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.)