Lunchtime Report on the Sotomayor Hearings

By Kevin Fayle on July 13, 2009 | Last updated on March 21, 2019

Well, they're finally underway after months of preparation, discussions, arguments and polemical pontifications: the confirmation hearings for Supreme Court nominee Sonia Sotomayor have begun. 

And so far, they've been fairly dull.  The most interesting things to happen have been the ejection of an anti-abortion protester and a tiff between the Republican and Democratic sides of the Senate Judiciary Committee over the events surrounding Miguel Estrada's withdrawn nomination to the DC Circuit. 

Also notable, if only for its unusual honesty, was Senator Lindsey Graham's (R - SC) statement to Sotomayor that "[u]nless you have a complete meltdown, you're going to get confirmed."
It's rare to witness that kind of candor emanate from beneath the penumbral shroud of rhetoric that usually characterizes Senate committee hearings, but it highlighted a fact that seems to be clear to just about everyone: The Committee will almost certainly vote in favor of confirmation, and the Republicans have so far been unable to muster the 40 votes needed for a filibuster to block the confirmation before the entire Senate, which almost guarantees Sotomayor's accession to the Supreme Court. 

Which turns the entire process into an exercise in political grandstanding rather than a judicial confirmation, really.  Republicans and Democrats alike have their eyes on the midterm elections in 2010, and their opening statements have been designed to make their positions known on the issues that most concern their bases.

For Republicans, the primary talking point has been the so-called "empathy" controversy.  Members on the Republican side of the aisle have been hammering home the point that they do not want a judicial activist on the bench (unless they are right-wing conservatives who actively try to move Supreme Court jurisprudence to an originalist interpretation of the Constitution, of course.)

Republicans pointed to Sonia Sotomayor's speeches and extra-judicial writings as demonstrating some kind of preference for minorities and underdogs, with which each Republican member expressed concern.  Over and over again, the Republican senators attacked Sotomayor's impartiality and all but accused her of bias.

The Republicans also repeatedly, nakedly and blandly expressed their desire for a return to a "written Constitution," which was an explicit nod to the members of the conservative base who favor an originalist interpretation of the Constitution that would deny most of the substantive rights that the Supreme Court has upheld over the last century.  In other words, an interpretation in which there is absolutely no room for Roe v. Wade.

Dull repetition wasn't solely a Republican trick, though.  The Democrats repeatedly rained down abuse on Chief Justice John Roberts and Justice Samuel Alito as examples of right-wing judicial activism, mocking Roberts' statement that judges are umpires, not making the rules, but only calling balls and strikes. 

(A statement that, although pithy, doesn't make much sense.  Any fan of baseball knows that umpires have significant room for interpretation of the rules of baseball, just like a judge.  Umpires might call balls and strikes, but every umpire has his own idea of what the strike zone really is.)

Democrats also repeatedly made note of the importance of the personal rights guaranteed under past Supreme Court precedent, and highlighted opinions from the Roberts Court that have limited those rights despite principles of stare decisis.

Few Democrats mentioned the word "empathy," but all stressed the need for Supreme Court justices to have some understanding of the effects of their decisions.  Democrats want a justice who will realize the impact of Court decisions on the common man, and pointed to Justice Clarence Thomas' statement to that effect during his confirmation hearing.

The members of the majority party in the committee also emphasized Sotomayor's judicial modesty, noting during multiple statements that she voted with her Republican-appointed colleagues 95% of the time. 

So far, the whole proceeding has been a typical demonstration of the usual political and ideological split between the parties, during which time Sotomayor has had to sit in silence (looking somewhat uncomfortable with the process, but that might just be because of her broken ankle), a superfluous addition to her own confirmation hearings.

Anything could still happen, though - after all, it's only the first day and we're only up to the lunch break.

See Also:
Cast of characters on committee quizzing Sotomayor (AP)
Senate Sermons: The Philosophy of Judging (WSJ Law Blog)
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