Sunday, July 19, 2009

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.