The Sotomayor Nomination, Part III
July 17, 2009
Questions and Answers:
Nomination to the Supreme Court (2009)
- Remarks upon the Announcement of Sotomayor's Nomination, May 26, 2009
- Judiciary Committee Questionnaire, June 4, 2009
- Supplement to Judiciary Committee Questionnaire, June 19, 2009
- Letter from Judge Sotomayor, re: Belizean Grove, June 19, 2009
Nomination to the Court of Appeals for the Second Circuit (1997-1998)
- Judiciary Committee Questionnaire, part 1, 1997
- Judiciary Committee Questionnaire, part 2, 1997
- Transcript from Judiciary Committee Hearing, September 1997
Nomination to the District Court for the Southern District of New York (1991-1992)
- Judiciary Committee Questionnaire, 1991
- Addendum to Judiciary Committee Questionnaire, 1991
- Transcript from Judiciary Committee Hearing, June 1992
- Judge Sotomayor's Nomination to the Supreme Court, Senate Judiciary Committee
- "Reports on Judge Sotomayor's Record," SCOTUSBLOG, July 7, 2009
Although the Senate Judiciary Committee has not yet finished its work, this seems like a good time to take stock. The performance of both the Senators and the nominee has been disgraceful. If we are to give Judge Sotomayor the benefit of the doubt, she very substantially misrepresented her own views. It is virtually impossible to give the Senators the benefit of the doubt. Their questioning was at once frivolous, hectoring, and deeply ignorant.
None of this is to say that these hearings are unique. The performance of both the nominees and the Committee was at least as bad in the Roberts and Alito hearings. Judge Sotomayor is not even the first nominee to mislead the Committee while under oath. Both Chief Justice Rehnquist and Justice Thomas also prevaricated, and, in their cases, the lies were about hard facts in the world, rather than something as amorphous as judicial philosophy. (Rehnquist almost certainly misrepresented his role in Justice Jackson's chambers with regard to Brown v. Board and in vote suppression activity in Arizona; even if we put to one side the Anita Hill mess, Thomas swore under oath to the preposterous claim that he had never in his life talked with anyone about Roe v. Wade.)
We can take no solace from the fact that hearings of this sort are a recurring rather than an isolated episode. For believers in popular constitutionalism, this has to be a disappointment. The hearings might, instead, be an occasion for serious public deliberation about constitutional law. How could they be made better? I have two practical suggestions. First, the Senators have no one to blame but themselves for the evasiveness of the nominees. There should be a bipartisan agreement not to confirm any nominee who is not forthcoming about her views concerning important constitutional questions. Second, if the Senators are unwilling or unable to ask intelligent questions of the nominees, they should turn over at least part of the task to committee counsel who might do a better job.
In a thoughtful analysis in the New York Times yesterday, Peter Baker and Charlie Savage suggested that the Republicans had established a precedent with the Sotomayor hearings: No nominee will be confirmed unless she embraces the simplistic view of constitutional law that conservative constitutionalists pretend to adhere to. On reflection, I think that they got it almost exactly backwards. What the hearings in fact establish is that President Obama can nominate almost anyone to the Supreme Court so long as the nominee is willing to humiliate herself by misrepresenting her views and kowtowing to the bullies on the committee. This conclusion needs to be qualified slightly. It was important that the Sotomayor nomination is unlikely to change the balance on the Court. Things will be much messier if one of the conservative Justices leaves the bench. Still, the Sotomayor experience demonstrates that hypocrisy, oversimplification, and cowardice go a long way toward achieving a seat on the Supreme Court. Unfortunately, there seems to be no shortage of ambitious federal judges willing to learn this lesson.
The confirmation hearing was surely an excruciating fiasco for all the liberal progressives, like Mike, who were reasonably hoping and expecting that Judge Sotomayor would provide an ardent defense of their constitutional vision. Mike states that Sotomayor "embrace[d] the simplistic view of constitutional law that conservative constitutionalists pretend to adhere to." But there are few if any conservative constitutionalists who would endorse her ridiculously wooden description of the judicial role, and even Chief Justice Roberts's umpire metaphor—which was, after all, just a metaphor—would seem to have the richness and depth of a learned treatise by comparison.
