Last week’s Supreme Court confirmation hearings got plenty of coverage (here, here, and here). Commentators paid close attention and often left disappointed with the lack of substance (here or here). Even local legal scholars (check out Esenberg’s blog or Althouse’s coverage) have been disappointed.
I beg to differ. The whole hearing can be compared to football (of course). Better yet, Big 10 football. The senators clearly lined up in a power formation, ready to slog it out with Sotomayor’s strong, able, ready defense. No one expected any points in the whole game, the question was just who would tire first. Just as I like watching the Badgers, I enjoyed the hearings.
The whole performance stayed well within the established norms (glancing over reviews of Roberts’ and Alito’s hearings shows not much has changed). Senators did great at lecturing on their judicial philosophy, their concepts of virtues, ethics, and expectations. For example, on the 3rd Day, Senator Coburn (R-OK) ‘asked:’
Coburn: …I’m having trouble understanding how we got to a point where a right to privacy, which is not explicitly spelled out but is spelled out to some degree in the Fourth Amendment, which has settled law and is fixed, and something such as the Second Amendment, which is spelled out in the Constitution, is not settled law and settled fixed.
I don’t want you to answer that specifically. What I would like to hear you say is, how did we get there? How did we get to the point where something that’s spelled out in our Constitution and guaranteed to us, but something that isn’t spelled out specifically in our Constitution is? Would you give me your philosophical answer?
The points and final question are valid. Asking a future (unless she has a breakdown) Justice about legal guarantees arising from interpretations of the Constitution can enlighten the Senators on how the Court views those amendments and plans on deciding cases. No doubt Senators can determine their preference for that nominee based of such an answer. The answer is interesting:
Sotomayor: One of the frustrations with judges and their decisions by citizens is that … what we do is different than the conversation that the public has about what it wants the law to do.
We don’t, judges, make law. What we do is, we get a particular set of facts presented to us. We look at what those facts are, what in the case of different constitutional amendments is, what states are deciding to do or not do, and then look at the Constitution, and see what it says, and attempt to take its words and its — the principles and the precedents that have described those principles, and apply them to the facts before you.
…And so it’s not that we make a broad policy choice and say, “This is what we want — what judges do.” What we look at is what other actors in the system are doing, what their interest in doing it is, and how that fits to whatever situation they think they have to fix, what Congress or state legislature has to fix.
All of that is the court’s function, so I can’t explain it philosophically. I can only explain it by its setting and what — what the function of judging is about.
But the answer elaborates on the simplest understanding of the judicial branch. The judicial branch judges facts based on rules in precedent and the concrete laws.
So, none of this is surprising. The excitement I saw was from – interestingly – Senator Franken (D-MN). His awkward question about Sotomayor’s favorite Perry Mason episode suddenly enlivened the hearing:
Notice Sotomayor wake up. Her speech speeds up. She is no longer lecturing or reciting practiced speeches. Her personality starts becoming apparent. This, I think, is interesting. The substance could have been predicted, but the style fed into the predictability. When the style changed with a little humor, suddenly we got a brief look at how future hearings might challenge the status quo of canned answers, long lectures, and constrained dialog. Just as the spread offence in college football has challenged defenses to adapt, changing the style and format of questioning would open hearings to more interesting and sustentative debates.