Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
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.
Politics
Comments
I'm glad someone pretty much agrees with me: "Judicial activism" means a judge made a ruling you didn't like.
That's pretty much it.
Posted by: Bronze Dog | July 14, 2009 9:36 AM
I suppose it's not really practical, but I'd love to see the Dems use their 60-member majority to just skip right to the vote. And do that with every judicial nominee Obama makes.
Posted by: MTS | July 14, 2009 9:57 AM
I told my Con Law class yesterday we've got to do something to make the hearings both entertaining and exciting. So we're having a "Stupidest Question of the Hearing" contest. Because stupidity abounds, of course, choosing a winner won't be easy. Should be fun.
Posted by: Dan | July 14, 2009 10:03 AM
Look folks,the Rethuglicans are just posturing to placate their right wing religious base which is demanding that they figuratively stand in the schoolhouse door to prevent Judge Sotomayors' confirmation. Baring some unforeseen finding, the judge is going to be confirmed so all this baloney is playacting.
Posted by: SLC | July 14, 2009 10:22 AM
I like two things about Schumer's opening introduction of Sotomayor, where I disagree he merely followed the personal story narrative:
1) It was 5 minutes rather than the reserved 10 minutes (he'll get that time back later). It's always nice to see a Senator not pontificating but instead keeping their statements brief and to the point - a rare character trait on either side of the aisle.
2) Schumer made an argument that given the criteria the Republicans were using as a benchline standard, Sotomayor was an exemplary candidate based on the GOP's supposed standards and the totality of her judgments in politically sensitive cases also resulted in a disproportional outcome favoring conservative political objectives. Schumer effectively exposed the Republican's hypocrisy when the GOP avoids Sotomayor's record.
Posted by: Michael Heath | July 14, 2009 10:22 AM
Please ignore the italics in my above post, hit post vs. preview.
Posted by: Michael Heath | July 14, 2009 10:24 AM
I'm glad to see I wasn't the only one who felt these nomination hearings are, for the most part, pointless. I agree with Barnett, I want to see Senators ask these nominees what they think about some of the clauses in the Constitution.
Posted by: Goldbrick4 | July 14, 2009 10:25 AM
I forget which blogger it was, but someone at Balkinization was saying that in a case like Sotomayor's--where confirmation by an overwhelming majority of the Senate is a certainty--the purpose of the hearings has nothing to do with the nominee. Rather, the purpose of the hearings is for the Senators on the committee to stake out their claims on what is "judicially mainstream", and what is "beyond the pale". The purpose is to set the parameters of future discourse on the judiciary and position the goalposts.
This makes a lot of sense to me.
Posted by: Comrade PhysioProf | July 14, 2009 10:41 AM
It would be interesting if nominees actually could discuss their judicial philosophies. The problem is that this would serve only to provide political fodder to the right-wing, that uses their brain-dead "originalism" to pretend that any substantive judicial philosophy is a transgression against law.
Posted by: Russell | July 14, 2009 10:58 AM
I thought for sure that Sessions would end up with a few "Dumbass statements". Especially today when he pointed out that Sotomayor (gasp) disagreed with another Puerto Rican Judge.
Posted by: KeithB | July 14, 2009 10:59 AM
That's a much better idea than mine for making the confirmation interesting. I went the other way and built a drinking game, cobbled together from various other web sites.
Since we don't have any power to make Barnett suggests happen, here are the rules. Pick one of the numbers and follow the instructions. The word in the parenthesis indicates the amount of drinking I think that particular rule will involve. If you're at work you may want to substitute espresso for alcohol, or not. I'm too drunk to care.
1. (heavy) Every time someone tells Sotomayor that she "has a compelling life story" or that she’s an example of what can be achieved in America, take a drink.
2. (light) Every time a Republican quotes the judicial oath, take a drink
3. (moderate) Every time a Democrat says "umpire," take a drink and swing your imaginary bat.
4. (heavy-suicidal) Every time a Senator self promotes (self-serving rhetoric of any past, present or future endeavor that voters back home might like to hear), take a drink. Listen for name-dropping, favorite recollections of a moment of legislative glory and frequent invocation of a senator's home state.
