Sonia Sotomayor's Confirmation Hearings:Political Theater At Its Finest
If nomination hearings are political theater, then a Supreme Court nomination hearing must rank as Capitol Hill's version of Broadway (or at times, the Met.) In that context, Judge Sonia Sotomayor's star turn ranks as one of the most highly-anticipated debuts in American political history. As I am the peculiar sort of bird who has tried to catch every one of these hearings since the days of the 1987 Robert Bork melodrama, I was disappointed that workaday demands kept me from watching yesterday's opening acts in real time.
As with a prologue the first day tells you whether the production you about to experience is more Joseph Papp or Andrew Lloyd Webber. Or in this case, given the ways in which race, gender and class have dominated the discourse leading up to the hearings, the more appropriate analogy might have been to the old Negro Ensemble Company, with Robert Hooks as the young black President and say, Rita Moreno as the whip-smart nominee.. Knowing and respecting Sotomayor as I do, it was a relief to know that this will not be the lurid spectacle formally billed as the Clarence Thomas confirmation hearings. That 1991 debacle seemed to have come straight out of George Wolfe's Colored Museum.
Fortunately, a dedicated corps of expert live-bloggers and analysts is producing a collection of reportage and commentary that was almost as good as being there. I realize my theater analogy is overworked, but it's the best way that I can characterize my reactions to the coverage so far. Here, then is a roundup of the most interesting coverage I've seen two days of hearings.
NPR's Tell Me More featured a segment with three distinguished African American law professors handicapping the hearings: Charles Ogletree and Lani Guinier of Harvard Law School, and Linda Green from the University of Wisconsin-Madison. Having served as counsel to the Senate Judiciary Committee in the late 1980s, Green had useful things to say about the ways in which the Senators use the hearings to score political points. With even her staunchest Republican critics acknowledging the near-certainty of Sotomayor's confirmation, the goal was more to ensure that the most frequently-cited criticisms of the Judge are on the record. [Like the LatinoPolitics blog, the law professors dismissed those criticisms as a bum rap. Meanwhile, Guinier, whose 1993 nomination as Assistant Attorney General for Civil Rights was withdrawn before hearings took place, explained what's wrong with critics reading anti-white bias into Sotomayor's role in the case of Ricci v. DeStefano. She elaborated on her position in more detail in this New York Times op-ed.
For pure snark, it's hard to beat Scarecrow's post on Firedoglake, "NYT Collects Silly Questions to Ask Sotomayor." The New York Times article under attack offers an array of experts and opportunity to come up with questions they thought should be ask. Scarecrow translated this pair of questions from law prof/blogger Ann Althouse:
. When you said you hoped that “a wise Latina” would make better judicial decisions, did you mean it as a pleasantry aimed at people who had invited you to speak about diversity or will you now defend the idea that decision-making on the Supreme Court is enhanced by an array of justices representing different backgrounds?2. If a diverse array of justices is desirable, should we not be concerned that if you are confirmed, six out of the nine justices will be Roman Catholics, or is it somehow wrong to start paying attention to the extreme overrepresentation of Catholicism on the court at the moment when we have our first Hispanic nominee?
1. You're proof that a wise Latina is wiser than I am, aren't you?2. Since you're a Catholic and we need diversity, do you agree with me that Scalia and Alito should immediately resign as soon as you're confirmed?
Tom Goldstein and Kristina Moore's reporting from inside the hearing room for SCOTUSblog is by turns, informed, trenchant and funny. Some samplings:
10:42Tom Goldstein: Di Fi [Dianne Feinstein, D-CA] wants SS to know that she has more experience than any other member of the Court. The Judge looks grateful to learn that.
10:44Tom Goldstein: Abortion protester screaming out10:45Kristina Moore: Seriously, screaming10:45Tom Goldstein: Leahy will not allow any outbursts. Good to know. 10:59[Charles] Grassley [R-IA] removes the knife from Sotomayor's back and congratulates her. 11:17Tom Goldstein: CS wants to make clear that he likes her more than anyone, ever.11:17Tom Goldstein: Di Fi is milquetoast by comparison.11:18Tom Goldstein: CS - her nomination perfectly illustrates judicial modesty. "There are several ways of measuring modesty." He will pick the ones that most favor her.11:19Tom Goldstein: CS - she rules for the government, employers, and the prosecution almost all the time. The representatives of People for the American Way just had a collective stroke.11:20Kristina Moore: Sen. Schumer's rattled off a whole bunch of statistics about Judge Sotomayor's record. Various reports listed in this post analyze these stats in more detail: http://www.scotusblog.com/wp/reports-on-judge-sotomayors-record/ link
First, while the people of Minnesota might have found him good enough and smart enough, Sen. Al Franken did not impress Prof. Althouse with his opening statement. However, she was far more taken with the second-day exchange between Judge Sotomayor and Sen. Jeff Sessions (R-AL) about whether she allows personal experiences to bias her judicial decision-making:
9:10: "Life experience has to influence you," Sotomayor says. "We're not robots who don't have feelings. We have to recognize those feelings, and put them aside." I add the italics to indicate dubiousness. Sessions jumps in to remind her that she had said that judges should not deny the difference that come from experience and heritage. Sometimes the "sympathies and prejudices are appropriate." That's a quote from her speech. So when is it appropriate? She says that sometimes "the law" requires it. She is trying to reframe her old remarks so that they mean that the judge is "testing" to make sure that improper emotions are not influencing the decision. It's all about fidelity to law. Sessions points out — and I think he's right — that she's saying the opposite of what she said before.
9:35: Both Sessions and Sotomayor are terrific, by the way. This is a classic confrontation, at the highest level. It's a real thrill to listen in.
New York Times
During his session today, Senator Graham pounded home that point. Perhaps this was his Southern upbringing coming out, but at one point as he wove his way through his objections to her statements, he said, “Do you understand, ma’am?”If he had uttered those words — that as a white man he would make a better decision, for example, against a minority opponent in a political race, “they would have my head,” Mr. Graham declared.In a chastising voice, Mr. Graham added: “It would make national news and it should.Having said that I am not going to judge you by that one statement. I just hope you’ll appreciate the world we live in, meaning you can say those things and still inspire somebody and still get a chance to get on the Supreme Court.” If others used those words, they “wouldn’t survive.”Does that make sense? he asked.Yes, she answered. (At times, she replied to him by saying, No, sir.)
Graham and Sotomayor also had an exchange about her temperament, which Emily Bazelon thought was sexist:
I continue to think the bullying charge against her is heavily gender-inflected. Highly respected judges like Richard Posner and Frank Easterbrook make the lawyers appearing before them cower, and no one says boo to them about it.
By the way, Slate's Dahla Lithwick said Sotomayor was smart to make her opening statement a "spare," straightforward testimony about her "fidelity to the law:"
Given how often Sotomayor was accused of being hugely, inappropriately larger-than-life today, going tiny may have been precisely the right way for her to play it.
The Greek Chorus that is Twitter
Three to follow, not necessarily in this order, and not all on the same side:
Now that we are in the intermission between the second and third day of the hearings, are they holding your attention? What do you think of Sotomayor's performance so far?
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