The Magazine

Questioning Sotomayor

The Senate hearings needn't be worthless.

Jul 13, 2009, Vol. 14, No. 40 • By ROBERT F. NAGEL
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With Senate confirmation hearings for Supreme Court nominee Judge Sonia Sotomayor about to get under way, you can feel the usual sense of anticipation building. Reporters, Senate aides, and interest-group activists are all busy. They are sifting through her judicial opinions and speeches, interviewing former law clerks, and possibly (it has happened before) checking out her garbage.

All this activity will produce some issues. Already a question has been raised about whether Sotomayor thinks that being a Latina would--or should--affect how she decides cases. Nevertheless, the expectation of drama and excitement in confirmation hearings is seldom fulfilled. Unless there is some allegation of personal wrongdoing (remember the Clarence Thomas hearings) or unless Sotomayor unaccountably decides to follow Robert Bork down the garden path of intellectual candor, the pattern of questions and answers is predictable and will be unedifying. This is unfortunate because, while vacuous confirmation hearings have become the norm, they are not inevitable.

The main thing senators and the public want to know in a confirmation hearing, of course, is how the nominee is likely to vote in controversial cases. Like virtually all other nominees in recent decades, however, Sotomayor will decline to express her views on such questions for the doubtful but widely accepted reason that such answers would compromise her impartiality if the case were actually to come before the Court. Shielded from having to reveal even tentative thoughts about how controversial cases should be resolved, nominees resort to two simple tactics. Both allow supporters to draw favorable inferences but provide nothing solid for opponents to attack.

The first tactic is to tell personal stories. A typical example occurred when nominee Stephen Breyer was asked if some political speech should be given more constitutional protection than other kinds of speech. His answer was a meandering account of how, when he and his son had argued at the dinner table, it had proven salutary for him to listen to his son's views.

And then there is the equally opaque exchange between David Souter and Senator Howard Metzenbaum, who asked whether Souter understood (empathized with, to use the current phrasing) the position of a woman facing an unwanted pregnancy. Souter replied by recalling how as a proctor in his college dorm he had had a long conversation with a young pregnant woman. Without revealing any of the content of that conversation, Souter nevertheless was able to assert that--because he remembered "that afternoon"--he knew what Metzenbaum was trying to tell him.

The second tactic involves not the personal but the abstract. The nominee, with furrowed brow, recites one jurisprudential bromide after another. While specific terminology varies, the gist of the standard exposition is this: Yes, of course, the Constitution's text conveys permanent principles. But those principles are general and therefore must be interpreted and should be interpreted in a way that keeps them up-to-date. Yes, it is true that in this process of interpretation a judge's personal philosophy and experience inevitably play a part. No, that does not mean that the justices can amend the Constitution according to their own preferences. The justices, after all, are influenced not only by their personal beliefs but also by legal precedents, the Founders' intentions, legal traditions, the moral understandings of our people, and so on.

This familiar jurisprudential litany is meant to be reassuring. As Souter put it, the justices should "repress a level of purely personal choice." Or as Samuel Alito told the Judiciary Committee, the Supreme Court is not "free to do anything it wants." Oh, good: Something in addition to their personal preferences should--to some undefined extent--influence judges. Lost in this fog of interpretive theory is any indication of what the nominee would feel free to do if placed on the Court.

Confirmation hearings need not be this empty. For them to be useful, however, Judiciary Committee members must stop talking like the lawyers most of them are and start talking like politicians concerned about their country. They can do this in a way that would not require Sotomayor to indicate how she would decide specific cases. And they can do it without encouraging personal anecdotes or jurisprudential clichés. All that the senators on the Judiciary Committee need to do is ask directly for the nominee's views about how the Court's decisions are affecting American politics and culture.

Consider, to begin with, the central constitutional issue of recent times: abortion. Instead of asking about whether a right to privacy can be found in some legal penumbra, Sotomayor could be questioned about the social consequences of Roe v. Wade. For example, she could be asked whether she agrees with the many serious observers who believe that Roe significantly intensified conflict over the abortion issue by making moderation and compromise less possible. Or she could be asked whether she thinks the decision increased public cynicism about what the Court does when it engages in what is called constitutional interpretation.

The anger and disenchantment created by the original abortion decision led, of course, to a sustained political effort to get the Court to reverse or limit that ruling. In 1992 the Court reacted by reaffirming the basic holding of Roe that the Constitution protects the right of abortion. In this decision, Planned Parenthood v. Casey, a majority of the Court declared that the purpose of Roe had been to end the nation's division on the issue of abortion and that continuing efforts to induce a reversal of that case were a threat to national identity and the rule of law.

Senators, therefore, could ask Sotomayor whether she agrees with the Casey Court that the purpose of a Supreme Court decision sometimes ought to be the termination of public debate on a moral issue. They could ask if she agrees that lawful efforts to convince the Court to reverse itself are in some instances anarchic. And, if she answers in the affirmative, they could ask whether insulating the Court's rulings from political dissent might not result in a sense of disenfranchisement and alienation among significant segments of the public.

Abortion, needless to say, is not the only issue that raises profound questions about the role of the Supreme Court. Eminent observers have defended Bush v. Gore, the decision that determined the outcome of the 2000 presidential election, on the ground that in some periods of turmoil the Court's role is to prevent the political branches, including Congress, from creating chaos. Sotomayor could be asked whether she agreed with that assessment. And she could be asked whether the Court's intervention might itself have risked a certain kind of chaos by undermining the legitimacy of a presidential election.
Once those busy people preparing for Sotomayor's confirmation hearings turn their thinking to this general line of inquiry, they will find vast resources are at hand. Have the many Supreme Court decisions protecting profanity and other forms of indecent speech helped to undermine suitable standards of public discourse? If so, what are the likely consequences for our democratic system? On issues like sexual equality and gay rights does the Court risk being seen, in the way that Justice Scalia has charged, as taking sides in the culture wars? If so, what are the potential costs to public debate on moral issues and to public attitudes towards the judiciary?

Broaching these kinds of issues inevitably leads to claims that the Court's interventions are sometimes necessary and healthy because, as in the circumstance of school desegregation, only the judiciary can liberate minorities from oppression. If such claims are made, Sotomayor could be asked what she thinks of recent, respected scholarship indicating that Brown v. Board of Education was less a factor in producing integrated schools than congressional legislation. If Sotomayor, like many members of the legal elite, displays a lack of appreciation for the role of Congress in protecting the rights of minorities, senators (one would think) might want to take note.

An informed discussion about the role of the Supreme Court in America's cultural and political life would reveal a great deal about what sort of justice Sonia Sotomayor would be. It would also encourage public consideration of institutional issues of the highest importance.

Robert F. Nagel is the author, most recently, of Unrestrained: Judicial Excess and the Mind of the American Lawyer (Transaction Publishers, 2008).