5. (moderate) Whenever someone mentions The Puerto Rican Legal Defense and Education Fund (PRLDEF) as a well-established, mainstream civil-rights organization, take a drink
6. (light-moderate) Whenever someone mentions The Puerto Rican Legal Defense and Education Fund (PRLDEF) as an abortion-loving, death-penalty-opposing, terrorist front group.
Posted by: Abby Normal | July 14, 2009 11:06 AM
Er, number 6 should end with, "take a drink" of course.
Posted by: Abby Normal | July 14, 2009 11:08 AM
the most obvious skill is the ability to stay awake as each senator reads monotonously from a script written by their staff.
Hey, that's an important skill!
Posted by: Adrienne | July 14, 2009 11:19 AM
Given the relative pointlessness of the hearings it might be fun to turn things around and have the nominee ask the senators some constitutional questions and see what they know.
Posted by: MikeMa | July 14, 2009 11:31 AM
I loved this post from Obsidian Wings on the confirmation hearings:
Posted by: Courtney | July 14, 2009 12:23 PM
The problem with Barnett's suggestion is that it would require the senators to actually read the Constitution and understand it themselves, and that's clearly not going to happen any time soon. Also, it would require the senators to think for themselves, and that's just a ridiculous notion.
Posted by: mathyoo | July 14, 2009 1:06 PM
Sounds like a great idea, Dan. Feel free to post the contenders here!
Posted by: Gretchen | July 14, 2009 1:37 PM
Personally I enjoyed Feingold's take on judicial activism and his argument that the phrase should just be dropped as having become effectively meaningless. (two positions with which I share his sentiment)
Other than that, the hearings help to test the judge's ability to stay away during a particularly boring court session.
Posted by: dogmeatIB | July 14, 2009 1:59 PM
But will any Senator mention that Sotomayor wants to cut my balls off?
Posted by: Benjamin Geiger | July 14, 2009 4:48 PM
1. I've said many times that "activist judge" is an exact synonym for "motherfucker". Neither term is used in its literary meaning; moreover, neither term contains any information other than a clear will to insult, and to signal to your friends that you hate the target and they should hate him too. (I guess with a female judge, "bitch" is the closest equivalent.)
2. Barnett's proposal is bullshit. You can't reduce the meaning of constitutional provisions to sound bites. If the hearings are now Seinfeld, he would turn them into Crossfire.
Posted by: bullfighter | July 14, 2009 9:06 PM
Am I the only one here who thinks stare decisis s a bit of a red herring?
I mean, the whole point of having human judges at all is precisely because things can change, and decisions about any point of law are almost by definition fluid. Law is made by humans, after all.
Otherwise there would be no provision for overturning law on the first place, you know?
Seems to me, part of the problem is that traditionally, even when people nominated were disagreeable (to someone) politically, you had trouble arguing with their expertise. I mean, I don't like many of the decisions handed down by Holmes, but I can't argue with the man's knowledge, you know?
In the last twenty years -- really from the GOP, for all kinds of reasons -- we've gotten away from that. Some of it was the attempt within the GOP to move the Overton window a bit -- nominate someone really egregious and then the one who isn't a raving loony will go through. That comes from the philosophy that government is the problem and a judge's job is to protect the powerful and the propertied. (To a large extent this is why many courts were set up in the first place, but that's sort of another discussion).
Democrats got scared, of course, and that is why none of the Clinton nominees was really all that liberal by any definition. (I am speaking of the federal bench nominees in the 90s).
So what you are left with is a system of hearings that becomes a bit circus-like.
I mean, nobody ever questioned the impartiality of all those white dudes. Nobody said "Hey, Roberts, are you going to be biased towards white men." Nobody said a thing about the over-representation of Catholics -- as long as they were white guys. (Or the fact that only one non-Protestant white guy was ever nominated to the court prior to about 1930).
Democrats aren't much better, because they become too afraid to really hit anyone up with tough questions. When Alito was nominated, we got a 10-minute snoozer (I can't remember which Senator). Nobody asked a simple question like "Do you think there are any limits on executive power, and if so, what are they?"
(The current crop of GOP Senators has made it clear they don't think there are any limits).
You needn't be a Constitutional scholar to ask stuff like that.
Posted by: Jesse | July 15, 2009 7:29 AM
Alabama Senator Jeff Sessions (R), in his opening statement, said,
Not exactly off to a good start towards that goal, are they?Posted by: James Hanley | July 15, 2009 9:22 AM