Supreme Court confirmation hearings are mainly about the back and forth between Senators and the nominee. That's the constitutionally-mandated "advice and consent" dance: Senators get to ask long and often muddled questions and nominees get to give carefully crafted answers that do not reveal how they would rule in any particular case. And if there are any big surprises next week, they will likely come during the questioning. Will there be a made-for-TV "gotcha" moment when Judge Sotomayor is asked something that catches her off guard, despite the grueling hours she has put in to prepare for the hearing? Will a quick-footed response by the Judge turn the tables and put her critics back on their heels?
But questioning is not expected even to begin until Tuesday morning -- with all of Monday devoted to opening statements -- and at past hearings, outside witnesses such as Anita Hill have played a critical role. In this second of two posts (the first is here) previewing my live blogging for Huffington Post next week, I look at what could be some of the key moments in the hearings.
Judge Sotomayor's Opening Statement
Monday's most dramatic moment will come when Judge Sotomayor gives her opening statement. While she gave brief remarks at the White House when her nomination was announced, the opening statement that she gives at her hearing will be more important and more difficult: here, Judge Sotomayor will make the affirmative case for her confirmation while subtly answering and disarming her critics.
In this, her best model may be Chief Justice John Roberts, Jr., who drew on his years of advocacy before the Supreme Court to eloquently set the stage for his hearings with his "judges are like umpires" metaphor. "Umpires don't make the rules," Roberts said. "They apply them." In answering questions by Senators, Roberts came back to this metaphor again and again, building so strong a case for confirmation that even progressive stalwarts such as Patrick Leahy and Russ Feingold felt moved to vote in his favor.
Sotomayor's task is to emulate Roberts, but do him one better. Roberts' "judges as robotic arbiter" is attractive, but incomplete. Supreme Court justices do more than call balls and strikes, they decide the most difficult legal questions in ways that often affect the lives of millions of Americans. And, as Judge Sotomayor put it in a speech given in 1999, the goal of our legal system not simply to decide cases, but to provide "justice," "an elegant and beautiful word that moves people to believe that the law is something special."
In that inspiring and so far unnoticed speech, Judge Sotomayor assesses what doing justice means in our court system where "the law commands a result, a result that leads to a winner and therefore a loser." To think about justice, she tells a group of young and aspiring lawyers:
...you must constantly step out of the role you are in and not just listen to your adversaries but learn to appreciate their perspectives... To be fair, to seek truth is not easy. It is the hardest task you face. Justice asks you not only for a fair result but for a commitment that you will pursue justice fairly in every step you take as a lawyer.
Notice two critical moves by Judge Sotomayor in this speech. First, she talks about what President Obama calls empathy -- the ability to appreciate the perspectives of all those who come into the legal system -- but explains that this is not a stand-alone criterion but rather a central ingredient of what all Americans see as the goal of our court system: Justice. Second, she makes clear that empathy and the rule of law are not at all in tension, but rather two indispensable components of our system of justice.
An opening statement along these lines on Monday would both speak powerfully to American values and defang a central claim Judge Sotomayor's opponents will surely make: that she will rule based on feelings rather than the rule of law. Such a statement would one better her future Chief and could set Sotomayor on the way to an easy confirmation.
Senators' Opening Statements
On Monday, before Judge Sotomayor officially takes the stage, each of the 19 Senators on the Judiciary Committee will have an opportunity to make an opening statement and thus attempt to shape the rest of the proceedings.
For Republicans, the objective is to use the opening statements to frame the hearing around the carefully selected portions of Judge Sotomayor's record that they believe give them their best chance to portray her as an out-of-the-mainstream "liberal judicial activist."
The easy approach for Democrats would be to use their time to highlight Judge Sotomayor's extensive qualifications and record, and rebut attacks that have already been leveled against her. But that would simply set the story line Republicans want: hearings focused on their objections. As I argued in the first part of this preview, a more aggressive and better approach would be to use this rare time when the public's attention is focused on the Supreme Court in order to call out the Court's conservatives for rulings that ignore constitutional text and history and that strike down or limit important federal statutes enacted to protect the civil rights, safety, interests and well-being of Americans. Some Senators on the Committee, notably Chairman Leahy and Senator Specter, have already begun to tell this important story. They can establish the need for Justices like Sotomayor on the Court, and start winning the broader battle over the future of the Supreme Court, by turning the Sotomayor hearings into a referendum on the activism of the Roberts Court.
The Senators' opening statements will also be fascinating to watch because of the significant recent changes to the makeup of the Judiciary Committee. Stalwarts such as Joe Biden and Ted Kennedy are no longer on the Committee. Old hands such as Orrin Hatch and Patrick Leahy remain, but in different roles (Hatch is no longer chair or ranking member and this is the first time Leahy has chaired a Supreme Court nomination hearing). One old hand has even switched sides of the aisle (former Chairman Specter). And, of course, there are several completely new faces on the Committee, the newest being the just-sworn-in Al Franken.
And so the Committee's lineup raises many questions and much to look out for. How will Jeff Sessions perform on the tightrope he's walking of courting his party's right-wing base while at the same time trying to appear to be fair and open-minded to the nominee? Will the new members prove to be able questioners? Can Al Franken, who is not a lawyer, use his communication skills to effectively explain why ordinary Americans should care about the Supreme Court? Will Sheldon Whitehouse, a former United States Attorney and State Attorney General make a name for himself using his skills as an advocate? The bright lights will be on, but we don't know who will shine and who will flame out.
Outside witnesses have played a major role in some previous Supreme Court confirmation hearings. Everyone remembers Anita Hill of course. But Harvard Law Professor Larry Tribe's testimony against failed Supreme Court nominee Robert Bork was perhaps even more momentous. Justice Thomas was confirmed anyway; you could argue Tribe's testimony against Bork prevented both these legal titans, one from the left, one from the right, from ever sitting on the Supreme Court. Justice Alito's nomination received a considerable boost by the fact that his progressive colleagues on the Third Circuit came to Washington to testify on his behalf.
But outside witnesses only matter if confirmation is in doubt after the nominee testifies. (Can anyone out there name a witness for or against Chief Justice John Roberts or Justice Ginsburg?) If Judge Sotomayor is even just competent in her own appearance, the hearing room will be half empty during Frank Ricci's testimony late in the week. Which brings me to the most notable name on either side's third party witness list: Mr. Ricci, the "victim" of Judge Sotomayor's most notorious ruling.
Mr. Ricci will surely garner the lion's share of whatever media spotlight remains focused on the tail end of the Sotomayor hearings, but the question is what good this attention will do for the Senate Republicans who have asked Mr. Ricci to testify. Yes, he has a sympathetic story. But do Republicans really wish that Judge Sotomayor had bent the law and prior rulings of her Circuit to rule in Ricci's favor? By so nakedly relying on the sympathetic facts of Mr. Ricci's case in advocating against Judge Sotomayor, Republican Senators will hopelessly muddle their larger assertion that President Obama wants judges with empathy, while they want judges who follow the law. That is, if anyone is still listening.