opportunities to reconsider the scope of the Court’s authority in our constitutional order come few and far between. One such occasion occurs when a vacancy on the Court must be filled...

While some senators may not get past a concern only with results—thinking of the Court as just a political institution to be won or lost—others may see correctly that cases like Roe are emblematic of major trends in the aggrandizement of judicial power, and can open up a real discussion of the role of the courts in our political life and whether we aren’t paying too steep a price for overinflated notions of judicial independence...

We ought... to be interested in what our future Supreme Court justices think about the meaning of the Constitution—a thing altogether outside themselves, with its own integrity, content, and history...

If the Constitution has its own content and integrity, then there are right answers to the questions the justices face. That the justices often disagree is only a sign that the answers are not easy, or are contested for some good or bad reasons—not that right answers are nonexistent or unknowable...

We should ...be committed, and urge senators to be likewise committed, to finding out if a nominee has what it takes to be a good judge...

(A) good starting point would be to invite the nominee to offer some reflections on Cooper v. Aaron, the 1958 declaration of judicial supremacy we discussed in our first essay. Did the justices in Cooper have a correct understanding of the Supreme Court’s relation to other branches of government? Did they understand the Marbury precedent they characterized as establishing judicial supremacy? What about the apparently contrary view taken by Abraham Lincoln in confronting the Dred Scott ruling? Which view—an authoritative judiciary or the institutional equality of the three branches of government in their own spheres—gives the best account of the Constitution our forefathers entrusted to us?

In the era of judicial supremacy, our whole constitutional system is disordered by the prevailing view that the nation’s governing charter is fundamentally the property of unelected, unaccountable judges with power to shape and reshape it as they see fit. When the Constitution is “community property” again, we will all be much better off, even the justices themselves. In one sense, too much is at stake in judicial nominations so long as we continue to believe this disfiguring myth. We must struggle endlessly over getting the “right” judges—or the “left” ones, as the case may be—until we accomplish the one thing needful, a real renaissance of authentic constitutionalism. Only by raising the stakes in judicial nominations can we have any hope of lowering the stakes in the six dozen or so cases that the Supreme Court decides each year.

These two writers offer some fine food for thought; and an excellent approach for Republican senators to consider. 

It is questionable whether the Sotomayor nomination can be stopped.  But this is a teachable moment, of which we should take full advantage.

Comments

[Fred Gregory]

The pantywaist brigade of Republican Senators will show their timidity by treating her with kid gloves. And of course fear of offending Hispanic voters will be cited.

Wouldn't this be a hoot..she answers a question on Roe by stating her opinion that it was wrongly decided. Ain't gonna happen. But it would be chaotic.

I hope the planned attack on Ricci backfires on the Democrats.

[Joe Guarino]

Yes, Fred, the orchestrated attack on Ricci is pretty contemptible.

Arkes is making the argument that she should be treated gently, but with persistence regarding some of the important matters of law. And Franck wants her to be questioned regarding the larger question of the role of the courts and the meaning of the constitution.

It will take some pretty skillful cross-examination to penetrate through to the heart of the matter with this particular nominee-- without appearing overbearing. As you suggest, there will be fear of going after an Hispanic woman, so the approach has to be very professional.

[Stormy]

I have heard that some of Sotomayor's supporters are involved in the attacks on Ricci to diminish his credibility.

In any event, the Dems push this one through unless Sotomayor makes a huge gaffe. And, it would have to monumental. Don't forget the Chief Clown is on the Senate Judiciary Committee now. What a joke our federal government has become in a few short months. Do any knowledgeable citizens have any respect for our government anymore?

[Bubba]

"Do any knowledgeable citizens have any respect for our government anymore?"

The key word is "knowledgeable", Stormy.

There are still too many misinformed or uninformed people that need to be made aware and educated about the Obamanation that is our current Federal government.

These are the people we need to reach, not the cynical agenda-driven opportunistic toadies, nor the assorted Usual Suspect knee jerks who are impervious to deprogramming efforts.

[Stormy]

Bubba,

Unfortunately, our country has become so polarized that there is no middle ground anymore. Citizens are on one side or the other. As a result, one has to make a quantum leap to move from one side to the other.

[Brenda Bowers]

The Republican Senators just need to put a smile on their faces, use soft voices and the good manners Mom taught them (yes mam, No man, thank you and please) and they can ask just about anything and push just about as hard as they want. It's all in the HOW it is done, not WHAT is done. A good example would be how they handled Anita Hill. Remember Senator Specter?

Since psy is an interest of mine I do love watching a master perform. Do the Republicans have any such masters? BB

[Joe Guarino]

It appears they are doing a pretty good job with their opening statements, Brenda, but it is much more difficult to cross-examine. We shall see.