Little at stake in Sotomayor court hearings

Freedom New Mexico

There are potentially consequential questions to which answers may or may not be forthcoming in the Senate Judiciary Committee hearings on the nomination of federal appellate Judge Sonia Sotomayor to be a U.S. Supreme Court justice.

But the hearings, while sometimes pointed, have been generally civil in large part because so little really is at stake.

Supreme Court nomination hearings are almost always something of a Kabuki dance anyway, with the senators striving to appear conscientious and informed and occasionally aggressive, while the nominee strives to appear responsive and candid while avoiding saying anything that might be capable of being used in an attack ad.

Consequently, an exercise with the potential to be profoundly educational about the role of the judiciary and the importance of the Constitution in our national life is more often an exercise in obfuscation and an evasion of real questions about judicial philosophy.

Little of grand importance is at stake here because Justice David Souter, who was a mostly reliable “liberal” vote (as these things are seen conventionally) on the high court is due to be replaced by another justice who, based on her record and what is known of her proclivities, is likely to join the “liberal” bloc on most occasions.

Thus the balance of the court will not be changed substantially. If one of the “conservative” justices had retired or died, and President Barack Obama had the power to appoint a replacement, the occasion would be more consequential and the rhetoric more heated and pointed, no matter how unlikely it might be that Republicans could block the nomination.

Thus the senators have circled endlessly around the phrase about a “wise Latina woman” hopefully being able to render better decisions than a white male, which Judge Sotomayor used in several speeches. She backed away while pretending she wasn’t, of course. The phrase suggests Judge Sotomayor participates in the sadly inappropriate but apparently ineradicable version of tribalism that has evolved in our society.

Her appointment suggests President Obama, whose election was supposed to help us move beyond an obsession with race and ethnicity, remains mired in such concerns, gladly getting a political twofer” and points with his base by nominating a Hispanic woman.

Judge Sotomayor offered predictable boilerplate on the Ricci firefighter promotion-exam case, but enough judges agree with her that even though her cursory opinion was reversed by the current Supreme Court she sounded plausible. On whether the 14th Amendment requires the Second Amendment right to bear arms to apply to states and cities, again, enough judges agree that it doesn’t that she had protection.

The hearings are unlikely to answer the question of real interest — as to which Sonia Sotomayor will emerge on the Supreme Court: the cautious judge who has generally followed precedent and kept her judicial nose clean or the possibly more-activist and ideological justice implied by the “wise Latina woman” speeches and her 12 years on the board of the Puerto Rican Legal Defense Fund. A judge on a lower federal appellate court is rather closely guided by Supreme Court precedents, but a Supreme Court justice can have the power to break or make precedents.

The fact that Judge Sotomayor’s heritage is Puerto Rican and she has made a few unwise comments about that fact so far has served to obfuscate the real divide on the high court, between “conservatives” and “liberals.” No justice is a genuine constitutionalist (or principled adherent to a dispassionate rule of law) in that each holds certain constitutional rights, or purported constitutional rights in higher regard than others. Neither side embraces the entire Bill of Rights with the enthusiasm one would prefer, so liberty is gradually and mostly gently eroded.

Judge Sotomayor’s likely confirmation, alas, is unlikely to change that dynamic.