Watching the opening day of the Supreme Court confirmation hearings for Sonia Sotomayor unfold should serve as a reminder to us all just how seriously senators take every opportunity to do a little political grandstanding.
Like great kabuki theatre, watching it was a chance to step outside our normal reality for an entire day of singing, dancing, breathtaking feats of oratorical demagoguery and Sotomayor’s own painted-on face. If anyone watching had the prescience to make a drinking game out of every mention of judicial “empathy” and “activism,” you might have been blackout drunk by the time Sen. Russell Feingold compelled Sotomayor to “answer the charges against her.”Unfortunately for Sotomayor, Gov. Mark Sanford of South Carolina is one Republican ineligible to weigh in on the confirmation and given his record of strong support for Latinas, it would surely have been a boon to her cause. Still, the issues working against her confirmation made themselves known quite early, with Sen. Jeff Sessions, a Republican from Alabama, frankly stating his distaste for Sotomayor’s empathetic tendencies and jurisprudence in general. His words came across like a not-sosubtle salvo in the cultural war that his party has been fighting for the last year, attacking statements Sotomayor alleged to have made in jest regarding her notorious “Wise Latina” speech and her reference to circuit courts, “where policy is made.” Sessions, who was once rejected for a federal judgeship himself, seemed to believe that Sotomayor will take all white men’s jobs, fund abortions and put an end to private property.
The problem with that reasoning is that justices make political decisions every day. Any time a case reaches the bench, the issue at hand has already become inherently political; it’s the last big drop in a rollercoaster of policy influencing. There’s no “correct” law in these matters. If that were the case, it could merely be decided by one justice and not nine, which Sen. Sheldon Whitehouse went on to argue later in the day. Sessions stated outright that Sotomayor’s record isn’t mainstream enough for his tastes (forget that the mainstream gave us trans-fats, Spencer Pratt and Nickelback) just hours before the hearings and that if confirmed, her “liberal activist” philosophy would blossom, but isn’t that just another way of saying that he disagrees with her stances?
Through Sessions mid-morning ramble, he did bring up one legitimate point; it is quite possibly the most watched, blogged about, Tweeted and simply the most visible Supreme Court confirmation in the nation’s history. The issue of Sotomayor’s candor is one that hasn’t come into play in previous confirmation hearings to this degree and it’s opened up the debate as to what extent judges and justices should proffer their own private feelings for public consumption, if at all. She’s opened a window into an idea that I believe most in her position wouldn’t dare speak, but still privately hold. Supreme Court rulings are and have always been rooted in the beliefs of the individuals who cast their decisions. Yes, it’s based on an unimaginable wealth of judicial experience and legal scholarship, but in the end it’s a human being casting their decision.
Overlooked in this discussion, however, is the angle that this nomination is akin to an olive branch to the Republican Party from the majority; a chance to curry favor with an increasingly growing demographic of Hispanic voters whose values overlap with that of traditional WASPs more than most are willing to admit. Look no further than gay marriage referendums in California and you’ll see that the defeat of one of the most progressive pieces of legislationto come through the most liberal state in the union was widely attributed to heavy Latino opposition. Sotomayor has never directly decided a case involving that particular issue and her sole opinion on abortion was in line with the pro-life movement, leaving some ambiguity on her stances regarding the political right’s hot buttons. Those who believe that political leanings naturally carry over from lower courts into what is effectively academic tenure should be reminded of Justice William Brennen, a man reviled by the National Liberal League for his religiously-based decisions who went on to be one of the most left-leaning members of the high court’s history.
The opening-day rhetoric diverged from lobbing
political hand grenades to statements like, “Maybe I’ll confirm you, maybe I
won’t,” and epic Freudian slips from Sen. Patrick Leahy (referring to her as
“Justice,” among others). The “balls and strikes” digression attributed to Chief
Justice John Roberts made for high comedy on an otherwise mindnumbing day.
Roberts’ original statement claimed that there exists a “legal strike zone” that
home plate judges call on a pitch-by-pitch basis, which would require one to
overlook the entire pitching career of Tom Glavine to fully embrace. If
anything, the first public comment of Sen. Al Franken was the most anticipated
moment for myself, even if he did miss a genuine opportunity to make an
impression by telling Sotomayor that she’s good enough, she’s smart enough and
doggone it, people like her. It is all about the grandstanding after all.
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