Sotomayor--Let's Put the Cards on the Table (Judiciary Committee Approves the Dreadful Success)

Not surprisingly, the Senate Judiciary Committee approved the nomination of Judge Sonia Sotomayor to the Supreme Court. Not despite her dreadful performance at the hearings. But according to most of the Senators, because of her performance.

Of course, there is little reason to ascribe candor to such assertions.

First: let's assume the Senators are at least sentient human beings, with some understanding of their questions and of Sotomayor's responses. They surely must recognize that she offered virtually nothing of substance about constitutional law, about particular precedents, or about the judicial process. That her answers evinced only the most superficial and simplistic familiarity with the bare-bones holding of some cases, and a grade school recitation of what judges do. Such a performance could not really impress the Senators who claimed it did.

Second: unless, of course, the assumption is unwarranted. It is possible that the Senators who questioned Sotomayor know even less about the law and understand even less about what judges actually do than Sotomayor's responses suggested about her. It is possible that the Senators' familiarity--let alone understanding--of the matters about which they were questioning Sotomayor is even more superficial and even more simplistic than what she showed in her responses. Is that the explanation? Well, there are some who are insisting just that.

But regardless of the foregoing, or of any other variation on those possibilities, let's consider this. A reality--or lack of it--in the fascinating world of senatorial partisan politics. Every Democrat on the Senate Judiciary Committee voted to approve Sotomayor's nomination. All 12. On the other side of the aisle, every Republican but one voted against her. All 7 except Lindsey Graham of South Carolina. Now just consider what the odds are that those votes reflect the Senators' honest assessments of Sotomayor.

Every Democrat supposedly thought Sotomayor did well. Every Republican, but 1, supposedly thought she did poorly. What are the odds?

Let's be clear. How likely is it that all 12 Democrats honestly believed that Sotomayor's performance at the hearings was so strong that it showed or confirmed that she would make an outstanding Supreme Court Justice? How likely is it that all 7 Republicans but 1 honestly believed that her performance was so unsatisfactory that it showed or confirmed that she was not fit to be a Justice? And just how likely is it--what are the odds--that those 2 phenomena would occur simultaneously? All the Democrats and all the Republicans but 1 honestly reaching conclusions about Sotomayor that just happen to coincide with their respective partisan politics?

You don't have to be a mathematician. It's an extreme longshot at best. (Far longer than anything you'd ever see on the Saratoga toteboard.) I'm told it's well beyond 100 to 1 or even 1,000 to 1. More in the order of 100,000+ to 1. "Basically no chance" that 18 of the 19 Senators' honest assessments of Sotomayor's performance would just happen to align with their respective political party's preferences.

(These odds are even higher than those for the Justices' votes in Bush v. Gore. Now whatever one might think of the ultimate 5 to 4 result in that case--vote recount stopped and George W. Bush elected--the voting (as well as the reasoning) was judicially implausable.
What are the odds that the 5 more conservative Justices on the Supreme Court would honestly and impartially interpret the Constitution in such a way that just so happened to help Bush? ["What a splendid coincidence, Clarence!" exclaimed Justice Scalia to an equally surprised Justice Thomas. (I just made that up, reader. Although I wouldn't be surprised...)]
And the 4 more liberal Justices would honestly and impartially interpret the Constitution in a way that just so happened to help Gore? ["Tell me Ruth, how could THEY not see what we see so clearly and objectively?" asked a frustrated Justice Stevens of Justice Ginsburg. (Again, reader, I made that up.)]
Once more, you don't have to be a mathematician to know that the odds are very very long indeed. There's very little chance.
And there's even less of a chance that the assessment of Sotomayor was honest and impartial where 18 of the 19 Senators just happened to fall along political lines.)

The reality of it all is plain. Party and ideology. A liberal Democratic President nominated Sotomayor. The Democratic Senators on the Judiciary Committee voted for her because of their party allegiance to the President, and because they are basically liberal like him and his nominee. Additionally, Sotomayor's performance was not a political disaster that would have made it too risky to vote for her.