Judge Sotomayor deserves an A+ for brazen doublespeak. She emphatically rejected the lawless "empathy" standard for judging that President Obama used to select her, but she denied the plain import of her many statements contesting the possibility and desirability of judicial impartiality. She hid behind her empty clichés about judging, but she never recognized any meaningful bounds on the role of a Supreme Court justice. She gave a series of confused statements about the use of foreign law that are inconsistent with each other and that contradict a speech that she gave just three months ago.
The primary question that Judge Sotomayor's testimony raises is whether her thinking is really so muddled or whether she was being savvily deceptive—or both.
With overwhelming support in the Senate and no serious doubt that she would be confirmed, why did Sotomayor testify as she did? One theoretical possibility (perhaps the one that would scare progressives the most) is that she actually believes what she said. Another (among the many possibilities) is that her White House handlers persuaded her to take that path. If so, that would be a remarkable testament to their perception of how deeply unpopular and unconvincing the progressive view of the Constitution is.
Alas, I see no easy way to improve the hearing process, and I can't say that I find either of Mike's "practical suggestions" to be practical. The hearings operate in the terrible way that they do in large part because many senators want the hearings to operate that way. They waste the first day on their interminable statements because they want to be in the spotlight. They sometimes don't really seek meaningful answers from the nominee because meaningful answers would put them on the hot seat: it's a lot easier to defend your vote (either way) when the nominee's views are obscure.
(Mike's post makes some assertions that would divert the discussion far afield, so I'll just emphasize the obvious point that my failure to respond to them should not be mistaken as agreement with them.)
I am in sympathy (indeed, empathy) for much of what Mike says here. I think the Sotomayor hearings were indeed a disgrace, on the part of the nominee and many Senators (not all).
I suspect that Judge Sotomayor did misrepresent, under oath, not just her own theoretical views about the enterprise of judging, but also more concrete matters (such as the fact that the firefighters filed a petition for rehearing, that there was some meaningful appeal open to them via the certiorari process, that she had no idea what briefs the Puerto Rican Legal Defense and Education Fund was filing when she was Vice President for Litigation, that she is innocent of the last century of precedent on incorporation doctrine based upon due process instead of privileges or immunities, etc.).
And I agree with Ed that her embarrassingly reductionist articulation of her supposed philosophy of judicial restraint cannot be compared to what John Roberts or Sam Alito said (which was consistent with, and not in tension with, their own records).
I must digress long enough to refute Mike's claim about Justice Thomas. At his hearing, he did not say he had never in his life "talked with anyone" about Roe v. Wade. He testified that he had never debated or thought in depth about Roe v. Wade as a constitutional matter: a big difference for someone who thinks legal analysis, and not personal opinion, is what matters for a judge. That was honest testimony. As he explained in his memoir, My Grandfather's Son, abortion was not an issue he personally was very absorbed with, and the legal debate when he was in law school was not abortion-obsessed as it is now. He entered Yale Law School in 1971, and when Roe came down in 1973, he was far more concerned with finding a job that would support his wife and young son than debating abortion. He was being denied job offers because all the law firms thought he was an affirmative action candidate who did not know the difference between "eminent" and "imminent" death. (I challenge you to assess his legal writing objectively against Sotomayor's.) I can tell you, having known him for 22 years, the only times I have heard him discuss abortion were when he had a case or cert petition that required him to focus on the issue presented. He came to talk to us at a summer program where I was a fellow in 1987, and in all his discussions about the Constitution, the Court, and American politics, the issue did not come up.
Do you really think someone who said "this job is not worth it" would perjure himself in order to get it? Unlike someone who has been long scheming to get it, and would sacrifice honest legal analysis of the firefighters' claims in Ricci in order to get it?
Mike, I know you are an honest liberal, and far smarter than I am, but you are dead wrong about this.
