As the Sotomayor confirmation hearings got going Monday morning it only served as a reminder how utterly useless such proceedings have become. The most obvious skill that a nominee brings to such hearings is not the ability to lucidly explain their positions or skillfully parry with opposing senators over legal issues; the most obvious skill is the ability to stay awake as each senator reads monotonously from a script written by their staff.
What do those scripts say? Well, it depends on the party they belong to. In the current confirmation, the Democrats are all talking about Sotomayor’s inspiring life story and her impressive achievements. The Republicans are all expressing their Grave and Very Serious Concerns about obscure rulings from Sotomayor that their staffers read about in briefing books provided to them by conservative interest groups.
Randy Barnett has an op-ed in the Wall Street Journal calling the event “the Seinfeld hearings” because they are, quite literally, about nothing. And he accurately points out the hypocritical poses struck by both sides:
Judicial confirmation hearings are thereby turned into a game of gotcha, with questioners trying to trip up the other side’s nominees, and nominees quite properly refusing to reveal the only thing their inquisitors truly care about: how they would rule in particular cases that are likely to come before the Court.
But postures must be assumed and questions must be asked. So senators and nominees opine about two empty concepts. The first is “stare decisis” or precedent: Will the nominee follow the hallowed case of U.S. v. Whatchamacallit or not?
Of course, the legal realists detested precedent, which in their time stood in the way of their progressive agenda. Nothing has really changed. Both sides only want to respect the precedents that lead to the results they like. No one thinks justices should follow every precedent, so the crucial issue is picking and choosing which to follow and which to ignore. But how? Well, by the results, of course…
Unless they can explain how we know which precedents to follow and which to reverse — apart from liking the results — all pontificating about “stare decisis” is really about nothing.
Quite so. Everyone talks in general terms about stare decisis and the need to respect precedent, but only insofar as it does not prevent them from overturning a ruling they really disagree with. Which rulings those are will vary from person to person, of course. And of course, this is precisely the same dynamic at work with talk of “judicial activism.”
The second empty issue to be discussed is the bugaboo of “judicial activism” and its conjoined twin, “judicial restraint,” which today’s judicial conservatives have inherited from New Deal progressives. But what exactly is “activism”? Is it activism when any popularly enacted law is held unconstitutional? Neither Democrats or Republicans truly believe this, however, since they want judges to strike down laws as unconstitutional when doing so leads to the [“]right result[“] (but not when it doesn’t). So judicial activism means thwarting the “will of the people” when critics agree with the people, while they complain about the “tyranny of the majority” when they disagree.
And Barnett has some suggestions for how to make those hearings about something rather than nothing (and help me stay awake while watching them):
Supreme Court confirmation hearings do not have to be about either results or nothing. They could be about clauses, not cases. Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean. Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.) Does the 14th Amendment “incorporate” the Bill of Rights and, if so, how and why? Does the Ninth Amendment protect judicially enforceable unenumerated rights? Does the Necessary and Proper Clause delegate unlimited discretion to Congress? Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?
Don’t ask how the meaning of these clauses should be applied in particular circumstances. Just ask about the meaning itself and how it should be ascertained. Do nominees think they are bound by the original public meaning of the text? Even those who deny this still typically claim that original meaning is a “factor” or starting point. If so, what other factors do they think a justice should rely on to “interpret” the meaning of the text? Even asking whether “We the People” in the U.S. Constitution originally included blacks and slaves — as abolitionists like Lysander Spooner and Frederick Douglass contended, or not as Chief Justice Roger Taney claimed in Dred Scott v. Sandford — will tell us much about a nominee’s approach to constitutional interpretation. Given that this is hardly a case that will come before them, on what grounds could nominees refuse to answer such questions?
Sounds good to me.