The Republican Senators (all but that Lindsey Graham) voted against her because they have no partisan allegiance to the President, and because they are more conservative than the President and his nominee. Additionally, Sotomayor's performance was unimpressive and certainly provided no compelling reason--political or otherwise--to vote for her.

So all the Democratic/liberal Senators on the committee think that the nominee of the Democrat/liberal President proved herself at the hearings to be well qualified for the Supreme Court. All the Republican/conservative Senators, but 1, think the opposite.

As my grandfather would say, "The whole world's a fake."


The next post will take a look at Judge Sotomayor's answers in response to questions about the 2d Amendment. Specifically it will review her explanation of a recent decision in which she participated which held that the Constitution does not protect the right to bear arms against abridgments by state governments.

(Judge Sotomayor's performance at the hearings has been discussed in several previous posts on the New York Court Watcher. See e.g., Sotomayor--Let's Put the Cards on the Table (More on the Dreadful Success: SS on Judging), July 20, 2009; (A Dreadful Success at the Hearings), July 19, 2009.)

Sotomayor--Let's Put the Cards on the Table (More on the Dreadful Success: SS on Judging)

The immediately preceding post on New York Court Watcher offered an assessment of Judge Sonia Sotomayor's performance at the confirmation hearings. In short, no political bombshells to hurt her chances, but no demonstration that she deserves a seat on the nation's high court either. Substantively abysmal. (See Sotomayor--Let's Put the Cards on the Table (A Dreadful Success at the Hearings), July 19, 2009.)

The next few posts will consider Sotomayor's testimony on a few important topics about which the Senators questioned her. They will be addressed in no particular order, except as I can read the notes I scribbled during the hearings. We'll deal with one major--perhaps all-encompassing--topic in this post.

Judging
Sotomayor was unwilling or unable to offer anything but a grade school account of what judges do. They only look at the facts and apply the law. They make no law and they make no policy. The legislature does that. The judges simply apply the law and policy already made by the legislature. Or they apply precedents. And precedents are apparently nothing more than the judges' past applications of law and policy pre-determined by the legislature.

Can Sotomayor possibly believe that the role of judges is so simplistic? Can she possibly believe that law and policy are so clear and consistent and dictate one particular result in cases that come before appellate judges? Can she possibly not understand that many cases that come before appellate courts, and virtually all that come before the Supreme Court, have no pre-determined result? That they can legitimately be decided in more than one way? That there are virtually always law and policy and precedents supporting each of the different possible results? That judges, and especially Supreme Court Justices, must pick and choose among the law and policy and precedents? That judges, and especially Supreme Court Justices, choose (usually with disagreements among them) which law and policy and precedents will prevail over the others? That in doing so they are creating new precedents? And that in doing so thay are necessarily making law and policy? (That at the absolute least, this is true for landmark decisions?)

Is it really possible Sotomayor believes anything as simplistic as she claimed? Really possible that she does not understand the reality of judge-made law and policy? There are 2 possibilities. Either she really believes what she was saying, or she does not. It's hard to say which would be worse.

Of course the reality of judges making law is understood by every serious judge and student of the judicial process. Sotomayor's own supposed judicial hero, Benjamin Cardozo (who was the Chief Judge of New York State's high court before his tragically short tenure on the Supreme Court) recognized judge-made law as a given. He then proceeded to deal with the real question--i.e., the implications of that given. Oliver Wendall Holmes, another of America's greatest judicial figures (and Cardozo's predecessor on the Court), had previously done the same. So too have countless other jurists and judicial scholars.

But Sotomayor was insisting--repeatedly, till ad nauseum--the opposite. In doing so, she avoided having to explain the judicial role in terms more sophisticated than 3d grade social studies. (She didn't even demonstrate that she could have.) And she helped to keep public discourse about the judiciary at the lowest pssible level. More than that, she helped to keep the American public--as well, apparently, as many Senators--misled and blind about what judges, especially those on the Supreme Court, actually do.

In the next posts we'll look at some other topics addressed by Sotomayor. E,g., gun rights, "fundamental rights," the Ricci case, affirmative action, the right to choose, and the right to privacy. Most of them can be dealt with more briefly than than "Judging." So we should be able to cover more than one at a time.