I agree with you that this is a travesty for "popular constitutionalism" because there is an honest debate that could be had, among people of good will like you and me. It is the debate that engaged Justice Brennan and Attorney General Meese in the 1980s, between the living Constitution and Originalism, neither of which deserves to be reduced to a caricature, as it has been in the doublespeak of Sonia Sotomayor.
The failure to engage that debate honestly is not just a failed Obama promise of transparency, it cuts to the core of our ability to govern ourselves by holding elected representatives—whether the President or Senators—accountable for their actions in nominating or appointing Article III judges.
What John Roberts said about neutral umpires was not "oversimplification": it was mere simplification, designed to speak honestly to Americans who do not have a J.D. as you and I do, but who are the ones who are governing—supposedly—this Republic. Self-government will not continue to work under the precedent set by Sonia Sotomayor.
I don't know who can be satisfied that this exercise went well. Ed and Mike are right that Judge (soon to be Justice) Sotomayor either "substantially misrepresented her own views" (as Mike puts it) or is a very confused thinker if she thinks her testimony can be squared with her own past statements on repeated occasions over a 15-year period. I think it very likely that she was well-coached by White House handlers who prepared her "deflector shields" to be deployed whenever the questioning threatened to reveal something interesting about the interior furnishings of her mind. As a consequence, she came across as, at best, a dull mediocrity who believes in mechanical jurisprudence, or an accomplished prevaricator. This cannot make supporters of President Obama and of this nomination very happy. They can take solace in the high probability that Justice Sotomayor will be just what they hope she will be—a disciple of the "living Constitution" devoted to advancing the "progressive" cause from the bench. The heartburn of this week will be forgotten if that expectation is made good.
Republicans and conservatives, on the other hand, didn't have that good a week either. They missed a number of interesting opportunities. On Tuesday Sen. Russ Feingold (D-WI) asked Judge Sotomayor flat out whether Korematsu v. United States (tolerating the internment of Japanese Americans during WWII) was wrongly decided. She flatly replied,"It was, sir." What never happened was some Republican seeing this opening and asking something like this:"Judge, you have said that Korematsu was wrongly decided. Can you say why, with some elaboration of the legal reasoning involved? And as long as you've expressed an opinion on the rightness or wrongness of one famous case, let's talk about some others. Care to talk about Dred Scott? Lochner? Wickard? Brown? Roe? I’ve got a good list here. Let's get started."
On Wednesday, asked by Sen. Tom Coburn (R-OK) simply to describe the requirements of constitutional law in place since Roe v. Wade, Judge Sotomayor got the answer badly wrong. But neither Sen. Coburn nor any other committee member followed up. Likewise she was permitted to characterize the "right of privacy" rulings not as new or "made up" constitutional rights, but simply as new instantiations of the good old liberty of the Due Process Clause. Once again an interesting conversation never transpired.
Could Mike's suggestions improve the hearings? I think so. Is Ed right that we shouldn't expect such changes to be undertaken by the Senators? I’m afraid so. I have to think more about where we go from here. I will say that there is something seriously wrong with the process. In no other job in public service is the candidate permitted to reveal so little of his or her thinking and cloak his or her very fitness for the job behind such a veil of necessity regarding the future of his or her "independent" decision-making. The independence of the judiciary has metastasized—once benign, it is now malignant.
(I see Wendy has just weighed in. None of the above is a response to her.)
I know that Justice Thomas's testimony is not very relevant to our discussion, so rather than characterize it, I will merely quote it and leave to people to decide for themselves whether it is credible:
LEAHY: I am sure you are not suggesting that there wasn't any discussion at any time of Roe v. Wade?
THOMAS: Senator, I cannot remember personally engaging in those discussions.
LEAHY: Have you ever had discussion of Roe v. Wade in the 17 years it has been there?
THOMAS: Only in the most general sense that other individuals express concerns, and you listen and you try to be thoughtful. If you are asking me whether or not I have ever debated the contents of it, that answer to that is no, Senator.
LEAHY: Have you ever stated whether you felt that it was properly decided or not?
