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.
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