Sotomayor--Let's Put the Cards on the Table (A Dreadful Success at the Hearings)

[Yes, at the time of my last post several days ago, I expected to write this post "tomorrow." Well, I guess I'm suffering from Arizona withdrawal and am not quite back into the swing of things. I may also be suffering from hearings overload--glued to the TV for the 4 days--and now hearings withdrawal.]

Judge Sonia Sotomayor's performance at the Senate Judiciary hearings was a success only in the barest, crassest political sense. She avoided saying anything useful as ammunition for conservative Republicans to use against her. But in a substantive sense, her performance was dreadful.

Her testimony was devoid of virtually any meaningful legal, judicial or governmental content. Were she a student of mine, I could not honestly give her a passing grade. (For some prefatory comments to the same effect, see the preceding post on New York Court Watcher: Sotomayor--Let's Put the Cards on the Table (The Hearings--Disappointing at Best), Jul 15, 2009.)

Assuming that Sotomayor was being honest in her testimony, she utterly failed to demonstrate an understanding of, or even much familiarity with, the Constitution, constitutional law, Supreme Court jurisprudence, the role of the Court in safeguarding rights and liberties, or the Court's position in the American tripartite and federal form of government. Indeed, again assuming her honesty in testifying, she affirmatively demonstrated an appalling lack of understanding or familiarity with these absolutely essential matters.

I know that my saying this is upsetting to many fellow liberals, Democrats, and supporters of President Obama. But what's true is true. Sotomayor's performance was simply the weakest--by a wide margin--of any recent Supreme Court nominee to appear before the Senate Judiciary Committee.

Let's be frank, if President Bush (#43) had nominated anyone as lacking in substance at the hearings as Sotomayor, liberals and Democrats would be aghast. We were so when President Bush (#41) nominated Clarence Thomas. But even Thomas's performance was not nearly as weak as hers.

Yes, the hearings are in large measure a game of gotcha by the opposing party. The Senators of the opposite party try to trip the nominee into saying something damaging. The nominee tries to avoid saying anything that might spell trouble. But that has been the nature of the hearings for some time now. And other nominees did not sound so clueless.

The nature of the hearings were the same for Chief Justice Roberts and for Justice Alito. The same for Justices Ruth Bader Ginsburg and Stephen Breyer. The same for the Justice who Sotomayor will replace, David Souter. Yet all of them demonstrated a firm grasp of the case law and the Court. More than a firm grasp. A mastery. Whether one agreed with them or not--politically, philosophically or jurisprudentially--there was no denying that they were each extraordinary capable, knowledgeable, and thoughtful.

The same can not be said honestly about Sotomayor. Whether one likes the way Sotomayor will likely vote on the Court (and I do)--i.e., with the liberals--there is no denying that she failed to prove herself in the same league with Roberts, Alito, Ginsburg, Breyer, Souter, or others in recent memory.

Like others who follow the Court, I love watching these Senate confirmation hearings. Even if much of the questioning by the Senators is inane, at least we learn a good deal about the nominee. Sure, the nominees usually try to conceal their ideological leanings. They usually are very cautious. They usually do their best to avoid controversey. But the depth and breadth of their understanding of constitutional law and the Court's role in our republic becomes pretty clear. Certainly, this was the case for all recent nominees.

But this was not true of Sotomayor. The depth and breadth of her understanding was not clear at all. Indeed, based on her responses at the hearings, there is reason to doubt any such depth or breadth on her part. Let alone any mastery. And depth, breadth and even mastery--and not much less--is what we should expect in a nominee for the Supreme Court.

If I sound frustrated, it's because I am. Let me be clear. I am thrilled to have an Hispanic Justice on the Court. I am thrilled to have another woman. (Indeed, I think there should be many more. [An earlier post on New York Court Watcher identified several of the nation's finest woman judges on state supreme courts around the country, and I opined that they would collectively comprise a much stronger Supreme Court than we currently have. See Chief Justice Abrahamson Gets Another Term!! -- and other Great Women Chiefs, April 10, 2009.])