THOMAS: I don't recollect commenting one way or the other. There were, again, debates about it in various places, but I generally did not participate.
Okay, Mike. I've reread Thomas's confirmation testimony. I can find no reason internal to the testimony, nor do I know of any evidence external to the testimony, that would lead me to regard it as other than credible. Has anyone ever claimed to have been present when Justice Thomas had a conversation before September 1991 in which he commented on the contents or the propriety of Roe v. Wade?
I don't want to get caught up in discussions of other nominees' performance, but it is sufficient to say that I agree completely with Wendy and Matt on their posts.
On Judge Sotomayor, I wanted to spend a day or two reflecting on the hearings before contributing some thoughts. It is not surprising to me that the hearings were a disappointment in nearly every respect. Basically every confirmation hearing since Robert Bork's has been uninteresting as a substantive matter, at least in terms of having a productive discussion about a nominee's jurisprudence. Judge Sotomayor answered few questions directly and the questioning from most Senators (the exceptions that immediately come to mind are Senators Sessions and Cornyn) was superficial and unenlightening. As Matt notes, almost every time there was an opportunity to engage the nominee on an interesting jurisprudential issue, such as her response that Korematsu was wrongly decided, the Senators failed to further probe the nominee. The often-myopic focus on the Ricci and Maloney cases, in addition to the repeated attention paid to Judge Sotomayor's speeches, was to the exclusion of possible interesting questions on some of Judge Sotomayor's other opinions, such as the Friedman case that I noted earlier. If there was an extremely high probability that Judge Sotomayor would be confirmed anyway, why not probe her more thoroughly on her jurisprudence even in relatively uninteresting cases? Ironically, that may have made the hearings more interesting because the nominee would have been able to answer such questions more forthrightly because they would not have involved hot-button political issues.
For her part, Judge Sotomayor's testimony was often stilted and wooden. I saw very little personality from the nominee and her answers were simplistic and often evasive. As I said, I was agnostic on Judge Sotomayor's appointment for several reasons: (1) the reality that Judge Sotomayor was likely the best we were going to get from a liberal President that had sixty reliable votes in the Senate; (2) the fact that Judge Sotomayor has served as both a district court judge and a prosecutor, attributes that I think are sorely missing on the current Court; and (3) she is qualified to sit on the Court as an objective matter even if one disagrees with her ideology (as I do). Would I have appointed her? No, because she does not reflect my approach to deciding cases. But that was not the question here. To me, she seemed like the lesser of evils and perhaps the best of the batch of short-listers that Obama was pondering.
But I found myself really straining to maintain my agnosticism as the hearings wore on. Her answers were often uninspiring and even misleading at times, and as someone who studies the federal judiciary closely as an institution, I wondered on several occasions whether she could possibly believe what she was saying during her testimony. At times, the clear answer in my mind was "no," for some of the same reasons Mike stated. Was it the nominee or the hearings themselves that made this such a disappointing affair? Probably a bit of both, but despite spending so much time thinking about this topic, I am not sure that we can make the hearings more informative without a change of culture in the Senate; that is, until Senators are willing to vote down a nominee that refuses to answer questions forthrightly during the hearings.
First, the strategy of the nominee, and of the White House that put her nomination forward and prepared her for the hearings, was evidently to communicate to their liberal supporters with winks and nudges, while projecting for the general public an image of Judge Sotomayor as a John Roberts-like devotee of neutral judging, of umpiring over empathizing, that would reassure the American people that their traditional understanding of the role of the Supreme Court was being respected. This strategic choice speaks ill of the candor and integrity of President Obama and his administration, of Judge Sotomayor, and of those Democratic senators who colluded with it (notably Sen. Charles Schumer of New York), since it required suppressing, evading, or beclouding the truth about a great many things Sonia Sotomayor has done and said, sometimes on the bench but for the most part off the bench. It also appeared to require an absurdly exaggerated and quite incredibly mechanical view of jurisprudence that, as Ed Whelan has remarked, made John Roberts' "umpire" metaphor sound like a learned treatise on the subject. But the strategy speaks well of the American people, who can only be talked into accepting a left-wing activist on the Supreme Court if she is placed there covertly. This didn't seem to get through to liberals like Washington Post columnist Richard Cohen, who groused about Sotomayor's lack of "passion" for liberal causes during her hearing. The American people understand that judges aren't supposed to enlist in political causes, and Cohen seemed not to understand that had Sotomayor violated that expectation, even a Senate with 60 Democrats would have had trouble confirming her.
Second, Republican senators on the Judiciary Committee, to their credit, were not taken in by the masquerade, have begun to rethink the norm of "deference" to presidents in a healthy way, and did their part in the hearings without any apparent fear of any (highly improbable) Hispanic backlash. But the senators reminded me of what a friend of mine said about deer hunting years ago: "Remember, you are a part-time amateur hunter, and he's a full-time professional deer." The GOP's senators need practice at this sort of thing. The nominees go through "murder boards" with administration helpers and coaches, and in any event are almost always highly knowledgeable practitioners and/or scholars of the issues that the hearings will discuss. The senators, on the other hand, even with able staff help, ordinarily haven't the time, focused attention, or experience required to examine the nominees effectively, especially if the nominees are permitted to sidestep questions about what they really think about the law and the Constitution. Much work is needed for all senators of both parties on what to ask; how to ask it; how to follow up on partial, misleading, or dodgy answers; how to communicate to nominees and the public what standard the nominee will have to meet in order to earn confirmation; and so on. As it is, the current confirmation process poses no threat to the continued dominance of an imperial judiciary over all other rivals in saying what the American people's Constitution means. That should change, and it should be an important priority for senators to think about how to make that change happen.
Though other participants in this debate obviously express their disagreement, I don't think that the question whether Sonia Sotomayor should be confirmed as a Justice of the Supreme Court is really a close one.
That's no surprise and, to be clear, that's different from the question whether a committed conservative Senator, who believes that ideology matters, should oppose her as a matter of principle, just as they would oppose any realistic nominee of President Obama. There were Democrats who were going to oppose any nominee of President Bush – even Harriet Miers – and we can expect around thirty Republican Senators (with around ten already announced) to vote against Sonia Sotomayor.
The question I'm addressing isn't whether Sonia Sotomayor is more liberal than the Republican Senatorial caucus but instead whether she is highly qualified to sit on the Supreme Court, so that we can and should expect Senators of the President's party to join with moderates from the opposing party to confirm her, just as they did with John Roberts and Sam Alito.
I believe that the mainstream consensus view that she is a thoughtful, experienced, moderate liberal is correct. She has seventeen years of decisions to prove the point, and the surveys of her rulings are decisive. Contrary claims can't overcome the conclusions of, for example, Senators Cornyn and Graham that her decisions are in the mainstream.
Judge Sotomayor also has a diverse record of public service that is properly applauded and reflects a commitment to the rule of law rather than private ambition. She graduated from Yale Law and set out to be not a liberal activist, but a prosecutor. With the exception of only a few years of private practice, she has since served as both a district and federal appellate judge. That actually matters when it comes to the Supreme Court: we need the voice of someone who has been a line prosecutor and a trial judge.
As a country, I think that we also benefit tremendously from the appointment of such a highly qualified – and yes, "wise" – Latina to the Supreme Court. I won't try to reignite the firestorm over whether personal experience affects judges' decision-making. But its symbolism to the country – and to the Hispanic community in particular – is genuinely tremendous. I think it's also fantastic that we have a conservative African American on the Court. The individuals who achieve positions of power in the country send a tremendous signal about what any person can achieve.
Now, I already thought everything I've said above before the hearings started. Here are the only things I know about Sonia Sotomayor today that I didn't know for sure then: (i) she's smart, because even if you think little of the questioning (and I do), it is not easy to be in that seat day after day and answer (and at times, avoid answering) hundreds of questions; (ii) she studies hard and can stick to a message, which is the upshot of the success of her preparation; and (iii) she has tremendous patience when required, which is apparent from her responses to the sometimes nasty claims made about her and the constant repetition of the same questions.