I have wanted to support Sotomayor for those reasons. As well as because I believe she will largely vote the way I would. And because I want to believe that President Obama made a good choice. (Several earlier posts on the New York Court Watcher examined the ideological patterns--largely liberal--in Sotomayor's opinion record as an appellate judge on the 2d Circuit. See Sotomayor--Let's Put the Cards on the Table (Some Common Threads in Her Opinions), June 5, 2009; (Versus Her Colleagues), June 3, 2009; (Ideological Patterns in Her Opinions), June 2, 2009; (First, Some Prefatory Comments), May 28, 2009.)

But Sotomayor's performance at the hearings was nothing short of abysmal. And that added to the general mediocrity of her opinions as an appellate judge on the 2d Circuit makes me very disappointed--and, yes, frustrated--with this pick of Obama's. (For a look at some of Sotomayor's best and worst opinions--in my view, that is--see Sotomayor--Let's Put the Cards on the Table (The Good, The Bad, & The Ugly [Opinions]), June 23, 2009.)


In the next post, we'll look at some specifics of Sotomayor's testimony at the hearings. We'll look, for example, at her responses to questions about gun rights, "fundamental rights," the Ricci case and affirmative action, the right to privacy, judging and the role of judges, "empathy,"and even self-defense.

Sotomayor--Let's Put the Cards on the Table (The Hearings--Disappointing at Best)

[I've just returned from Arizona and from a break from this blog. After nearly 2 months of perfectly sunny skies, beautiful flora, fauna, and mountains, and great Scottsdale living, I'm back home in my other favorite place, Upstate New York. In fact, as soon as we drove into New York (into the westernmost part of the state on Interstate 90), Cath and I were again struck by just how gorgeous New York is. Lake Erie on the left, rolling hills and vineyards on the right, the landscape deep green but not smothering, Cherry Valley ahead, then mountains and cliffs on either side, the Mohawk River Valley... God's country.
And Saratoga opens in 2 weeks.]

For a court junkie, there are few shows better than the Senate confirmation hearings for a Supreme Court nominee. They're the Sinatra concert of current events.

So C-Span and CNN have been on non-stop. And like all true devotees of these events (i.e., judicial watching geeks), I've spent virtually all my time watching, taking notes, discussing and arguing. [Indeed, within 1 1/2 hours of my arrival back home in the Albany area, I was waxing and waning on TV about the 1st day's opening remarks.]

As I'm writing this, the Senators are engaged in their second round of questioning Judge Sotomayor. The questioning is supposed to finish today. Possibly this evening at the current pace. To be blunt, I hope someone can finally get Sotomayor to respond with something beyond the banalities and superficialities she's been offering up so far. [Note: the questioning was NOT concluded and it will continue tomorrow.]

I know this is heresy for my fellow liberals and Democrats, but let's be frank. This is the weakest performance of a Supreme Court nominee in a long time. She has provided virtually no discussion of the judicial role (except the utter nonsense that judges don't make law or policy), the vital issues (except to say that they all depend upon the specific facts of the case and the precedents), or constitutional principles (except to cite a relevant Supreme Court or 2d Circuit decision).

Sotomayor will likely vote the way I would in most cases. Justice Alito and Chief Justice Roberts usually do not. But their performances before the Senate Judiciary Committee were light years more impressive than hers. They showed themselves to be extremely knowledgeable, to have a command of Supreme Court jurisprudence and the Constitution, and well thought views about the proper role of the Court in our tripartite democratic republic. And before them, Justices Ginsburg and Breyer did the same. Agree with any of them or not, they were extraordinary and they proved themselves highly qualified for the Supreme Court. Sotomayor has not done that. Not close.

Sotomayor may turn out to be a fine, even great Justice. But there has been very little evidence of that at the hearings. Come on, let's put the cards on the table. Her performance (other than avoiding a politically destructive bombshell) has been abysmal.

Beginning tomorrow, some more specific analysis of the substance of Sotomayor's remarks.