Those aren't three sufficient qualifications to serve on the Supreme Court. What's more significant for me was that nothing remotely disqualifying emerged. Again, I put to the side that she is considerably to the left of Wendy and Ed and Senator Sessions and other Republican Senators, who now believe that ideology matters in judicial selection. I agree with their ultimate conclusion – though not their reasons – that Judge Sotomayor's testimony did not persuasively suggest that she is the consummate centrist and someone who only applies the law mechanically, which I think is impossible. (And unlike Louis, who believes she was disingenuous, I don't believe that Judge Sotomayor was actually making that claim.)
We just shouldn't pretend, in my opinion, that the opposition to her (and much of the support for her) is about more than ideology. Lindsay Graham had it right when he said that this is about conservative and liberal politics. Those who genuinely despaired over attacks on John Roberts and Sam Alito – who thought that they were nakedly partisan and vicious, and that they undermined respect for the federal judiciary – ought to pause and recognize that this is just history repeating itself with the positions of power reversed.
I do think it is a shame that we learned so little from the hearings. And in terms of the larger debate over how to interpret the Constitution, I think that conservatives "won" the hearings in that critical respect; in fact, it wasn't even close. Republicans were ready, willing, and able to engage many of the important jurisprudential issues of our time. Democrats had the numbers on their side and were content to get Judge Sotomayor safely through to confirmation, which after all is the point of a confirmation hearing.
But if there is ever a time in which the least damage is done by the modern phenomenon of hearings that illuminate nothing, it is with respect to a nominee who has already served as a judge for seventeen years. If you want to know how she approaches the law, and how she's likely to rule as a Justice, you can treat the past as prologue and expect more of the same decisions, which look very much like Justice Souter's.
I'm very grateful to the Federalist Society for arranging this exchange.
First of all, I'd like to thank the Federalist Society for hosting a debate that's been fascinating, fun, and genuinely "fair and balanced." Second, I don't want to rehash too much, so let me just make a few points in closing.
I share the disappointment many have expressed that the nation has squandered what could have been a "teachable moment," or at least occasion for a public debate about the courts, the constitution, etc. I do think that it's unfair to blame Judge Sotomayor in particular for this, though. I agree with David that "every confirmation hearing since Robert Bork's has been uninteresting as a substantive matter," and I disagree with Matt and Ed that Judge Sotomayor offered "an absurdly exaggerated and quite incredibly mechanical view of jurisprudence that, as Ed Whelan has remarked, made John Roberts' "umpire" metaphor sound like a learned treatise on the subject." Agree or disagree with the jurisprudence of Chief Justice Roberts, the "umpire" analogy/metaphor/image is just an awful mis-portrayal of what the Supreme Court (as opposed to, say, a local civil court) does, as I've written elsewhere (http://www.acslaw.org/node/13733); I find it hard to say the umpire metaphor is a "learned treatise" compared to anything, other than maybe Pat Buchanan's ode to the admirable role of white males in the Revolution and the Civil War as an explanation of why we've had almost all white male Supreme Court Justices. Every bit as much as Judge Sotomayor, then-Judge John Roberts set the bar for "unilluminating responses from a slam-dunk confirmable nominee," so I fault both of them equally, which is to say I don't fault them at all, given the rules of the game of Senate confirmation.
Those of us hoping for more illuminating Senate-versus-nominee debates can take heart in this: at some point we'll again have a President facing a Senate with a heavy opposition-party majority, and then we'll finally have an interesting game again. In all five of the 1990s/2000s nominations (Ginsburg, Breyer, Roberts, Alito, Sotomayor), the President's party controlled the Senate, making confirmation extraordinarily likely. The last three nominations in which the President's party didn't control the Senate were Bork, Thomas, and Souter; two of those were pretty interesting hearings -- but of course we can debate whether "interesting" meant "good for the country," so when the left and right complain that the Roberts and Sotomayor hearings (respectively) were uninteresting, we might want to be careful what we wish for.